Wilson v. Borough of Collingswood

• Decision Date: 05 November 1910
• Citation: 77 A. 1033,80 N.J.L. 626
• Parties: WILSON et al. v. BOROUGH OF COLLINGSWOOD.
• Court: New Jersey Supreme Court

77 A. 1033

80 N.J.L. 626

WILSON et al.

v. BOROUGH OF COLLINGSWOOD.

Supreme Court of New Jersey.

Nov. 5, 1910.

(Syllabus by the Court.)+++++

Certiorari by John O. Wilson and others against the Borough of Collingswood to review an election concerning a water supply. Resolution set aside.

Argued June term, 1910, before PARKER and BERGEN, JJ.

Wilson & Carr (Collins & Corbin, on the brief), for prosecutors.

Francis D. Weaver, for defendant.

PARKER, J. The particular proceeding attacked by prosecutors under this writ is a resolution by the council of the borough of Collingswood, providing for the submission to the voters of said borough of the question of the construction of a waterworks and a water supply system, and of the issue of bonds for the cost of constructing the same, which resolution was passed April 15, 1910. There are three principal grounds of attack, to which others may be considered subsidiary. They are (1) that the jurisdiction of the council was ousted by remonstrances filed as provided in section 90 of the borough act of 1897 as amended in 1906 (page 133); (2) that, in the language of the reasons, "the plan proposed to be submitted to the voters is not sufficiently definite and specific to permit the voters to form any intelligent judgment upon the merits of the scheme"; and (3) that the approval of the State Board of Health and State Water Supply Commission have not been secured.

As to remonstrance: Section 90, as amended, provides, in substance, that the council may not, purchase waterworks or any water supply plant until after application of one-fourth in value of the property owners of the borough, the council shall cause 30 days' notice of intention to submit the question to the voters at a general or special election, to be given by posting and advertisement, and, if within 60 days after the first publication of such notice a remonstrance of at least one-half in value of the property owners be filed with the borough clerk, no election or further proceedings shall be had. It is conceded that remonstrances amounting in all to more than the requisite one-half were filed with the clerk. It is also conceded that from time to time certain of these were withdrawn, and that, if the withdrawals are effective, neither at the end of the 60 days nor at any time prior thereto were there sufficient remonstrances in force to defeat the scheme. The question presented for decision is as to the validity of the withdrawals. It is claimed by prosecutor that the withdrawals were ineffective because the remonstrances were self-executing and ousted the jurisdiction of council which withdrawals could not restore; but this is a petitio priucipii.

It is also urged that the withdrawals were without effect because lodged with the clerk, and that, though addressed to the council, they did not reach that body till after 60 days had expired, because they could not operate until the remonstrance was before the council, at which time its jurisdiction was gone, and that jurisdiction once ousted by remonstrance cannot be restored by withdrawal therefrom. We see no force in any of these arguments. The situation existing at the end of the 60 days was controlling, and the inquiry should be whether at that time there were on file and in force sufficient remonstrances to oust jurisdiction. If not, the council might proceed. Up to that crucial point remonstrances might be made or withdrawn; and we think the proper custodian of them between meetings of the council was the borough clerk, with whom by the express language of the statute the remonstrances must be filed. The withdrawals are adequate in form to express the intent of their signers that their signatures to the remonstrance be cancelled.

Counsel point us to the case of Knopfi v. Roofing Co., 92 Mo. App. 288, as holding on the authority of New Jersey decisions that a remonstrance once filed under such circumstances as those in the present case cannot be withdrawn. That decision seems so to hold; but we do not agree with its reasoning, and...