Summary
In Downs v. Mayor and Common Council of the City of South Amboy, 185 A. 15 (N.J. 1936), a court decided that an ordinance which forbids an interest in municipal improvements made at municipal expense does not extend to improvements paid by another.
Summary of this case from Opinion No. MW-477Opinion
Submitted October 25, 1935 —
Decided May 14, 1936.
1. A municipality may enter into a contract with a railroad company for the improvement of facilities, by virtue of the provisions of the act concerning railroads. Section 30, as amended by Pamph. L. 1925, p. 377.
2. Section 32 of the Crimes act (2 Comp. Stat., p. 1755) forbidding officials of a municipality from having any interest in a contract of the municipality which provides for an improvement to be made at public expense, has no application to an improvement, the cost of which is to be paid entirely by a railroad company.
3. It must clearly appear that a member or members of a common council who voted for the passage of an ordinance had such an interest in its passage as would disqualify them from impartial action in a quasi-judicial act. There is an exception to the disqualification rule, that if there be no means of proceeding, if the judge is disqualified, he may take such cognizance of the matter as may be absolutely necessary.
4. Ordinarily, to make an ordinance of a common council a valid enactment, it must be approved by the mayor, and in the absence of proof that his action was unduly influenced, it will be presumed to have been impartial.
5. Where the passage of an ordinance authorizing the closing of a portion of certain streets incidental to the carrying out of a public improvement was highly advantageous to the municipality, and greatly desired by the public generally, the desire to attain that object was not an unlawful inducement to such action.
On appeal from the Supreme Court, in which Mr. Justice Case filed the following opinion:
"The record is incomplete. Neither the writ nor a copy thereof appears. There is stress of time because of the representation that certain government funds available for the project will fail unless the parties be in position to act by the 15th of this month. I shall therefore assume that my understanding is correct in that the writ of certiorari brought up the ordinance, numbered 353, passed by the common council of the city of South Amboy on April 2d 1935, and that alone.
"Respondents argue in limine that the prosecutors have no standing to prosecute a writ of certiorari. It is true that certiorari to review the actions of public officials will not lie in favor of prosecutors who have no personal or property interest to be specially and immediately affected by the action complained of. Mayor of Jersey City v. Traphagen, 53 N.J.L. 434. The mere vacation of a public street by a municipal body does not involve the infringement of a private right. It is only a surrender or extinction of a public easement. United New Jersey R. and C. Co. v. National Docks, c., 57 Id. 523. But there are questions that should be answered.
"The prosecutors present three points, the first of which is: `Said ordinance was approved, adopted and passed by and through the votes of the members of the Common Council of the city of South Amboy who were, by reason of their stock ownership in and employment by the Pennsylvania Railroad Company and the Raritan River Railroad, disqualified from voting upon said ordinance.'
"The common council consisted of five members. Of that number two were employed by the Pennsylvania Railroad Company and one by the Raritan River Railroad Company, a majority of the corporate stock of which is owned by the Pennsylvania Railroad Company and the Central Railroad Company of New Jersey; and one of the three members of council owned a single share of stock in the Pennsylvania Railroad Company. The point as stated rests essentially upon those facts.
"The right of way, tracks and fixed railroad facilities at the locus are the property of the New York and Long Branch Railroad Company and presumably that is the corporation which will construct and own the new facilities. I have searched in vain through the state of case for precise information as to the relations between that railroad company and the Pennsylvania and New Jersey Central companies. The chief engineer of the New York and Long Branch Railroad is also the chief engineer of the New Jersey Central. The New Jersey Central and the Pennsylvania apparently have certain operating rights; and of those two roads only the Pennsylvania appears to plan immediate propulsion by electricity. Beyond that I am in the dark.
"The plans of the Pennsylvania Railroad Company for electrification ended at South Amboy Junction. Wide sentiment sprang up in the city of South Amboy to have the improvement continued to that city so that the inhabitants might have the benefit of the more modern means of transportation and of a better train service than would be available if the terminus of the electrified train system was short of that city. The cost of continuing the improvement was considered prohibitive unless the owning company was relieved of the necessity of building underpasses for certain of the intersecting streets. The New York and Long Branch railroad runs through the easterly end of South Amboy at a distance of approximately one city block westerly from Raritan bay. The streets crossing the railroad right of way in the vicinity of the locus are, in their order from north to south, Augusta street, David street, Henry street, John street, George street and Bordentown avenue. Bordentown avenue, as it proceeds westerly, becomes a main thoroughfare, as does also Augusta street because of its junction with Main street. David street also joins with Main street. Each of the remaining streets, according to the proofs, comes to a dead end within three or four blocks west of the railroad tracks and traffic thereon moving to points west must there transfer to one of the mentioned thoroughfares.
"The ordinance provides for vacating, except as to certain municipal uses, such portions of David street, Henry street and George street as lie within the lines of the railroad right of way and becomes effective only when certain things are done by the New York and Long Branch Railroad, the Central Railroad Company of New Jersey, or the Pennsylvania Railroad Company. The acts thus required to be done are, chiefly: the opening, construction, curbing and paving of a new street, and the construction of a sidewalk along the same, from Augusta street to Bordentown avenue, adjacent to the railroad, thus providing an inter-communicating avenue between all cross streets; the paving of Augusta and John streets in the vicinity of the railroad; construction of pedestrian over-passes at George street and at or near Henry street whereby foot traffic might cross the railroad at those points; the construction of a new passenger station in that location with shelters, sidewalks and other incidents; the installation of various storm sewers and fire hydrants in the locality; the electrification of the railroad as far as the South Amboy station and the providing of a certain train service. There is a further proviso that the railroads enter into an agreement with the city of South Amboy to do the aforementioned things. It will be observed that the thoroughfares, Augusta street and Bordentown avenue, and also John street, remain open.
"There seems to have been, and to be, a unanimous desire for electrification and for the remaining improvements with the exception of the closing of the designated crossings. The one fly in the ointment is the abolishment, without which the railroad company would not proceed, of the crossings at David, Henry and George streets.
"The program of the ordinance has every appearance of a genuine public improvement at a minimum of private inconvenience. It is, of course, understandable that those upon whom the inconvenience falls should object; and their objection should prevail or fail, depending upon its legal force.
"In support of point 1 prosecutors rely upon section 32 of the Crimes act. 2 Comp. Stat., p. 1755. I think that that statute is directed toward an entirely different phase of municipal action and does not apply to the instant case. No improvement is to be made at the public expense; no payment is to be made by the common council. If the statute does not apply, neither do the cases which turn upon it.
"There is, however, another legal principle which must be considered. It may be argued that the common council, in weighing the advantages to many and the inconveniences to some, was engaged in a quasi-judicial act; and upon that hypothesis arises one of the fundamental maxims of law, that no man can be judge in his own case. State, Winans, Prosecutor, v. Crane, Collector, 36 N.J.L. 394. I am not convinced that the three members of council who voted for the ordinance were so situated as to come within the reach of that rule, but if it be considered that they were, we are met with an exception to the rule, which is that if by the disqualification of a judge there would be no means of proceeding, he may take such cognizance of the case as is absolutely necessary. In the Matter of Ryers, 72 N.Y. 1; Traction Co. v. Board of Works, 56 N.J.L. 431; State, Winans, Prosecutor, v. Crane, Collector, supra; Kuberski v. Haussermann, 113 Id. 162 , 170. There were five members of the common council. With these three out there would be no council and therefore no body to pass upon this locally important matter which, for reasons within the record, would not permit of delay. I consider that the point is not well made.
"Prosecutors advance as their second point that `said ordinance was approved by the mayor of the city of South Amboy who at the time of said approval was disqualified by reason of stock ownership in and employment by the Pennsylvania Railroad Company.' The mayor owned no stock. He was employed by the Pennsylvania Railroad, and his wife was and had for many years been the owner of one hundred shares of corporate stock in that company. Prosecutors have in no way made manifest that the function of the mayor, in considering the ordinance, could have been dispensed with or that another could have acted in his place. I am not informed as to the law under which the city of South Amboy was incorporated, nor of the statute applicable to the duties of the mayor; the question is not argued, and the burden, of course, is upon the prosecutors. I therefore come to the same conclusion with respect to the mayor as I did with respect to the members of the council.
"Prosecutors' point 3 is that `the approval, passage and adoption of said ordinance is void and illegal because all of the members of the common council who voted for said ordinance and the mayor of the city of South Amboy, who approved said ordinance, were improperly influenced and motivated in voting for said ordinance and approving same by an illegal consideration, to wit: The offer of the New York and Long Branch Railroad Company, the Central Railroad Company and the Pennsylvania Railroad Company, or one of said railroads, or all of said railroads, or a combination of said railroads, to erect and construct a new railroad station in South Amboy and to electrify the train service of the Pennsylvania Railroad Company from South Amboy to New York and intermediate points,' and the reliance is upon Long v. Union, 79 N.J.L. 70. That case concerned a grant made by municipal bodies to a cemetery company and was induced by a contract on behalf of the company to build and cause to be operated a trolley line, not as a means of reaching the cemetery merely, but as an accommodation to the residents of a section of the township, irrespective of the cemetery uses. All of the acts proposed to be done in the instant case, taken together, constitute a unit. Each act is an essential part of the electrification scheme. The entire program, with the exception of a single factor, is an object of universal public desire. The main object to be attained is a major improvement, highly advantageous to the municipality. The desire to attain that object was not, I think, an unlawful inducement. Sherwood v. Paterson, 88 Id. 456; affirmed, Id. 738; Kean v. Elizabeth, 54 Id. 462; affirmed, 55 Id. 337. Concerning the right, generally, of a municipality to contract with a railroad company for the improvement of facilities, see section 30 of the act concerning railroads (Revision of 1903), as amended by chapter 145, Pamph. L. 1925, and Barr v. New Brunswick, 58 Id. 255.
"There were no fraud and no improper influence. I do not feel justified, under the circumstances, in declaring the ordinance void. The writ will be dismissed, without costs."
For the appellants, John E. Toolan.
For the respondents, Francis P. Coan and W. Holt Apgar.
The judgment under review herein should be affirmed, for the reasons expressed in the opinion of Mr. Justice Case in the Supreme Court.
For affirmance — BODINE, DONGES, HETFIELD, DEAR, WELLS, WOLFSKEIL, JJ. 6.
For reversal — THE CHANCELLOR, HEHER, PERSKIE, RAFFERTY, JJ. 4.