| N.J. | Jun 16, 1910
The opinion of the court was delivered by
The writ in this cause reviews the proceedings of the board of chosen freeholders of the county of Atlantic that culminated in a contract between said board and Bryant Reilly for the ■ permanent improvement of a public road known as the Shore road, which runs from Absecon to Somers Point, in the county of Atlantic.
The statutory authority relied upon for the validity of 'the proceeding and contract in question is an act entitled “An act to provide for the permanent improvement of public roads in this state.” Pamph. L. 1905, p. 94.
The scheme of this act is that boards of chosen freeholders may, upon taking the action prescribed by the statute, improve and assume the maintenance of roads within the county to th.e exclusion of the local authorities of the several municipal divisions through which such roads may run. The amount of such contracts that may lawfully be awarded in any one year is prescribed in section 4 of the act, which, as amended in 1908 (Pamph. L., p. 561), reads as follows:
“The estimated amount of all contracts for road improvements awarded in any one year by the board of chosen freeholders together with the estimated cost of repairs of roads already constructed shall not exceed (in excess of the amount which any county may raise in any one year) one-fifth of one per centum of the ratables of the county as reported to the state comptroller for the preceding year exclusive of the state appropriation for road purposes apportioned to any county.”
One- of the controversies in the present case is over the meaning and effect of the parenthesis in this section. If, as the prosecutor contends, the effect of these words is to authorize awards in excess of the amount otherwise already raised for the purpose, provided such excess be not more than the percentage fixed by the section, the present award was unauthorized ; whereas, if its meaning be, as the defendants con
There is another respect in which the proceeding under review does not follow the statutory prescription. Under section 1 of the act of 1905 the board of chosen freeholders is to exercise its discretion in regard to the permanent improvement of roads whose future maintenance will thereupon become a public burden on the county; and in giving preference to one road over others a determination must be made by the freeholders that is expressly required by the statute to be based upon the relative importance of the roads and the distribution of the benefits of the statute to all parts of the county. Whether the discretion thus exercised be regarded as legislative or .as gmsi-judicial in character the attitude of the freeholders and their consequent action must conform to the statutory source of their authority. The entire scheme being statutory, the only relations that can legitimately arise therefrom must themselves be statutory relations unless otherwise provided by the statute. In direct contravention, however, of this plain postulate the action of the freeholders in the present case, from its inception to its culmination, was purely contractual. . In place of the determination contemplated by the statute the board of freeholders entered into a contract with a trolley company that already occupies the highway, with respect to which it has subsisting and unperformed duties, and by force of such contract the freeholders obligated themselves to take over and improve the highway if the trolley company on its part would obligate itself to pay a certain proportion of the expense of so doing. The action of the freeholders in binding themselves by contract as the result of a bargain of this sort finds no authority in the statute, and if it is to be sanctioned the entire scheme and equity of the statute go for nothing.
One result of this departure by the freeholders from the statute is that the approval of the state road commissioner was not obtained as required by the statute, and this is but one of the many complications that must inevitably arise from the irregular course pursued in this case. The plain duty of the freeholders wap to follow the statute, not to seek to improve upon it by the substitution of a totally different scheme that was incompatible with many of the essential requirements of the act. Other questions that were argued need not be considered in view of the conclusion we have reached.
The proceedings brought up by this writ and the contract awarded to Bryant Eeilly are set aside.