Brown v. Street Lighting District Number One

69 N.J.L. 485 | N.J. | 1903

Fort, J.

In this case the court has reached the following conclusions:

First. The legislature may confer upon a single justice of the Supreme Court the power to hear and determine proceedings in certiorari and authorize the entry of his order and direction therein as the judgment of the Supreme Court. Mott’s Practice Act 135, § 5.

By the act relative to Supreme and Circuit Courts the Supreme Court may be held by the Chief Justice or any one of the justices. Pamph. L. 1900, p. 350, § 7.

The same provision is’found in the revision of 1874, and was carried into that revision from existing statutes. Gen. Stat., p. 1023, § 19; Wood v. Fithian, 4 Zab. 838.

Second. Certiorari is the proper remedy to review the legality of the passage of a resolution fixing the sum of money to be raised and expended in the lighting district for the ensuing year, under the authority conferred by the Street Lighting District act. Gen.. Slat., p. 3669, § 450.

Third. Under the proof taken in this case it appears that less than ten days' notice of the election held for'the purpose of fixing said sum, as required by the statute, was given by the township clerk, and for this reason the prosecutor asks that the action of the meeting in voting the sum directed to be expended in the district for the ensuing year be set aside.

The statute fixes the first Tuesday in June of each year for the legal voters of each district to meet, after the district is set up, to elect the lighting commissioners and to determine by ballot by a majority of those present the sum to be raised and expended for street lighting. The polls are required to he open at - o'clock in the afternoon and to close at seven o'clock at night.

The township clerk is required to give ten days' notice of’ the time and place of the meeting.

Under the -proof in this case it is clear that the requisite notices were not set up for the required ten days.

I think this would be fatal under the decisions in this state if no other fact, appeared in the case. Canda Manufacturing Co. v. Woodbridge, 29 Vroom 134; Davis v. Rapp, 14 Id. 594.

But it appears in this ease that the prosecutor attended and participated in .and voted at the election without protest or objection. There was a very full vote at the election—a greater number than usual. Two hundred and eight voted. If the resolution be set aside there would be no method for a reconsideration of the action of the lighting district. The prosecutor comes before the court upon the merest technicality without showing that a single person who wished to vote did not do so, or that any voter in the district did not, in fact have notice of the election. He admits he did and that he voted. I think he should be held to be estopped from raising the question of the irregularity of the notice.

The writ of certiorari will therefore be dismissed, with costs.