26 N.J.L. 594 | N.J. | 1857
The opinion of the court was delivered by
The important question in this case is, whether the proceedings of the common council of the city of Newark, in opening the street for which the assessment was made, are void for want of a proper application of the laud-owners for that purpose, so that the sale of land made to raise the sum assessed thereon is also void, and confers no title on the purchaser* The 30th section of the charter enacts that it shall be lawful for the common council to lay out and open streets, roads, highways and alleys, and to cause any .street, road, &c., already laid out, to be vacated, opened, altered or widened j provided no street shall be altered or widened as aforesaid, except on the application in writing by three-fourths of all the owners of lands lying on said road. It is found, by the special verdict, that the street laid out and opened was a street, road or highway then already laid out-, opened and used in said city, and became such street, road or highway before the passage of the charter, the same having been laid out and defined by a survey made in 1753, a copy whereof is annexed. This survey is certainly vague, and is probably so uncertain that it would
It also appears, by the special verdict, that the owners of lands and real estate necessary to be taken for the street laid out and opened, and called Quarry street, agreed to take a certain compensation for their lauds,' which was authorized to be paid, and it may be presumed was paid ¿ and hence it was insisted, by the counsel for the defendants in error, that it sufficiently appears that not merely three-fourths, but all the owners of land lying on said road, did apply for and consent to the altering or widening of said road. But if it be admitted that an acceptance of' compensation by the owuers can be regarded as equivalent to a petition in writing, it does not appear that the owners of land necessary to be taken for the street comprised three-fourths of all the owuers of laud lying on said street. Many of the owners of lands lying on said street may have owned no land necessary to be taken in laying it out and ' opening it. And, besides, the council did not profess to proceed under the power given to them to alter and widen an existing street, but under the power to lay out and open a new street.
Assuming then, as we must, that the council, either in ignorance of the fact that a street had been there before laid out and opened, or, regardless of that fact, did proceed to lay out and open a new street where one existed before the granting of the charter, the question is, whether their proceedings, although for this reason irregular and liable to be set aside upon a direct proceeding by way of certiorari, are so far available as to be good in a collateral proceeding like the present. The argument relied on to sustain them was, that they were of a judicial nature, and therefore, however illegal, remain in force
Much of the discussion in this court turned upon the question whether the act of the council, in laying and opening this street, was judicial in its character. That a proceeding of this kind does not necessarily belong to the judicial department of the government, as defined by the constitution of this state, must be admitted, otherwise it could not be exercised by any other persons than those who belong to it, as provided for in that instrument. It is probably best designated as quasi judicial, or judicial in its nature, that is judicial in such a sense that the tribunal intrusted with its exercise is subject to the control of the Supreme Court, as commissioners tu settle the boundary line between counties were held to be in the case of The State v. Coleman, 1 Green 98. But the determination of this question does not settle the difficulty, for an act in the largest sense judicial is totally void when attempted to be exercised by a court, or other tribunal, having no jurisdiction in the case.
There is a marked and well-settled distinction on this subject between the acts of courts having a general jurisdiction, and those of tribunals having only a limited jurisdiction, and empowered to act in a special case. In the case of Turner v. Beale, 2 Sal. 523, it was held that a plea setting up a discharge of a poor prisoner by the Quarter Sessions must set. forth that he petitioned for a discharge, without which the court had no jurisdiction; and this case has been repeatedly recognized as law. Den v. Hammell, 3 Harr. 73; Price v. Bray, 1 Zab. 13; Ladbroke v. James, Willes 199; Service v. Heermance, 1 Johns. R. 91 ; Stephens v. Ely, 6 Hill 609. In the case of Den v. Ham
It was urged, for the defendant in error in this ease, that the common council had a general power to lay out all streets and to widen streets already laid out; and being a permanent body, and required by the 32d section of the charter to ratify the assessment .upon those benefited, subject to an appeal to the Supreme Court, these proceed
The surrogates in the State of New York bold courts and act judicially; but being courts of inferior and special jurisdiction, it is held that when an order to sell lands is produced as evidence in an action of ejectment, it must appear that a petition was presented, accompanied by a proper account, so as to show that the surrogate liad jurisdiction. Jackson v. Robinson, 4 Wend. 436; Jackson v. Crawfords, 12 Wend. 533. In case of Sharp v. Spier, 4 Hill 76, which was an ejectment to recover land sold for payment of an assessment for making a pump in the village of Brooklyn, under an act which authorized the trustees, on the application in writing of the persons owning property, to divide the village into pump and well districts, and a petition was shown, but no evidence was produced that the signatures were genuine, or that they were owners of property, it was held that the trustees acted at their peril; that they could not make the occasion by resolving that it existed ; and that corporations and their officers, where they interfere with the rights of individuals, and especially when they attempt to divest and transfer the title to real estate, must show that the very-case has arisen in which they were authorized to proceed.
There can be no doubt that, according to the loug-established practice in New Jersey, the Supreme Court has a right to review the proceedings of corporations and all other inferior tribunals who do acts affecting the rights' and property of individuals, which are judicial or quasi judicial in their nature; and may do this as well when those proceedings are wholly void for want of any power or jurisdiction in the tribunal to act, as when they are illegal in consequence of some material irregularity. The judgment of a justice of the peace in a case of replevin, should he erroneously proceed in such a case, would undoubtedly be wholly void, but it might also be set aside by means of a certiorari. In our judgment, public policy requires that the proceedings of our numerous municipal corporations should be kept strictly within the limits assigned to them by the statutes authorizing them, and if
For affirmance — -None.
For reversal — Judges Elmer, Haines, Ryerson, Arrow-smith, CORNELÍSON, RlSLEY, VALENTINE, and WOOD.
Cited in State v. City of Perth Amboy, 5 Dutch. 260; Nixon v. Ruple, 1 Vr. 600; State v. Brown, 2 Vr. 357 Phillips v. City of Hudson, 2 Vr. 149; State v. Mayor of Orange, 3 Vr. 54; State v. Town of Union, 3 Vr. 345; State v. Jersey City, 5 Vr. 398; State v. Inhabitants of Trenton, 7 Vr. 501; Paret v. Bayonne, 10 Vr. 564; Morris Canal and Banking Co. v. Jersey City, 1 Beas. 257 ; Dinsmore v. Westcott, 10 C. E. Gr. 475.