Congregation of Mission of St. Vincent de Paul v. Street & Sewer Committee, 56 N.J.L. 48

Congregation of Mission of St. Vincent de Paul v. Street & Sewer Committee

56 N.J.L. 48 | N.J. | 1893

The opinion of the court was delivered by

Garrison, J.

A mandamus is sought to compel “The Street and Sewer Committee of the city of Bordentown ” to purchase materials and construct a brick sewer as commanded in section 1 of an ordinance passed May 5th, 1891, by the common council of the city of Bordentown.

The power to construct sewers in the city of Bordentown is, by the charter of the city, vested in its common council. Pamph. L. 1849, p. 35. In pursuance of the power thus granted, city council on May 5th, 1891, passed an ordinance directing the street and sewer committee, “ after obtaining the right of way from the owners of Bonaparte Park,” to purchase materials and construct the Sewer in question. A grant of the right of way was served on the chairman of the com*49mittee on November 30th, 1892, together with a demand from the relators that the committee proceed with the construction of the sewer. The testimony taken under the rule shows that the committee, after ascertaining the cost of the sewer, reported the same to city council, and that the city council has refused to make any appropriation therefor, and is now here by its solicitor opposing the allowance of this writ. Unless it can be shown that -the street and water committee is a statutory body, owing a duty directly to the relators or to the general public, this application must fall, for the committee, as the case stands, is merely the instrument selected by the municipal powers to perform a duty resting solely with common council both as to the time and manner of its execution. In such case it is needless to say the relator cannot intervene as of right between the principal and its agent against the express will of the superior. The writ is, therefore, denied without considering the question argued before us, viz., whether in view of the decision of the Court of Errors, in Read v. Atlantic City Water Works, 21 Vroom 665, the street committee or even council itself could lawfully incur any obligation for which there existed no specific appropriation.