90 N.J.L. 49 | N.J. | 1917
The question is the validity of an ordinance providing for the issue of bonds for the construction of a sever system. The ordinance for the bonds vas passed by the council July 17th, 1916. It was published July 21st. The statement published therewith as required by statute gave notice that the bonds vould be issued and delivered after August 18th; but vould not be issued if protest was filed under section 9, chapter 252 of the lavs of 1916, unless a proposition for the issuance was adopted at an election under that section. There was no protest. Thereupon, by virtue of section 2, paragraph 3 of the act of -1916 (Pamph. L., p. 525), the ordinance was conclusively presumed to have been duly and regularly passed and to comply vith the provisions of that or any other act. It is said, however, that this conclusive presumption is not applicable tp a case where the borough is not lawfully authorized to issue bonds. We do uot doubt that proposition. The answer is that it is not applicable; in this case, on the day fixed for the issue of bonds, August 18th, the borough had the authority,- by virtue of an election hold ’August 1st, pursuant to section 90 of the Borough act. Comp. Slat., p. 273. It is urged that the ordinance for the issue of the bonds was passed before that election and that the borough had no authority to construct severs at the time the ordinance was passed and the statement published. This fact; however, shows only a failure in the proceedings for the bond issue, and in the absence of the protest provided for by the act we are compelled to the conclusive presumption that the ordinance was duly and regularly passed and complied vith the statutes; by express statutory provision the validity of the ordinance cannot be questioned, since no action or proceeding was commenced prior to the expiration of the twenty days. Oases decided prior to the act of 1916 are not applicable. The writ is dismissed, with costs.
