| N.J. | Jun 10, 1901
The opinion of the court was delivered by
By an ordinance approved August 24th, 1896, the common council of the town of Phillipsburg passed an ordinance permitting the prosecutor to place its poles and stretch its wires on each and every street and alley in the town for the purpose of conducting electricity through the town; the ordinance prescribed the character of the poles and the manner of stringing the wires and the supervision under which they should be erected; it also required certain services to be performed by the company for the town in consideration of the permission granted, and provided for the filing of an acceptance of the ordinance. The acceptance of the ordinance was duly filed as required.
In the spring of 1899 the company built more than a mile of a pole and wire line in Phillipsburg, and there is evidence to show that this was done under the supervision of the committee on streets and alleys, as provided in the ordinance, and made contracts for over eight hundred lights for private consumers, and the first lights were used in April, 1899, and
We think that this question is settled by the cases of Hudson Telephone Co. v. Jersey City, 20 Vroom 303, and Suburban Electric Light and Power Co. v. East Orange, 41 Atl. Rep. 865, which hold that permission granted by a common council under like circumstances to this was, after acceptance and expenditure of money under it, irrevocable.
The proceedings leading to the passage of the original ordinance cannot be reviewed by this writ nor can we now look into the considerations which influenced the members of the council to vote for it. It is an attack upon it in a collateral proceeding; fraud or misrepresentation is not sufficient to avoid the act of a legislative body, even if proved. Jersey City and Bergen Railroad Co. v. Jersey City and Hoboken Horse Railroad Co., 5 C. E. Gr. 61, 76.
That the stockholders, officers and managers of the company are now persons different from those who were its stockholders, officers and managers when the permission was granted, could not afford a reason for the repeal of the ordinance granting permission; the permission was to the corporation, not to the individual members thereof. If the corporation is not complying with the terms of the permitting ordinance, obedience thereto should be enforced by appropriate proceedings. But if the ordinance was repealed it could not be remade; the repeal of the ordinance would not accomplish such obedience, but would be the imposition of a penalty for failure to comply therewith, and no such penalty is anywhere authorized.
If the corporation is engaged in acts not warranted by its charter or in violation of the laws of the state, -that is a matter in which the state is concerned, and a proceeding to forfeit its franchise would be the appropriate remedy. Eliza
This repealing ordinance must be set aside.