46 N.J.L. 62 | N.J. | 1884
The opinion of the court was delivered by
The board of aldermen of the city of Paterson, on the 17th day of September, 1883, passed an ordinance for the issue of city bonds not to exceed $40,000, to pay for certain sewers or drains then in process of construction, under resolution of the board of aldermen for that purpose. The ordinance provided for the terms of the bonds to be issued, and ordained that they should be signed by the mayor, sealed with the city seal, attested by the city clerk and countersigned by the comptroller, and, when executed, be sold by the department of finance for not less than par. The- ordinance was duly presented to the mayor of the city, but was returned subsequently without his signature and with his objections.
On the 26th day of September, the board of aldermen, acting within their chartered powers, passed the ordinance, notwithstanding the veto. Bonds were prepared as directed by the ordinance, and on October 9th following were presented by the finance committee of said board for his signature in their execution. The mayor refused to sign them on the same grounds that his approval of the ordinance was withheld. This proceeding is to compel such signature if it be determined as necessary in the execution of such bonds, and if it be his legal duty to do so. That the act of signature required of the mayor is one which, in performance, will be purely ministerial, admits of no doubt. In passing upon the propriety of the ordinance, his capacity was a very different one—one in which his judgment and discretion were called in action; but when, against his opposing judgment,
The mayor denies the duty upon him to sign bonds if ministerial only, alleging that there is no express provision in the section of the charter {Pamph. L. 1871, p. 118,) relating to the issue of such bonds, which requires the mayor’s signature in their execution, or that there is elsewhere, in legislation governing the city, such express direction respecting the execution of such municipal contracts or any ordinance • of the city providing for such general duty. And it is urged that, therefore, this ordinance being for a special issue of bonds as its principal object, is not appropriate or adequate to impose duties on him in respect to such contracts.
The charter provides that every legislative act of the board of aldermen shall be by ordinance. Charter 1871, § 24. The twenty-sixth section of the same act confers on that board power to “make, continue, modify and repeal such ordinances, &c., .as may be necessary to carry into effect any and all the powers vested by law in the corporation.” Amongst these powers is found in the one hundred and eighteenth section that of issuing sewer bonds. Under this legislation an ordinance providing in proper cases for their issue, and prescribing for the manner of their execution, was legal and necessary, and the propriety of such a provision is not questioned. Certain I think it is that, under this ordinance, bonds could not be issued varying from its prescribed terms, either in matter of substance or in the mode of execution; and, however clear the authority may be in the board to authorize the issue of bonds, they cannot, under the form in which power is ordained to be carried out, be effective without such signature of the mayor, and if the issue is otherwise legal, it seems to me to be made as much a part of his duty to
If these were the only objections urged, I think it would be the duty of the mayor to sign them, and against his refusal mandamus becomes the proper mode of relief.
But the respondent denies the city’s right to issue these bonds for the purposes contemplated in the ordinance, because the determination to build the sewers which the bonds aré designed to pay for was expressed in form of a resolution by the board of aldermen, and not by the adoption of an ordinance for that purpose, and therefore claims that the work is being done without proper observance of the requirements of the charter and consequently illegal, and that the bonds are to pay for such illegal enterprise.
The charter of 1871, section 24, provides that every legislative act of the board of aldermen shall be by ordinance
In State v. Newark, 1 Dutcher 399, 427, distinction was drawn between such acts of a municipal corporation as were legislative in their character and such as are judicial, and it was there declared that resolutions ordering improvements to be made in the city, (in that case a sewer,) were legislative acts, and such, I think, is the character generally assigned to them. People v. New York, 5 Barb. 45; Howeth v. Jersey City, 1 Vroom 93; Haight v. Love, 15 Vroom 20; Mabon v. Halsted, Director, 10 Vroom 640.
The legislature, in which the general power over this subject rests, has committed this branch of its power to be exercised by the local government. Without such delegation of power the legislature alone could exercise it. It is well settled that when the law requires a proceeding to be instituted by an ordinance it cannot be' effected by resolution merely. The latter, wanting the solemnities of the former, is not regarded as a legal equivalent. State, Story, pros., v. Bayonne, 6 Vroom 335; State v. City of Paterson, 16 Vroom 267. And in these and other instances in this court, proceedings instituted in disregard of such requirements have been held illegal when brought up for review upon reasoning which need not here be repeated.
These bonds are sought to be issued, and the respondent’s signature required in their execution, to carry on, with the proceeds of their sale, an improvement so illegally begun, and therefore by this method illegally to be continued. The question, then, in this branch of the case is, Shall the mayor be compelled by the court to do an act, against his objection, in furtherance of a measure having its inception without legal authority and in violation of the charter provisions? The case of State, ex rel. Nicolson Pavement Co., v. Newark, 6 Vroom 396, is a decision against it, and I see no reason for questioning the correctness of the principle upon which that
The mandamus asked for should be denied.