# State v. Mayor of Bayonne

> Supreme Court of New Jersey · February 15, 1892 · 54 N.J.L. 293

URL: https://www.frixlaw.com/law-library/cases/8060522

## Case

- **Full name:** THE STATE, THE BOARD OF CHOSEN FREEHOLDERS OF HUDSON COUNTY, PROSECUTORS v. THE MAYOR AND COUNCIL OF BAYONNE AND WILLIAM C. HAMILTON, CITY CLERK, AND THE LEHIGH VALLEY TERMINAL RAILWAY COMPANY
- **Court:** Supreme Court of New Jersey
- **Decided:** February 15, 1892
- **Citations:** 54 N.J.L. 293; 25 Vroom 293; 23 A. 648; 1892 N.J. Sup. Ct. LEXIS 82
- **Precedential status:** Published
- **Opinion:** Dissent by Garrison
- **Judges:** Garrison, Reed
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8060522

## Opinion text

Garrison, J.
(dissenting). The board of chosen freeholders •had an interest in ascertaining the location of the grade of Avenue A, in the city of Bayonne, but has, in my opinion, no ■standing to attack the legality of the ordinance establishing the grade. The interest of the board in the grade of Avenue A arises from the fact that it has included that highway within the lines of its new county road. The duty of the board with respect to highways thus included arises from the statute au'thorizing the laying out of the county road, which is aptly summarized by Chancellor McGill thus : “ In process of construction it (the board) may fix and determine a grade for the road, but in doing so heed shall be had to the established grades of the highways that may be within the county road so that those grades shall be followed (in the words of the statute) ■‘as near as conveniently may be, or can be, done, so as to insure an easy, and as near as can be, even grade throughout the road.’ It is expressly provided that if the grade .of an •existing highway is changed compensation shall be made to 'those who may be injured thereby.”
The city of Bayonne had authority by its charter to establish by ordinance the grade of its highways. The case shows that the present grade of Avenue A was established by ordinance on the 13th day of January, 1891. The case also shows that the grade established by this ordinance was submitted to the engineer in charge of the county road and to the counsel •of the board of chosen freeholders before its submission upon final passage; and that the ordinance in question was passed more than six months before the board of chosen freeholders relocated their road so as to include Avenue A withiu its lines. 'The case further shows that the board of chosen freeholders Fas never, up to the present time, decided that the grade so *308 established does not, “as conveniently as may be, insure an easy and, as near as may be, even grade throughout its road,”' unless the action of the board in relocating its road so as to-include this avenue after the passage of this ordinance be-deemed an adoption of the grade established by the ordinance. Inasmuch, however, as this view would bring the prosecutor’s case to an abrupt termination, I shall assume, in aid of further argument, what is indeed undisputed, that the board of chosen-freeholders has not, up to the present time, decided that the-grade of Avenue A is such that the board may not, consistently with the language of the statute, construct its public road upon it. The failure of the board of chosen freeholders to settle for itself this question embarrasses at every step its present application, and is, in fact, the only thing that gives any color to-its standing in court. For this decision, when made, will dispose of the whole matter. Assuming the decision of the board to be either in the affirmative or in the negative, there will be-left nothing that entitles the prosecutor of this writ to obtain from this court the adjudication it now’ seeks as to the validity of the proceedings taken for the establishment of the avenue-grade. For if that grade is one upon which, consistently with the mandate of the statute, the public road may be constructed, the board is forbidden to change it; and if, on the other hand, it is not such a grade, the board is forbidden to adopt it, being-expressly enjoined in such case to obtain by compensation to those injured a grade which shall insure to the road the features described by the act. It must be evident to every one-who dwells upon the situation thus presented that what is sought by this certiorari is the opinion of this court in aid of the decision which, by the terms of the statute, the prosecutor is called upon to make. Even when so considered it is only-in one of two contingencies that the adjudication, if obtained,, would be of any (and then of doubtful) value to the prosecutor. For if the public road is constructed upon the grade-of the avenue selected, the question of the validity of that grade would, so far as this prosecutor could raise it, be laid at ■rest. If, on the other hand, the road is constructed, upon a- *309 grade other than that of Avenue A, and the board is called upon to make compensation for changing an existing grade, the grade will be before the court with proper parties upon the question of its legality; Avhereas, in the manner now sought to raise it its colorable establishment alone is at issue. Whether even this contingency shall ever arise depends upon the decision as to grade, which the board of freeholders itself must sooner or later make.
It is safe to say that no precedent can be found for the proposition that a person charged with the duty of deciding a •question of fact can reserve his decision until he has obtained from this court, upon certiorari, an adjudication in advance upon one of the questions of law which may possibly arise in the event of one of íavo decisions he may reach. Certiorari is a remedial Avrit, and the prosecutor to whom the state lends its aid must, if a private person, be one who has a personal or property interest specially injured ; or, if a public person, one who can sIíoav that the interest committed to its hands is immediately affected. Jersey City v. Traphagen, 24 Vroom 434 .
My conclusion is, that the prosecutor has suffered no injury, •and hence can have no remedy; that it is threatened Avith no danger, and hence can ask for no protection ; that Avhat it ■really seeks is, that before making a decision into which the ■question ought not to enter it may learn in advance whether it Avill have to make compensation if it constructs its road ■upon some more suitable grade than that of Avenue A. Upon this point I think the prosecutor should not, at the present time, be advised.
The question of laches is necessarily involved in the fore.going considerations. The silence of the board upon the question of grade has worked substantial injury to the defendants .and cannot be screened behind the pending certiorari of the landoAvner. The laches of the board was in respect to a duty Avith Avhich the landoAvner and his certiorari could not possiibly have anything to do.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8060522. Public record. Not legal advice.