(dissenting.) The certiorari in this case brings before us an ordinance, passed by the common council of Jersey City, to reverse or annul which, or certain sections therein, is the object of the writ, and on the ground that the sections are null and void so far as these prosecutors are concerned, they never have violated any of them, nor done anything to render their passage necessary.
I am unable to perceive either the necessity or propriety of these proceedings. The ordinance is one which de*177dares certain tilings to be nuisances in that city, and seems to bo confined to such tilings as are deemed dangerous or inconvenient in the public streets, and while not confined to railroads, locomotives, cars, and the like, still the principal force of the ordinance is directed against those things, and relates to their rate of speed, (heir standing in the streets, the fencing in the tracks, &c. The ordinance does not refer to the prosecutors by name, but is general in its character, and comprehends all railroads, all locomotives, and all ears, by whomsoever owned or used. There is no allegation or pretence that the prosecutors have violated this ordinance or rendered themselves in any way obnoxious to its provisions. Nor lias there been any complaint, prosecution, or interference with them under the ordinance in question, nor have we any knowledge of any probability that there ever will he. Why, then, should we be called on to annul an ordinance, or any of its sections, which may be entirely harmless in itself, under which no one has ever suffered, and to enforce which no attempt may ever he made ? Will it not be time enough to do this when an effort shall he made by some one to enforce some of its provisions against the prosecutors or some one else? There are now some half-dozen different railroads terminating in Jersey City, to all of which tiie sections of this ordinance apply with the same force that they do to the prosecutors; and it is absolutely impossible to say, amidst the whole of them, that no ease can possibly arise where the provisions of some of the ordinances may not have just and legal force: and it seems to me decidedly unwise and improper to attempt, to decide in advance every possible question that can arise under the ordinance, or any of its sections, by a sweeping nullification of the whole of them.
We shall certainly fill the court with a large amount of unprofitable, as well as unnecessary litigation, if we undertake to hear on certiorari every person who is displeased with the passage of any or all the useless, stupid, or nu*178gatory ordinances of all the municipal corporations of the state, or all the shallow, insane, or unconstitutional laws that may be passed by the legislature, simply because they have been passed, and where no attempt has been made, and probably never will be, to put them into execution.
If it be true, as the prosecutors allege, that this ordinance is void as to them ; that they never did anything render its passage necessary; that they have not violated it since, and-do not intend to do so, they will always be able to defend themselves successfully if assailed or molested under it • and until some such event occurs, I think the court should not interfere.
. An effort has been made to draw a distinction between what are termed judicial ordinances and such as are not, and there is sufficient authority for sustaining the idea that the former may be, and should be removed and reversed without waiting for any proceedings to be had under them. But this is in no sense a judicial ordinance, but is clearly and purely a general one. It directs nothing to be done. It only prohibits the doing of certain things dangerous to the welfare of the city, It imposes no duties to be performed or burdens to be borne by any citizen or class of citizens iti particular, but applies to all persons alike who shall violate it.
The class of ordinances which directs the paving of streets, the opening of sewers and the like by particular individuals, are likened to the decisions of legal tribunals, and if passed by competent authority, acting within their proper jurisdiction over the subject matter, they cannot be called in question collaterally, even if illegal and wrong, but must be first reversed, like an illegal judgment or decree of a court, by a direct appeal to a superior tribunal for that purpose. Hence they are termed judicial ordinances. But it is never necessary to take this course with an ordinance that is simply unconstitutional or null and void in itself. Advantage can always be taken of these and the like defects when an attempt is made to en*179force it This, then, not being a judicial ordinance, we should not interfere with it in this way, even if it bo unconstitutional or void. If it be not unconstitutional or absolutely void, but one of a nature which the common council had a legal right to pass, and is only useless and unnecessary, then we should not and cannot properly interfere with the legislative discretion in passing it. We have no power to limit such discretion when acting fairly within the scope of their authority.
The case of Mulford v. Camden, 2 Dutcher 49, is supposed to sustain the views of the prosecutors, but it seems to me to he directly the other way. It was a suit brought by the city of Camden against Mulford to recover for the paving of a street in front of his premises, the city councils having previously, by ordinance, directed him to do so, or in default thereof, that the city should cause the work to be done, and charge the same to the defendant. The defendant had failed to do the paving — the city had caused it to be done — and the suit was brought to recover the expense thereby incurred. It was conceded that the city had the power to pass such an ordinance; but it was •set up as a defence that the ordinance was passed without the petition therefor of a majority in value of the landowners on said street, as the charter required. This defence was overruled by the court, which held that that was a judicial ordinance, and although it had been illegally passed, yet that the city had undoubted jurisdiction over the subject matter and the right to pass an ordinance of the kind, and that therefore the correctness of their action could not be called in question in such collateral manner; but that the error, if any, must be corrected by the removal of the illegal proceedings directly into this court for that purpose. But the court in that case held, with equal distinctness, that when an ordinance was absolutely null and void, as the one before us is alleged to be, it might be disregarded and held as nugatory in any proceeding whenever an attempt should be made to enforce *180it. If, the», the ordinance is what it is alleged to be, there was no necessity or propriety in removing it into this court for reversal. The proceeding, therefore, should not bo entertained.
Cited in State v. Morristown, 4 Vr. 61; State v. City of Paterson, 5 Vr. 171 ; State v. Jersey City, 5 Vr. 400.