Benton v. City of Elizabeth

Van Syckel, J.

(dissenting). The evidence shows that the laying of the proposed pipe line by the defendant company for the transit of crude petroleum through the city of Elizabeth will be injurious to the property of the prosecutors, and that gives them a standing in this court to contest the validity of the ordinance passed by the common council of Elizabeth, which gives to said company the privilege of opening certain streets in said city and laying its pipes across-them. I do not question the authority of Duncan v. Hayes, 7 C. E. Gr. 25, and like cases cited on behalf of the defendants, but regard them as having no pertinency to this controversy. No rule is more firmly settled than that persons specially injured by the official action of a common council may challenge its legality.

*417The National Transit Company is a foreign corporation, without any authority from this state to lay its pipe line.

I find no authority in the common council to pass this ordinance, and cannot distinguish this case from the following cases in our own courts, in which the existence of such power was denied: Montgomery v. Trenton, 7 Vroom 79; Domestic Telegraph Co. v. Newark, 20 Id. 344; Hutchinson v. Board of Health, 12 Stew. Eq. 569.

In these cases our courts refused to recognize the right of the common council to grant the use of the street until authority was conferred upon it by the legislature to make such grant, although the consent of abutting landowners was obtained.

In the case of Montgomery v. Trenton the municipal ordinance granted to certain persons the right to lay a railroad track across'West State street with the consent of abutting landowners, and in such a way as not to interfere with travel on the street.

This court said that the common council of the city of Trenton had no power over streets other than that conferred by the city charter, and that the ordinance must fall unless authority could be found for it in the Corporation act.

The provision of the charter of Trenton relied upon to support the ordinance is as follows :

“The common council shall have power to regulate, clean and keep in repair streets, &c., in said city, and to prescribe the manner in which corporations or persons shall exercise any privilege granted to them in the use of any street, avenue, highway or alley in said city, or in digging up any street, avenue, highway or alley for the purpose of laying down pipes or any other purpose whatever.”

It will be observed that the language used in the city charter of Elizabeth upon this subject is precisely that of the charter of Trenton, and it must, therefore, receive the same interpretation.

This court, in construing this provision of the Trenton charter in the case above cited, said that if it applied to *418privileges granted by legislative enactment it did not support the action of council, because there was no such legislative authority, and if it applied to privileges granted by common council, it must be interpreted to mean such privileges as might lawfully be granted. It was further declared, that in measuring the extent of the power of council, the object and purpose for which it was given must always be regarded as the test, and' that only those things which are fairly within the idea of regulating streets, with a view to their use as streets, are competent subjects of corporate legislation.

The idea that the power to council to prescribe the manner in which corporations shall exercise any privilege granted to them in the use of streets related to grants made by property owners to corporations to use the public highways, found no countenance whatever in the view of the court. On the contrary, that interpretation was expressly excluded by restricting municipal action to those instances where grants were made under legislative sanction, and by refusing to accept the consent of abutting owners as a justification for the passage of the ordinance.

The right of common council to regulate the exercise of such privileges does not attach until the legislative authority for it is acquired. The company must be endowed with capacity to receive the right to occupy the street before council can consent to the use of the street by the company.

The argument of the defendant in this case is that the ordinance merely expresses the consent of the municipality to the use of the street so far as the public is concerned, and is therefore within its power. To' the like contention made under the charter of Newark, in Domestic Telegraph Co. v. Newark, supra, the present Chief Justice replied as follows: “Nor can this resolution be sustained on the theory that it merely expresses the consent of this municipality, representing the inhabitants within it, to such an obstruction of its public streets. Authority to thus consent must obviously have been conferred by the legislature. No such authority can be discovered in the charter.”

*419Following the previous declarations of the court in the Trenton case, the Newark ordinance was denounced as illegal and incapable of being validated by the consent of abutting •owners. The rule established by these cases is that the privilege granted must have its basis in legislation to authorize ■council to consent, and it must be alike applicable, whether, the proposed structure is upon the surface of fhe street or involves a digging up of the street to lay pipes under the ■surface.

"We are dealing in this case only with the public right in the highways, and with the power of the common council to ■grant to private corporations the use of the highway so far as it is within public control.

The cases before referred to, which are in accord with many •decisions in other states, circumscribe the legitimate action of the common council, in relation to the public right in the 'highways, to the exercise of such authority as is clearly conferred by the legislature. No such authority appears in this ■case.

But if the consent of the abutting owners constituted a :grant within the meaning of the city charter, “ The Central Railroad Company ” is without authority to lay a pipe line through the city over its right of way for the purpose of transporting petroleum across the state, and cannot bestow such a right upon the foreign corporation.

The right of common council to permit an abutting owner ■of laud to use the street to lay a pipe for the convenience of his land, as a right appurtenant thereto, does not imply the right to permit this foreign corporation to occupy the street for the purpose of its pipe line.

It may be true that these prosecutors could not intervene ■to prevent the conveyance by “The Central Railroad Company” to the “National Transit Company,” or to set aside ■such conveyance, but when the grantee sets it up in defence ■of an act which is specially injurious to the prosecutors, it is' •competent for them to deny that any legal support to the or•dinance can be derived from such grant. If it is ultra vires *420it gives no support to the action of the common council. ■ A grant to support the ordinance must be derived from one who-■has a right to make it. In my judgment the ordinance is illegal and should be set aside. Eor the reasons herein stated I cannot concur in the opinion of the majority of the court.