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Fishblatt v. Atlantic City.

78 N.J.L

from the date of issue as the city council may determine; they shall be disposed of at not less than their par value; the proceeds of such securities may be used for the purpose of making any of the improvements authorized by this act and for other lawful purposes; provided, that in every instance the issue of bonds shall be authorized by ordinance and the purpose for which the bonds are to be used shall be expressed therein, and the proceeds thereof shall be used for no other purpose."

The ordinance under review ordains, in section 1, "that in pursuance of the power and authority conferred upon the city council of Atlantic City by an act of the legislature of this state, entitled 'An act relating to, regulating and providing for the government of cities,' approved April 3d, 1902, and duly adopted by said city at an election held for that purpose on May 6th, 1902, and under and pursuant to other statutes of said state in such cases made and provided, and for the purpose of providing moneys with which to lay out and open the public park mentioned in the ordinance referred to in the title of this ordinance, and to purchase and condemn lands and real estate for such purpose within the limits of the public park or place for public resort or recreation along the beach or ocean front of Atlantic City, established pursuant to the ordinances referred to in the title of this ordinance, there be issued bonds to an amount not to exceed five hundred thousand dollars ($500,000) of this city.”

* The other provisions of the ordinance bring it fully within section 105, above cited, of the act of 1902. The previous ordinances referred to are, one approved October 13th, 1899, establishing a public park upon the ocean front, and upon its face based upon the act of 1894 above mentioned, and an amendment to said ordinance, approved April 10th, 1907, which amends the location of the park as originally established. It may well be that this later ordinance would suffice to bring the public park established within section 66 of the act of 1902, and, if necessary, resort might possibly be had to that section as its authority, but this is not necessary. The act of 1894, the ordinance of 1899 passed thereunder, with its amendment of 1907,

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Fishblatt v. Atlantic City.

are amply sufficient to invoke the power conferred by section 105 of the act of 1902, for the issue of bonds for the purpose declared in the ordinance under review.

By stipulation it appears that the entire bond issue of Atlantic City is well within the limit of fifteen per centum of the taxable value of the property in said city rated for assessment, and therefore the discretion of the city council to issue bonds is limited only by the restriction that the proceeds thereof are to be used for the purpose of making any improvement authorized by the act of 1902, or "for other lawful purposes.

No other force can be given the language of the act of 1902 than that whenever a city is authorized by any law to expend money it may issue bonds wherewith to raise the money.

But the prosecutrix points to the subsequent language of the proviso which is "whenever bonds are issued to provide the funds for any of the purposes authorized by this act,&c., and says that in view thereof "other lawful purposes” means only charter purposes. I think there is no merit in the contention. The pertinent language of the section is this: "The proceeds of such securities may be used for the purpose of making any of the improvements authorized by this act, and for other lawful purposes;

whenever bonds are issued to provide funds for this act, any part of the costs and expenses of which is authorized to be assessed upon the property benefited, the assessments for benefits in every such case shall be exclusively appropriated for the redemption of the bonds so issued, and shall be kept separate from the other funds of such city, and devoted exclusively to this use." So far from this language

a limitation of the bond issue to charter purposes, it seems to me that it has directly an opposite effect if the words "purposes authorized by this actare to be construed as referring to only charter purposes, for the condition as to assessments for benefits is imposed only on bonds issued for such purposes, and the plain inference is that bonds may be issued for other lawful purposes, and on those no condition is im

In my judgment, however, the construction contended

being

posed.

Fishblatt v. Atlantic City.

78 N. J. L.

for is not correct. I think the words "purposes authorized by this actrefer back to the words “purpose of making any of the improvements authorized by this act, and for other lawful purposes." Whenever bonds are issued for any lawful purpose in which an assessment for benefits is involved, then the condition of applying the assessment to the redemption of the bonds comes into effect.

I think, notwithstanding the suggestion of the prosecutrix to the contrary, that the establishment of a public park under the act of 1894 is a lawful purpose, and the authority to issue bonds therefor is complete. As above stated; in the absence of some enabling legislation, Atlantic City would have been compelled to pay for a park established under the act of 1894, by taxation, subject to the right (under section 8 of the act of 1894) to recoup special benefits by an assessment therefor. That right of recoupment, of course, still remains, but the cost in the first instance may be met by a bond issue. Before the adoption by Atlantic City of the act of 1902 there would have had to be resort to enabling legislation such as "An act to authorize cities in this state to issue bonds in certain cases," approved March 27th, 1895 (Pamph. L., p. 164), which authorizes a bond issue not exceeding $100,000, in all cases where any city is or may be authorized to purchase or condemn lands for public purposes, and no adequate provision is made or authority given to provide for the payment therefor. The act of 1895 is not a supplement to the act of 1894, although it is very likely that the later act was prompted by the incompleteness of the former one. If it were in fact a supplement,.or if the act of 1894 itself limited the bond issue, there would be no restraint upon subsequent legislatures increasing the amount of the lawful bond issue of any city availing itself of the act of 1894, there being no limit fixed on the cost of the park. It is further urged that no authority to issue bonds for the acquisition of a park under the act of 1894 can be conferred, unless extended to all cities that may have availed themselves or may avail themselves of that statute. This contention is untenable. The act of 1894 does not attempt to deal with collateral powers of the various cities

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Fishblatt v. Atlantic City.

affected by it. Every city circumstanced within the purview of the statute may establish a park. All details, except as to the authorized assessment of special benefits, are left to the machinery of the particular city. Action in some cities may be by resolution; in others must be by ordinance. In some cities a majority vote of the council may suffice for corporate action ; in others a larger vote may be requisite. In some cities the mayor may have a veto power; in others not, and so on indefinitely. Similarly in some cities there may be power to issue bonds for public purchases; in others not. So as to the enlargement of powers of cities. If such enlargement be by general law, it will operate as to the parks established under the act of 1894, as well as on any other subject within its range. The act of 1902 is general in that any city may adopt its provisions. It is no more reasonable to assail the power for a bond issue for purchases lawful to the city that adopts the act, than to assail any of the manifold powers therein that are not given to cities at large.

Again, it is argued that, in order to support the ordinance under review, the one hundred and fifth section of the act of 1902 must be given a retroactive effect, which is not permis

I think not. The city urges only a prospective application of the section. There might be some force in the argument if the bond issue ordained was to be in payment of lands purchased or condemned for the park before 1902, but none whatever where the bond issue is ordained "for the purpose of providing moneys with which to lay out and open the public park, and to purchase and condemn lands for such purpose within the limits of” the park established, pursuant to the ordinances referred to. It cannot be successfully argued that the machinery and powers of government of Atlantic City under the act of 1902 cannot be applied to an antecedent situation in that city. If the city having established a park under the act of 1894 shall now proceed to acquire and pay for it, it must do so under the act of 1902. The bond issue now ordained is in aid of such purpose and acquisition, and is undoubtedly a lawful purpose within the prospective purview of the act of 1902.

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Having found power to enact the ordinance in question in the Atlantic City charter, it has been unnecessary to consider whether like power is conferred by the act of 1904 (Pamph. L., p. 86), to which reference has been made by counsel.

Lastly, it is argued that the ordinance in question is void because it is said to be indefinite as to the amount of bonds to be issued. It provides for the issuing of bonds "in an amount not exceeding $500,000." But I think that in an ordinance the authorization of bonds not to exceed a certain amount is equivalent, in legal effect, to fixing the amount of such bonds at such sum. Knight v. West Union, 45 W. Va. 194.

The ordinance under review is affirmed, with costs.

JOHN C. GROEL, PROSECUTOR, V. THE MAYOR AND COM

MON COUNCIL OF THE CITY OF NEWARK ET AL.

Submitted March 18, 1909-Decided June 30, 1909.

1. It is the right of a landowner specially affected by a public im

proveinent to be informed, either by actual or constructive notice, of the time and place appointed for the meeting of council to

consider their proposed action. 2. Where an ordinance is void for want of jurisdiction in council

to pass it, by reason of absence of notice to persons affected, the error is fundamental, and cannot be cured by subsequent legisla

tion. 3. A person affected by the passage of an illegal ordinance is not

prejudiced in his rights by not attempting to set it aside until after an assessment is made under it, where it appears that he was led to believe that the general scheme of improvement was to be made at public expense and that no assessment would be levied against him.

On certiorari.

Before Justices REED, TRENCHARD and MIXTURN.

For the prosecutor, Riker & Riker.

For the defendants, Francis Child, Jr.

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