and said order a capias ad respondendum shall be issued, but no such order shall be made unless * * ** the proof establishes special cause as heretofore for holding the defendant to bail." This is substantially a copy of the procedure prescribed for holding to bail in actions upon contract. Now, in actions upon contract it has been held that the order to hold the defendant to bail must show upon its face that the judge has exercised his judicial discretion and made a decision upon it and that the proof of the particulars necessary to authorize the awarding of the writ was satisfactory, otherwise the writ will be unauthorized and illegal. Hill v. Hunt, Spenc. 476; Perry v. Orr, 6 Vroom 295 (at p. 301), in which latter case it was said that an order irregular on its face should be quashed. * * * I take it that the amendment of the statute in regard to the issuing of this writ in tort actions by using in such amendment the very language used in the statute long on our books concerning its issue in contract actions, will be construed in the same way that the provisions of the statute have been construed which relate to actions on contract. That being so, it is necessary to turn to the order of the commissioner made in this case to see if it is sufficient under the act. It states, "I do adjudge and decide that by the affidavit it is sufficiently proved before me that the defendant alienated the affections of the wife of the plaintiff and induced her to leave her husband and come to New Jersey, and that he has been living with the said wife of the plaintiff * * since that time to the present time and is still living with her." Assuming that this is a sufficient statement of a good cause of action, we pass to the remainder of the order for the special circumstances necessary for the awarding of the writ. The order continues: "And that he, the defendant, is now under bail to answer a charge of adultery with the wife of the plaintiff * *at, &c., in Monmouth county." * * I fail to see any special cause adjudged in this affidavit as proved to the commissioner which would warrant the issue of the writ. The non-residence of the defendant is not ascertained; no adjudication is made that the defendant will not be present in the jurisdiction at the time of the rendition of the judgment; nor can I understand how the fact that the defendant has given bail to answer a criminal charge shows a special reason why he should be arrested in a civil action. I think, therefore, that the order made by the commissioner fails to adjudge that the proof establishes any special cause recognized by the law as sufficient for holding a defendant to bail. But, if I am wrong in according to the order of the commissioner so great effect and turn to the affidavits or proofs offered before the commissioner, we find no effective evidence to rely upon. The affidavit states that the defendant lived in Washington until 1896 when he moved to Elizabeth, New Jersey, and thence to New York and afterwards to Plainfield, New Jersey, and that Wilson lived with his paramour at Asbury Park until April, 1909, going daily to New York to his business and returning in the afternoon; that a warrant was secured by the plaintiff in Asbury Park on August 28th, 1909, for the arrest of Wilson on the ground of adultery with his wife. The officer having the warrant failed to find them when he went to the house to make the arrest, but that Wilson subsequently on September 9th returned to Asbury Park and gave bail to await the action of the grand jury meeting in October, 1909. The inference to be gathered from this affidavit is that Wilson is a resident of New Jersey, but as stated by the court in Benson v. Bennett, supra, it will be presumed that the defendant is a resident of the state if the contrary does not appear by the affidavit, so that I think the affidavit fails to show non-residence. The affidavit continues that defendant had made all preparations to leave with affiant's wife and children for New York at the time of the warrant being issued and that he is now making every preparation for the purpose of leaving the state to go to New York, and unless he is required to give bail, plaintiff will be unable to make him respond to the action, and that defendant has recently said that he is going to leave the State of New Jersey and will not return. The Benson case decides that the statement that the plaintiff believes he will be unable to make the defendant. answer unless he be held to bail, though showing no reason for that belief, is insufficient. The reasons stated should amount to proof and should not be the conclusions of the affiant. Proof, it has been held, when used in a legislative enactment, means competent and legal evidence, testimony that conforms to the fundamental rules of proof, one of which excludes hearsay evidence, however trustworthy the informant or however implicit may be the deponent's belief in the truth of what he has heard. Inglis v. Schreiner, 29 Vroom 120. So, I think the affidavit shows no reason for his belief that the defendant will not be here unless bail be required and that the statement of the plaintiff that the defendant has made all preparations and is making preparations to leave is merely a statement of the conclusions of the witness without the averment of any facts from which the commissioner might have determined and adjudicated that the defendant was about to depart. I am, therefore, of the opinion that the affidavits do not disclose proof of the special causes requisite for the issue of the order. An order will be made that the order to hold to bail be set aside and that the defendant be discharged from arrest and his bail discharged and that the action proceed as if commenced by summons. DOMENICK LIVELLI. PROSECUTOR, v. THE MAYOR AND COUNCIL OF THE CITY OF HOBOKEN. Argued February 17, 1909-Decided June 7. 1909. 1. An act concerning the appointment of commissioners of assessment of taxes in certain cities, passed April 3d, 1889 (Pamph. L., p. 152), being an act dealing with the structure, machinery or powers of municipal government is constitutional under the authority of McCarthy v. Queen, 47 Vroom 144, affirmed by the Court of Errors and Appeals. 2. The provision in said act that "no more than a bare majority of such board of assessors or officers shall at any time be members of one political party" does not render the act invalid. 3. The failure of a taxpayer to apply for a writ of certiorari to set aside an ordinance defining the duty and fixing the salary of commissioners of assessment of taxes for a period of over eleven years, during which such taxpayer was a resident of the municipality wherein the ordinance was in force, is gross laches and disentitles him to the writ. On rule to show cause for a writ of certiorari. Before Justices GARRISON, BERGEN and VOORHEES. For the prosecutor, Samuel A. Besson. For the defendant, John J. Fallon. The opinion of the court was delivered by VOORHEES, J. This is a rule to show cause why a writ of certiorari should not issue to remove an ordinance passed by the council of Hoboken entitled "An ordinance defining the duty and fixing the salary of commissioners of assessment of taxes," passed June 3d, 1897, and thereafter partially included in a revision and recompilation of ordinances in 1900. The ground of attack is that the act of the legislature entitled "An act concerning the appointment of commissioners of assessment of taxes in certain cities," passed April 3d, 1889 (Pamph. L., p. 152), is unconstitutional. It is asserted that it is special legislation regulating the internal affairs of towns, &c. The question must be resolved against the prosecutor under McCarthy v. Queen, 47 Vroom 144, affirmed by the Court of Errors and Appeals, where it is asserted that an act dealing merely with the structure, machinery or powers of municipal government is general, although it embraces only a class of cities formed on the basis of their population according to the discretion of the legislature, unless the class formed be illusory. The provision in the act that no more than a bare majority of such board of assessors or officers shall at any time be members of one political party does not render the act invalid. It was so held by this court regarding chapters 45, 49 Troom. Manufacturers' Land Co. v. Camden. 46 and 62 of the laws of 1907, in McCarter, Attorney-General, v. McKelvey, ante p. 3. The gross laches of the prosecutor will prevent the allowance of the writ by the court in the exercise of its discretion. The ordinance attacked was passed in 1897. This application is made more than eleven years thereafter, during which time the prosecutor, who invokes the power of this court as a taxpayer merely, has lived in the city of Hoboken. The change in the machinery of the city government in respect to the department of taxes has been made and continued under the act and ordinance to the knowledge of the prosecutor without objection for over a decade, and will not now be disturbed. Allen v. Freeholders, 43 Vroom 116, and cases cited. The rule should be discharged and the allowance of the writ refused, with costs. MANUFACTURERS' LAND AND IMPROVEMENT COMPANY, PROSECUTOR, v. THE CITY OF CAMDEN ET AL. Submitted March 19, 1909-Decided June 7, 1909. 1. A writ of certiorari directed to several officers or bodies having no joint or common duties, and who act independently of each other should not be allowed, but there should be separate writs running to each to bring up the particular matters with which each respectively is concerned. 2. No binding custom can be said to exist which is grounded upon an unconstitutional foundation. 3. Under an ordinance judicial in its character, and objectionable because passed without notice to those to be affected thereby, work was commenced and completed without objection on the part of the prosecutors although they knew of such work and of the publication of the ordinance and thereby, by its recitals, were informed that the proceeding was under a law authorizing an assessment for benefits against their property. The prosecutors waited until the public had entered into a contract pursuant to such ordinance and until the completion of the work under such contract. Held, that it must be deemed that the prose |