State v. Hemsley

35 A. 795, 59 N.J.L. 149, 30 Vroom 149, 1896 N.J. Sup. Ct. LEXIS 43

• Court: Supreme Court of New Jersey
• Decided: June 15, 1896
• Status: Published

Opinion

The opinion of the court was delivered by

Dixon, J.

This certiorari brings up, among other things, the appointment of commissioners for the construction of a city hall in Atlantic City, under the provisions of the act approved April 15th, 1887 (Pamph. I., p. 168), and its supplements.

The commissioners having taken steps to acquire the land of the prosecutors by condemnation, the latter forthwith sued out this writ, and now assign as one of the reasons for setting aside the proceedings of the commissioners, that in the record of their appointment it does not appear that they were members of different political parties and residents of Atlantic City, as the statute requires them to be.

The commissioners were appointed by the mayor in a written communication to the city council, and the concurrence of the council is evidenced by votes entered upon its minutes. Neither in the communication nor in the minutes is any reference made to the statutory qualifications of the commissioners. This omission is fatal. A special authority delegated by statute to particular persons to take away a man’s property and estate against his will, must be strictly pursued, and must-appear to have been so pursued on the face of thé proceedings in which the authority is exercised. Vanwickle v. Railroad Company, 2 Gr. 162, 166; State v. Jersey City, 2 Dutcher 444; Wilkinson v. City of Trenton, 7 Vroom 498; Griffin v. Wanser, 28 Id. 535, 537.

Our conclusion on this point renders it unnecessary to consider the other reasons alleged for reversal.

The appointment of the commissioners and their proceedings must be set aside, with costs.