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West Essex Building and Loan Association v. Borough of Caldwell

Decided: April 4, 1934.

WEST ESSEX BUILDING AND LOAN ASSOCIATION AND FERLAUTE DRESS MANUFACTURING CO., PROSECUTORS,
v.
BOROUGH OF CALDWELL, A MUNICIPAL CORPORATION OF THE COUNTY OF ESSEX, RESPONDENT



On certiorari.

For the prosecutors, Thomas Brunetto.

For the respondent, Milton M. Unger.

Before Brogan, Chief Justice, and Justices Trenchard and Heher.

Heher

The opinion of the court was delivered by

HEHER, J. These writs of certiorari bring up for review a zoning ordinance passed at a meeting of the council of respondent borough, held on October 3d, 1921, and proceedings had upon complaints charging violations thereof by prosecutors. The proceedings under the three writs were consolidated.

One of the writs, allowed to prosecutors jointly, brings up the ordinance, "together with all things touching and concerning" its "passage, approval and enactment." Another, allowed to the West Essex Building and Loan Association, requires the return of the complaints, process and evidence in two separate proceedings instituted before the recorder of respondent borough, based upon that prosecutor's alleged violation (1) of section 3 A of the ordinance, in permitting the building and premises in question to be used for manufacturing purposes; and (2) of section 11 A, in permitting the use of the building without first having obtained a certificate of occupancy, as therein provided. The third writ, allowed to the Ferlaute Company, directs the certification of the complaints, process and evidence in two separate proceedings before the borough recorder, based upon alleged violations of like character.

The insistence of the prosecutor is that the ordinance is invalid. The grounds of attack are: (1) It was not submitted in writing at a regular meeting of the borough council; (2) it was not passed at a subsequent regular meeting after being submitted in writing at a regular meeting of that body; (3) it was not read in its final form at a meeting

of the council held at least one week prior to its final passage; (4) it was not published in a newspaper having circulation in the county of Essex, after its introduction, and before passage, with a notice of the time and place when and where it would be considered for final passage; (5) the council did not afford persons interested an opportunity to be heard thereon before final passage; (6) council did not continue or adjourn, by proper resolution, consideration of the ordinance to the meeting of October 3d, 1921, when it was passed; (7) the ordinance was not submitted to the mayor for his approval or veto; (8) it was not approved by the mayor after final passage; (9) it was not passed by the borough council over the mayor's veto; and (10) it was not recorded in full by the borough clerk in a book kept by him for that purpose.

Respondent contends in limine that the writ should be dismissed for laches. Ordinarily, where a prosecutor, as a citizen and taxpayer, seeks by certiorari to review a municipal ordinance, and his status as such has not been attacked by proofs or other proceedings prior to argument on final hearing, his qualifications are beyond attack. Jordon v. Dumont, 105 N.J.L. 197. But where the attack upon the ordinance relates merely to the procedural steps connected with its introduction and passage, and laches clearly appears, the writ will be dismissed. Public policy forbids an attack based upon informalities and irregularities in the procedure which led to the adoption of the ordinance, when it has been accepted as a valid enactment for a long period of time, and property owners affected by it have conformed to its provisions, and have fixed their status accordingly. Ninth Street Improvement Co. v. Ocean City, 90 Id. 106; Budd v. Camden, 69 Id. 193; Weissinger v. Mayor, &c., of Teaneck, 10 N.J. Mis. R. 1093. In State v. Hudson City, 29 N.J.L. 115, the apposite rule is stated as follows: "The granting of a certiorari in cases of public interest is a matter of discretion; and after the party in interest has slept long over his supposed wrong the court will not grant him relief. To relieve him would do much injury to others, and he has no ground of complaint if the opportunity is not given

to him. After a writ of certiorari has been allowed, if on the hearing the like circumstances appear, the court may dismiss the writ as improvidently ...


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