Tucker v. Board of Chosen Freeholders

The Chancellor. The grounds on which it was deemed advisable to allow an injunction in this case, were these 1. Because it was represented that Bass river, over which the board of freeholders were about to erect a bridge, was a navigable stream, and used by divers individuals for the purposes of navigation ; and that great and irreparable injury would be done to private property by the erection of the bridge ; and, 2. Because it was represented, and so appeared to the court, that the act of the legislature of 1823, under which the board [286] claimed authority to erect the bridge, was no longer operative; that it was intended to be, and actually was, temporary in its nature, and did not invest the board with an authority which might be exercised at their discretion, at any period of time, no matter how remote. As to the first ground, it is sufficiently met by the answer of the defendants; from which it appears, that even if the stream at the place where it is sought to locate the bridge, is to be considered as a navigable stream, yet the injury that may result to private property is not of a character to require the interference of this court. In looking into the second ground, in connection with the facts disclosed in the defendants’ answer, I am perfectly satisfied the injunction cannot be sustained. By an act of the legislature, passed the 13th November, 1823, it was enacted, substantially, as follows :—That it shall and may be lawful for the board of chosen freeholders in and for the county of Burlington, at their discretion, to build and maintain a good and sufficient bridge over Bass river, about one quarter of a mile above the dwelling house of Benjamin Mather, and about one hundred yards below William Butler’s house, where the new laid road crosses the same, leading from Tuckerton to Bridgeport, with a suitable draw therein, of sufficient width for the convenient passage of vessels navigating the same. This law vested in the corporation the right to build the bridge. The place where was particularly specified ; but the time when the right might advantageously be exercised, was left to the judgment and sound discretion of the freeholders, the immediate representatives of the county. The authority was not temporary, such as to require its exercise by the then existing board of freeholders, and if not exercised by them to cease. Nor is it to be considered as ceasing, although the board might have decided in 1826, that it was inexpedient to build a bridge at the place specified. The power was a continuing power. By this special act, the board of freeholders were clothed with the same kind of power, to place a bridge over this river, at the place designated in the law, that they have constitutionally and of common right to erect bridges over other streams in the county, not navigable. The [287] power may be exercised, or it may be postponed in its application, or withheld altogether. The legislature did not intend, in any wise, to prescribe limits to the discretion of the board of freeholders. They meant simply to grant to them a power, which before they did not possesss, and to leave them to exercise it when, and in such mode, as should be deemed most advantageous for the interests of the public. Tt appears moreover, by the answer of the defendants, that the board never made a final decision on the application to build the bridge, until May, 1830, when they decided favourably : that although a committee of the board liad formerly reported unfa-vourably to the building of the bridge, that report had not been finally acted on by the board. This being the case, there is no one principle on which it can be seriously contended, that the power of the board was at an end. It is urged, however, that the board have not exercised their powers in a lawful way: that their conduct has been arbitrary towards the complainants, and that the complainants have been denied a fair hearing on the merits of the case. If the board have power to act in the premises; if they have jurisdiction over the subject matter, this court can take no cognizance of the complaints contained in the bill. The right of supervision and correction is in another tribunal. In England, it belongs to the king’s bench, and in this state to the supreme court. The principle is universal, that wherever the rights of individuals are invaded by the acts of persons clothed with authority to act, and who exercise that authority illegally, the persons aggrieved must seek redress by certiorari. It appertains to the general supervisory jurisdiction of the supreme court, exercising in that behalf the powers of the king’s bench, to correct abuses of that character. The jurisdiction is not a doubtful one, nor is the exercise of power under it novel, either in England or in our own state. It is, then, to the supreme court that the complainants must resort to have their grievances redressed, and not to the chancery : 1 Salk. 145 ; 1 Ld. Ray, 469 ; 4 John. C. R. 352. Let the injunction be dissolved.