Wethling v. Board of Commissioners

[37] The opinion of the court was delivered by Trenchard, J. The prosecutor seeks to set aside a contract entered into between the board of commissioners of Orange and the Northern Construction Company for the re-improvement of a part of Centre street in that city, and this writ brings up for review" that contract and all proceedings leading up to it. We are of the opinion that the contract is valid. The first contention of the prosecutor is that the ordinance providing for the improvement did not take effect because a petition signed by fifteen per cent, of the electors of the city, protesting against the passage of the ordinance, was presented to the board of commissioners within ten days after its passage. But that contention is unsound. It is true that the city had adopted the so-called Walsh act- (Pa-mph. L. 1911, p. 162; 1st Sup. Comp. Stat., p. 1087), and no doubt such petition was presented under the supposed authority of sections 17 and 16(b) of that act {1st Sup. Comp. Stat., pp. 1112, 1113), the pertinent parts of which are as follows: “Sec. 17. Wo ordinance, * * * except when otherwise required by the general law's of the state or by the provisions of this act, except an ordinance for the immediate preservation of the public peace, health or safety, * * * shall go into effect before ten days from the time of its final passage; and if during said ten days a petition signed by electors of the city equal in number to at least fifteen per centum of the entire vote cast at the last preceding general municipal election, protesting against the passage of such ordinance, be presented to the board of commissioners, the same shall thereupon be suspended from going into operation, and it shall be the duty of the board of commissioners to reconsider such ordinance; and if the same is not entirely repealed, the board of commissioners shall submit the ordinance, as is provided by sub-section b of section sixteen of this act, to the vote of the electors of the city, either at the general election [38] or at a spepial municipal election to be called for that purpose; and such ordinance shall not go into effect or become .operative unless a majority of the qualified electors voting on the same shall vote in favor thereof.” “Sec. 16(b). Forthwith, after the clerk shall attach to the petition accompanying" such ordinance his certificate of sufficiency, the board of commissioners shall call a special election, unless a general municipal election is fixed within ninety days thereafter, and at such special or general municipal election, if one is so fixed, such ordinance shall be submitted without alteration to the vote of the electors of the citjc” But those sections of- the Walsh act in so far as they relate to the operation, suspension, and referendum to the voters, of ordinances authorizing any improvement or the incurring of any indebtedness, have been superseded _ or repealed by section 24 of article 37 of the -so-called Home Rule act (Pamph. L. 1917, p. 461) the pertinent part of which is as follows: “Sec. 24. Any ordinance authorizing any improvement or the incurring of any indebtedness, excepting for current expenses, shall become operative ten days after the publication thereof after its final passage> unless within said ten days a protest or protests against making such improvement or the incurring of -such indebtedness shall be filed in the office of the clerk of such municipality signed by taxpayers representing ten per centum in amount of the assessed valuation of such municipality, whose names appear on the last preceding assessment roll thereof, in which case such ■ordinance shall remain inoperative until a proposition for the ratification thereof shall be adopted at an election to be held for that-purpose by a majority of the qualified voters of such municipality voting on such proposition. The certificate of the clerk of the municipality filed in his office as to the filing or sufficiency of any protest or protests shall be conclusive for the purpose of this section. * * * Any proposition submitted to the voters of any -municipality under the pro [39] visions of this act shall be voted upon at the next general election held in the municipality at least thirty days after the filing of the protest or protests herein provided for, unless the governing body thereof shall call a special election therefor.” It will be seen that this section of the Home Buie act covers in detail the subject-matter of the operation, suspension, and referendum to the voters, of ordinances of the class with which it deals and is inconsistent with and repugnant to sections 17 and 16(5) of the Walsh act covering the same subject-matter; and that the former superseded or repealed the latter pro tanta was decided by this court in Bayonne v. Garven, 41 N. J. L. J. 269. ” . It is next contended that even so> yet the certificate of the city clerk as to the sufficiency of the protest was “conclusive” under section 24 of article 37 of the Home Rule act (Pamph. Jj. 1917, p. 461) in view of its provision that “the certificate of the clerk of the municipality filed in his office as to the filing or sufficiency of any protest or protests shall be conclusive for the purposes of this section.” But that is not so. The certificate wras not made, and did not purport to be made under the Home Buie act. It was made under the section of the Walsh act which, as we have seen, had been superseded or repealed. The certificate states that the petition “is signed by over fifteen per cent, of the qualified voters of the city of Orange and is sufficient under the act.” It was therefore not “conclusive” nor effective for the purposes of section 24 of article 37 of the Home Rule act, which provides that ordinances of this class shall become operative ten days after the publication thereof after final passage, unless within said ten clays a protest he filed “signed by taxpayers representing ten per centum, in amount of the assessed valuation of such municipality Lastly, it is contended that the contract for the improvement is invalid because the resolution directing the advertisement for bids (pnrsuant to which the contract was awarded) was passed before the expiration of ten days after [40] publication, of the ordinance after its final passage, and hence before the ordinance went into effect under the terms of the Home Rule act. But we think that fact does not render the contract invalid where, as here, the date fixed in the advertisement for bids was after the ordinance beeameo operative under the provisions of the Home Rule act. Darlington v. The Commonwealth, 41 Pa. St. 68, 74. The contract under review will he affirmed, with costs.