Stemmler v. Borough of Madison

The opinion of the court was delivered by Garrison, J.

Of the implied power to repeal ordinances, Dillon tersely says, “The power to make includes the power to repeal.” Mun. Corp. 314.

In Hudson Telephone Co. v. Jersey City, 20 Vroom 303 , Justice Reed said of this implied power, “it is a general power which exists, outside of the express power conferred by the *598 charter, by reason of the right to pass ordinances,” and such in varying form is the statement of the rule when the ordinance is not a contract or one that is, from its nature, exhausted by a single exercise. 28 Cyc. 383; 21 Am. & Eng. Encycl. L. 1002.

The implication in question may, of course, be negatived by statutory language and such, in the present case, the Supremo Court thought was the effect of sections 33 and 58 of the Borough act of 1891. We do not, however, find in these sections, or elsewhere in the act, anything that abrogates this salutary and well-nigh indispensable rule which proceeds upon the principle that when the legislature confers upon a deliberative body a power to be exercised by it, such grant,, without express words, includes the ordinary incidents of the exercise of similar powers by such a body. Such incidents are by this rule presumed to have been in the legislative mind in the selection of the recipient of its delegated power. The nature of the powers to be implied depends, therefore, upon the nature of their recipient, a power conferred upon a judicial body having one set of implications, a power conferred upon a deliberative body having a totally different set. In every case something is left to implication, and the line cannot logically be drawn short of the exercise of the power by the recipient in accordance with its characteristic mode of procedure.

“Ordinance,” as a term of municipal law, is the equivalent of legislative action, and hence its employment in a statute carries with it by natural, if not necessary, implication the usual incidents of such action. If this were not so, the power to pass an ordinance would not carry with it the power to-introduce it, or to refer it, or to amend it, or to move for its reconsideration, or to apply to it any of the legislative or parliamentary usages that universally obtain in deliberative bodies as incidents of legislative action.

That the right to repeal is as much an incident of ordinary legislative action as the right to enact rests, as we have seen, upon sound authority, and hence must in reason be included among those powers that pass by the natural implication that *599 if recognized at all, as it must be, cannot logically stop short of giving full effect to the legislative will as thus construed.

That this should be so is well illustrated by a case like the present, in which an ordinance is passed at the very inception of a proceeding that in its progress may develop or disclose the gross impropriety of permitting it to proceed to a final conclusion detrimental to the public interest. In such a ease it may be that the expense involved, when ascertained, renders it highly inexpedient to go on with the improvement. To such a case the remark of Chief Justice Beasley, in O’Neill v. Freeholders of Hudson, 12 Vroom 161 , well applies: “A man of prudence,” he says, “relinquishes a project when he finds the cost is likely to exceed in a large measure its benefit; it would seem intolerably unreasonable to require the agent of the public to pursue the opposite course.”

If, on the other hand, it transpires, as it did in the present case, that the ordinance on which the whole proceeding rests was vitiated ah initio by a violation of public policy, we have a situation to which the spirit of the judicial jemark just quoted applies with equal force.

If we thus assume either that the expense, when ascertained, was excessive, or that, by reason of the interest of a councilman who voted for its passage, the ordinance "was invalid as against public policy, and hence voidable upon the authority of Traction Company v. Board of Works, 27 Vroom 431, or if for any other sufficient reason the proposed improvement was inexpedient, it is, in a sense, begging the question to argue that the sole remedy of council was to vacate the street that is thus in fieri. With as much show of reason it might be urged that the council should have procured a prosecutor to attack its ordinance in the courts. Such contentions do not touch the question of the power of the council to do directly by its own implied powers that which it is thus suggested it might pi'operly do by indirection.

The question is one of statutory construction. The express grant in the present case is: “The council shall have power and authority by ordinance to lay out * * * any street,” &c.

*600 By this language, we think, the expediency of such improvements was committed wholly to the council, which by its legislative action was to give to the public the benefit of its judgment—not of its snap judgment but of its sound judgment, and not merely of its initial judgment but, if necessary, of its mature judgment—and that to this end, under the. rule of construction we have discussed, the power to pass the ordinance, which was the required legislative action, included during the pendency of the proceeding, the power to repeal it.

The right of the prosecutrix to question the action of council by virtue of her status as a citizen, or by reason of her legal interest in the controversy (into which she, so to speak, “bought herself”), although directly challenged, has been tacitly assumed for the purpose of reaching a decision upon the merits.

The judgment of the Supreme Court is reversed and the action of the borough council is affirmed.

For affirmance—None.

For reversal—The Chancellor, Chiee Justice, Garrison, Swayze, Trenchard, Bergen, Yoorhees, Kalisch, Bogert, Yrbdenburgh, Yroom, Congdon, White, JJ. 13.