
    The State, Van Vorst et al., prosecutors, vs. The Mayor and Common Council of Jersey City.
    1. Where the common council of Jersey City refer an application to construct a sewer, to a committee, to examine and report upon (he matter, a majority of the committee are a quorum, and competent to act.
    2. Tlie proceedings to construct a sewer will not be set aside on account of a variance between the application and other proceedings in the name of a street, if the exact locality can be fixed by other streets and sewers named in the proceedings. Tlie discrepancy should appear affirmatively to invalidate the proceedings.
    3. The provisions of the 55th section of the charter of Jersey City, in the laws of 1851, relative to constructing sewers, is repealed by the act of 3851, except as to the preliminary proceedings which precede the decision of the common council that the work should be done.
    4. If a municipal corporation attempt to act in accordance with a statute not in force, it does not afloat their proceedings, provided such proceedings are in accordance with existing laws.
    5. It is not necessary that the common council should decide, by ordinance, that a sewer shall be built; it may be done by resolution.
    
    6. Nor is it necessary for the common council to state, in tlieir decision, that the sewer ‘‘ is required for the benefit or convenience of the citizens or the promotion of tlie public health.”
    7. If, after the order is made by common council, it become necessary to extend the sewer further in the same street than was originally contemplated, in order to complete it and make it available, a second order may be made ordering such extension.
    On certiorari to review the proceedings of the mayor and common council of Jersey City in constructing certain sewers.
    Argued at February Term, 1859, before the Chief Justice, and Justices Ogden, Vkedenbubgh and Whelpley.
    
      A. Whitehead, for plaintiffs in certiorari.
    
    
      McClelland and Zabrisleie, for defendants.
   The opinion of the court was delivered by

The Chief Justice.

The certiorari in this case is brought to review the proceedings of the defendants touching the construction of a main sewer in South Fifth street, in said city, together with certain lateral sewers connecting therewith. The prosecutors complain that the proceedings by which their property is affected were not had in compliance with the provisions of the charter, and are in divers respects illegal.

The fifth reason assigned for setting aside the proceedings is, that the committee on sewers, to whom the application was referred, did'not meet at the time specified in the order of council to hear the parties interested in the application. The objection is not true in point of fact. It was founded upon the return originally made to tho writ. But by the amended return, it appears that the time first appointed for the meeting was subsequently altered by council, and that the committee did meet at the time thus specified.

The second objection urged to the proceeding is, that the committee to whom the application was referred consisted of three persons; that the report is signed by two only; and that it does not appear that more than two met, or that the third had notice of the meeting.

The objection is not sustained in point of fact. It does not appear that at the time the committee consisted of three persons; on the contrary, from the report, it would seem that two composed the committee. But whatever may have been the number, tbe report states that the committee met. If three were necessary to constitute the committee, the legal presumption is that they all met. But, admitting tbe fact to be as alleged, that tbe reference was to a committee of three, and that two only acted, it constitutes no valid objection to the proceedings. By tbe charter, the common council are directed to appoint a time when the persons interested may be beard before them, or before the appropriate committee, on the merits of tbe application. The committee were to exercise no judicial powers; they were simply to examine and report to council, who are to decide upon the application. The committee did report that they met at the time appointed ; that no person appeared before them to advocate or oppose tbe application, and they recommended to council the adoption of a resolution, reported by them, favorable to the application. In the absence of any by-law of the corporation to tbe contrary, a majority of the committee were a quorum, and competent to act.

The third objection is, that the sewer ordered to be constructed is different from that applied for—the sewer applied for being in Fifth street, and that ordered to be constructed being in South Fifth street. Upon the face of the proceedings, it does not appear but that Fifth street and South Fifth street are one and the same street. The discrepancy should appear affirmatively, in order to sustain the objection. By the exhibition of tiie map, it appears that the streets in reality are not the same, but different streets. But it also appears from the maps, that the streets containing lateral sewers, named in the application and in the proceedings, as connected with the main sewer, fixed the locality of the proposed improvement, and left no possible room for doubt as to its location or to the identity of the improvement, as made with that described in the application. The notice and all the subsequent proceedings described it truly as in South Fifth street.

. Numerous other objections- are taken to the proceedings, on the gro.nnd that they are not in conformity with ,t-l'ie remaining provisions of the 55th section of the city charter. Pamph. Laws, 1851, 416. It is admitted, on tho .part of the defendants, that the proceedings are not in .compliance with that act, and the only question is, whether its provisions are now in force. The act directs that, after .the council shall have decided upon the improvement to .be made, they shall appoint commissioners, who shall determine what real estate will be benefited ;. shall estimate ■the whole cost of the improvement; shall cause a survey and map of the improvement and lands benefited to he made; shall assess the estimated cost on the lands to be .benefited ;■ shall estimate and report the value of the lands taken for the .improvement, the damages done by taking the same, and to whom they belong, and the estate of the owners therein, and shall file their report within ninety rday.s after their appointment, of which the clerk shall •give notice; and, unless within' thirty days, one-half of the owners of the lands to be assessed shall remonstrate, the common council shall proceed to execute the im.provements..

Subsequent to the date of this charter, an act was passed by the legislature, entitled “ An act to authorize the construction of works for supplying Jersey City and .places adjacent with pure and wholsome water.” Pamph. L., 1852, 419. By the 22d section, of said act, it is provided that the said commissioners shall decide upon a plan . for a general system of sewers for the whole district .proposed to-be supplied with water; and. if the plan shall he approved, no-sewer .shall - thereafter-be -constructed, ex,cept in. conformity with said plan, and under the superintendence of .said commissioners.. And, by a supplement .to .the ..last,-ipcnt.i.oned. act,, approved - March - 16th, 1854, {af’tpf. vecjjjng-that .the, -plan, for ..the sewers, had been- made, .anil -submitted to.:the mayor .and-common council .of Jersey City, and by them approved, it is enactedthat-1 lie water commissioners of Jersey City are authorized and empowered to const root the sewers and drains described in the plan and report, with such changes and alterations as may be found convenient or necessary in the progress of the work, and at such times as the mayor and common council shall decide that the several parts are required for the benefit or convenience of the citizens or the promotion of the public health. And by the third section of the act it is enacted that when application shall be made to the mayor and common council of Jersey City to have a sewer constructed, the same preliminary proceedings shall be had in relation thereto as are now authorized and directed by the charter; and if the mayor and common council shall decide that the sewer ought to be constructed, they shall give notice, iu writing, of such decision to the water commissioners, who shall thereupon proceed to construct such sewer, to conform in all essential particulars to the before-mentioned plan. Ry the 19ch section of the last-mentioned act, all such parts of the charter as are inconsistent with the provisions of said act are repealed.

From these enactments it is plain that the general plan and system of sewerage has been settled; that council have no further concern with or control over the matter of construction or assessment than simply to decide that the sewer, ought to be constructed, and to give notice thereof to the water commissioners, who are to construct the work according to the plan already settled, and to assess the costs according to the provisions of the act of 1844. The preliminary proceedings referred to in the third section of the act can only be those which precede the decision of council, that the work should be done. Those alone remain in force, as prescribed by the 55th section of the act of 1851. All the subsequent provisions of that section are repealed by the act of 1854. It is no objection, therefore, to the validity of these proceedings that t-hey are not in accordance with the act of 1851. The fact that council have attempted to act according to the provisions of a statute not in existence, cannot affect the validity of their proceedings. The only inquiry is, are they in accordance with the provisions of existing laws?

It is further objected that the proceedings are fatally defective, because the decision of council, that the sewer should be built, was not made by ordinance, but in the form of a resolution only. There is nothing in the charter that requires that the decision of the council should be made by ordinance —all that is required is that they should decide when the improvement should be made.

It is further objected that council did not decide, in the terms of the first section of the act of 1854, that the sewers directed to be constructed “are required for the benefit or Convenience of the citizens or the promotion of the public health.” The third section, which regulates the mode of proceeding, and which adopts the provisions of the city charter, simply requires that the council shall decide that the sewer ought to bo constructed. The first section of the charter was not designed to regulate the mode of proceeding by council. When council decide that a sewer-ought to be constructed, they virtually decide that it is required for the benefit or convenience of the-citizeus or the promotion of the public health.

It is lastly objected that the proceedings are erroneous, because council ordered the sewer to be extended beyond the limits for which it was originally applied. The sewer, as applied for, was the main sewer in South Fifth street-, from the east side of Prospect street to Brunswick street, with certain lateral sewers connecting therewith. The original resolution of council ordered the sewer to be constructed as applied for. By a communication, subsequently made to council by the water commissioners, it appears that after the decision of council had been made, and before the work .was constructed, a portion of South Fifth street had been filled up, rendering it necessary to extend the sewer one hundred feet further east than- was estimated, in order to complete it. Council thereupon ordered the water commissioners to extend the sewer as far as they might deem it necessary and expedient so to do, in accordance with the law governing the construction of sewers. The whole object of the extension was to complete the sewer, and render it available. It remained essentially the same work.

The proceedings should be affirmed.  