
    STATE, EX REL. JOSEPH GALLAGER ET AL., PROSECUTORS, v. BOARD OF PUBLIC WORKS AND BOARD OF FINANCE AND TAXATION OF JERSEY CITY
    1. A return to an alternative writ of mandamus commanding the respondents to extend a brick sewer in a direct line with Fourth street, across the filling in of Harsimus cove to the Hudson river, or show cause, will not be quashed, where it shows substantial difficulties in the construction of such sewer, adequate relief provided by another sewer, and the want of funds, or authority to raise them.
    2., If a return to an alternative mandamus be. manifestly false, frivolous, or calculated to embarrass or delay the remedy sought, it will be quashed in a summary way, on motion, and a peremptory writ awarded.
    
      On motion to quash the return to a writ of alternative mandamus, commanding the board of public works to remove all obstructions from the main sewer on Fourth street, Jersey City, which prevent the contents of said sewer'from flowing out of the same into the Hudson river, and to open the sewer through the new-made land east of Henderson street to the Hudson river, and to continue the Fourth street sewer along the line of Fourth street, extended, to the Hudson l’iver, according to the plan of sewerage adopted and in force in Jersey City, and that the board of finance and taxation concur in and provide the money necessary to pay for doing the work, or show cause, &c. The contents of the return sufficiently appear in the opinion of the court.
    .Argued at June Term, 1883, before Justices Scudder, Reed, and Magie.
    For the relators, S. B. Ransom.
    
    For the respondents, A. L. McDermott.
    
   The opinion of the court was delivered by

Scudder, J.

The question raised by this motion to quash the return to an alternative writ of mandamus allowed in this court is not whether the relators have a grievance which should be examined, and relieved if it be found. This was decided on the petition and affidavits presented when the writ was ordered. But we are now asked to determine whether the return made is good pleading, and shows obedience to the mandate of the writ, or assigns good cause why it has not been obeyed. As a question of pleading, merely, the rule that has been usually enforced is that a return is sufficient if it contains a full and certain answer to all the allegations expressly made in the writ, and discloses a fair legal reason why the mandamus should not be obeyed. Springfield v. County Commissioners, 10 Pick. 59. It is also an established rule that while there will be no presumption of law or fact against a return unless it fails to answer the material allegations in the alternative writ, the court will always scrutinize closely the response which is made to its command that the respondents shall do justice to the petitioner in,the matter of their petition, to guard against any evasion, delay, or frustration of its purpose. The respondents must do what the writ commands, or show on the face of the return an honest, legal excuse for their disobedience. Under our practice, and the statute for the better regulation of proceedings upon writs of mandamus, they may set up in their return as many separate defences as they see fit, provided they be consistent, fairly responsive, and tend to an issue which will procure a final decision of the substantial rights of the parties. But if the return be in such form that the court can see that it is false, frivolous, or calculated to embarrass or delay the remedy sought, a case is made for a motion to quash in a summary way, and award a peremptory writ. It is only in such case that the extraordinary power of the court will be used to set aside the return and compel obedience. Slower and more formal methods of procedure must be used where the return offers solid defences and shows real difficulties in. obeying the mandate of the writ. Where these appear the respondents are entitled to have the material facts in their return pleaded to, and traversed, or tried by demurrer. It was said by this court in Silverthorne v. Warren Railroad Co., 4 Vroom 173, that it has the abstract power to quash the return on motion to prevent indecorum or vexation, as in case of a tricky or fraudulent return; but in the English practice, which was approved in that ease, this authority is not exercised except in the class of cases referred to, or where the returns are frivolous or contemptuous or manifestly bad on their face. In other cases, the court say the prosecutor must traverse or demur, that the respondent may have his review by writ of error, if he desire it. The grievance of which the prosecutors complain, which is set out at length in the alternative writ, is, in substance, that the mouth of the Fourth street sewer has been stopped by filling in Harsimus cove, and the result has been that in the heavy rains of September, 1882, the sewer filled up and flowed back in their houses, causing offensive- and unwholesome smells and sickness; that the lateral wooden box sewers have become sunken and will not discharge the water and contents of the brick sewer on Fourth street. The remedy which the relators claim is the continuation of the Fourth street brick sewer in a direct line with said street across the filling in Harsimus cove to the Hudson river. To this the respondents return answer that the stopping of the-sewer’s mouth at or near Henderson street was done by the-filling in of Harsimus cove by legislative authority, without any act or acquiescence on their part; that the building and maintenance of a brick or other sewer across the unsettled-filling is impracticable, and the attempt to do it very expensive ; that they have not the funds to build it, and have no-authority by their charter to raise them; that the charter and ordinances referred to do not require the continuation of the sewer in a direct line to the Hudson river; that another substantial brick sewer is being constructed by the Pennsylvania Railroad Company, by agreement with the city, running from the mouth of Fourth street sewer to the Second street sewer, which will discharge the drainage of Fourth street into the-Hudson river, and remedy the injury complained of;. that the-work is nearly completed, and the cause of complaint already substantially removed.

It is evident from this condensed statement of the questions raised by the return that the objections to running the sewer in a direct line to Hudson river are substantial,, and that the boards of Jersey City, without funds in hand or the clearly apparent means to obtain such funds, should not be coerced to build a sewer through a filling of such kind that it may settle, and break any sewer that may be built there,, when adequate relief can be, and is, nearly accomplished by another method of sewerage which has been approved by the board and the chief engineer of the city, and will be done without expense to the relators or to the city. Without, therefore, deciding the merits and truthfulness of the return, which it is not necessary to do on this motion to quash, in which both must be assumed, as therein stated, it is enough to. say that we do not •find it to be frivolous or manifestly bad on its face, or in contempt of the command in the alternative writ, and that, there - fore, the relators should plead or demur to this return, as they may be advised, so that the respondents may have their proper standing in court for a further review of this controversy, if they should desire it. The motion to quash will be refused, -with leave to the relators to plead over, on payment of costs.  