
    THE STATE, THE MAYOR AND COUNCIL OF CITY OF HOBOKEN, PROS., v. CHAMBERLAIN, REID AND FROST, COMMISSIONERS.
    Where an act of the legislature contemplates a plan of draining the territory embraced within the map therein referred to, by a main sewer running through certain streets in said act designated, with such lateral sewers as the commissioners of sewers might deem necessary for the proper drainage of the said territory, the said commissioners have no right to abandon the single sewer and adopt a plan substituting therefor two main sewers.
    On certiorari to bring up proceedings of commissioners of sewers in the city of Hoboken.
    
      Argued at November Term, 1873, before Justices Bedle, Dalrimple and Scudder.
    For the prosecutors, I. W. Scudder.
    
    For the defendants, Weart.
    
   The opinion of the court was delivered by

Bedle, J.

The court are of opinion that the sewer as proposed through First street, according to the plan of Levi W. Post, is unauthorized by the act of April 4th, 1873. (Laws, 1873, p. 799.) That act contemplates a plan of draining the territory embraced within the map therein referred to, by a main sewer commencing at or near Second street, in the centre line of Jefferson street, thence through Jefferson to Fifteenth or Sixteenth streets, and thence to the Hudson river, with such lateral sewers as the commissioners may deem necessary for the proper drainage of all of the said territory. Post’s plan is an abandonment of the main sewer, and for it are substituted two main sewers, one through First street, which is intended to drain all the land south of Seventh street, and the other through Fifteenth street, which is intended to drain all the land north of Seventh street. This writ brings up the proceedings of the commissioners for the First street sewer. It is very difficult to tell what some of the provisions of the act referred to mean, and it would be unwise to attempt to construe them, unless directly involved in the questions at issue. It is clear however that the chief part of the territory proposed to be drained by the First street sewer, should be drained by a main sewer through Jefferson street, with its laterals. Such is the purpose of the act. The commissioners have no right to build a sewer in First street of the character and capacity necessary to effect the object intended.

Section second of the acfof 1873, gives no power to build sewers disconnected from the plan provided in that act, and the powers mentioned in the act of April 4th, 1866, and the supplement thereto, conferred upon the commissioners by that section, are all, whatever they may be, subordinate to the plan provided for in the first section. It may be, as was said on the argument, that if the words lateral sewers in the first section, are taken in a restricted sense, that there will be territory south of Second street and north of Sixteenth street, that may not he reached by such a sewer; but if taken in a general sense, as referring to connecting sewers and of the kind or character as lateral and as distinguished from main, there can, I think, be no difficulty in draining the above territory by the plan of the act, if otherwise practicable. This latter is the true meaning and scope of the plan. The second section can be construed only as applying the provisions of the act of 1866 and its supplements to the commissioners, so far as shall be necessary for the purpose of building the sewers, (main and lateral,} and completing the drainage of the lands shown on the map, according to the plan of the act of 1873, Avhich plan is as already stated. Any construction of section tAvo more liberal than that, avouIcI amount to judicial legislation and cannot be indulged in. The proceedings of the commissioners must therefore be set aside.  