State ex rel. Elmendorf v. Board of Finance , 41 N.J.L. 135 ( 1879 )

The opinion of the court was delivered by

Scudder, J.

The statute of 1875, above cited, is designed to provide a way by which the relator may obtain payment from the city of Jersey City for his work and materials put upon the New Bergen road, formerly in the township of Greenville, which work and materials were not duly advertised and contracted for in the manner prescribed by law. To effect this purpose, it directs the appointment, by the justice of the Supreme Court of that circuit, of a referee, who, if it appears to his satisfaction that such work and materials were furnished on such road by the order of any lawfully constituted board or engineer, shall order such sum paid as shall be just and reasonable; and the money so ordered to be paid shall, upon confirmation of the report of the referee by said judge, be paid by said city, &c.

The referee has made his report, the judge has confirmed it, and, on demand, the city has refused to pay. The question now is, what is the legal remedy to enforce payment ?

The relator asks the privilege to use the prerogative writ of mandamus.

In State, ex rel. Little, v. Township Committee of Union Township, 8 Vroom 84, this court decided that a mandamus is not the proper remedy to enforce the payment of moneys due from a municipal corporation for work and labor; but the court said that if a statute should direct an ascertained sum of money to be paid to air ascertained person by the authorities of a township or other political precinct, the process in question might be used to coerce such payment in case of default.

The sum demanded in this case was not ascertained prior to or in the remedial act, but it is to be found by a referee, and upon his report and its confirmation by a justice of this court, the sum shall be paid. This is but the appointment of a tribunal outside of the regular courts of law to settle a sum to be paid.

It does not therefore differ in substance from the case of Cleveland v. Board of Finance of Jersey City, 10 Vroom 629, which holds that where the legal right to recover is not clear on the face of the statute, and the applicant has a proper and adequate legal remedy, he shall not use the extraordinary remedy by mandamus.

This report and confirmation stand in no better legal position than an award made by arbitrators by like legislative authority, and the relator may bring his action upon the report of the referee as an award made under the statute. It may be convenient to resort to short and summary methods to obtain money to which the relator thinks he is entitled for his work and labor, but this court has not been swift to enforce such questionable claims against municipalities, and while due effect will be given to all legislation for the relief of contractors who have lost their remedy to recover for work and labor by restrictions of the charter of a municipality, yet we do not feel willing to give, in this case, a more liberal and effective remedy than the statute has provided.

The relator has an adequate remedy by an ordinary action, and must use it, while the defendants can also be heard on the objections that have been here made to the constitutionality of the act of 1875.

The writ is refused, and the rule to show cause discharged, with costs. >