to go to the mayor, and the notice given | but again submitted to vote in 1895, when, as thereunder was sufficient. But there is a fundamental infirmity disclosed In the case, though not covered by the causes assigned for reversal, that renders the entire proceeding void. The petition was based on the act of 1888. The "act concerning boroughs," approved March 28, 1892 (1 Gen. St. p. 275), superseded all such statutes, as far as the issuing of bonds for street improvements is concerned. Oakes v. Mayor, etc. (N. J. Sup.) 36 Atl. 708. And all bonding legislation for boroughs was superseded by a "general act relating to boroughs," approved April 24, 1897 (P. L. p. 285). If the prosecutor so desires, a cause for reversal may be assigned, to charge such invalidity. STATE (KNIGHT, Prosecutor) v. CITY OF CAPE MAY et al. (Supreme Court of New Jersey. Nov. 8, 1897.) MUNICIPAL CORPORATIONS-PUBLIC IMPROVEMENTS. Municipal action involving the erection at public expense of a building upon land neither owned nor possessed by the municipality is illegal. (Syllabus by the Court.) Certiorari by the state, on the prosecution of Annie C. Knight, against the city of Cape May and others, to review a resolution of the council of such city. Resolution set aside in part, and affirmed in part. claimed, it was accepted. We think that the legislature did not authorize resubmission after rejection. These difficulties, however, need not concern us now; for, as we read the state of the case, the city has issued its bonds, and disposed of them, and has money in the treasury to pay for the pavilions. The prosecutrix proves title to the land on which it is proposed to erect the pavilion at the foot of Jackson street, and neither title nor possession in the city is shown as to that land. We hold, therefore, that it is illegal for the city to erect a pavilion upon it, or to expend the public money therefor, and the resolutions and contract with respect thereto must be set aside. At the foot of Perry street a pavilion has been standing for several years, and has been, and is, in the possession of the city. The resolutions and contract concerning it involve only its inclosure with glass sashes, and other alterations of an existing structure. We will not interfere with such municipal action. The prosecutrix, as to that site, must settle her title by ejectment. The contractor at Jackson street was made a party to the writ. By inadvertence, the contractor at Perry street was omitted; but, as our decision is favorable to his contract, there is no need to delay it in order to make him a party. The resolutions and contract as to the pavilion at the foot of Perry street are affirmed. Inasmuch as neither party whol Argued at June term, 1897, before DIXON, ly succeeds in this controversy, costs will not LUDLOW, and COLLINS, JJ. Thomas E. French, for prosecutrix. David J. Pancoast, for defendants. COLLINS, J. This certiorari brings before us resolutions authorizing the building of a pavilion on the beach at the foot of Jackson street, and the alteration of a pavilion on the beach at the foot of Perry street, in the city of Cape May, and the contracts made in pursuance thereof. The prosecutrix is a taxpayer of that city, and claims to own the land embracing the pavilion sites. It is objected that the act passed March 16, 1896 (P. L. p. 71), that authorizes cities located on or near the Atlantic Ocean to erect and maintain pavilions along the ocean front, is unconstitutional, because local and special. The authority of that statute was not needed in order to enable the city to improve its lands by the erection thereon of buildings for public use. Such power would seem to be implied, if not expressed, in the city charter (P. L. 1875, p. 206). But the provision of the act for the issue of bonds to raise money to pay for the improvements therein authorized, so far as it is made to depend upon previous acceptance by a city of some former act, may be special, and therefore void. The act is claimed by the defendants to be operative in the city of Cape May by reason of the acceptance by that city of an act approved April 3, 1891 (P. L. p. 317). That act was rejected by Cape May in 1891, be awarded to either party as against the other. STATE (MAYOR, ETC., OF CITY OF BAYONNE et al., Prosecutors) v. EAST JERSEY TELEPHONE & TELEGRAPH CO. et al. (Supreme Court of New Jersey. Nov. 8, 1897.) STREETS FOR TELEGRAPH AND TELEPHONE LINEPOWER OF COURT-ULTRA VIRES REQUIREMENTS-ENFORCEABILITY. 1. Under 3 Gen. St. p. 3459, pl. 21, the circuit court, in its order designating streets for a telegraph or telephone line, and the manner of placing posts or poles, has no power to insert requirements outside the statute, although conceded by the company. 2. If the court desire to make its designation depend on such concessions, it should make its action dependent upon the tender, to the municipality affected, of a contract therefor. 3. Requirements ultra vires inserted in such order are unenforceable, and, on certiorari at the prosecution of the municipality or an interested landowner, will avoid the order. 4. Quære: Is said statute constitutional? (Syllabus by the Court.) Certiorari to circuit court, Hudson county; Nevins, Judge. Certiorari by the state, on the prosecution of the mayor and council of the city of Bayonne, and of Anna M. Lord and others, and of Han-nah E. Wilson, against the East Jersey Telephone & Telegraph Company and John G. Fisher, clerk of the circuit court of the county of Hudson, to review an order of the cir cuit court of Hudson county designating streets for a telegraph and telephone line, etc. Order set aside. Argued June term, 1897, before DIXON, LUDLOW, and COLLINS, JJ. T. F. Noonan, Jr., and James Benny, for city of Bayonne. De Witt Van Buskirk, for private prosecutors. George T. Werts and Melville Egleston, for defendants. * COLLINS, J. An act of the legislature of this state (3 Gen. St. p. 3459, pl. 21) provides that: "Whenever any telegraph or telephone company ** shall apply to the common council of any city * * * through which it is intended to construct or extend any telegraph or telephone line, for a designation of the street, streets or highways, in or upon which the posts or poles of said company may be erected, it shall be the duty of such common council *** to give to such company a writing designating the street, streets or highways, in which the posts or poles of said company shall be placed, and the manner of placing the same, subject in other respects to the provisions of the act to which this is a supplement; the street, streets or highways * shall be designated with due regard to the improvement of facilities for telegraphic or telephonic communications. *** ** In case such common council *** shall not within fifty days from the time of the making of such application give to such company a writing designating the street, streets or highways, in which the posts or poles of such company may be erected and the manner of placing the same, ** it shall be lawful for such company to apply to the circuit court of the county, * * and such court, upon twenty days' notice to such common council, * * * shall as speedily as possible hear the matter in question and may in the discretion of said court *** designate the street, streets or highways in which the posts or poles of such company may be erected and the manner of placing the same, which designation shall have the same force and effect as if made by the legislative body of said city." Conditions existing, as claimed, to make this statute applicable, the East Jersey Telephone & Telegraph Company applied to the circuit court for the order authorized thereby. Jurisdiction over the city was questioned, but we think that the alleged defects were cured by due appearance. The constitutionality of the statute was the principal point of attack of the prosecutors. It was argued that by it unauthorized powers were conferred upon the judicial department of the state government. If we found the order that was made to be within the authority of the statute, this question would present serious difficulty, as would also another constitutional question, not mooted at the argument, but worthy of consideration. If the power to be exercised is judicial, it is so because it concerns the regulation of a common easement. 38 A.-48 This power was held by Beasley, C. J., sitting for the chancellor, in the case of Delaware, L. & W. R. Co. v. Erie Ry. Co., 21 N. J. Eq. 298, 304, to be inherent in the court of chancery, a constitutional court. It is questionable whether such a power can be vested in any other tribunal. It is not necessary, however, to decide either of these questions, because we find the order that was made to be unauthorized by the statute. After designat ing the streets and highways in which the posts or poles of the company might be erected, and the manner of placing the same, the order proceeds as follows: "And said petitioner having on said hearing, in open court, expressed its willingness to grant, accept, abide by, and comply with all the concessions, terms, conditions, and requirements sought to be exacted, imposed upon, or required of it in and by said proposed ordinance, Exhibit C, annexed to said petition, the court doth thereupon order as follows: All posts or poles shall be placed and erected so as not to interfere with the safety or convenience of any persons traveling along, across, or upon any of such streets or avenues, and said posts and poles shall be straight, neatly shaven, and well painted, and shall be kept well painted, and not more than fifteen inches thick at the base; and no wires shall be strung thereon less than thirty feet from the grade of the street or avenue. Nothing herein shall be construed so as to grant unto said company any exclusive right upon any of said highways, nor to prevent said city from granting similar privileges to any other individual, company, or corporation. pany, or corporation. Said company snall properly replace any and all part or parts of any sidewalk or sidewalks which may be displaced by or in the placing or erection of any and every of such posts or poles, and, upon failure so to do, after ten days' notice, the street commissioner of said city shall have theright to so replace, and charge the cost thereof to said company, and recover the same from said company for the benefit of the city, by an action at law. If said city shall give or grant to any person or persons the right or license to remove or transport any building through, up-on, or across any street, avenue, or highway upon which the said company shall have its poles and wires erected and strung, and said wires shall interfere with or obstruct the removal or transportation of such building, said company, at its own expense, and at the request of the person or persons having the right or license to remove or transport such building, shall cut said wires, or so adjust the same as to permit the free and unobstructed pas-sage, removal, and transportation of said building. Said company, its successors and assigns, shall indemnify and save harmless the said city from any and all actions and causes. of action at law and in equity to be brought against it by any person or persons, corporation or corporations, by reason of the erection of said line and fixtures, or by reason of any-. thing therewith connected. In case any au thorized public or street improvement necessitates the changing of the location of said poles and wires, or any part thereof, said company will, at their own expense, change the location of the same to accommodate and conform to any such public or street improvement within twenty days after receiving from said city written notice so to do; and in case said company shall neglect for the space of twenty days after the service upon said company of said notice, said city may remove said poles, and change the location thereof, as aforesaid, at the expense of said company, and said city shall not be liable for any damages whatever caused by said removal of said poles and wires. Said company shall furnish, free of charge to said city, for its fire alarm and police wires, upon all poles erected pursuant to this ordinance, and shall furnish the police and fire department of said city telephone connection with such of its engine houses and police stations as the mayor and council of said city shall from time to time designate, at the rate of twentyfive dollars per year for each house or station, payable quarterly, for each instrument, except an instrument shall be placed and maintained at police headquarters in the city hall free of charge; and said company shall connect the telephone instruments, so to be placed and maintained at police headquarters by a separate and independent wire with the telephone exchange of the New York and New Jersey Telephone Company, located in said city of Bayonne; all such instruments to be used for fire, police and city purposes only. Said company shall also keep the above instruments and appliances and wires connecting the same in proper order and repair. Said company shall also furnish and keep in repair, without extra charge, the necessary switch and connections between police headquarters and the various fire houses and police stations. Such connections with any new fire houses or police stations shall be made within sixty days after formal written demand is made therefor by said city upon the general manager's department of said company: provided, that within that time the said city furnish to said company the right of way necessary for the construction of a line to such new station or stations from the main or other line of said company. Said company shall deposit with the city treasurer the sum of two hundred and fifty dollars as a forfeit, to have said poles properly painted, in case said company fails, for three months after said proposed line is completed, to properly paint the said poles." There is no authority given by the statute to the circuit court for some of these requirements of its order, nor can we think of any way in which they could be enforced. Such requirements might very properly enter into a municipal ordinance, which, if accepted, would form a contract between the telephone company and the municipality, bind ing on both parties (Humphreys v. City of Bayonne, 55 N. J. Law, 241, 26 Atl. 81); but the circuit court has no power to make a contract. The power of the court to designate a route is, indeed, discretionary, and we do not say that it may not impose as a condition precedent to its action a tender by the company to the municipality of a contract embracing tract embracing proper protection, and a reasonable return for the privilege to be afforded, or make its designation conditional upon such a tender; but that is very different from what was attempted in this case. It is argued that these ultra vires requirements of the order were at the voluntary concession of the company, of which the city of Bayonne need not avail itself unless desirable, and therefore should not be heard to complain; but we cannot adjudge that they did not influence the discretion exercised in making the designation of a route, or in the selection of the particular streets designated. designated. On the contrary, we think that in legal presumption they did influence that discretion, and, being unenforceable. must avoid the action based upon them. The order under review must be set aside, with costs to the city. The order thus falling. it is not necessary to consider the objections, to the statute and proceedings, of the private prosecutors. As abutting owners on some of the streets affected, they have a standing for their writs, and are entitled to costs. RIDER v. KITE. (Supreme Court of New Jersey. Nov. 8, 1897.) MALICIOUS PROSECUTION-WHEN ACTION LIESTERMINATION OF PROSECUTION. 1. When a committing magistrate, upon examination, discharges from custody an accused person who has been brought before him by virtue of an arrest, upon a warrant issued upon a complaint of a breach of the criminal law, the prosecution commenced by such complaint is terminated, so that the accused may commence an action for malicious prosecution against the complainant. 2. The supplement to the criminal procedure act of March 12, 1878 (1 Gen. St. p. 1144, pl. 124), and the supplement to the same act of March 24, 1892 (1 Gen. St. p. 1152, pl. 162), do not continue the prosecution of such a complaint after the discharge of the accused. (Syllabus by the Court.) Certiorari to circuit court, Mercer county; before Justice Gummere. Action by Frank H. Kite against Andrew J. Rider for malicious prosecution. There was a judgment in favor of plaintiff, and defendant brings error. Affirmed. The record returned with this writ shows a judgment against plaintiff in error in favor of defendant in error in an action for malicious prosecution. A bill of exceptions shows that, to prove the termination of the prosecution complained of, evidence was given that Kite was arraigned before a justice of the peace upon a charge of breaking and entering, etc., made by Rider; that a hearing was demanded by Kite, and accorded by the justice; and that, upon such hearing, the justice dismissed the complaint, and discharged Kite from custody. It further appears that the above was the only evidence that the prosecution had been terminated before the commencement of the action. Thereupon a nonsuit was asked, and refused, and an exception to said refusal was allowed. Argued June term, 1897, before MAGIE, C. J., and DEPUE, VAN SYCKEL, and GUMMERE, JJ. W. Holt Apgar, for plaintiff in error. Aaron B. Dawes, for defendant in error. MAGIE, C. J. The only question presented in this case is whether there was sufficient evidence that the prosecution which claimed to be malicious had been terminated before the commencement of the action. If not, it was error to refuse the nonsuit, for nothing is better settled in this state than that such action cannot be maintained unless the prosecution complained of had been terminated before the commencement of the action. Potter v. Casterline, 41 N. J. Law, 22; Apgar v. Woolston, 43 N. J. Law, 58; Lowe v. Wartman, 47 N. J. Law, 413, 1 Atl. 489. The contention on the part of the plaintiff in error is that under our criminal procedure act, as amended, the discharge by the magistrate of an accused person upon examination does not terminate the prosecution, but that it remains pending until the grand jury has considered, or at least has had an opportunity to consider, the complaint by which the prosecution was commenced. It is not denied that prior to the adoption of the amendments to the criminal procedure act, to which our attention is called, such a discharge would have. terminated the prosecution, so as to give a cause of action to the injured party if the prosecution was malicious. Clearly, it would have been so; for such an action may be brought whenever the particular prosecution complained of has been ended, although the accused may still be liable to be called to answer for the same offense. The prerequisite is only that the particular prosecution be disposed of in such a manner that it cannot be reviewed, and the complainant, if he intends to proceed further, must institute proceedings de novo. Apgar v. Woolston, ubi supra; Clark v. Cleveland, 6 Hill, 344. When, upon a criminal complaint, an accused person is arrested, and brought before a magistrate, the latter, upon examination, may require the accused to enter into recognizance to abide the action of the grand jury, and, in default of such recognizance, commit him to jail for the same purpose, or he may dismiss the complaint and discharge the accused from custody. When the former course is pursued, it is obvious that the prosecution has not terminated, for the accused is either confined or under recognizance until the complaint whereon he was arrested has been further considered. ered. But when the latter course is taken, and the accused discharged, it is equally obvious that the particular prosecution is at an end; for although the complaining witness may voluntarily go before the grand jury, and charge the accused with the same offense, an 1 an indictment may even be found, yet such prosecution would be a new one, commenced by the complainant before the grand jury, and not founded on the original complaint. Apgar v. Woolston, ubi supra; Fay v. O'Neill, 36 N. Y. 11; Robbins v. Robbins, 133 N. Y. 597, 30 N. E. 977; Moyle v. Drake, 141 Mass. 238, 6 N. E. 520. The legislation which, it is contended, has changed this rule, is contained in two supplements to the criminal procedure act,-the first approved March 12, 1878 (1 Gen. St. p. 1144, pl. 124); and the second approved March 24, 1892 (1 Gen. St. p. 1152, pl. 162). By the first of these supplements, every justice of the peace is required to transmit to the prosecutor of the pleas of his county "every complaint, warrant, recognizance, and all other papers in every criminal case," and a failure to perform this duty by delivering such matters to the prosecutors by the day before the first day of each term is made a misdemeanor. The second supplement requires every committing magistrate to keep a book in which he shall enter the name of every person against whom he shall issue a warrant, with other particulars respecting the charge and the proceedings thereon, and to transmit the book to the prosecutor, within 10 days before each term, with all papers in his possession "relating to criminal business." The contention is that, notwithstanding a complaint has been dismissed and the accused discharged from custody under the warrant, the fact that the complaint and warrant are transmitted to the prosecutor of the pleas continues the prosecution originally begun by the complaint. But this contention cannot prevail. If it be assumed that the legislative intent expressed in this supplement was to require the transmission of dismissed complaints (which admits of a doubt), it is impossible to discover an intent to impose upon the prosecutor, as a duty, to submit such complaints to the grand jury. Doubtless, if, upon examination, he should be of opinion that the accused in any case had been improperly discharged, he might lay that case before the grand jury, but the prosecution thus commenced would be a new one, not founded on the original complaint, although begun upon information derived therefrom. This supplement has not changed the rule that fixed the termination of a criminal prosecution, for the purpose of maintaining an action of this kind, at the period of the discharge of the accused from custody under the warrant. The other supplement has no applicability. Its purpose is expressed to be merely to enable the prosecutor to have a check upon committing magistrates, and to assure himself that all papers relating to criminal matters had been sent to him. The result is that the nonsuit was rightfully refused, and the judgment must be affirmed. STATE (KENNEDY, Prosecutor) v. BOROUGH OF BELMAR et al. (Supreme Court of New Jersey. Nov. 8, 1897.) CONSTITUTIONAL LAW-DELEGATION OF LEGISLATIVE POWER-MUNICIPAL CORPORATIONS-BOROUGHS-ELECTION TO ADOPT BOROUGH ACT. 1. The act entitled "An act relating to boroughs and borough commissions," approved April 21, 1896 (Laws 1896, p. 389), is a valid exercise of legislative power, and not within constitutional prohibitions. 2. Municipalities which by that act were created boroughs, and brought within the provisions of the act for the formation of borough governments, approved April 5, 1878, are properly characterized as boroughs organized under that act. 3. Such a borough may take advantage of the supplement to the last-mentioned act, approved March 14, 1893 (1 Gen. St. p. 204), and hold an election to determine whether to adopt the provisions of that act or not. 4. Beverly v. Waln, 30 Atl. 545, 57 N. J. Law, 143, distinguished. MAGIE, J. Prosecutor seeks to set aside a resolution of the borough council of the borough of Belmar submitting to an election of its voters the acceptance or rejection of an act entitled "A further supplement to an act entitled 'An act for the formation of borough governments,' approved April 5, 1878," which supplement was approved March 14, 1893 (1 Gen. St. p. 204, pl. 152). By the terms of that supplement, boroughs organized under the borough act of 1878 are given authority to construct sewers; but it is expressly provided that the supplement shall not go into effect, or be binding on any such borough, unless it shall have been submitted to the votes of the voters of the borough, and accepted by the votes of a majority at a special election held for that purpose in the manner provided in section 16. Prosecutor first contends that this legislation is within the prohibitions of the constitution, because the legislative power is thereby delegated to the voters of a municipality, and because it provides a rule only for such boroughs as accept its terms, and so lacks the required generality of application. But these objections cannot avail prosecutor, for the for the questions they raise have been disposed of in this state, so that they cannot be reopened. Warner v. Hoag land, 51 N. J. Law, 62, 16 Atl. 166; In re Cleveland, 51 N. J. Law, 319, 17 Atl. 772; Id., 52 N. J. Law, 188, 19 Atl. 17; Noonan v. Hudson Co., 52 N. J. Law, 398, 20 Atl. 255. The next contention is that the provisions of the supplement in question do not apply to the borough of Belmar, because it was not organized under the borough act of 1878. It appears in the statement of the case that Belmar was originally incorporated under the provisions of the act entitled "An act for the formation and government of boroughs," approved March 12, 1890 (1 Gen. St. p. 225). That act has been declared to be in opposition to constitutional requirements and void. Attorney General v. Borough of Anglesea, 58 N. J. Law, 372, 33 Atl. 971. Defendant's claim that it is properly characterized as a borough "organized" under the borough act of 1878 is put solely upon the provisions of "An act relating to boroughs and borough commissions," approved April 21, 1896 (Laws 1896, p. 339). By that act the legislature repealed the act of March 12, 1890, above cited, the "Act for the formation and government of boroughs," approved April 2, 1891 (1 Gen. St. p. 236), the "Act for the formation of borough governments in seaside resorts," approved March 29, 1878 (1 Gen. St. p. 254), and the "Act for the formation of borough commissions," approv ed March 7, 1882 (1 Gen. St. p. 286), and all supplements or amendments to said acts, and further enacted that every borough or borough commission established and formed under them, and now a de facto corporation, exercising corporate powers, should thereby be created a borough by its present corporate name, and be a body corporate, in fact and in law, and be governed by the borough act of 1878, and the supplements and amendments thereto, and other general laws relating to boroughs, and that each such borough should have the powers conferred, and be subject to the duties imposed, by said acts last mentioned. Passing for the present the question of the right of the legislature to adopt such legislation, and assuming that the borough of Belmar became endowed thereby with the corporate powers which were conferred by the borough acts of 1878 upon the boroughs incorporated under its provisions, let us inquire whether this borough may be properly said to have been organized under that act. Corporate life exists for the performance of certain functions prescribed by legislation, by the means and in the mode likewise thus prescribed. Like living organisms, the functions of a corporate body may be few or many, simple or complex, and be performed by means or in modes correspondingly varied. But the rule which fixes such functions and the means and modes of their performance is the rule of the organization. So legislation which prescribes the functions of municipal corporations, and the means and modes of their performance, may be said |