LEAMING, V. C.
Suit by the Hill Dredging Company against Ventnor City for an injunction. Preliminary injunction denied, on hearing of return of order to show cause.
Thompson & Cole, for complainant.
George A. Bourgeois, for defendant.
LEAMING, V. C. I will advise an order denying a preliminary writ.
1. A municipal corporation cannot be bound by an engagement which it had no power to make; and the corporate powers of such a corporation cannot be extended by the operation of the doctrine of estoppel. It follows that the defense of ultra vires is available to a municipal corporation. These principles appear to be well established. They arise from the public necessity of limiting the powers of the officers of such corporations to such engagements as are within the scope of the powers conferred upon the municipality by the Legislature. 1 Dillon on Municipal Corporations (3d Ed.) § 457. An examination of the corporate powers of defendant corporation and its officers, as defined in P. L. 1897, p. 46, fails to disclose any power of the common council to grant to or for the benefit of complainant the privilege of laying pipes for the purpose named in or upon the public streets within the municipality. The grant must be treated as void.
2. Should the permission which was granted be regarded as valid and binding upon the municipality, the affidavits filed in behalf of defendant disclose that the pipes have not been used for pumping sand to the beach front, as named in the permission, but have been used to pump mud and sewer filth, and have thus endangered the public health. As these statements are not denied, they must be assumed to be true. The duty of this court to refuse to restrain defendant municipality from interfering with acts of the nature stated seems manifest.