...The councilmen are required to display such intelligence and skill as they
are capable of in discharging the duties of their office, and to be diligent
and conscientious, Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433
(1952). Since it is obvious to anyone reading the advertisement of sale that
the purchaser of the lot would not be permitted to erect thereon a one-story
building facing Ocean Avenue, it must be assumed that the councilmen themselves
knew of that restriction on the use of the lot since they themselves authorized
the advertisement, and passed the resolution selling the lot subject to the
restriction. Therefore, either the notice of sale was a legal fraud on the
public because it misrepresented the actual conditions of the sale, and that
the conditions were not imposed for the public benefit; or the issuance of the
permit in violation of the conditions of sale is a legal fraud on the public.
The legality of the sale of the land, subject to the aforesaid restriction, is
not challenged and, until it is set aside, it must stand as an act done in the
public interest, and one authorized by law. Hence, it follows that the issuance
of the permit in violation of the conditions of the sale constitutes a legal
fraud on the public.
------------------------------------
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