Anderson v. Cortelyou

• Decision Date: 18 November 1907
• Citation: 68 A. 118,75 N.J.L. 532
• Parties: ANDERSON et al. v. CORTELYOU et al.
• Court: New Jersey Supreme Court

68 A. 118

75 N.J.L. 532

ANDERSON et al.

v. CORTELYOU et al.

Court of Errors and Appeals of New Jersey.

Nov. 18, 1907.

(Syllabus by the Court.)

Error to Supreme Court

Action by Alexander G. Anderson and others against Abram A. Cortelyou and others. Judgment for defendants (63 Atl. 1095), and plaintiffs bring error. Reversed.

John A. French and R. V. Lindabury, for plaintiffs in error. Clark & Case and Dungan & Reger, for defendants in error.

HENDRICKSON, J. This writ is brought to review a judgment of the Supreme Court upon certiorari proceedings setting aside an appointment of commissioners made by the Somerset circuit court to assess upon abutting landowners the peculiar benefits conferred by the improvement of a public road in said county, known as the "Neshanic road," by the board of chosen freeholders, The opinion of the Supreme Court may be found in 63 Atl. 1095, wherein the facts are so fully stated as to obviate any extended reference thereto here. The proceedings for the improvement were begun on or about April 4, 1899, by an application in writing to the board of chosen freeholders, pursuant to section 8 of the state aid road law (P. L. 1800, p. 432; Gen. St. p. 2900, § 420; Amended P. L. 1896, p. 246), and such proceedings were had thereunder that the improvement was completed on or before June 20, 1904, and paid for, one-third from the state treasury and two-thirds from the county treasury. The assessment proceedings were brought by the board of freeholders under the act for the purpose of assessing and collecting the benefits from the owners of lands fronting the road to an amount not exceeding 10 per centum of the entire cost of the improvement. The principal question raised under the certiorari was whether, in view of the passage of the new state aid road law (P. L. 1903, p. 145), which was approved and took effect April 1, 1903, and which contains no provision for the assessment of benefits, the proceeding in question could be maintained. The Supreme Court held that it could not; that the repeal of the previous acts was so complete as to relieve the abutting landowners, even where the proceeding for the improvement was entered into before the passage of the act. Section 18 (page 154) of the new act contains the repealing clause of the act in these words: "All acts and parts of acts inconsistent with the provisions of this act be and the same are hereby repealed; provided, that this repealer shall not revive any act heretofore repealed, nor shall any proceeding for the improvement of any public road entered into before the passage of this act, abate, but such proceeding shall continue, as near as may be, as if the same had been commenced hereunder." We concur in the view expressed by the learned justice who delivered the opinion of the Supreme Court that the new act was, for all purposes in futuro, a complete repealer of the act of 1895, but we are unable to concur in the view that the act abrogates the right of the county to pursue its remedy under the old act to reimburse itself a portion of the cost of improvements previously undertaken by means of assessment of benefits. But for the eighteenth section just recited we think the new act must be regarded as prospective only, and as having no effect whatever on proceedings previously begun.

Leaving out of view for the present the proviso in the eighteenth section, does the repealing clause reach the proceeding to assess benefits in proceedings entered upon before the passage of the new act under section 8 of the act of 1895? The repealer is limited to those acts and parts of acts inconsistent with the provisions of the act of 1903. Now there is no section of the new act which provides for the raising of the county's proportion of the cost of improvements previously begun. Section 9 (page 149) of the act of 1903 is the only section of that act providing for the raising of the county's proportion of the road tax, and that covers only "work contracted for under the provisions of this act." The state's appropriation for the cost of roads to be constructed is also based upon "the cost of all roads constructed under the provisions of this act." And, since there are thus no provisions in the act of 1903 relating to the raising of money for the payment of the cost of road improvements entered upon before the passage of the act, it follows that the provisions of section 8 of the act of 1895, so far as they apply to such proceedings previously begun, are not inconsistent with the new act; and hence to that extent they are not repealed or made abortive by the express repealer in the act of 1903. The defendants in error must therefore look to the proviso of section 18, above recited, alone to support their contention.

And they rely largely upon the clause of the proviso...