Doughten v. City of Camden

• Decision Date: 05 March 1906
• Citation: 72 N.J.L. 451,63 A. 170
• Parties: DOUGHTEN v. CITY OF CAMDEN et al.
• Court: New Jersey Supreme Court

63 A. 170

72 N.J.L. 451

DOUGHTEN

v. CITY OF CAMDEN et al.

Court of Errors and Appeals of New Jersey.

March 5, 1906.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Isaac Dough ten, trustee, against the city of Camden and others. Judgment for defendants (59 Atl. 16), and plaintiff brings error. Reversed.

Herbert A. Drake, for plaintiff in error. Edwin G. C. Bleakley, for defendants in error.

MAGIE, Ch. The judgment of the Supreme Court now under review affirmed an imposition upon lands of the plaintiff in error, for which no better name was found in the court below, or has been discovered by me, than "assessment." The imposition was at the rate of 75 cents a running front foot of the lauds of plaintiff in error, adjoining the street in which the city of Camden had laid a pipe for the conveyance of water. The pipe in question had been laid under the power conferred on the city of Camden to lay and relay water pipes under the streets of that city, conferred by the provisions of an act entitled, "An act to enable the city of Camden to supply the citizens thereof, and the inhabitants of the town of Pavonia in the township of Stockton with water," approved March 9, 1871. P. L. 1871, p. 415. By the fourth section of that act it was enacted that, whenever the city council caused a water pipe to be laid in any street of the city, the owners of ground in front whereof the pipe should be laid should pay for the expense thereof 75 cents for each foot of their ground upon such street, and it was further provided that, when a pipe should be thus laid, the city council should cause a statement of such expense to be filed with its city clerk, and such expense should be and remain a lien upon the ground from the day of performing the work until it was paid and satisfied. The assessment, and the proceedings which led to it, were brought into the Supreme Court by a certiorari sued out by the plaintiff in error, a property owner, and various objections to its validity were there presented, by the reasons filed under our practice. It appeared in the case that the pipe in question was laid by the city of Camden to take the place of a pipe previously laid in the street and used for furnishing water. The previous pipe had been laid by a waterworks company having legislative authority, and by like authority the city of Camden had purchased the plant and property of that company. The pipe in question was laid to replace that previously I n the street, on the claim that the latter had become unfit for use. Upon these facts the prosecutor claimed that the assessment on him could not be supported, because the expense incurred by the city was not for laying, but for relaying, water pipes. He further claimed that no authority to lay the pipe in question had been given by the proper officials of the city. Both these objections were held by the Supreme Court to be insufficient, upon grounds which are entirely satisfactory to us, and no error is found in this respect.

A question of vital importance in the cause was raised by a reason which challenges the constitutional power of the Legislature to authorize a municipality to impose upon lands abutting on a public street in which such a water pipe laid a fixed or specified amount of the expense thereof. The learned justice who pronounced the opinion of the Supreme Court found such power to exist, and thereupon the assessment was confirmed. The correctness of that conclusion is here questioned. The case shows that the city of Camden, since it purchased the plant and property of the waterworks company, has made use thereof, not only to provide water for strictly public purposes, but also to furnish to its inhabitants water for compensation, and that the net receipts there from exceed the expense. In this respect the acquisition and maintenance of the plant and property is a business venture of the municipality. For the cost of acquiring and maintaining the same, doubtless resort could be had to the power of general taxation.

It has not been contended that the imposition under review can be supported upon the general power to lay taxes. If the legislative grant of power to impose an arbitrary amount upon abutting land for the expense of laying a water pipe in the street could have ever been held to be constitutional it ceased to be such after the adoption of paragraph 12, § 7, of article 4, of the amendments to our Constitution, which provides that "property shall be assessed for taxes under general laws and uniform rules, according to its true value." Immediately upon the adoption of that amendment, it operated to abrogate all special laws assessing property for taxation. North Ward National Bank v. Newark, 39 N. J. Law, 380, s. c. 40 N. J. Law, 558; Trustee v. Trenton, 30 N. J. Eq. 667. When, under preexisting legislation, authority for an imposition of a sum fixed by a municipal board on vacant lots and lots with buildings thereon in which water was not taken, if such lots were on a street in which water pipes were laid, was pronounced invalid in this court, Mr. Justice Depue declared that under that constitutional provision no tax could be lawfully laid on property which is not determined either by special benefit derived or by a valuation of the property upon a uniform rule at its true value. And he held that a sum imposed at the discretion of a municipal board without regard to valuation was prohibited. Jersey City v. Vreeland, 43 N. J. Law,...