Essen v. Common Council of City of Cape May

• Decision Date: 23 February 1909
• Citation: 77 N.J.L. 361,72 A. 49
• Parties: ESSEN v. COMMON COUNCIL OF CITY OF CAPE MAY et al. CONKLIN v. SAME.
• Court: New Jersey Supreme Court

72 A. 49

77 N.J.L. 361

ESSEN

v. COMMON COUNCIL OF CITY OF CAPE MAY et al.

CONKLIN

v. SAME.

Supreme Court of New Jersey.

Feb. 23, 1909.

(Syllabus by the Court.)

Certiorari, on the prosecution of William G. Essen, against the Common Council of the City of Cape May and such city, and by George F. Conklin against the same defendants, to review an assessment for sewer benefits. Assessment set aside.

Argued November term, 1908, before GARRISON, PARKER, and VOORHEES, JJ.

James M. E. Hildreth, for prosecutors. Thomas P. Curley, for defendants.

PARKER, J. Pursuant to act of March 22, 1904 (P. L. 1904, p. 88), concerning the extension of sewers and sewer systems in cities of this state, certain property owners in Cape May City, of whom the prosecutor Essen was one, petitioned the city authorities to construct a sewer in Madison avenue from the disposal plant to Beach avenue, thence along Beach avenue to Baltimore avenue. The petition was specifically based on the act of 1904, as was also the ordinance passed in compliance with such petition, and which, following section 4 of the act, directed the costs of work to be "assessed to the adjacent properties to the amount of the benefits conferred upon said properties respectively in accordance with the provisions of the charter of the city of Cape May and existing laws governing such city as to assessments; but no more than two-thirds of the cost shall be assessed to adjacent properties." This follows with exactness the language of section 4, except as to naming the city.

The sewer was duly constructed, and late in 1907 proceedings to assess the benefits for such construction were taken under the act of March 8, 1882 (P. L. p. 60) as the "existing law governing such city as to assessments." Under this act the circuit court appointed three commissioners to assess the benefits. These commissioners duly met and qualified, and, after the usual preliminaries, made their report to the circuit court on March 24, 1908. Notice was regularly given on application to confirm the report, and prosecutors appeared in court and objected to their assessments as exceeding the benefits, but the report was confirmed. The present writs of certiorari bring up the assessment and all the preliminary proceedings. Our examination of these proceedings satisfies us that the assessment is invalid, and must be set aside as to prosecutors. The report, which is the only evidence before us on the point, shows that the assessments are up to the limit set by the statute, viz., two-thirds the cost of the sewer; that the assessment...