Holloway v. Pennsauken Tp.

• Court: New Jersey Supreme Court
• Writing for the Court: WACHENFELD
• Citation: Holloway v. Pennsauken Tp., 12 N.J. 371, 97 A.2d 141 (N.J. 1953)
• Decision Date: 18 May 1953
• Docket Number: No. A--123,A--123
• Parties: HOLLOWAY et al. v. PENNSAUKEN TP. et al.

Page 371

12 N.J. 371

97 A.2d 141

HOLLOWAY et al. v. PENNSAUKEN TP. et al.

No. A--123.

Supreme Court of New Jersey.

Argued April 20, 1953.

Decided May 18, 1953.

W. Louis Bossle, Camden, argued the cause for appellants.

Thomas F. Salter, Camden, argued the cause for respondent.

The opinion of the court was delivered by

WACHENFELD, J.

Two hundred thirty-six property owners in the defendant Township of Pennsauken challenge the validity of assessments made against their lands. The assessments were for special benefits resulting from a local improvement, to wit, sanitary sewers and a sewage pumping station.

In February of 1949 the township, after public hearings, adopted two ordinances authorizing the improvements, the cost thereof to be assessed against the lands benefited. The work so authorized was completed in the latter part of 1950. A public meeting was called by the board of assessment commissioners and thereafter, on December 29, 1950, the township committee confirmed the report of the commissioners fixing the individual assessments. The assessments cover the cost not only of the 1950 construction but also of the construction of a sewer in 1925 not usable until completion of the 1950 project.

Nine months and five days after the assessments had been confirmed, the plaintiffs filed their complaint in lieu of Certiorari. The defendant Pennsauken Sewage Authority was eliminated as a defendant. The Attorney General was made a defendant to the amended complaint file April 10, 1952, but no answer being filed in his behalf, a default was entered. Thus the Township of Pennsauken is referred to hereafter as the defendant.

The assessments were said to be illegal because: (1) they were based upon a mathematical formula and were not limited to the special benefits received by the individual parcels of land; (2) certain benefited lands owned by the municipality and by private owners were omitted and should have been included in the calculation of the assessments; (3) the assessments exact from the landowners double payment because they cover the cost of the 1925 sewage system project as well as the 1950 project; and (4) certain parcels of land should not have been assessed because of covenants in the deeds running from the township to the predecessor in title of some of the plaintiff property owners.

The defendant moved to dismiss the action because the plaintiffs: (1) had failed to take an appeal to the Law Division of the Superior Court within 30 days as provided by R.S. 40:56--54 N.J.S.A.; (2) had not instituted the action in lieu of Certiorari within 30 days after the confirmation of the assessment, in accordance with R.S. 40:56--40, N.J.S.A. or Rule 3:81--15(b)(4), and (3) were guilty of laches.

The motion, treated on the trial level as one for summary judgment, was granted, but none of the three grounds set forth above was specified. Cf. Rule 3:12--2.

On appeal, the Appellate Division affirmed on the ground the plaintiffs were barred by the 30-day limitation in R.S. 40:56--54, N.J.S.A. Holloway v. Twp. of Pennsauken, 23 N.J.Super. 224, 92 A.2d 835 (App.Div.1952.)

Both in the Appellate Division and here the plaintiffs argued that statute is inapplicable and the remedy is by proceeding in lieu of Certiorari inasmuch as the assessments are attacked on constitutional grounds; that therefore the 30-day limitation in R.S. 40:56--40, N.J.S.A. and Rule 3:81--15(b)(4) and the doctrine of laches do not apply. Because a constitutional question was alleged to have been raised, the appeal was brought here. Rule 1:2--1.

The statute, R.S. 40:56--54, N.J.S.A., provides in part:

'* * * the owner of any property assessed for benefits * * * may within thirty days after confirmation of such assessment * * * appeal from the same to the circuit court of the county * * * by serving written notice of such appeal within such thirty days upon the tax collector and a duplicate upon the clerk of the governing body. * * *

'The hearing of such appeal shall be brought on upon order of the court at a time and place to be fixed by it * * *.

'The court * * * on the hearing thereof, shall determine whether or not the assessment * * * is a just and fair assessment * * * and if not shall make an order correcting the same or if the assessment * * * is sustained shall so order.'

The jurisdiction of the Circuit Court now rests with the Law Division of the Superior Court. Art. XI, Sec. IV, par. 3, Constitution of 1947.

R.S. 40:56--54, N.J.S.A. was in effect prior to the adoption of the Constitution of 1947 and remained in effect by virtue of Art. XI, Sec. I, par. 3. It is not intimated that any rule of court has yet been promulgated to take the place of the statute.

In attempting to by-pass the statute the plaintiffs rely on cases in which an attack on an assessment by writ of Certiorari has been allowed. Disapproval of an assessment resulted in Breakenridge & Tichenor v. Newark, 95 N.J.L. 436, 112 A. 857 (E. & A.1921), where the property owners had not been given a full hearing before the city commission. That defect was fatal to the assessment and could not be cured by the fact that there was available an appeal to the Court of Common Pleas from the amount of the assessment.

Where the assessment commissioners were legally disqualified to act, the statute did not deprive the property owner of the use of the writ of Certiorari to challenge the assessment, in Becker v. Borough of Garwood, 96 N.J.L. 327, 115 A. 334 (Sup.Ct.1921).

Certiorari has been recognized as a proper means of challenging assessments where fundamental rights of property owners have been violated or the enabling statute or ordinance upon which the assessments were based were unconstitutional. In those instances time limitations, whether imposed by statute or the doctrine of laches, will not act as a bar.

So, in Frank v. Mayor & Aldermen of Jersey City, 141 A. 669, 6 N.J.Misc. 446 (Sup.Ct.1928), the court found no merit in the contention that the property owner was barred by his laches in applying for the writ of Certiorari. But there the question of notice was paramount, the prosecutor of the writ contending he had no notice of the hearing before the court and the order of the court confirming the assessments was not entered in the clerk's minutes.

Similarly, in Walsh v. City of Newark, 78 N.J.L. 168, 73 A. 523 (Sup.Ct.1909), the municipal authorities failed to give property owners either actual or constructive notice of the pendency of the ordinance; thus, they failed to acquire the right to impose the assessment of special benefits in question.

In State, Evans, et al., Pros., v. Inhabitants of North Bergen, 39 N.J.L. 456 (Sup.Ct.1877), once again the question of notice was raised. There the township clerk had failed to give notice that the commissioners' report confirming the assessment had been filed. The court declared:

'But the confirmation * * * having never had any legal existence, for want of the notice referred to above, it follows that the prescribed...