Sears v. Atl. City

• Decision Date: 12 June 1905
• Citation: 60 A. 1093,72 N.J.L. 435
• Parties: SEARS et al. v. ATLANTIC CITY et al.
• Court: New Jersey Supreme Court

60 A. 1093

72 N.J.L. 435

SEARS et al.

v. ATLANTIC CITY et al.

Supreme Court of New Jersey.

June 12, 1905.

(Syllabus by the Court.)

Certiorari by Charles E. Sears and the Barber Asphalt Paving Company against Atlantic City and the Cleveland Trinidad Paving Company to review an ordinance. Ordinance set aside.

Argued February term, 1905, before SWAYZE, J.

Clarence L. Cole, for prosecutors. Harry Wootton, for Atlantic City. B. C. Godfrey, for Cleveland Trinidad Paving Co.

SWAYZE, J. The question involved is the validity of an ordinance of Atlantic City directing that a portion of Atlantic avenue be paved, and that a portion of the cost be assessed upon the real estate specially benefited, and a contract made thereunder. The case is brought on for final hearing by the defendants pursuant to the statute (P. L. 1903, p. 344, § 5). The prosecutors entered a formal objection to the case being heard before a single justice, but did not question that the notice required by the statute had been duly given. I think that I must therefore proceed to determine the matter.

The defendants raise a preliminary objection that the prosecutors fail to show any interest in themselves, but the proofs show that Sears owns land which abuts the part of the avenue proposed to be paved. He therefore may be liable to assessment, and clearly has a right to prosecute the writ. It is immaterial whether the other prosecutor has an interest or not.

In the view I take of the case, it is not necessary to consider the objection made to the contract. I think the ordinance itself cannot be sustained, for the reason that it was passed without notice of any kind to the persons where property will be affected. It was held by Chief Justice Green in an early ease (Camden v. Mulford, 26 N. J. Law, 49) that an ordinance for paving a street was a judicial act, and that notice was necessary; and this view was approved in Vanatta v. Morristown, 34 N. J. Law, 445, West Jersey Traction Co. v. Board of Public Works of Camden, 56 N. J. Law, 431, 29 Atl. 163, and Landis v. Vineland, 60 N. J. Law, 264, 37 Atl. 625; and not questioned in Moore v. Haddonfield, 62 N. J. Law, 386, 41 Atl. 946. I think there can be no question that an ordinance for paving which includes a determination that the costs shall be assessed upon the property benefited is judicial in its character. If so, notice is required upon general principles of justice, although not required by the city charter. Wilson v. Karle, 42 N. J....