State v. City of Passaic

• Decision Date: 08 June 1893
• Citation: 27 A. 909,55 N.J.L. 485
• Parties: STATE ex rel. SIMMONS v. CITY OF PASSAIC.
• Court: New Jersey Supreme Court

27 A. 909

55 N.J.L. 485

STATE ex rel. SIMMONS

v. CITY OF PASSAIC.

Supreme Court of New Jersey.

June 8, 1893.

(Syllabus by the Court.)

Certiorari, in the name of the state, at the suit of Henry P. Simmons against the city of Passaic, to review an assessment for municipal improvements. Assessment confirmed.

Argued February term, 1893, before DEPUE, LIPPINCOTT, and ABBETT, JJ.

William Nelson, for prosecutor.

George P. Rust, for defendants.

LIPPINCOTT, J. The writ of certiorari in this case brings up for review the assessment laid for the opening of Central avenue, between Lexington avenue and Harrison street, in the Fourth ward of the city of Passaic. For lands taken for the opening of said avenue, belonging to the prosecutor, the commissioners awarded the sum of $4,089.76. The amount of costs and expenses of opening, according to the resolution of the city council, was the sum of $19,134.10. Of this sum, $382.68 was assessed upon the city of Passaic, that amount being the excess of benefits over the benefits specifically conferred upon particular plots of land and real estate. The sum of $4,371.98 was assessed upon the lands of the prosecutor.

There are many reasons filed, most of which pertain to the preliminary proceedings, and not to the assessment for benefits. These proceedings have not been brought up by this writ, and cannot be considered. Besides, this court has repeatedly held that it is too late to raise objections relating to the preliminary proceedings after the assessments for benefits have been made. State ex rel. Youngster v. Mayor, etc., of Paterson, 40 N. J. Law, 244; State ex rel. Hampson v. Mayor, etc., of Paterson, 36 N. J. Law, 159; State v. Mayor, etc., of Hoboken, Id., 291; State v. City of Passaic, 38 N. J. Law, 59; State v. Essex Public Road Board, 37 N. J. Law, 335.

The fourth reason is that the commissioners did not qualify according to law. Section 68 of the city charter of Passaic (Laws 1873, p. 510) provides that the commissioners must subscribe an oath "to make the said assessment fairly and impartially according to their best skill and judgment." The oath was, as taken, "to make said assessments fairly and impartially, according to our best judgment, skill, and ability." The words "and ability" may be treated as surplusage, and they do not weaken the force of the official oath taken by the commissioners. Their oath of office was in conformity with the requirements of the city charter.

The fifth objection states that it does not appear that the commissioners were disinterested freeholders of said city, residing, as near as may be, in different wards. The city charter (section 67) only requires the appointment of three disinterested freeholders of said city, residing in different wards, and by the return they appear to have been such freeholders. There is no force in this objection.

The seventh, eighth, and ninth objections are so general in their character that they cannot be regarded at all. The seventh alleges that the report of the commissioners is not in accordance with the law and the facts, without stating in what particular the defect consists. The eighth reason states that the report of the commissioners is not in conformity with the action of the city council, which attempted to direct them in their performance of their duties. This reason does not state in what respect the report is not in such conformity, if it was required so to be. The ninth reason claims the report is invalid because the acts of the city council, in their pretended appointment or direction of said pretended commissioners, was not in accordance with the provision of the city charter of said city in such cases. It is not stated in what respect the acts of the council were not in conformity with the city...