State v. Mayor

• Decision Date: 20 March 1899
• Citation: 42 A. 805,63 N.J.L. 61
• Parties: STATE (COWARD et al., Prosecutors) v. MAYOR, ETC., OF NORTH PLAIN FIELD.
• Court: New Jersey Supreme Court

42 A. 805

63 N.J.L. 61

STATE (COWARD et al., Prosecutors)

v. MAYOR, ETC., OF NORTH PLAIN FIELD.

Supreme Court of New Jersey.

March 20, 1899.

Certiorari by the state (Sarah A. Coward and others, taxpayers, as prosecutors) against the mayor and common council of North Plainfield, to set aside a special assessment for a local improvement.

Argued June term, 1898, before LIPPINCOTT and GUMMERE, JJ.

Craig A. Marsh and Thomas N. McCarter, Jr., for prosecutors.

Charles A. Reed, for defendant.

GUMMERE, J. The prosecutors in these writs seek to set aside an assessment for benefits for the laying out and opening of Wachung avenue, in the borough of North Plainfield. The first reason which they assign for attacking the assessment is that the act under which the improvement was made is unconstitutional, because its object is not expressed in its title. The title of the act is, "An act for the formation of borough governments" (1 Gen. St. p. 179); and it is contended that there is nothing in this title to suggest in the remotest way the legislative purpose to confer the right of eminent domain upon the municipality. We think that such power can fairly be Inferred from this title. There are many acts upon our statute books which confer the power of eminent domain, under titles no more suggestive than is that of the present act, and which have been held to comply with this constitutional provision. "An act for the formation of railroad companies, and to regulate the same," the supplement to "An act to incorporate and regulate telegraph companies," the special charters incorporating railroad companies, and the various city charters of the state, are examples of such legislation.

The next ground upon which the assessment is sought to be set aside is that one of the commissioners (Justus H. Cooley) was not a disinterested person, and therefore was not qualified to act as such commissioner. The evidence taken in the case shows that this commissioner at the time of his appointment was the owner of two lots, located about 100 or 150 feet beyond the area of benefit, as fixed by the commissioners; and the argument is that, as one of the duties of the commissioners was to determine how far the benefit of this improvement extended, and consequently to determine whether or not Cooley's lots were benefited, the necessity of his passing upon the question disqualified him. We do not think there is any merit in this ground of attack. The statute under which these proceedings have been had requires that the commissioners shall all of them be resident freeholders of the borough. That being so, they are necessarily required to determine whether or not the area of benefit includes the lands which they own, no matter in what part of the borough they may be located; and, unless it clearly appears that their determination is not justified by the facts, their conclusion on this point should not be Interfered with. Jelliff v. Newark, 48 N. J. Law, 101, 2 Atl. 627. An examination of the testimony justifies the conclusion that Mr. Cooley was a disinterested freeholder, within the meaning of the act.

It is further alleged, as a reason for setting aside this assessment, that the commissioners illegally assessed $11,044 against the taxable property of the borough generally. This sum was the amount remaining of the cost of the improvement, after deducting all sums which had been assessed...