State v. Mayor

• Decision Date: 03 March 1887
• Citation: 49 N.J.L. 311,8 A. 295
• Parties: STATE (WHITE and another, Prosecutors) v. MAYOR, ETC., OF CITY OF BAYONNE and others.
• Court: New Jersey Supreme Court

8 A. 295

49 N.J.L. 311

STATE (WHITE and another, Prosecutors)

v. MAYOR, ETC., OF CITY OF BAYONNE and others.

Supreme Court of New Jersey.

March 3, 1887.

(Syllabus by the Court.)

This writ brings up certain assessments made against the property of the prosecutors in the course of a proceeding taken to open that part of Twenty-seventh street, in the city of Bayonne, between the line of Avenue E and the line of Avenue J, except where already opened.

De Witt Van Buskirk, for prosecutors.

W. D. Edwards, for defendants.

REED, J. The proceedings of which the questioned assessments are a part-were taken under the provisions of the charter of the city of Bayonne. P. L. 1872, p. 686, § 58. A great number of reasons were filed attacking the regularity of the proceeding at almost every step of its progress. The character of the contemplated improvement, and of the proceeding under the city charter, being such that, up to this time, the city has not been called upon to make expensive outlays therefor, the prosecutors are at liberty to attack the regularity of the proceeding at any stage. Among the reasons filed, there are those which allege defects in the proceeding which the records show to exist, and which we cannot fail to regard otherwise than as destroying the legality of the assessments. The eighth reason points to the requirement of section 58 of the charter, that the ordinance to carry out the improvement shall be referred to the commissioners of assessments, and a city surveyor not interested in such improvement, who shall make a map of such improvement. The reference was made to the commissioners of assessment only. No citation of authorities is necessary to support the principle, established by repeated adjudications, that the power conferred upon the council must be strictly pursued. The failure to include a disinterested city surveyor in the reference was a defect which is fatal to the regularity of these proceedings.

Again, the ninth and tenth reasons point to the charter requirement that the commissioners of assessments shall file their map within 20 days after the reference to them, or such further time as the board of councilmen shall grant. The record shows that, although several extensions were granted by the councilmen, yet the map was filed after the expiration of the time so granted. I think, however, it is a question not free from doubt whether the board of councilmen might not have ratified the late filing of the report and map. It...