State v. Mayor and Common Council of the City of Newark

• Decision Date: 18 February 1886
• Parties: STATE ex rel. JELLIFF v. MAYOR AND COMMON COUNCIL OF THE CITY OF NEWARK.
• Court: New Jersey Court of Chancery

2 A. 627

48 N.J.L. 101

STATE ex rel. JELLIFF

v. MAYOR AND COMMON COUNCIL OF THE CITY OF NEWARK.

Court of Chancery of New Jersey.

February 18, 1886.

This writ of certiorari and 15 others were prosecuted to set aside assessments upon the lands of the prosecutors for the repaving of Broad street, from Central avenue to the canal bridge, and from Market street to William street, in the city of Newark.

The prosecutors have assigned for reversal the following reasons: "First. Because it appears from the report thereof that the said assessment, for said repaving, was made in accordance with the provisions of the charter of the city of Newark, approved March 11, 1857, and its supplements; that by said charter and its supplements the power of the common council of said city to repave streets exists only when more than one-half of the property owners on the line of the street proposed to be repaved shall petition the common council of said city therefor; and assessments are authorized only when necessary to raise the money for the cost of said improvement; that no petition for said repaving, as required by the charter or supplements, was ever presented to the common council of said city; nor is said assessment made, as provided in said charter, for the purpose of raising moneys to pay the cost of said work, but the moneys expended in said improvement have been already raised by a general tax, and said improvement has been paid for in that way. Second. Because the act of March 27, 1882, entitled 'An act relating to the improvement of streets and the construction of sewers in the cities in this state,' under which it may be claimed that said assessment has been made, contains no specific authority to make assessments for repaving streets, except as the same may be provided for by existing laws in force in said cities; and no law, general or special, in force in the city of Newark at the time of the passage of said act, authorized assessments for improvements in cases where the moneys to be paid for the same have been already raised by general tax. Third. Because, if the act of 1882 is applicable, it authorizes assessments for repaving such streets only as are specifically designated in the annual tax ordinance of said city to be repaved, and in which tax ordinance the specific amount to be thus expended is to be designated, and no such tax ordinance has been passed by said city of Newark. Fourth. Because said act of March 27, 1882, if applicable, is unconstitutional, because a special law, (which regulates or attempts to regulate the internal affairs of the city of Newark,) in that it applies only to cities, and excludes from its operation other municipalities to which it might with equal propriety apply. Fifth. Because Broad street, for a long time prior to the laying of said new pavement, was and had been a public highway of the city, and a cobble-stone pavement laid in said street, for the construction of which the owners of property fronting on said street had paid; that, at the time of laying the new pavement for which this assessment is attempted to be made, the said cobble-stone pavement was in good order and condition, and answered all purposes of ready access and approach; and that the repaving of said street, either with a new and different paving or by repairing the old one, was part of the general duty of the corporate authorities of the city of Newark, and may not be lawfully paid for by said assessment, nor can the legislature authorize such assessment for such purpose. Sixth. Because said improvement is a general and not a local improvement, and was so regarded by the common council of said city, which provided for paying for the same by a general tax. Seventh. Because the act of March 27, 1882, entitled 'An act relating to the improvement of streets, and construction of sewers, in the cities of this state,' under which this assessment may be sought to be sustained in whole or in part, is unconstitutional, in so far as it directs that the moneys derived from the assessment for special benefits shall be applied, not to pay for the improvement in respect of which such assessment is levied, but that such moneys shall be set aside to be used as a fund to pay for other similar improvements, by which the individuals called on to contribute to said fund may not be specially benefited; and because the said act is in other respects unconstitutional and void. Eighth. Because, if it can be considered that any special benefit can arise from such repaving, the said assessment has been imposed upon only a part of the property specially benefited, the only lands assessed being those which front on Broad street, while other lands situate near said improvement, or on streets crossing Broad street, are also specially benefited; and also because the assessment of all property benefited would largely reduce the assessment upon the property of the prosecutors. Ninth. Because the lands assessed in this proceeding have been twice assessed for the same improvement; the costs thereof having already been included in the tax levy of the city of Newark for the year 1882; under which the lands assessed have been charged with their due proportion, and it is now sought, again to charge the lands with the cost of said improvement in this proceeding and because it does not appear from the report that the benefits assessed by said commissioners do not exceed the special benefits conferred by said improvement, taking into account the amount already assessed against the said lands, or the owners thereof, in respect to said lands in said general tax levy. Tenth. Because the said assessments are excessive, being as great as could be lawfully laid on property assessed for the original pavement."

Mr. Young, Mr. Stevens, Mr. Titsworth, and O. Parker, for prosecutors.

J. Coult, for defendants.

DIXON, J. The first reason presents no difficulty. The laws on which this assessment rests are the charter of Newark, with its supplements, and "An act relating to the improvement of streets and the construction of sewers in the cities of this state," passed March 27, 1882. P. L. 1882, p. 190. Treating all these laws as valid, and construing them together, they provide (P. L. 1882, p. 190, § 2) that streets may be repaved without the request or consent of property owners; section 1, that the money needed for such improvements may be raised in advance by general tax; and (sections 5 and 6) that assessments for benefits derived from such improvements may be afterwards...