State v. Town of Union

• Decision Date: 06 November 1890
• Parties: STATE (SCHLAPFER et al., Prosecutors) v. TOWN OF UNION.
• Court: New Jersey Supreme Court

20 A. 894

53 N.J.L. 67)

STATE (SCHLAPFER et al., Prosecutors)

v. TOWN OF UNION.

Supreme Court of New Jersey.

Nov. 6, 1890.

(Syllabus by the Court.)

Argued at February term, 1890, before KNAPP and MAGIE, JJ.

Mr. Collins, for prosecutors. Mr. Russ, for defendant.

MAGIE, J. No contest is made as to the power of the town of Union to assess the cost and expense of sewers built by it upon the property benefited thereby. Such power was required by the general "Act respecting assessments for local improvements in towns and townships," approved March 23, 1883, to be exercised by assessing such cost and expense upon the land and real estate benefited, in proportion to, and not in excess of, the benefits received from the sewer. Supp. Revision, p. 548, § 263. Any excess of the costs and expense over the benefits is to be borne by the town. The writ brings up the assessment on prosecutors' property made for the Morgan-Street and Palisade-Avenue sewer, and prosecutors' contention is that they are assessed more than they ought to be assessed therefor, because other property benefited by the sewer was not assessed. The proceedings returned show that the whole cost and expense of the sewer was imposed on property adjudged to be benefited. If, therefore, it is shown that other property was in fact benefited, and has not been included in the assessment, prosecutors have demonstrated that their burden has been unduly and illegally increased. Righter v. Newark, 45 N. J. Law, 104. The affidavits taken under a rule conclusively show that the sewer in question is one into which several lateral sewers were and are intended to discharge their sewage. Some of the lateral sewers, at the time of this assessment, had been built and connected with the sewer in question. Property along those lateral sewers then constructed is clearly shown to have been directly benefited by the construction of the sewer in question, which afforded them an outlet. For such benefits an assessment could have been made. Kellogg v. Elizabeth, 40 N. J. Law, 274. If the property so benefited had been included in the assessment, the proportion of cost and expense imposed on prosecutors would have been diminished. It was error, therefore, not to extend the assessment at least to the properties thus benefited. Prosecutors called the attention of the commissioners and the town authorities to the error and inequity of such an assessment by a proper protest. Their objections were unheeded, and the...