Wilson v. City of Trenton

• Decision Date: 17 November 1891
• Citation: 53 N.J.L 645,23 A. 278
• Parties: WILSON v. CITY OF TRENTON.
• Court: New Jersey Supreme Court

23 A. 278

53 N.J.L 645

WILSON

v. CITY OF TRENTON.

Court of Errors and Appeals of New Jersey.

Nov. 17, 1891.

(Syllabus by the Court.)

Error to supreme court.

Proceeding by the city of Trenton against Samuel K. Wilson to open and lay out a certain street. The supreme court affirmed the proceedings by which lands of plaintiff in error were condemned for a public street, and an assessment for the expenses of the improvement imposed on other lands belonging to him. Defendant brings error. Reversed.

George M. Robeson, for plaintiff in error.

John Rellstab and William M. Lanning, for defendant in error.

MAGIE, J. The principal question presented in this case was raised by a reason filed on the return of the certiorari in the supreme court, objecting to the assessment upon plaintiff in error on the ground that certain notices had not been given as required by law. The law regulating the mode in which lands in the city of Trenton may be taken and condemned for public highways and assessments may be imposed to pay for the same, is, in the respect now in question, contained in the provisions of the "Act to provide for the more efficient government of the city of Trenton," approved March 19, 1874, (Laws 1874, p. 331.) By the terms of that act a board of assessors is required to first assess the damages sustained by each owner of land taken, including the value of such land, and to next assess the amount of such damages upon lands benefited, and to then report their action on both assessments to the common council. By section 83 of the act the common council is required, within a month from the presentation of the report, "to cause a notice of the proportion of said assessment and costs to be served upon every person, his or her guardian or legal representative, against whom the same is made, and whose residence is in said city, and also to cause like notice, directed to such persons as do not reside in said city, to be inserted in one or more of the newspapers of said city for the space of one month." It is also provided that, if within two months from the presentation of the report, two-thirds of the persons assessed file with the city clerk their refusal in writing to agree to the assessments, no proceeding to enforce their collection shall be had; but if within that period no such refusal is filed, the assessments become binding and conclusive. They may be collected by action, or by a sale of the lands in respect to which they were made. While the act does not expressly declare that the assessments will thus become binding only in case notice to those assessed has been given as required, yet this intent is so plain that it was conceded in the argument that such construction must be given to these provisions. The legislature may prescribe how such notices may be given. The mode prescribed must be strictly followed, and the proceedings must show the prescribed notice. Kohler v. Guttenberg, 38 N. J. Law. 419; Kellogg v. Elizabeth. 40 N. J. Law, 274; White v. Bayonne, 49 N. J. Law, 311,8 Atl. Rep. 295. When no mode of giving notice has been prescribed, it was also conceded that what is called "personal service" is required, and must appear. The Trenton charter directed notice to non-residents to be given by publication; to residents, to be given by service on them, which must be construed to be personal service. The return shows that assessments were imposed on 16 persons, of whom 1 was non-resident, and the others, including the plaintiff in error, were residents. It also shows that the common council directed the city clerk to give notice to them in the manner required by the charter. How he gave the notices only appears by his unverified report to the council. I cannot discover that the charter makes the service of such notices a part of his official duty, and so within the sanction of his official oath. Had the council directed any citizen to serve these notices, and then acted upon his letter stating the manner of service, the cases would seem to be undistinguishable. But this objection was not argued, and has not been considered. Assuming that the report of the city clerk properly exhibits the mode of service of the notices, it thus appears that the only service upon the non-resident was by mailing a copy of the notice to his address at Woodbury, N. J. This was obviously not a compliance with the act, which required in that case notice to be given by publication in a newspaper.

It further thus appears that service of the notice on 10 of the residents assessed, including the plaintiff in error, was only made by leaving a copy of the notice at the person's residence, with a member of the family. It is contended that this does not show such service as is required by the Trenton charter. Personal service, within the meaning of such acts, is to be distinguished on one hand from what may be called "official service," such as the personal service of a summons in an action at law, which is required to be made by the officer on the defendant in person; and, on the other hand, from substituted or constructive service, which is such as by law conclusively results from the performance of certain prescribed acts, such as publication, posting, and the like. The service required by this and similar statutes need not be made by an official or in a particular mode. If the required notice is conveyed to the person to be affected thereby, it is sufficient. When a question of such service arises in a...