Arlington Beach Co. v. Borough of Seaside Heights

94 N.J.L. 24 | N.J. | 1920

The opinion of the court was delivered by

Swayzb, J.

The borough of Seaside Heights sought by these proceedings to acquire land along the seashore for the purposes of constructing- a boardwalk thereupon, of establishing a public park or playground, and of constructing piers or amusement pavilions, and of conducting and operating bathing beaches. Commissioners were appointed to condemn the land. The order appointing commissioners is now before us for review.

The laws of 1917 provide that a local improvement is one the cost of which or a portion thereof may be assessed upon lands in the vicinity thereof benefited thereby. Among the improvements specifically enumerated is the construction of a public walk on any beach or along the ocean. Pamph. L. 1917, p. 370, art. 20, § 1. Section 2 (page 371) and section 9 (page 374) make it clear that proceedings for such improvements shall be begun by ordinance. The statute reaches improvements the cost of which may be assessed upon lands specially benefited whether in fact they are to he assessed or not. The question is one of definition only. We have no doubt that the proposed improvements are local improvements within, the definition and that (hey must be authorized by ordinance. Until the municipality has the authority of an ordinance, it cannot make the improvement and it follows cannot condemn lands for the purpose. Wendel v. Board of Education of Hoboken, 76 N. J. L. 499, 501. This authority must appear in the petitions for appointment of commissioners. Ibid/. The present petition fails to show authority. There is a mere incidental reference to an ordinance for a boardwalk, but whether such an ordinance has ever been adopted or whether it is only proposed does not appear. We must take the returns as- complete. Wilkinson et. al. v. Inhabitants of Trenton, 36 Id. 499. The necessary result is that the proceedings be set aside. The prosecutor is entitled to costs.