77 N.J.L. 361 | N.J. | 1909
The opinion of the court was delivered by
Pursuant to act of March 22d, 1904 (Pamph. L., p. 88), concerning the extension of sewers and sewer systems in cities of this state, certain property owners in Cape May City, of whom the prosecutor Essen was one, petitioned the city authorities to construct a sewer in Madison avenue from the disposal plant to Beach avenue, thence along Beach avenue to Baltimore avenue. The petition was specifically based on the act of 1904, as was also the ordinance passed in compliance with such petition, and which, following section 4 of the act, directed the cost of the work to be “assessed to the adjacent properties to the amount of the benefits conferred upon said properties respectively in accordance with the provisions of the charter of the city of Cape May and existing laws governing such city as to assessments; but no more than two-thirds of the cost shall be assessed to adjacent properties.” This follows with exactness the language of section 4 except as to naming the city.
The sewer was duly constructed, and late in 1907 proceedings to assess the benefits for such construction were taken under the act of 1882 (Pamph. L., p. 60), as the “existing law governing such city as to assessments.” Under this act the Circuit Court appointed three commissioners to assess the benefits. These commissioners duly met and qualified, and after the usual preliminaries made their report to the Circuit Court on March 24th, 1908. Notice was regularly given of application to confirm the report, and prosecutors appeared in court and objected to their assessments as exceeding the benefits, but the report was confirmed. The present writs of certiorari bring up the assessment and all the preliminary proceedings. Our examination of these proceedings satisfies us that the assessment is invalid and must be set aside as to prosecutors. The report, which is the only evidence before us on the point, show's that the assessment is up to the limit set
It is objected that the writs of certiorari were allowed after the time limit fixed by the act of 1882, which provides that no certiorari shall be allowed after the lapse of thirty days from the order of confirmation. The order vras made July 2d, and the writs are tested on August 5th, the allocatti.rs not being dated. We regard this provision of the act of 1882 as repealed by Pamph. L. 1907, p. 109, relative to the writ of certiorari which was in force before the proceedings for assessment vrere begun and which fixes the limitation at sixty days after confirmation and expressly repeals all acts and parts of acts inconsistent therewith.
The assessments will be set aside, with costs.