68 N.J.L. 140 | N.J. | 1902
The opinion of the court was delivered by
This writ brings up for review an assessment for benefits for the improvement of West Side avenue, in Jersey City, made against the prosecutor in the following words and figures, to wit: “No. 618, North Jersey Street Railway Co., West Side Branch, $3,000.” The improvement •was made by the plaintiff: under chapter 317 of the laws of 1895 (Pamph. L., p. 407; Gen. Stat., p. 487), and consisted of the repaving of the avenue and cross streets with belgian blocks from Communipaw avenue on the south to the Pennsylvania railroad tracks on the north. The whole distance covered by the improvement is seven thousand feet. The plaintiff operates a double-track steel railway through the part of this avenue lying between Communipaw avenue and Montgomery street, a distance of three thousand feet. The plaintiff is the successor of the Consolidated Traction Company in the operation of this road, and the latter succeeded the Jersey City and Bergen Eailroad Company. The report of the commissioners showed the entire cost of the improvement to be $45,486.03, and that the whole was assessed as benefits except the sum of $931.53, which was to be borne by the city at large. The assessment upon the plaintiff is resisted mainly upon the ground that it is not within the authority of the statute in question.
By reference to section 5 of the act it will be seen that the statutory language directing the assessment for benefits is in these words: “And such commissioners of assessments or officer or officers shall proceed to make the assessment and prepare a report and map showing the benefit to each lot or parcel of land which is spéeially benefited by reason of the making of the improvement.” Again, in section 6, in referring to the question of interest, the statute says: “The amount assessed against each piece of property shall bear interest,” &c. We
This view finds support in the decision of this court in Dean v. Paterson, 38 Vroom 199, and in the authorities cited in the opinion on this point.
It is proper to say that the commissioners themselves, who testified frankly, stated that their assessment of the plaintiff was not based on the system of improvements for the benefit of the abutting property owners, but upon the ordinances of Jersey City requiring the plaintiff, as it is claimed, to pave the space within its tracks and also of two feet outside of its tracks. Under such ordinances the city might compel the defendant company to bear the expense of paving within the limits therein prescribed, but it is needless to say that such an obligation on the part of the company cannot be enforced in the proceedings under review.
The assessment will be set aside, with costs.