42 N.J.L. 510 | N.J. | 1880
The opinion of the court was delivered by
This certiorari brings up an assessment made by “The Commissioners of Streets and Sewers in the City of New Brunswick.” The writ was directed to not only these ■ commissioners, but also to “ The Mayor and Common Council of the City of New Brunswick.” The commissioners have ■made return, but the city asks to have the writ quashed as to .the municipality, on the ground that it has not custody of the record to be certified, and hence should not have been com.manded to make return.
This position is well taken. The act providing for the commission (Pamph. L. 1871, p. 795,) empowers the commissioners to make the assessment, enter it in their books, and collect the amount or enforce the Hen. The assessment remains with them for all purposes. They are also created a quasi corporation, with power to prosecute or defend any .action or process in law or in equity. They, therefore, as the legal custodians of the record, should alone have been commanded to certify it for review. Morris Canal Co. ads. State, 2 Green 411; State v. Howell, 4 Zab. 519; State v. Browning, 4 Dutcher 556.
When it is sought not only to, reverse the proceedings of inferior tribunals, but also to assail rights acquired upon the strength of them, it is proper to bring in the persons claiming these rights, and this may conveniently (though perhaps inartistically) be done, by directing the writ -to them and serving it upon them. Fleischauer v. West Hoboken, 10 Vroom
But in this case, all the rights of the municipality, by force-of these assessments, are legally confided to the guardianship-of these commissioners.
As to the city, therefore, the Writ should be quashed, with costs.
But I see no reason why this misdirection should impair the writ as to the commissioners. So far as they are concerned, it is mere surplusage.
It is further sought to have the writ dismissed for laches in-suing it out.
The writ was issued March 8th, 1880; the assessment which it brings up was made and entered in December, 1873. Such delay has been held to bar all complaint except as to-the constitutionality of the law under which the assessment was imposed. State, Weart, pros., v. Jersey City, 12 Vroom 510.
The act creating the commission (Section 28) also directs that no writ of certiorari be allowed to set aside any assessment under it, after six months from the time of entering the assessment. This provision prevents any review by certiorari, save for unconstitutionality in the law. State, Van Cleef, pros., v. Commissioners, &c., 9 Vroom 320; Traphagen v. West Hoboken, 10 Vroom 232.
But the prosecutors set up the law as unconstitutional.
The assessment brought up is for flagging the sidewalk in. front of the property of Kirkpatrick and Ballard, two of the-prosecutors, and for flagging, curbing, and guttering in front of the property of. Mrs. Robins, the third prosecutor. The-seventh section of the act requires all assessments to be levied upon the lots of laud in front of which the work is done. This provision has been held to be constitutional as to sidewalks. State, Sigler, pros., v. Fuller, 5 Vroom 227; State, Agens, pros., v. Newark, 8 Vroom 415, 423.
Hence, the prosecutors first named have no ground of complaint, and as to them, the writs must be dismissed, with costs.
