State v. Commissioners of Streets & Sewers of New Brunswick

38 N.J.L. 320 | N.J. | 1876

The opinion of the court was delivered by

Knapp, J.

Application is made on behalf of the defendant in certiorari to dismiss the writs in these cases, because their issue, it is claimed, was prohibited by the provisions of the twenty-eighth section of the act entitled “ An act appointing commissioners of streets and sewers in the city of New Brunswick,” passed March 23d, 1871. Pamph. L. 795. The provision is as follows : “ No writ of certiorari shall be allowed or granted to set aside any assessment for any improvement made under this act after six months shall have expired from the time of entering such assessment,” &e. The point urged by the defendants is, that the writs, having issued to review an assessment for an improvement made under the act, after the expiration of the time limited in the act for its allowance, is void, and should be dismissed as improvidently issued.

The writs were allowed in open court on ex parte application. The act in question, and the facts upon which the argument proceeded, were before the court when the writs were allowed ; the return to the writs placed no new matter before the court. The writs were issued in the exercise of the discretion of the court, and they continue subject to the same discretion until the causes are finally heard and decided. The questions of the constitutional invalidity of the ad, or of that portion of it under which the assessment Avas made, and the relation of the limitation to such portion, and Avhether binding or not, so far as they Avere necessary to be looked into and considered in deciding Avhether the Avrits could and should issue to bring up the proceeding objected to for adjudication, were before the court, and passed upon, in alloAving the writs. And, as no new reasons appear why the court should reconsider their action allowing the Avrits, and novv dismiss them, we think they should be retained, and the parties be alloAved a hearing on all the questions involved in the causes. The power of the court to dismiss the Avrit of certiorari at any time is unquestionable ; Avhether it will do so on motion for that purpose, is matter of discretion.

To decide on this motion all the questions debated by counsel, is neither necessary or proper ; to do so would be to settle the whole case. The writs being retained, those questions remain to be determined by the court on final hearing, when the Avhole case can be heard and disposed of.

If Ave were now called upon to consider the effect to be given to the clause of limitation in question, we are not prepared to say that it manifests an intent on the part of the legislature to limit the inherent poAver of this court to inquire into and decide upon the constitutionality of a legislative enactment, nor that it would be within the range of legislative powers so to do. It may very fairly be held to apply only to such proceedings as might be had under provisions of the law which are valid to support them ; and that, as to all such provisions of the act as are within constitutional inhibition, if such there are, the limitation, being special, can be no stronger than the provision to which it applies and which supports it.

It has been stated as a rule that all provisions of an act which are dependent, conditional, or connected so as to warrant the belief that the legislature intended them as a whole, stand or fall together under the test of the constitutionality of any such provision. Cooley on Const. Lim. 178, and cases cited ; Warren v. Mayor, &c., of Charlestown, 2 Gray 99.

It would seem to be reasonable that, where an essential part of an act is unconstitutional, and fails for that reason, all other parts of the act which depend upon it for force and effect, must necessarily meet the same result. And, under this rule, it may be held to follow that if the provision for making the assessment in question is a void one, the limitation in the same act, so far as it relates to such provision and the proceedings under it, is void also. But whether so or not, are questions for discussion and decision on the final hearing of the cause. Whatever view might now be taken of the force and effect of the clause of limitation, the motion to dismiss is not sustainable, because it does not appear by the record before us that the event has transpired upon which the time was to begin to run. The limitation is to a period within six months from and after the entry of the assessment in the books of the commission. The act provides for such entry, and it nowhere appears in the cases before us when such entry was made, or that any entry was made as directed by the act.

The motion to dismiss must be denied, with costs.