34 N.J.L. 227 | N.J. | 1870
The opinion of the court was delivered by
By an act approved April 1st, 1869, the township of Montclair, in Essex county, was divided into four road districts, and provision was made that whenever a petition in writing, was presented to the township committee, signed by the owners of one-half the number of lineal feet upon one side of any road, street, or avenue in said township, or upon so much of one side thereof as lay between two points named in the petition, requesting to have the sidewalks between said points, and on the side named in the petition, laid with stone, plank, or “composition, and setting 'forth the material and the width, or if requested in writing by ten freeholders and voters of any of said districts, the township committee were authorized to issue a call, upon a certain notice,, for a meeting of the legal voters of the district in which the sidewalk was petitioned for, stating the time, place, and object of the meeting. At which time the legal voters convened, or a majority, were empowered to raise by tax such sum as they should determine, for the construction of sidewalks therein, to be assessed and collected as other township taxes; and as soon as the committee should receive notice that such sum was directed to be raised, they were required to ascertain the cost of constructing the sidewalks petitioned for, and to lay the same and pay therefor three-sixths of the cost from the amount so authorized to be raised, and to assess upon the owners of lands upon the side
Under the act referred to, it was determined at a meeting of the legal voters of district No. 2, held on the 16th day of June, 1869, to raise $5,500 for the construction of such sidewalks as were petitioned for in that district, $27.50 of which sum was assessed upon the prosecutor as a general tax, and as the owner of houses and lots upon different streets and roads opposite to which sidewalks were laid; four several assessments were made against him by the committee for the one-sixth of the cost of their construction, the amounts thereof being $8.35, $5.54, $3.26, and 86.06, respectively. The case ■shows that all the sidewalks were petitioned for according to die act.
These assessments of one-sixth of the cost of constructing sidewalks in front of other lands, opposite to the prosecutor’s, it is alleged, are unconstitutional, as taking private property for public use without compensation, and the case of The Tidewater Company v. Coster, in the Court of Errors and Appeals, 3 C. E. Green 519, is invoked to support the proposition. The point of the argument is, that the owner opposite cannot be assessed beyond the benefit received, and that the fixing of an arbitrary rate may exceed the benefit. The general doctrine of the Tidewater case is, that the cost of a public improvement may be imposed upon lands peculiarly benefited to the extent of the benefit, but not beyond it, and that any excess of expense that may be assessed over the benefit is, pro tanto, a taking of private property for public use without compensation. How far, then, does that doctrine control the legislature in fixing the rate made and
The course of municipal legislation in this state is based upon that principle, and the courts have not disturbed it, but, on the contrary, incidentally treated it as correct. These improvements are of a local character, and although made with an eye to the public convenience, are presumed in their very nature, to give an equivalent benefit for the cost, upon the locality where made. They usually accompany the development and growth of a district or neighborhood, and practically their full cost can be traced in the enhanced value of the' property adjacent, or in the particular district or neighborhood. They are not, as a rule, experimental or hazardous in their results; their cost is reasonably certain and limited, and they are the usual and necessary means for promoting the utility and convenient enjoyment of property and increasing its value. In the case of Hammett v. Philadelphia, it was held that a special assessment could not be made where the improvement was for a general public benefit, and not clearly conferring special benefits, and however the application of that principle in that ease — it being for
The mode of its apportionment and the extent of territory that may be embraced within it are necessarily matters of legislative discretion. These are the necessary incidents of the exercise of the power, and upon the same principle w¡hich the legislature can define the limits of a borough, or any municipal or quasi municipal district, and provide for the costs of improvements to be assessed upon all the lands within it, according to benefits, that same power can determine that the scope of the assessment shall be limited to a smaller district or a particular class of owners peculiarly situated and benefited with reference to the improvements, and so also the mode of apportionment may be fixed, whether according to valuation or frontage. In either case, there must necessarily be some inequalities, for no mode of taxation works entirely equal. The rule ought to be uniform as to the particular class of owners, but whether one mode or the other is preferable, is a matter of discretion with the legislature, with which the courts should not interfere, unless it can be clearly seen that the provisions of the constitution are disregarded. The following cases and references sustain or recognize these principles, at least to the extent stated: Sedg. Stat Laws 503, and cases cited ; People v. Brooklyn, 4 Comst. 420; Northern Indiana R. R. Co. v. Connelly, 10 Ohio (N. S.) 159 ; Hammett v. Philadelphia, (ante;) Commonwealth v. Woods, 8 Wright 113; Magee v. Commonwealth, 10 Wright 359 ; State v. Newark (Elmer, J.,) 3 Dutcher 192 ; State v. Jersey City, 4 Dutcher 506.
There is nothing in the case furnished us to show that the locality of the prosecutor’s lands- is different from other lands generally, upon the' streets or roads where the sidewalks have been laid, and therefore no opinion is indicated as to how far the court would control an assessment, where, by reason of an unusual and very expensive work on a street, a landowner, on account of the peculiar situation of his land, might be assessed so as palpably to exceed any benefit received. It, I think, would take a strong case to call for the interposition of the court, where the improvement was amongst those known as local, and the legislature had fixed the locality to be assessed, and the rate or rule of apportionment. The frontage principle, by lineal feet, is not necessarily wrong, even when commissioners are required to assess generally, according to benefits; and in Peters v. Newark, 2 Vroom 361, 'this court refused to set aside an assessment where all the property,'including that with buildings, was assessed as unimproved land. The facts do not even show that the rule of apportionment according to frontage worked any inequality ; and if they did, it was a rule which the legislature, in its discretion, had power to adopt. This tax should not be disturbed, for the reason just considered.
The assessment of $8.35, and' part of the general assessment, are now attacked, upon the ground that the road
The last reason referred to is no cause for disturbing the assessment.
The remaining objection is, that about $500 of the money which was voted to be raised for constructing sidewalks, was expended in constructing walks across the streets along which such sidewalks were laid.
It does not appear that any part of this sum was included in the special assessments. The case does not show whether these crosswalks were to connect the sidewalks, so as to make a continuous walk between the points named in the petition, or whether they extended from the sidewalk io the opposite side of the street, upon which there was no sidewalk. I see no objection in the act, to making a continuous sidewalk between the points petitioned for, although it may cross other
The assessments against the prosecutor must all be affirmed.
Cited in State, Agens, pros., v. Newark, 6 Vr. 172; State, H. L. & I Co., pros., v. Hoboken, 7 Vr. 293; State, Agens, pros., v. Newark, 8 Vr. 423 ; State, Baldwin, pros., v. Fuller, 10 Vr. 581.