State v. Inhabitants of Trenton

53 N.J.L. 178 | N.J. | 1890

The opinion of the court was delivered by

Garrison, J.

The reasons urged by the prosecutor for setting aside the proceedings and assessment against him incident to the opening of Tyler street, in the city of Trenton, may be resolved into four:

First. Because common council did not treat with the owners of the land required for opening said street for the purchase of the same before applying to the board of city assessors to make an estimate and assessment of the damages that the said owners sustained by opening said street.

The prosecutor, by appearing in his own behalf before the board of assessors without questioning their jurisdiction to award to him the damages which he claimed, has waived this •objection. Moreover, the testimony taken in this case shows that common council did treat with the prosecutor through ■the duly accredited representative of a committee to whom the matter had been specifically referred by said council, and it also shows that the result of the treaty, so far as the prose•cutor was concerned, was not only a failure to agree upon a purchase price but a distinct understanding that the whole question should be referred to the board of city assessors.

Second. Because the estimates and assessments were wrong -as to amounts, and computed upon erroneous principles.

The report of the board distinctly affirms the correct rule an regard to benefits and damages, and there is nothing in the case to negative the presumption thus raised. The fact that certain witnesses, examined under the rule in these proceedings, differ in their estimates from that of the assessors upon the matter of values is without significance.

Third. Because the estimates and assessments and the notice thereof required by the charter to give force and validity to these proceedings were not given, served upon or notified to the person interested, as is required by the express provisions ■of said charter in • respect thereto.

The language of the city charter is as follows (vide section 83): “ It shall be the duty of the common council of said city, within one month after the presentation of the said report, to cause a notice of the appropriation of said assessment and costs to be served upon every person, his or her guardian or legal representative, against whom the same is made and whose residence is in said city.”

The affidavit of the city clerk shows that he served the notice referred to in this section upon the prosecutor by leaving a copy at his residence in the city of Trenton with a member of the family. This is a sufficient service. Where proceedings for contempt are contemplated, and in most cases of process, service is required, but in other cases a notice is served upon a person if left with a member of his family at his actual residence. Griffiths v. Marsh, 4 T. R. 464; Johnston v. Robbins, 3 Johns. 440.

Fourth. The last reason attacks the constitutionality of that provision of the charter of the city of Trenton which provides-that a refusal of two-thirds of the persons affected by any assessment to agree to it shall nullify the assessment, and that in the absence of such refusal to agree the final report of the assessors shall stand. This provision, which may, in one event, become a restriction upon the action of the municipal corporation, is in no respect an infringement upon the prosecutor’s constitutional privileges. It leaves him free to assert his property rights, as, in fact, he is doing by the proceeding-now under review.

There appears in the record before us'no error which should lead to a reversal.