78 N.J.L. 503 | N.J. | 1909
The opinion of the court was delivered by
The borough of Avon, by separate ordinances, provided for the grading, graveling and curbing of certain streets or sections of streets in the borough. The assessments for benefits and damages were separately made as to each street by a board of commissioners of assessment duly appointed under section 52 of the Borough act. Pamph. L. 1897, p. 285, as amended; Pamph. L. 1900, p. 400. The act, as amended, malees it "lawful to appoint three discreet persons, residents and freeholders of the borough, to be commissioners of assessment; said commissioners shall make all assessments in favor of the owner of lands or real estate damaged or taken, or upon the owner of any land or .real estate for benefits conferred by any general or local improvement.”
This board ascertained the damages to landowners and the benefits conferred by each improvement, and made a report in each case to the common council. All of these assessments were removed to the Supreme Court by certiorari, and that court held them all to be illegal upon the ground that the proceedings in each case failed to recite that the commissioners of assessment were "discreet persons, residents and freeholders of the borough,” as required by section 53, as amended, of the Borough act as above mentioned, basing its conclusions on Brewer v. Elizabeth, 37 Vroom 547; State v. Newark, 1 Dutcher 399. The court thereupon set aside the report of the commissioners, and made a reassessment, adopting for that purpose the report of the commissioners, and to review that judgment this writ was taken. In reaching this conclusion the Supreme Court failed to note the distinction
In the former case the qualifications necessary to justify the appointment must be set out in the proceedings, but in the latter it is not required. The commissioners in the present case were a board regularly appointed to serve in every case where assessments were necessary in making any public improvement, “they were permanent officers of the city, not a mere set of commissioners appointed for a particular case. It is no more necessary that their particular qualifications should be set forth than those of any other officer of the city, as the mayor, the city clerk, or the members of the common council.” State v. Jersey City, 4 Dutcher 500, 504; State, H. Land and I. Co., pros., v. Hoboken, 7 Vroom 291; State, Harris, pros., v. Jersey City, 9 Id. 85, 86.
The judgment of the Supreme Court in setting aside the assessment made by the commissioners, having no legal foundation, it was without jurisdiction to make a reassessment.
It is, however, urged that as Dow Kling, one of the board of commissioners, signed a petition addressed to the common council of the borough requesting that the improvements be made, he was disqualified to act as commissioner of assessments, and the common council should have appointed another to act in this special case, and that the failure to do so is fatal to these proceedings.
We do not think the signing of a petition addressed to the common council, asking for an improvement, creates such an “interest in the assessment” as to disqualify a petitioner from acting as a commissioner of assessments, for section 55 of the Borough act requires the common council to determine, after the completion of the improvement, the expense thereof, which shall be, by resolution, entered upon the record of their proceedings, and the amount so determined
The next objection to the assessment made by the commissioners, and by the Supreme Court, is, that neither ascertained, as separate items, the cost of the grading, of the curbing, and of the graveling, and that there was nothing in the case from which either the commissioners or the Supreme Court could determine to what extent the property of the prosecutors was benefited by each of said items of improvement. This objection is founded on section 33 of the Borough act, the second subdivision of which authorizes the
It is urged by the plaintiff in error that this proviso requires that each item of the cost of an improvement, and the damages incurred or benefits received, be assessed and returned separately — that is, the cost of laying a pavement is a distinct item, and that damages and benefits should be ascertained as to that and returned as an independent item, and so as to the graveling and curbing. We do not think that under this act the commissioners of assessment are required to separate the different elements constituting a street improvement. The act seems to divide the improvements into three classes — first, street improvements, which embraces grading, curbing, paving and graveling; second, construction of public walks along any beach or ocean front; third, providing suitable protection for property against an encroachment by the sea. Whether this be so or not, it is clear that the ordinance under consideration relates to street improvements, for all of the ordinances .provide for grading and graveling with a layer of clay gravel spread six inches thick, the entire width of the street, and also that they be curbed on both sides with stone curbing, thus in each ease dealing with street improvements, and the proviso referred to does not extend beyond requiring that when the cost of a street improvement lias been ascertained by the common council, the commissioners of assessment shall report, as to •each landowner, the amount awarded for damages, and the amount assessed for benefits, and not report the difference between the two items.
The judgment below is reversed, and the assessment made by the commissioners of assessment affirmed.
For affirmance — -None.
For reversal — The Chief Justice, Garrison, Swayze, Seed, Parker, Bergen, Voorhees, Minturn, Bogert, Vredenburgh, Vroom, Gray, Dill, Congdon, JJ. 14.