37 N.J.L. 415 | N.J. | 1874
The opinion of the court was delivered by
The writ in this case has brought before the court the proceedings in the assessment of the expenses incurred in re-paving the road-bed of a portion of one of the public streets in the city of Newark. The cost of this work has been imposed in accordance with the direction of the legislative act authorizing these improvements, in the proportion of two-thirds of such cost on the owners of the lots fronting on the line of the section of the street thus repaved, and the remaining third on the city treasury.
It thus appears that the statute in question undertakes to fix, at the mere will of the legislature, the ratio of expense to be put upon the owner of the property along the line of the improvement; and, the question is, whether such an act is valid.
The inquiry thus involved has, of late, been so exhaustively discussed in a crowd of judicial decisions, that I do not feel inclined to do more than so far to refer to general principles as may be necessary to explain clearly what I conceive to have been heretofore decided by this court.
The doctrine that it is competent for the legislature to direct the expense of opening, paving, or improving a public street, or at least some part of such expense, to be put as a special burthen on the property in the neighborhood of such improvement, cannot, at this day, be drawn in question. There is nothing in the constitution of this state that requires that all the property in the state, or in any particular subdivision of the state, must be embraced in the operation of every
This question was considered, and, as it was supposed, was definitely settled by this court in the case of the Tide Water
With the doctrine thus expounded, the case of The State, Sigler, pros., v. Fuller, 5 Vroom 227, is not in harmony. This was an assessment for the improvement of a sidewalk, and in that feature differed from the present one, which is for the improvement of the road-bed. I think the difference is a substau- ' tial one. A sidewalk has, always in the laws and usages of this stare, been regarded as an appendage to, and a part ofj the premises ro which it is attached, and is so essential to the beneficial use of such premises, that its improvement may well be regarded as a burthen belonging to the ownership of the land, and the order or requisition for such an improvement as a police regulation. On this ground I conceive it to be quite legitimate to direct if to be put in order at the sole expense of the owner of the property to which it is subservient and indis
The other objections, raised by the counsel of the plaintiff in error, do not seem to me well founded. I can perceive no solid foundation for the position that the law under which the assessment in question has been made, raises up a contract between the land owner and the public. This statute declares that it shall be lawful for the common council, on the application of three-fourths of the owners of property in any street,, to order, &c., and it then adds, “ that after such grading, &c;, is effected, then the city shall take charge of and keep the same in repair, without further assessment.” The argument was, that after the land owners had petitioned, and the work was done, a bargain was constituted, the essential stipulation of which is that the expense of keeping the street in order shall be borne by the public. But how is this language to be converted into that of contract? It is not so in form, for it makes no offer to the land owner. Nor is the substance with which it deals the subject matter of agreement. It does not purport to ask from the citizen any thing which the state has not the right to demand. The purpose is to define tha
There are other legal difficulties in the mode of making assessments under the statutory provisions above criticised, which were not stated on the argument, which I shall not further notice than to intimate that I am not to be understood as sanctioning them by my silence.
On the ground first above stated the judgment should be reversed.
For reversal — The Chief Justice, Scudder, Clemert, Dodd, Greer, Lathror, Lilly. 7.
For affirmance — DxYLRIMPLE.