State v. Mayor of Newark

| N.J. | Feb 15, 1886

The opinion of the court was delivered by

Dixon, J.

The first reason presents no difficulty. The laws on which this assessment rests are the charter of Newark with its supplements, and “ An act relating to the improvement of streets and the construction of sewers in the cities of this state,” passed March 27th, 1882. Pamph. J., p. 190. Treating all these laws as valid, and construing them together, they provide {Pamph. L. 1882, p. 190, § 2,) that streets may be repaved without the request or consent of property-owners; (section 1) that the money needed for such improvements may be raised in advance by general tax, and (sections 5 and 6) that assessments for benefits derived from such improvements may be afterwards levied on the real estate benefited, in conformity with the provisions of existing laws in force in the city where the improvements are made. This, according to the first reason, is the procedure adopted in making the present improvement and assessment.

The second reason also is easily answered. It is not any law in force in Newark, prior to the act of March 27th, 1882, ■which is relied on for authority to assess the cost of an improvement which has been already paid for out of funds raised by general tax. That authority is derived from the act of March 27th, 1882, itself. The pi-e-existing laws, the city charter and its supplements, are depended upon only for the method of assessment, which is required, by the act of 1882, to be in conformity with, that is, in the form prescribed by existing laws.

The third reason, I am inclined to think, points out a discrepancy between the provisions of the act of March 27th, 1882, and the tax ordinances under which the general taxes were levied to raise the funds used in making this improvement. The ordinances merely directed that a tax of $50,000 should be-levied “ for repaving of streets.” The act (section 4) requires the tax ordinance to state specifically how much of the moneys to be raised shall be applied to each designated improvement, and directs that the amounts so set apart for a particular and specified improvement shall not be applied to any other use, nor exceeded in any year. Perhaps this law is satisfied if the ordinance indicates how much of the tax is to be used for improvement of streets, and how much for construction of sewers; but, notwithstanding the difficulty of ascertaining in advance what particular streets shall be improved, and what particular sewers shall be built, and just what the expenditure on each job shall be, the language of the act seems to me too plain and positive to yield to the argument “ ab inconvenienti.” But be this as it may, I think such a discrepancy does not impair the assessment for benefits. It occurred in the proceedings for levying the general tax, and may have affected its legality, but when that tax had brought in a fund for repaving streets, I think this act of 1882 would sanction the use of that fund for works of the designated character, and special assessments on account of the improvement thus resulting. Moreover, if this clause in the tax ordinance is to be regarded as a formal part of the proceedings for assessment, then I think the property-owners, by omitting to complain at an earlier stage, have waived the defect, under the common rule, that when persons are notified that public moneys are about to be spent for their benefit, with a view of reimbursing the public treasury by assessment, they must take advantage of preliminary irregularities of procedure before the expenditure is made, or not at all. The ordinance for this improvement, published both before and after its passage, according to sections 29 and 30 of the city charter, (Pamph. L. 1857, p. 116,) gave the property-owners ample notice to this effect, and they made no complaint until the work was done.

The fourth reason is opposed to authoritative decisions, “An act respecting assessments for constructing sewers, or continuations of sewers, running through adjoining cities,” (Pamph. L. 1878, p. 344,) applied to cities only, although its provisions might with propriety have been extended to other sorts of municipalities. Yet this court, in Green v. Hotaling, 15 Vroom 347, adjudged the act to be based on a proper classification, and therefore to be a general law and constitutional ; and the Court of Errors affirmed the judgment for the reasons given in the Supreme Court, 17 Broom 207. That statute and the present are not distinguishable with respect to the ground of invalidity now assigned.

Touching the fifth reason, it is plain that a pavement of oblong granite blocks renders a street more convenient and attractive than one of cobble-stones, and that the substitution of the former for the latter may confer a special benefit upon property accessible by that street, and no reason is perceived why, admitting the general doctrine of assessment for local improvements, the legislature may not, as it has done in this case, authorize a special assessment for that benefit. The fact that the same land had previously been specially benefited by laying the cobble-stones and had been assessed therefor, seems to me to afford no ground for doubting the power of the legislature to impose upon it now the burden of paying for the additional benefit accruing from the betterment made. Such, is the doctrine of this court and apparently the current of decisions elsewhere. McKevitt v. Hoboken, 16 Vroorn 482; 2 Dill. Mun. Corp., § 780, (619).

The sixth reason rests on a non sequitur. By paying for the improvement out of a fund raised by general tax, the common council simply followed the act of March 27th, 1882, and did not intimate that the repavement would result in no special benefit.

The seventh reason does not fairly present the plan of the act of 1882. That plan was, first, to raise money by general tax for improving streets and building sewers. These were undoubtedly municipal objects for which the city might levy a general tax. Second, to spend this money for the purposes designated. Third, to reimburse the city, so far as special benefits would warrant, by special assessments. This power is constantly exercised; for while the greater part of the expense of street improvements is met by money borrowed by the cities, some of it is, probably in every instance, advanced by the city, either in the original expenditure, or in payment of loans before the special assessment is levied. Fourth, to use the proceeds of reimbursement in making other street improvements. This last is the feature at which the objection is aimed, and yet it is manifest that if the city has met the cost of the first improvement before the assessment therefor is collected, the moneys realized from the assessment must be devoted to some object other than the improvement. Whether that object shall be indicated by the city itself, or by the legislature, is purely a matter of legislative discretion, at least so long as the object is within the due scope of local government. To adjudge this scheme invalid, and to hold that a special assessment can be levied and collected only while and so far as the expense of the improvement remains unpaid by the city, and that the proceeds of assessment cannot be used for any other municipal object, would be inconsistent with our whole course of legislation and decision on this topic hitherto.

Under this reason it is also urged that the provisions of the fifth and sixth sections of the act of March 27th, 1882, requiring assessments in each city to be levied and collected in conformity with existing law in force in such city, are unconstitutional as provisions of a special or local character embraced in a general law. In accordance with the decision in Campbell v. Board of Pharmacy, 16 Vroom 241, 18 Vroom 347, this contention cannot prevail. As was there said, in regard to cognate clauses of the constitution, “ an act which is complete and perfect in itself, the purpose, meaning and full scope of which are apparent on its face, is valid, notwithstanding these constitutional provisions, although it may provide for the means of carrying its provisions into effect by a reference to a course of procedure established by other acts of the legislature.” Laws of a nature exactly like the present are instanced in that opinion as being valid enactments. If the phrases objected to were held invalid, the state of the law would remain unchanged, for the mere general direction that assessments for improvements under the act should be levied upon and collected from the property benefited, would be necessarily carried out in each city by the machinery, and in the mode there operative.

The eighth reason, in stating that lands off the line of Broad street are specially benefited, is not supported by the proofs. The area of special benefit is so largely a matter of opinion that the judgment of the commissioners on that subject must stand, unless very convincing evidence be adduced against it. Hunt v. Rahway, 10 Vroom 646, 11 Vroom 615. Such testimony does not appear in the case.

The ninth reason seems to be based upon the notion that the special benefit derived by land along the line of the improvement was partly paid for by that land through the general tax imposed under the tax ordinance. This is plainly an error. In relation to the general tax, this land stood in precisely the same attitude as land elsewhere in the city not at all peculiarly advantaged by the repavement. That burden would have remained legitimate even if the improvement had never been made. It constituted no part of the price payable for the special benefit caused by the actual making of the improvement.

The tenth reason, like the eighth, is not sustained by the evidence. The judgment of the commissioners is more satisfactory than the counter testimony.

Other objections presented in the briefs of counsel have been considered by the court, but are not deemed tenable, and, as they are not covered by the reasons filed, are passed over without specific mention.

The assessments should be affirmed.

The reasons assigned against the assessment for the repaving of Market street, between the Pennsylvania railroad depot and the court-house square, are the same as those above considered, and that assessment is also affirmed.