52 N.J.L. 138 | N.J. | 1889
The opinion of the court was delivered by
The single object of this writ is to deny the jurisdiction of the commissioners of adjustment in the
Applied to the facts of the present case the argument is, that the first assessment which was paid concluded the city’s authority in respect to the said improvement of prosecutor’s property; that there was no constitutional method by which an additional assessment could be lawfully, imposed, and that the attempted imposition, having been set aside by this court, there remains no lien for any specified sum, and (the argument concludes) there can be no arrearage where there is no> assessment.
This contention is, however, not in accord with the views taken by this court upon previous occasions of the scope and extent of the act in question.
The purpose of this act is, that land benefited by an authorized public work shall not escape the payment of its proportionate share of the expenses thereof. The commission of adjustment is erected with the sole object of securing this end. Its jurisdiction is, accordingly, shaped by the legislative scheme under consideration.
The essentials of that jurisdiction are, that a public improvement has been made; that an assessment therefor nas been made and imposed, or attempted so to be, and that payment thereof has not been had. Where these elements' co-exist the authority of the commissioners to proceed is assured without regard to the invalidity of the legislation under which the assessment was made. The nullification of an invalid assessment, whether for inherent defects or because it rests upon unconstitutional legislation, must not be confounded with the discharge of the land from its liability to contribution. The matter of assessment is legislative, the question of liability is
This principle has received the highest judicial recognition within this state, as underlying all 'laws for the re-assessment of taxes laid under unconstitutional provisions. Elizabeth v. Meeker, 16 Vroom 157.
Assessment being therefore but a legislative method for the ascertainment of the sum to be borne by the improved property, it follows that, within the amount of the imparted value, such sum may be reached by successive efforts at ascertainments, if such be the legislative will. Cross v. Hayes, 16 Vroom 12.
The final assessment is “ the sum assessed or attempted so to be,” and if any part of the sum thus reached remains unpaid, it constitutes an arrearage within the meaning of the act under consideration, and the jurisdiction of the commissioners of adjustment consequently attaches.
In the case before us the assessment primarily laid was avowedly not a finality. The language of the charter of the city of Newark, under which it was imposed, is this (Pamph. L. 1873, p. 318): “The commissioners appointed to make assessments * * * shall commence as soon after their
The appeal contemplated by this section was taken, and resulted in an increase of the damages that had been awarded at the time of the primary assessment. The increase of assessment provided for by the act was then imposed in the manner prescribed, and upon familiar principles related back to the original assessment it was intended to supplement. The payment of the primary assessment -made pending the adjudication of this appeal was therefore -not conclusive; in effect, it left the supplemental assessment in the same position as if it had been originally assessed under an invalid law.
The authority of the commissioners of adjustment to deal with arrearages of assessments thus arising is of the essence of their function, and has been repeatedly affirmed. In re Commissioners of Elizabeth, 20 Vroom 488 ; Norris v. Elizabeth, 22 Id. 485.
Assuming, therefore, in the present case, that the primary assessment was paid; that the comptroller was without authority to impose the additional assessment, and that the said assessment for $2,555.90 against prosecutor’s lands was by the court annulled for unconstitutionality, the jurisdictional facts still remain: there had been an improvement, a sum had been assessed, although without legal warrant, and the whole or a part of such sum remained unpaid.
My opinion ‘ is, that these facte vest in the commissioners jurisdiction to charge against the property thus improved an assessment within said sum so attempted to be imposed, subject only to the provisions of the act that such charge shall
I mention this last point, although no question is raised thereon in this case, the scope of which includes the right of the commissioners to deal with the prosecutor’s property at all, not with the propriety of the manner in which they* have proceeded, or propose to proceed, in the premises.
The order of the Circuit Court, confirming the report of the said commissioners of adjustments, should be affirmed, with costs.