38 N.J.L. 419 | N.J. | 1876
The writs of certiorari in these causes bring up for review the proceedings had by the councilmen of the town of Guttenburg, and by the commissioners of assessment whom they appointed, with regard to the improvement of Hudson avenue, in said town.
Of the reasons relied on for reversal, the second, third and fourth relate to a change of grade in the street, made by the council after the inception of the proceedings, and without compliance with the statutory formalities. As to these reasons, it is enough to say that the alteration is legalized by a supplement to the charter of the town, approved April 9th, 1875. Pamph. L. 612. The efficacy of such curative enactments is beyond question in this court. State, ex rel. Walter, v. Town of Union, 4 Vroom 350 ; State, Vreeland, pros., v. Town of Bergen, 5 Ib. 438.
The first reason assigned is based upon the facts that according to the calculation which the engineer made upon the basis of the contractor’s prices, as applied to the estimated quantities of work, before the improvement was begun, the cost was to be $28,038.45, but at the close of the work the cost was found to be $35,854.13, which, with interest and the incidental expenses, raised the total amount assessed to $44,-002.41. This preliminary estimate of cost was made for no other purpose than to enable the council to determine who was the lowest bidder, and the evidence indicates that its error arose chiefly from the fact that more rock was found at the grade than was anticipated, and therefore it became necessary to excavate, over a large portion of the street, to a depth eighteen inches lower than at first expected, in order to secure an earthy surface for the roadway. Under these circumstances, and in the absence of any evidence of fraud, the municipality ought not to be estopped by such estimate, and precluded from imposing on those whose property was benefited, the real cost of the work, to the extent of their constitutional liability.
The fifth and sixth reasons do not appear to be true in fact.
The seventh, eighth, ninth, tenth and eleventh reasons are
The twelfth reason for reversal is, that interest upon the certificates of indebtedness issued during the progress of the work, has been included in the amount assessed. Such interest was bargained for in the contract for the work, and therefore constituted a part of the cost, as clearly as did the principal of the price. The propriety of including a similar charge in the assessment was recognized by this court in State, Baker, pros., v. City of Elizabeth, 8 Vroom 142.
The fifteenth and sixteenth reasons are not sustained by the testimony.
The seventeenth reason alleges as a ground for reversal, that by the contract the contractor was to incur a penalty of
The thirteenth and fourteenth reasons are, that the assessments upon the lands of the prosecutors have not been made in proportion to the benefits received, and largely exceed such benefits in amount. The improvement consisted of grading, curbing, flagging and guttering. For this an assessment of about $5.00 per foot of frontage has been imposed upon the lots of the prosecutors: The mere fact that in making the assessment, the commissioners have paid considerable regard to frontage, will not invalidate the assessment if they have been guided by -the principle of apportioning the expense according to the benefits. It is their duty to consider, specifically, the advantage accruing to each plot, but on such consideration, they may judge that because of the uniform condition of the land, every foot of frontage is equally increased
Upon the question of amount of benefit, however, there is scarcely room for doubt. The commissioners do not certify that they have limited the assessment by the benefits, and the court is prevented from setting aside their report for this defect only, because the reasons filed do not specify it. Neither the commissioners themselves, nor any one else, undertakes to say that the lands have been benefited by the improvement as much as they have been assessed for it, and all those who have sworn upon the subject, express the opinion that the benefit does not equal one-half of the burden. When this essential of a constitutional assessment is thus shown to be, in fact, absent, and the proceedings of the inferior tribunal fail to state, even in its judgment, it ever existed, the court will relieve the citizens from the burden so imposed.
The eighteenth reason is, that the assessment was made without notice to the prosecutors, and without allowing them to appear and be heard. The charter of the town provides that no assessment shall become final until after notice thereof shall have been published by the three assessors, by notice in writing set up in three of the most public places in said town, for the space of twenty days at least, and until the same shall have been confirmed by the councilmen, of the meeting of which said councilmen, like public notice shall be given, and to whom, at that time, any person aggrieved may appeal for relief. This provision contemplates the giving of two notices — the first, for a hearing before the commissioners of assessment, prior to their finally determining upon the assessment to be levied and reported, and the second, for a hearing