State v. Wright

54 N.J.L. 130 | N.J. | 1891

The opinion of the court was delivered by

Scudder, J.

The first reason assigned for reversal is, that the act referred to is unconstitutional, because it is local and •■special, regulating the internal affairs of cities. The first section of the act, read in connection with the title, will determine this question. It enacts “ that it shall be lawful for the common council or other governing body in the cities of this state, located on or near the ocean, and embracing within their limits or jurisdiction any beach or ocean front, by an ordinance or ordinances duly passed for that purpose as herein provided, to lay out and open streets and drives, and construct public'walks along the beach or ocean front, and, in like manner, to grade or otherwise improve the same, whether such street, drive or public walk be laid out, opened or constructed wholly or partly between high and low-water mark, or wholly ■or partly on land covered by water.”

This section does not authorize the laying out and opening-of streets and drives and constructing public walks in every part of Atlantic City, but limits these acts to the beach or-ocean front, where they will be wholly or partly opened and; constructed between high and low-water mark, or wholly or partly on land covered by water. Whether this is a peculiar-feature which distinguishes these cities on the ocean from-other cities in the state, so as to properly make them a class' by themselves, and thus generalize the statute, is the first point' in question. The ordinance passed by the common council, presents a feature of the location which, it is claimed, is-peculiar, and distinguishes these cities from inland cities by the singular construction which will be required to make the-streets, drives and walks permanent and fit for public travel.. The sixty feet street, between high and low-water mark, along and upon the ocean front, is to be laid out and opened, so that upon and over it there shall be constructed a public board or-plank walk, twenty-four feet in width, of a permanent and-substantial character, elevated on piles or posts. This is essential to render these walks at all time fit for public use, and' to resist the washing and flow of the ocean tides and storms,, to which they are exposed. They are also to be laid wholly or in part on public land below high and low-water mark,, or lands covered by water. For this public land taken there-can be no assessment made for benefits, or for damages, in the-usual form; the care and maintenance of them will also be-necessarily different from that bestowed on other highways-away from the sea. This legislation is constitutional, if it properly relates to these peculiarities, and they are substantial, differences. Other distinctions, which do not arise from substantial differences, so marked as to call for separate legislation, constitute no ground for supporting it. Hammer v. State, 15 Vroom 667; Ross v. Winsor, 19 Id. 95; Clark v. Cape May, 21 Id. 558, 561 ; State v. Somers Point, 23 Id. 32.

One of the enumerated cases in which the legislature shall1 not pass private local or special laws is: “ The laying out,, opening, altering and working roads or highways.” Const., art. IV., § 7, "|f 11. But there is no prohibition in this to the classification of cities similarity situated for the laying out of roads, if all of the class be included. The cities of the state have been held to be a class by themselves for legislation (Anderson v. Trenton, 13 Vroom 486; Dobbins v. Northampton, 21 Id. 496); and they may be subdivided by important characteristics to which the purpose of the law relates, provided they embrace all those so characterized. Thus, it is said in the former case, above cited, from which this phrase has been taken, by way of illustration, that a statute giving to all cities bordering on tide water the power to construct docks, or to establish quarantine regulations, would be valid. Docks are peculiar structures, because they are built out over public land into the sea for uses adapted to their location. So in this case, these drives and walks are to be laid on lands covered by tides and water, and are peculiar in structure because of' their location.

If this law were general, so as to include all the cities of the state, only those situated on or near the ocean, having a beach or ocean front, could use it, showing that they are a class distinct from other cities, and thus free from constitutional prohibition. There is, therefore, no defect in this legislation.

It is further objected that the street to be opened by the -ordinance of common council runs in one of its courses along Absecon inlet. The lines to which reference is made are: -“ Thence southeasterly along said Absecon inlet to the Atlantic, •ocean; thence southwesterly along the Atlantic ocean,” &c. The act authorized the opening of streets and drives and the construction of public walks along and upon the beach or ocean front, &c. The ocean front is clearly intended; but whether the words “ beach or ocean front ” will include the •shore of Absecon inlet is disputed. It is argued that the words “ beach or ocean front ” mean the same thing, the shore 'fronting on the ocean, and are intended to be equivalent terms; while, on the other hand, it is said they are separate and disjunctive. The usual province of the conjunction “or” is to disjoin the parts of a sentence, and while it suggests an alternative it also denotes opposition. Absecon inlet does not front directly on the ocean; it is a wide inlet from the sea, and it has a beach where the tide ebbs and flows. The beach would include the inlet if full effect is given to this word, and the words “ ocean front ” seem to exclude it. The expression is ambiguous, but as the first section of the act says that it shall be lawful for the common council or other governing bodies in the cities of this state located on or near the ocean, and embracing within their limits or jurisdiction any beach or' ocean front, by an ordinance or ordinances duly passed for that purpose, as therein provided, to lay out and construct public walks along the beach or ocean front, and as this city has both beach and ocean front within its limits, it would seem-that it is not called upon to elect which it will use, but may adopt the construction most beneficial to the public. Having done this in regular form by ordinance, I am not willing to-say they have exceeded the power given to them in the statute,, and erred in their interpretation.

The further objection that the appointment of three commissioners, who were residents and taxpayers in the city, to> assess damages, was illegal, as they were not an impartial tribunal, is not tenable. The act requires that the Circuit Courtr shall appoint commissioners, “who shall be disinterested residents and freeholders in the city in and1 for which the application is made.” Such men are rightly supposed to- have-greater knowledge of the facts they must decide than nonresidents, and their interest, as taxpayers only, has- by lbngusage been regarded as too remote and small to disqualify them on the ground of interest.

The public notice given by the commissioners of their-appointment and meeting was not sufficient. It did not define-the limits of the improvement contemplated. No mention is-made of the extension of the street along Absecon inlet by ordinance, nor does it appear that any other notice was given to the prosecutrix until the report of the commissioners was-before the court for confirmation, of which ten days' notices was given her. The frequent adjournments of the commissioners’ meeting from December 31st, 1889, to June 11th, 1890, without further description or notice than such as is. given in general terms as found in the newspapers, were too uncertain and misleading.

For this last cause the report of the assessment of damages to the prosecutrix, and the confirmation of the report and assessment, will be set aside, but without costs.