West Shore Railroad v. Borough of Begota

| N.J. | Nov 7, 1929

Pee Curiam.

This rule requires the borough to show cause why a writ of certiorari should not be allowed to review a certain assessment made against the prosecutor railroad company by the general board of assessment commissioners of the borough •and the resolution confirming the same passed by the borough council.

The assessment was confirmed on May 17th, 1928. The prosecutor did not apply for the writ until August 18th, 1928, more than three months after the date of confirmation of the commissioners’ report, and so the defendants contend that *973the writ should be denied because section 56 of chapter 195 of laws of 1921 provides: “That no certiorari * * * shall be allowed or granted * * * to set aside any assessment or award made for any improvement after thirty days shall have elapsed from the date of the confirmation of such assessment or award.”

We think this would be so if the grounds urged for setting aside the assessment were merely some irregularity in the proceedings, or that the amount of the assessment was excessive, or that there was a mistake in the manner of making it. But this limitation does not apply and laches cannot be successfully urged where, as here, it is contended (among other things)—(1) that the property is not subject to assessment for local improvement; (2) that the assessment deprives the prosecutor of its property without just compensation, and (3) that it denies prosecutor due process of law and the equal protection of the laws, and where, as here, these questions are fairly debatable. Delaware River, &c., Co. v. Township of Haddon, 5 N. J. Mis. R. 210.

Without passing upon other questions suggested both for and against the allowance of the writ, we conclude that for present purposes the rule to show cause must be made absolute and the writ awarded.