81 N.J.L. 301 | N.J. | 1911
The opinion of the court was delivered by
The prosecutors by this writ question the validity and amount of an assessment imposed upon their lands pursuant to an ordinance of the town of Westfield passed August 2d, 1909, to grade, flag and relay existing flagging on the northerly sidewalk of South avenue between certain terminal points named.
A fundamental point raised is that the whole assessment is invalid because the hoard of assessors which imposed it was not a lawful body, and this because the statute for the creation of such board of assessors is unconstitutional as embodying a referendum to the governing body of the town, and consequently falling within the ruling in Attorney-General
In 1884, the legislature gave to cities the power of establishing excise boards and prescribed that in such case the excise boards should have power to make ordinances respecting the sale of liquor. Although by the establishment of such an excise board a city deprived itself of jurisdiction to pass such ordinances (State, Feathersione, v. Lambertville, 21 Vroom 507; Doran v. Camden, 35 Id. 666, 667), it was held that dhere was no delegation to the municipal body of the power of making the act effective, which was the test of the referendum; but that the power was directly created by the legislature and originally granted to the boards of excise commissioners, and all that was entrusted to the municipality was the power to create the hoard. Riley v. Trenton, 22 Id. 498. A similar act passed in 1901 (Pamph. L., p. 239) was upheld on the same grounds in Schwarz v. Dover, 41 Id. 502;
The next ground of attack is that the assessment is unwarranted and excessive, because either no benefits were conferred by the improvement; or the assessment is largely in excess of any such benefits; or because the assessors should have considered the damage done to prosecutors by the removal of certain trees growing in front of their property and whicii were cut down as incidental to the rectification of the sidewalk grade.
That the laying of a flagged sidewalk was, taken by itself, a benefit, was conceded by prosecutors’ own witnesses. The assessors reported that no lot had been assessed in excess of benefits. Has the effect of this report as evidence been overcome? It is urged that substantially the whole cost was assessed; but this does not show that it was not properly assessable. It is also urged that the assessments were laid by the front foot rule; but it is manifest that that rule is prima facie an equitable one in cases of sidewalk, even when, as in this case, the statute requires assessment according to benefits and not arbitrarily by the front foot rule. Gen. Stat., p. 3541, pl. 222, § 71. The gravamen of the argument that the assessment exceeds the benefits appears to be this, that prosecutors were damaged more than the amount of their assessment by the removal of the shade trees, and therefore that no net benefit was conferred. It is not claimed that the assessors should have awarded the difference to the prosecutors. On the contrary, it is expressly conceded in prosecutors’ brief that no award for damages could have been made, and that none was asked. But if this be so, it is obvious that the tree damage should not be considered at all against the assessment; for prosecutors are asking, in the face of their concession, that so much of the damage as will suffice to counterbalance the assessment be deducted as though it were an
Again it is said that the total assessment includes the cost of grading and removal of trees, and that this is also divided on the front foot basis, whereas properties in front of which grading and tree cutting was done should pay for this to the exemption of the others. Such a course would have been illegal because in actual disregard of benefits. State, Van Tassel, v. Jersey City, 8 Vroom 128. It may well be said that the grading and tree removal, incidental to the flagging, benefited all the frontage equally.
Einally it is said that the grading done was not incidental, but substantial, and therefore required a special ordinance. Assuming the grading was substantial, which may well be doubted, prosecutors point to no provision of the Town act which indicates that both grading and flagging may not be authorized and assessed for under the same ordinance. On the contrarj'', sections 64 and 71 of the Town act lend countenance to the view that such improvements may be prosecuted in one ordinance and included in one assessment. See Beechwood Park Land Co. v. Summit, 49 Vroom 182; and as to lump assessment, Batchelor v. Avon-by-the-Sea, 49 Id. 503, 506.
We find no illegality in the proceedings, and the assessment is therefore affirmed, with costs.