State, Wetmore v. City of Elizabeth , 41 N.J.L. 152 ( 1879 )

The opinion of the court was delivered by

Dixon, J.

Three reasons are alleged for setting aside the assessment for opening Humboldt avenue, brought up in this case:

First. That the sections of the charter under which the assessment was made, are unconstitutional, because they direct the assessment to be levied upon the owners of all the lands and real estate benefited, in proportion, as nearly as may be, to the advantage each shall be deemed to acquire. Pamph. L., 1863, p. 109, § 101. This provision, it is contended, is not equivalent to one for an assessment in proportion to the benefits received. But I think it is. The benefits can be ascertained only by an exercise of judgment, and hence the idea conveyed by the words “ benefits received ” is more fully expressed in the phrase, “benefits which each lot shall be adjudged to receive,” and of this, the charter is a mere paraphrase.

Second. That the provisions of the charter, in regard to notice of hearing before ratification of the. assessment, were not complied with. The notice required under section one hundred and four, to be given by the commissioners of assessment after their report was filed with the city clerk, but before it was finally approved and signed by them, was confessedly given with fullness and particularity; but the prosecutor claims that the notice under section one hundred and seven, which is to be given in case of objections to the commissioners’ report, by the committee to whom the matter is to be referred, was not duly published. Of this, however, I think the prosecutor cannot lawfully complain. The notice mentioned is to be given only in case of objections, and to the parties interested, of the time and place when and where the committee will meet to hear them on the objections and report. These expressions seem to me to limit the notice to the objectors. Their action alone has given occasion to the notice; they alone are interested in being heard on the objections and report. The others, being summoned, have, by their silence, indicated that they are content, and they may be presumed to remain content so long as no change affecting them is made. In the present ease, the prosecutor was not among the objectors, and the assessment was confirmed by the council as originally made.

Third. That the assessment is largely in excess of the benefit to the prosecutor’s land. But, on this point, I think the prosecutor should not now be heard. The assessment- was finally ratified April 25th, 1873. The writ of certiorari was allowed April 20th, 1878. The proof on this question of fact, which could have been adduced by the parties under a writ promptly purchased, might have been very different from that which can now be presented, after a lapse of five or six years ; and it is therefore just, independently of any statutory provision, that the doctrine of laches should be invoked in aid of the city. The. counsel of the prosecutor attempted to evade its force because of the want of notice alleged in the second reason, and of the unconstitutionality of the statute, but, as we think neither of these reasons is good, the laches remains undefended.

No ground appears for a refusal to give effect to that part of the supplement to the charter (Pamph. L., 1870, p. 754, § 13,) which forbids the allowance of a certiorari unless applied for within sixty days after confirmation of the assessment.

The writ should therefore be dismissed, with costs.