Borton v. City of Camdem , 65 N.J.L. 511 ( 1900 )

The opinion of the court was delivered by

Collins, J.

The revised charter of Camden (Pamph. L. 1871, p. 210), in section 30, authorizes ordinances, among other purposes, for specified improvements, including paving of streets, and, in sections 76 and 77, enacts that the city council shall have power, by ordinance, to compel the abutting owners on any street to make specified improvements thereon, including paving, on petition for the improvement of a majority in value of the landholders along the same, or, in .the absence of such a petition, then on the desire of thirty freeholders residing in the ward; and that, in case any owner shall refuse or neglect to comply with the ordinance for thirty days, the city may cause the improvement to be made and paid for out of any money in the city treasury and cause a statement of the cost to be filed with the city clerk, and that such cost shall be a lien on the land of such owner, recoverable by action at law in the name of the city treasurer. By section 13 of a supplement of 1872 (Pamph. L., p. 593) the work may be done by contract, the statement is to be filed with the receiver of taxes and the action is given to the contractor in the name of the city. Under the decision of the Court of Errors and Appeals, in State, Agens, v. Newark, 8 Vroom 415, such imposition of the whole cost of street paving upon abutting property is unconstitutional. Although this decision was rendered in 1874, no adequate relief was afforded to Camden by the legislature for many years, and it is difficult to understand how street improvements were made in that city, unless at public expense or by a general acquiescence in an illegal method of making abutting property bear the burden. By “An act respecting assessments in cities,” approved April 21st, 1876 (Gen. Stat., p. 681), a constitutional method of assessment for benefits was prescribed for all cities, with direction that the excess should be borne by the city at large, but that statute must' have remained inoperative in Camden until 1886, for it presupposed, > by its terms, that in every city there existed some person or persons “authorized by law” to make assessments for street and sewer improvements, and there was in Camden no such legal authority. By an act approved April 12th, 1886 (Gen. Stat., p. 574, ¶ 563), this defect was supplied and a board of commissioners of assessments was authorized in any city in the situation of Camden, and, thereafter, there has been available in that city a practicable method of making street improvements and assessing their benefits. The ordinance under review, however, was evidently framed under the charter provisions, and ■ its requirement of the property owners to pave York street in front of their property, as against them, is void. Default on such a requirement was doubtless considered a prerequisite to authority for the city’s contract, and I see no reason why the ordinance, as a support for the executed contract returned, should not stand. The preamble has a misreeital of the jurisdictional petition, but there was, in fact, an effective petition, and if the prosecutor is protected from an unconstitutional imposition, he is in no way aggrieved by irregularity. To an assessment not greater than his benefit, and in proportion thereto, he. ought to be subjected, and could be, by appropriate legislation, even if the ordinance and contract be irregular or illegal. Elizabeth v. Meeker, 16 Vroom 157; Lord v, Bayonne, ante p. 127, distinguishing App v. Stockton, 32 Vroom 520.

The .prosecutor claims that an act passed May 23d, 1894 (Gen. Stat., p. 595), affords the only method of paving streets and assessing resultant benefits now open to Camden. It is not clear that this act is exclusive. It is limited to cases where there is a petition of the owners of at least three-fifths of the lineal frontage, and authorizes in such cases a bond issue in anticipation of collection of assessments. It seems to be an enabling, not a restricting, statute; but if it is exclusive, the prosecutor should not be heard to complain. In either ease, he is barred by his laches from any objection that would entirely avoid the ordinance or contract, evén if it must be held that the proper preliminary proceeding required by statute was not taken. McKevitt v. Hoboken, 16 Vroom 482; Read v. Atlantic Gity, 20 Id. 558, 562; Pen-warden v. Dunellen, 21 Id. 565, and cases there cited. He can only be subjected to a constitutional assessment, and when that is imposed he will have opportunity to be heard. He should not now be heard to make any objection that will bar or hinder the imposing upon his property of a constitutional assessment, if the legislature has authorized or shall authorize one to be imposed upon it, limited to the benefit it may have received from the improvement. This consideration disposes also of the prosecutor’s contention that the contract returned' is illegal because it provides for a guaranty. to keep the pavement in repair for ten years, thereby increasing the normal cost of a pavement laid without such guaranty. Wilson v. Trenton, 32 Id. 599.

To the extent, therefore, only that the landowners are required to pave the street in front of their property, with a consequent lien on their lands, because of their default to do-so, for the cost of the pavement there laid, should the ordinance be set aside; and to that extent it is set aside, with costs to the prosecutor.