State v. Borough of Vineland

The opinion of the court was delivered by Magie, J. A stipulation of the attorneys of the parties admits that the prosecutor is the owner of lands affected by the two supplements to the ordinance of the borough of Vineland, called “Ordinance No. 12,” which ordinance, with said supplements, appears in the statement prefacing this opinion. It is unnecessary to consider prosecutor’s objections to Ordinance No. 12, because its provisions in no respect particularly affect him. [269] The supplements, one of which was passed June 13th, 1893, and the other of which was passed September-20th, 1893, do affect prosecutor directly, because they provide for the laying of sidewalks in front of his lands at his expense. If this borough, which, it appears by stipulations in the case, was organized under the Borough act of April 5th, 1878, possesses power to pass these supplements, it has been conferred by two legislative acts. The first was approved March 13th, 1883. It was no doubt intended to be a supplement to that Borough act, but, by a singular error in its title, it was declared to be a supplement to an act of the same name approved April 3d, 1878. There was no act of that description approved April 3d, 1878. This error was attempted to be corrected by an act approved April 8th, 1887. Pamph. L., p. 142. The supplement will be found in Gen. Stat., p. 184. The other act was a supplement to the Borough act of April 5th, 1878, and it was approved March 11th, 1885. It will be found in Gen. Stat., p. 185. Its title is not defective, and while it purports to amend the act of March 13th, 1883, its provisions are probably unobjectionable, whatever was then the status of the act which it purported to amend. If these two acts are valid expressions of the legislative will, it is obvious that there has been conferred upon boroughs organized under the Borough act of April 5th, 1878, the power to provide by ordinance for constructing sidewalks on any of the streets of the borough at the expense of the owner of the lands in front of which the same are constructed. Nor is the power, if any so conferred, affected, as contended by prosecutor, by the subsequent supplement to the Borough act in question, approved April 1st, 1887 (Gen. Stat.,p. 193), as amended by a further supplement approved March 23d, 1888. Gen. Stat., p. 196. The provisions of those supplements plainly relate to the improvement of the roadway ot streets, and not to the sidewalks thereof. But if it be presumed that power to pass these supplementary ordinances existed, a further objection is made by the [270] prosecutor, which is that since the ordinances direct the doing of the work, the cost of which is to be defrayed by him, the action of the borough in passing them was judicial in its character and could not be lawfully taken except on notice to him and giving him an opportunity to be heard. Such is the settled doctrine of our courts, and it is plainly applicable to these ordinances which require the construction of sidewalks at prosecutor’s expense. Traction Company v. Board of Works, 27 Vroom 431; State, Vanatta v. Morristown, 5 Id. 445; Camden v. Mulford, 2 Dutcher 49. It is not contended that the laws governing this borough provide for constructive notice of the intention to pass such ordinances. In the absence of any provision for constructive notice, it is well settled that reasonable actual notice must be given to the person to be affected of a time and place when and where he may be heard. State v. Jersey City, 4 Zab. 662; Hudson County v. State, Id. 718; State, Vanatta v. Morristown, supra; Camden v. Mulford, supra; Boice v. Plainfield, 9 Vroom 95; Stretch v. Hoboken, 18 Id. 268; Traction Company v. Board of Works, supra; S. C., 28 Vroom 710. But it is contended in behalf of the borough that it does not appear that prosecutor did not have notice and an opportunity to be heard in respect to the adoption of these ordinances. But no such burden is imposed on prosecutor. Special tribunals, exercising a special power conferred on them to be exercised in certain modes, must make it appear that all that was essential to their jurisdiction had been done. State v. Elizabeth, 1 Vroom 176. Here it was essential, to empower the borough authorities to adopt these ordinances, that prosecutor had notice or an opportunity to be heard and that should appear in their proceedings. Those proceedings are before us, and it nowhere appears that prosecutor was notified or had an opportunity to be heard. The borough has not shown that such was the fact, as perhaps might have been done. For these reasons the two supplementary ordinances must be set aside and vacated as to prosecutor.