Walsh v. Mayor of Newark

The.opinion of the court was delivered by Trenchard, J. This writ of certiorari brings up for review an assessment for benefits conferred by the construction of sewers made upon lands of the prosecutor. The material questions in this case are the same as those considered and decided at the present term of this court in the case of Groel v. Newark, ante p. 142, with this exception: In the present case it appears by stipulation of counsel that tire alleged assessment was confirmed by the Circuit Court on January 16th, 1908, and this writ of certiorari was not allowed until December 1st, 1908. It is insisted by the defendant that, in view of “A supplement to an act entitled ‘An act relative to the writ of [169] certiorari (Revision of 1903),’ approved April 8th, 1903” (Pamph. L. 1907, p. 109), the prosecutor is in laches in procuring his writ, and is debarred of his remedy. The act of 1907 provides that “no writ of certiorari shall hereafter he allowed to review any assessment or assessments made upon the owner or owners of land or lands for benefits assessed * * * for the construction or cost of construction of any * * * sewer or sewers * * * unless application for such writ shall be made within sixty days after such assessment or assessments shall have been confirmed by a court of competent jurisdiction * * *.” While the record before us does not show when the writ was applied for, yet we assume, as counsel in their briefs have assumed, that it was more than sixty days after the alleged assessment had been confirmed. But notwithstanding this act, we think Ihe prosecutor was not deprived of Iris remedy. We have pointed out in the other case (Groel v. Newark) that tire ordinance providing for the construction of the sewers on account of which the assessment in question was made, was adopted without either actual or constructive notice to the prosecutor, and that, for that reason, the ordinance, and all proceedings thereunder, were void as to the prosecutor, because he was deprived of Ms constitutional right to •be heard before his property rights were affected, and that the defeat was not remedied by the act of 1905. Pamph. L., p. 414. In that case we further pointed out that the prosecutor was not prejudiced in his rights by not attempting to set aside the ordinance until after an assessment was attempted to be made under it, because it appeared that he was led to believe that the general scheme of improvement was to be made at public expense and that no assessment would be levied against him. By the failure of the municipal authorities to give either actual or constructive notice to the prosecutor of the intention to adopt, or the pendency of, the ordinance by virtue of which they attempted to assess his land, they failed also to acquire the right to impose the assessment of special benefits in ques [170] tion. Under such circumstances it is hot within the constitutional power of the legislature to sanction a special assessment. Meredith v. Perth Amboy, 34 Vroom 520. The statutory limitation upon the allowance of the writ of certiorari cannot be enforced for the protection of an assessment which the' legislature could not constitutionally authorize. Meredith v. Perth Amboy, supra; Pardee v. Perth Amboy, 28 Vroom 106; Kirkpatrick v. Commissioners, 13 Id. 510; Traphagen v. West Hoboken, 10 Id. 232; S. C. on error, 11 Id. 193; Evans v. North Bergen, 10 Id. 456. Eor this reason, and for the reasons given in the case of Groel v. Newark, the assessment under review, together with the preliminary proceedings upon which it rests, so far as they affect the prosecutor, must be set aside and vacated, with costs.