Penrose v. Ventnor City

The opinion of the court was delivered by Swayze, J. The question involved in this case is the validity of certain assessments of taxes against vacant lots of the prosecutor for the maintenance of the water system and the sewerage system of Ventnor City. Counsel for the prosecutor have argued the case as if the assessment was governed by the rules relating to special assessments for benefits. There is, however, nothing in the case to show that such was the case, and the fact appears to be otherwise. The so-called assessment seems to have been nothing more nor less than the portion of the general taxes which was due to the expense of maintaining the water and sewer system. It may not have been necessary for the city to set forth these items separately in the tax bills, [548] but certainly the taxpayer is not harmed by having the items. The only question is whether the charter of the city authorizes the levying of a tax for the expense of maintenance of the sewerage system, and the maintenance of the water system, and supplying the inhabitants with water for public and domestic use. Ventnor is a city of less than twelve thousand people, governed by the act of 1897. Section 18 of that act— Pamph. Ij., p. 51 (at p. 52)—authorizes the common council to establish ordinances to lay drains or construct sewers in any street, avenue, highway or section thereof; to provide water for extinguishing fiires and to supply the city and its inhabitants with water; to regulate the laying of water mains through the streets of the city and to direct their extension throughout the entire city-. Section 34, page 63, authorizes the council to raise by tax in each year such sum as they deem expedient for the following purposes, among others: Eor supplying the city with water for the extinguishment of fires and for domestic and other lawful purposes, for purchasing necessary real estate and providing for a sewerage plant. We think there can be no doubt that under these powers the council may raise by tax such sum as may be necessa^ for the maintenance of the water system and supplying the inhabitants with water. There is hardly less question that it may raise money for the maintenance and operation of the sewerage system. The power to lay drains or construct sewers and the power to impose a tax for purchasing necessary real estate providing for the sewerage plant, evidently contemplate a system of sewers in the city. If the city is to have such a system it must, by implication, have power to maintain and operate it. The argument for such an implied authority is quite as strong as the argument for the authority implied in Lathrop v. Morristown, 36 Vroom 467. The view which the Supreme Court took of this case was not questioned in the Court of Errors and Appeals, but the objection to it was put upon the ground that the ordinance did not profess to act under the section on which the Supreme Court relied. Lathrop v. Morristown, 38 Id. 247. In Maywood v. Village of Maywood, 140 Ind. 216, the Supreme Court of Illinois held that a village which had power to construct [549] sewers had implied power to construct an outlet extending beyond the territorial limits of the village. The ease, however, is stronger than we have stated, for the power given to the common council in the present case authorizes them to raise by taxation money for the contingent expenses of the city and for all other objects and purposes authorized by law. We think that the expression “authorized by law” does not necessarily mean expressly authorized by statute. It is unnecessary, in the view we take of the ease, to consider the constitutionality or effect of the act of 1904. Pamph. L., p. 198. There is no force in the objection that the ordinance provided that the taxes should bo due and payable on or before the 20th day of December, and thereafter should become a lien. This provision was unnecessary, since it provided no more than is enacted by the General Tax law of 1903. Pamph. L., p. 421, § 42; Id., p. 425, § 49. The taxes are affirmed, with costs.