Batchelor v. Town of Hammonton

The opinion of the court was delivered by Bergen, J. The writ of certiorari in this ease was allowed for the purpose of reviewing an ordinance adopted by the town council of Hammonton providing for the improvement of portions of certain streets in the town of Hammonton with sidewalks and curbing. The town of Hammonton was incorporated under a special charter approved March 5th, 1866, and, subsequently, amended in 1867, under which the common council was empowered to “lay side and cross walks,” upon the application in writing “by some of the owners of the land over which such improvement shall pass.” The charter further provides for the appointment of commissioners to ascertain the cost of the improvement .and make assessments for benefits, and when such commissioners have made their report to it the common council shall proceed to execute the [296] improvement unless a remonstrance be filed by the owners of two-thirds of the land assessed. Pamph. L. 1866, pp. 188, 189. As the ordinance under review undertakes to provide for the putting down of sidewalks without the application of any of the property owners over whose land the improvement is to be made, it is clear that unless by subsequent legislation a method differeut from that provided for ,iu the charter has been established the common council have exceeded their power in adopting the ordinance complained of. ' The respondent admits that it has not observed the terms of the charter, but relying upon an act of the legislature passed in 1909 (Pamph. L., p. 197), has initiated the proceedings under the later act without the application of any of the landowners affected thereby. The act of 1909 makes it “lawful for the governing body of any municipality in this state to improve any road, street, parkway or other public highway therein with suitable curbing, gutters and sidewalks,” with the proviso that “nothing herein contained shall prevent any board or governing body from exercising any powers which are now conferred on it by law, but this act shall confer additional authority for carrying out the improvements herein specified.” The question is therefore raised, does the act of 1909 empower the common council of the town of Hammonton to improve the streets of the town with sidewalks and curbing on its own motion without the application of some of the owners of the land over which the improvement passes? We are of opinion that the effect of the act of 1909 is to confer upon the common council of all municipalities the power to improve streets by curbing and laying sidewalks without the application required in the special charter of the town of Hammonton, and if the act is applicable, to that town, would repeal all contrary provisions contained in its charter. That the legislature has the power to authorize the initiation of improvements by the common council of a municipality without being-incited thereto, or authorized by the written application of landowners affected, is not disputed by the prosecutor, but he insists that because the act of 1909 provides that nothing therein contained shall prevent any governing body from ex297 erasing powers now conferred, the additional powers conferred by this statute cannot be exercised, and therefore all street improvements made in Hammonton must follow the procedure prescribed by its charter. This construction of the statute is, we think, unsound, for the institution of improvements of this character by the common council without the interference or application of the landowners is an additional power given inconsistent with that contained in the charter, and if so, the charter must give way to the later legislation, for it cannot be assumed that the legislature intended municipalities to have the option of two different methods in the commencement of improvement proceedings. Oakes v. Glen Ridge, 31 Vroom 130; Smith v. Hightstown, 42 Id. 536. The powers, the exercise of which are not prevented, must be those which are not repealed either expressly or by implica Lion, and as the act of 3909 does not provide the method of ascertaining and assessing the cost of the improvement, each municipality may proceed to exercise the power conferred upon it to accomplish that necessary result. We think the law of 1909 applies to the town of Hammonton, and that under it proceedings of the character complained of may be instituted by the common council without the application of landowners as required by its special charter, and that therefore the proceedings under review are not erroneous in the particular complained of. The result is that the proceedings under review should be affirmed.