Smith v. Mayor of Newark

The opinion of the court was delivered by Beasley, C. J. The object of the bill in this case is to remove a cloud from the title of the complainant, who is the appellant here, to certain lands situated in the city of Newark. The proceeding is founded on the statute entitled “An act to compel the determination of claims to real estate in certain cases, and to quiet the title to the same.” (Dev. 1189). The lands in question had been sold by force of an assessment levied upon them for a portion of the costs, damages and expenses consequent on regulating, grading, paving, curbing and flagging of the street on which they fronted. The city had become the purchaser at this sale. The ground laid for relief against this course of law is that the law that was enforced by that sale was imposed by virtue of certain legislation that is unconstitutional. If that contention is not well founded, the bill has no legal or equitable foundation. The inquiry thus raised touches the proper construction of the supplement to the charter of the city of Newark, approved April 15th, 1868. (P. L of 1868 p. 1002). This law is remedial of the act to which it is auxiliary, in respect to the mode of assessing the costs and charges arising in the grading, paving, &c., of streets in this city. That subject was regulated by section one hundred and nine of the charter; and as such regulation consisted of a direction that such costs and charges should be distributed, under “ a just and equitable assessment upon the owners of lands and real estate on the line of said street,” by the city surveyor, the unconstitutionality of it was manifest, as it provided no standard for the measuring of its imposition, other than the discretion of the officer, nor did it attempt to restrict the landowner’s quota to the special benefit imparted to his land by the improvement. This being the obvious and admitted imperfection of the system originally established, it is further insisted that the supplementary act just referred to does not so remodel the scheme as to make it comport with the constitutional requirement. It [550] tbus becomes necessary to collate this supplement with the charter. The supplement recites that the city had undertaken and performed, at considerable cost, certain works and improvements in several specified streets, some of which had been opened and others graded, and that assessments therefor had been made, but, on account of certain informalities and defects in the proceedings, the city was embarrassed in collecting the costs and expenses, and therefore it was enacted as follows: “ That it shall be lawful for the said common council, in the case of each of the aforesaid works or improvements, respectively, to appoint five disinterested freeholders of said city, to make assessment of the whole costs, damages and expenses of the works or improvement in respect to which they may he appointed, upon the owners of the land and real estate benefited, or intended to be benefited, according to the principles prescribed for similar cases in the act to which this is a supplement; * * * and it shall also be lawful for the said commissioners, in case they deem it proper and equitable, that any portion of the whole costs, damages and expenses of either of said works or improvements should be borne by the city at large, to so estimate and declare in their report, and thereupon they shall assess the balance of the whole amount of such costs, damages and expenses upon the owners of the lands and real estate benefited, or intended to be benefited, as hereinbefore is directed.” Upon reading tbis section, it becomes at once apparent that what it does, in express terms, is this: to declare that certain commissioners may be appointed to assess these costs and expenses on the lands benefited; but the mode of doing that is not defined, and for such mode, it refers to the charter, for it says that such assessment shall be made “ according to the principles prescribed for similar cases in the act to which this is a supplement.” The meaning of this reference is the point of the present inquiry. What class of cases are the “ similar cases ” here indicated ? The reference must point to. one of the two classes of proceedings provided in the charter, the one being that which pertains to the opening of streets, and the other that which pertains to the regulating and grading of streets. The former of these methods of assessment is defined in section one hundred and five of the charter of 1857 (P. L. of 1857p. 166), and which is admitted to be constitutional; the latter, by section one hundred and nine, and which prescribes a mode of action which, as has been alreadv said, is uncoil551 stitutional. The decision, therefore, turns on the question whether the proceeding authorized by this supplement of 1868 is to be patterned after the method prescribed in section one hundred and five, or after that directed in section one hundred and nine. We have seen the relative words are those contained in the direction ■to make the assessment “ according to the principles prescribed for similar cases in the act to which this is a supplement.” On the side of the appellant, it is contended that these expressions -denote similarity in the work or improvement; that is to say, when- the commissioners by force of this supplement, have in hand a re-assessment which relates to the grading of a street, the case similar to that in the charter, is the work of grading provided for in section one hundred and nine, and so vice versa. The term “ similar cases ” imports similar improvements. It is manifest that there is considerable force in this view, but it is also manifest that there are other considerations having an adverse aspect. The proceeding set on foot by the supplement is a proceeding to be conducted by commissioners, and if we look for a u similar case ” of that kind we will not find it in section one hundred and nine, for by force of that provision the city surveyor is to apportion the expenses, and not commissioners. We must resort to section one hundred and six, if we would find a similitude in this particular. And so we come to the same result if we regard the class of persons who are to be assessed, for, by the supplement, and by section one hundred and six, the expenses are to be apportioned on the entire class who are benefited, while, according to section one hundred and nine, they are to be imposed only on lands bordering on the streets. In addition to this, there is a slight indication, having the same tendency, in section two of this supplement, from the fact that it directs the enforcement of the assessments authorized by it to be conducted after the manner of enforcing the assessments imposed under section one hundred and six. But it is not necessary to pursue this discussion further, for I think enough has been said to show that the expression in question is plainly ambiguous, and that it cannot be freed from uncertainty by any train of reasoning. The truth is, that these laws which this court is now called upon to construe, [552] like very much of the legislation that relates to our municipal governments, are so crudely put together, and are made up of such vague phrases, that it is impossible to avoid the unsatisfactory feeling that any judicial interpretation of them cannot be attended with any higher decree of certitude than that which an intelligent conjecture carries with it. In the court below this clause was interpreted in a sense which will ■ uphold these proceedings, and it is the duty of this court to lean strongly towards that same result. The burthen of showing error in the decree under review is on the appellant; to raise a doubt in that respect is not enough; and taking the argument of the counsel of the appellant at its best, it does not seem to me to do more than that. The consequence is, the decree should be affirmed. Decree unanimously affirmed.