Phillips v. Borough of Longport

The opinion of the court was delivered by Parker, J. The appeal involves an assessment on the real estate of appellant Seashore Home for benefits resulting from the construction of jetties built to protect the ocean front. The original assessment was set aside at the suit of the prosecutor, Phillips, who is not a party to the present appeal. A reassessment was then made and on certiorari was likewise set aside. Thereupon the Supreme Court, acting no doubt by virtue of the act of 1881 (Pamph. L., p. 194; Comp. Stat., p. 5171, § 191), appointed its own commissioners to make a third assessment; and on the coming in of their report, the present appellant objected to its confirmation, on the grounds, as now alleged—first, that the court was without power to appoint its commissioners to reassess in such a ease; and secondly (as claimed), that (he new assessment, professedly reached by adopting percentages of valuation of the respective properties by a uniform rule, had charged such percentage as to appellants, not only on the value of their land, but also on that of their new building erected after the improvement was made. The court overruled all objections and confirmed the report, and its action in so doing is challenged by this appeal. A review) of such action by appeal corresponding to a writ of error is obviously proper (Eames v. Stiles, 31 N. J. L. 490), and has the sanction of precedent. Moran v. Jersey City, 58 Id. 653. The denial by appellant of the power of the Supreme Court to appoint its own commissioners to reassess is grounded, if we understand the argument of counsel, on the provision of the Borough act requiring that the commissioners of assessment in. a borough shall be freeholders and residents in that borough, but at the same time providing that [214] they shall not be interested "in the matter of tire assessment. Comp. Stat., p. 259, § 52; Pamph. L. 1897, p. 310; Pamph. L. 1900, p. 402. Based on the assumption that the original assessment included all the land in the borough as to some extent benefited by protection from the sea, the argument now is, that as every freeholder and resident was (as claimed) interested in the assessment, no commissioners could be appointed who would be qualified under the statute, so that no lawful assessment could be made by the borough, and the act of 1881 had no basis upon which to operate. Without conceding the inapplicability of the act of 1881 in such a supposed case, it is enough to say that that case is not now shown to exist. The original assessment is not laid before us; and it does not otherwise appear that all the land in the borough was included therein. Hence there is no reason to conclude that disinterested commissioners could not have been obtained. If they were available, but in fact one or more of the commissioners who acted were interested, it is well settled that the act of 1881 would apply. The rule is that the Supreme Court may act, not only in cases wlliere a valid assessment could have been made at the time it was attempted, but also in cases where such valid assessment could be made at the time when the Supreme Court pronounces its judgment in reviewing the defective assessment. Brewer v. Elizabeth, 66 N. J. L. 547; Elizabeth v. Meeker, 45 Id. 157; Brown v. Union, 65 Id. 601. And when there is a permanent board of assessment commissioners, it is not necessary that they should certify in their report as to their qualifications, but the burden is on prosecutor to show disqualification. Batchelor v. Avon-by-the-Sea, 78 Id. 503. There is nothing in the case before us to show that any of the original commissioners, or of their successors, was disqualified ; and hence the argument lacks a minor premise. The other point made is that the commissioners appointed by the court, in laying the new assessment on a graduated percentage basis, decreasing from the sea landward (the general propriety of which is not here challenged), added to the [215] valuation oí appellant’s property tlie value of a new building eroded by appellants after tlie municipal improvement was made; and that the percentage could lawfully apply only to the value of the property as it existed at the time of the completion of the municipal improvement. Without conceding tlie impropriety of such a course, where the commissioners certify, as they have done, that the assessments do not exceed the actual benefits (and there is no proof to tlie contrary), the answer is that it does not appear that a percentage was assessed on the value of the new building— counsel so asserted on the argument; and members of the court expressing some doubt of this appearing in the ease, counsel announced his intention of making Written application for dismissal of the appeal without prejudice, in order to have the fact settled. N"o such application was made, but, instead, a stipulation has been submitted in this court, which it would be irregular for us to consider, as ,we must take the case as it was presented to the court below. In this we find only the clause in the per curiam of the court below, that “real "estate must be assessed with respect to the value imparled to it by permanent improvements,” and paragraph 6 of a stipulation of counsel certified as correct by the court below, that the commissioners “in making a reassessment against the property of appellant took into consideration the improvements upon the land made by appellant after the completion of the jetties.” With respect to the former we remark that the Supreme Court states no time as of which the value imparted by permanent improvements is to be taken as the basis of assessment, and we cannot suppose that an illegal time was selected; and as to the latter it; may similarly he said that the commissioners may as well have “taken into consideration” the later improvements to the huid with a view of excluding them from assessment as with a view of assessing them. In short, to work a reversal, some injurious error must be shown, as every intendment is in favor of the record. Loweree v. Newark, 38 N. J. L. 151; Demster v. Frech, 51 Id. 501; Dallas v. Newell, 65 Id. 172. To raise a doubt is not [216] enough. Smith v. Newark, 33 N. J. Eq. 545, 552. It was a simple matter to show error if it existed; but it has not been showjn in any iyay that we can recognize on this appeal. The judgment is affirmed. For affirmance—Tiie Chancellor, Chief Justice, Swayze, Parker, Bergen, Minturn, PIeppeniieoier, "Williams, JJ. 8. For leversal—White, Gardner, JJ. 2.