CASES

ADJUDGED IN

THE COURT OF CHANCERY

OF

THE STATE OF NEW JERSEY,

FEBRUARY TERM, 1880.

THEODORE RUNYON, ESQ., CHANCELLOR.

ABRAHAM V. VAN FLEET, ESQ., VICE-CHANCELlor.

GEORGE W. SMITH

V.

THE MAYOR AND COMMON COUNCIL OF THE CITY OF NEwark.

1. A party is not entitled to relief in this court, under the act to quiet titles, on the ground of mere irregularity in a municipal assessment for opening a street, adequate relief having been provided at law; nor does equity acquire jurisdiction merely because the lands assessed have been sold under the assessment.

2. A charter provision that the cost of any improvement be laid on the lands benefited, "by a just and equitable assessment," and that any excess be borne by the city at large, is not unconstitutional.

Bill to quiet title. On final hearing on bill and answer.

Mr. F. W. Stevens, for complainant.

Mr. Henry Young, for defendants.

Smith v. City of Newark.

THE CHANCELLOR.

The complainant seeks by this suit, brought under the act "to compel the determination of claims to real estate in certain cases and to quiet the title to the same” (Rev. p. 1189), to set aside an assessment made against his lands on North Broad street (now Belleville avenue), in the city of Newark, for part of the costs, damages and expenses of regulating, grading, paving, curbing and flagging that street. He also seeks to set aside a sale of the property made by the city under the assessment. The assessment being unpaid, the city, to raise the amount with interest and costs, sold the property, under the charter, and itself became the purchaser for the term of fifty years, as under the charter it was authorized to do; and a certificate of sale was issued accordingly. The bill does not state that the complainant is in peaceable possession of the property; nor does it state that no suit is pending to test or enforce the title claimed by the city. The city has answered, however, and does not allege that these conditions to the maintenance of the suit do not exist, and it does not appear that they do not.

The complainant insists that the act of the legislature under which the assessment was made, and on which it is based, is unconstitutional, because, as he claims, it provides for the assessment of the costs, damages and expenses upon the property benefited, without confining the amount of the assessment to the benefit received. He further insists that, if it be held that the act is not in contravention of the constitution, the proceedings are invalid by reason of irregularity, and he puts his claim to relief on both grounds.

The act (P. L. 1868 p. 1002) under which the assessment was made was approved April 15th, 1868, and is entitled "A further supplement to the act entitled 'An act to revise and amend the charter of the city of Newark,' approved March 11th, 1857." It recited that the city had, under the charter, made certain specified improvements (among which was that for which the assessment in question was laid), at

Smith v. City of Newark.

considerable cost, but, by reason of defects and informalities in the proceedings, had not been reimbursed therefor, and it enacted that it should be lawful for the common council to appoint five disinterested freeholders commissioners to make an assessment of the whole costs, damages and expenses of the work or improvement upon the owners of the lands benefited or intended to be benefited, according to the principles prescribed for similar cases in the city charter; and that it should be lawful for the commissioners, in case they deemed that any owner of lands had suffered special damage by reason of the defects or informalities which had occurred in the proceedings, to so estimate and declare in their report to the common council, and to state what allowance or deduction, if any, should be made from the assessment laid upon any such owner, in which case such allowance should be charged upon the city at large; and that it should be lawful for the commissioners, in case they deemed it equitable that any portion of the whole costs, damages and expenses of the improvement should be borne by the city at large, to so estimate and declare in their report, and that thereupon they should assess the balance of the whole amount of the costs, damages and expenses upon the owners of the lands benefited, or intended so to be.

By the 109th section of the charter (P. L. 1857 p. 167), it is provided that the whole amount of the costs and expenses of regulating, grading and paving any street or section of a street, or grading, graveling, flagging, macadamizing or otherwise improving any street or section of a street, shall be assessed upon the owners of lands and real estate upon the line of the street or section of street, by a just and equitable assessment.

The supplement, as has been seen, provided that the commissioners should, if they thought it proper and equitable, charge part of the costs, damages and expenses upon the city at large, and in such case should assess the balance on the owners of lands and real estate benefited or intended so

Smith v. City of Newark.

to be. This provision in effect confined the assessment to the amount of benefits. The legislature obviously intended to modify the application of the principles of assessment in similar cases under the charter, by the express provision that part of the costs, damages and expenses might be charged to the city at large, if it was proper and equitable to do so. In fact, as appears by the bill, part was charged to the city in this case. The law is not in contravention of the constitution. Village of Passaic v. State, 8 Vr. 538. It was so held by the supreme court, on full argument and after careful consideration, in a suit in which the constitutionality of the law on this point was assailed. State, ex rel. Doyle v. Newark, 5 Vr. 236.

But it is urged by the complainant's counsel that it does not appear by the commissioners' report that the assessment did not exceed the benefits, and therefore the assessment is invalid. If the act be not unconstitutional, this suit cannot be maintained. Jersey City v. Lembeck, 4 Stew. 255. In the following cases it was held that, for relief against irregularity of proceedings or illegality in tax or assessment cases (except where the proceedings are void, or, if invalid, the invalidity must be shown dehors the record), recourse must be had to law: Jersey City v. Lembeck, ubi supra; M. C. & B. Co. v. Jersey City, 1 Beas. 252; Holmes v. Jersey City, Id. 310; Lewis v. City of Elizabeth, 10 C. E. Gr. 298; Dusenbury v. Newark, Id. 295; Bogert v. City of Elizabeth, Id. 426; Liebstein v. Newark, 9 C. E. Gr. 200.

It will not be out of place to add that, by their report, the commissioners certified that the assessment had been made justly and equitably upon the owners of the lands and real estate benefited or intended to be benefited by the improvement, and upon the city at large, in proportion as nearly as might be to the advantage each was deemed to acquire.

The complainant has had an opportunity to obtain relief at law by certiorari. That he has not availed himself of it will not of itself give him any right to relief here. Lewis