Sears v. Atlantic City

60 A. 1093, 72 N.J.L. 435, 43 Vroom 435, 1905 N.J. Sup. Ct. LEXIS 74

• Court: Supreme Court of New Jersey
• Decided: June 12, 1905
• Status: Published

Opinion

The opinion of the court was delivered by

Swayze, J.

The question involved is the validity of an ordinance of Atlantic City directing that a portion of Atlantic avenue be paved, and that a portion of the cost be assessed upon the real estate specially benefited and a contract made thereunder. The case is brought on for final hearing by -the defendants pursuant to the statute. Pamph. L. 1903, p. 344, § 5. The prosecutors entered a formal objection to the ease being heard before a single justice, but did not question that the notice required by the statute had been duly given. I think that I must therefore proceed to determine the matter.

The defendants raise a preliminary obj ection that the prosecutors fail to show any interest in themselves, but the proofs show that Sears owns land which abuts the part of the avenue proposed to be paved. He therefore may be liable to assessment, and clearly has a right to prosecute the writ. It is immaterial whether the other prosecutor has an interest or not.

In the view I take of the ease, it is not necessary to consider the objections made to the contract. I think the ordinance itself cannot be sustained, for the reason that it was passed without notice of any kind to the persons whose property will be affected.

It was held by Chief Justice Green, in an early case (Camden v. Mulford, 2 Butcher 49), that an ordinance for paving a street was a judicial act and that notice was necessary, and this view was approved in Vanatta v. Morristown, 5 Vroom 445; West Jersey Traction Co. v. Board of Public Works of Camden, 27 Id. 431; Landis v. Vineland, 31 Id. 264, and not questioned in Moore v. Haddonfield, 33 Id: 386. I think there can be no question that an ordinance for paving which includes a determination that the costs shall be assessed upon tile property benefited is judicial in its character. If so, notice is required upon general principles of justice, although not required by the city charter. Wilson v. Earle, 13 Id. 612.

It is, however, argued by counsel for the city that the notice required to be given by the commissioners of assessment is sufficient. But this notice only enables the landowner to be heard upon the question of the amount of the assessment. He is entitled to be heard upon the proceedings which are liable to result in an assessment. After the improvement is completed, without objection on his part, it may be too late. Wilkinson v. Trenton, 7 Vroom 499; Bowne v. Logan, 14 Id. 421. It is not necessary to multiply the citations.

The practice, I believe, is in accordance with this view. Some, probably most, of the city charters in this state require notice of intention to make public' improvements to be given, and a provision for a hearing is usual, as far as I have observed, in the general legislation on the subject.

The ordinance and all proceedings under it must be set aside, with costs.