State v. Mayor of South Amboy

Supreme Court of New Jersey

State v. Mayor of South Amboy

40 A. 637, 62 N.J.L. 197, 33 Vroom 197, 1898 N.J. Sup. Ct. LEXIS 55

DecidedJune 13, 1898

StatusPublished

This text of 40 A. 637 (State v. Mayor of South Amboy) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Mayor of South Amboy, 40 A. 637, 62 N.J.L. 197, 33 Vroom 197, 1898 N.J. Sup. Ct. LEXIS 55 (N.J. 1898).

Pincite

Opinion

The opinion of the court was delivered by

Collins, J.

This ordinance cannot be sustained. It is impossible to ascertain from its terms what work is to be done at the expense of the property-owners, whether all or a part only. The prosecutors contend that gutters are no part of a sidewalk, and as authority of law for compulsory construction at their expense extends only to sidewalks they have a right to be informed in unambiguous language of the purpose of the borough government in that regard.

[199]*199Further than this a fatal defect inheres in the proceedings in that no actual notice was given to property-owners of the intention to pass such an ordinance. This court has recently decided that in the absence of any provision of law for constructive notice of hearing on a proposed ordinance of the character of that before us, reasonable actual notice and opportunity to be heard must be given the property-owners. Landis v. Vineland, 31 Vroom 265. It is needless to reiterate here the reasoning of the learned justice who wrote the opinion in that ease, supported as it is by abundant authority. The power attempted to be exercised is judicial in character and implies previous notice and hearing.

In the law now governing all boroughs, which took effect April 24th, 1897 (Pamph. L., p. 285), there is, indeed, provision for constructive notice in cases of street improvements (§§ 53, 54), but it does not extend to ordinances providing for the construction of sidewalks. Those seem to have been lefc designedly to the safer and surer requirement of actual notice.

If actual notice to the prosecutors were proved the ordinance would still be defective, because it does not fulfill the requirements of section 50 of the act cited. That section directs that such an ordinance shall provide for allowing the abutting owners at least thirty days’ time in which to perform the work required thereby, and for giving them written notice of the required work, as prescribed by said section. It is not enough that such notice be given. The ordinance must pro-^ vide therefor.

The ordinance under review will be wholly set aside, with costs to the prosecutors.

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The opinion of the court was delivered by

Collins, J.

This ordinance cannot be sustained. It is impossible to ascertain from its terms what work is to be done at the expense of the property-owners, whether all or a part only. The prosecutors contend that gutters are no part of a sidewalk, and as authority of law for compulsory construction at their expense extends only to sidewalks they have a right to be informed in unambiguous language of the purpose of the borough government in that regard.

[199]*199Further than this a fatal defect inheres in the proceedings in that no actual notice was given to property-owners of the intention to pass such an ordinance. This court has recently decided that in the absence of any provision of law for constructive notice of hearing on a proposed ordinance of the character of that before us, reasonable actual notice and opportunity to be heard must be given the property-owners. Landis v. Vineland, 31 Vroom 265. It is needless to reiterate here the reasoning of the learned justice who wrote the opinion in that ease, supported as it is by abundant authority. The power attempted to be exercised is judicial in character and implies previous notice and hearing.

In the law now governing all boroughs, which took effect April 24th, 1897 (Pamph. L., p. 285), there is, indeed, provision for constructive notice in cases of street improvements (§§ 53, 54), but it does not extend to ordinances providing for the construction of sidewalks. Those seem to have been lefc designedly to the safer and surer requirement of actual notice.

If actual notice to the prosecutors were proved the ordinance would still be defective, because it does not fulfill the requirements of section 50 of the act cited. That section directs that such an ordinance shall provide for allowing the abutting owners at least thirty days’ time in which to perform the work required thereby, and for giving them written notice of the required work, as prescribed by said section. It is not enough that such notice be given. The ordinance must pro-^ vide therefor.

The ordinance under review will be wholly set aside, with costs to the prosecutors.

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Bluebook (online)

40 A. 637, 62 N.J.L. 197, 33 Vroom 197, 1898 N.J. Sup. Ct. LEXIS 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mayor-of-south-amboy-nj-1898.