State v. Township of West Orange

40 N.J.L. 122

• Court: Supreme Court of New Jersey
• Decided: February 15, 1878
• Status: Published

Opinion

The opinion of the court was delivered by

Dixon, J.

An assessment for the expenses of establishing the grade of and grading Prospect avenue having been set aside, the municipality now applies, under section ten of the certiorari act, (Rev., p. 99,) for the appointment of commissioners to make a new assessment. This is opposed on the grounds—first, that the township committee had no-power to establish a grade; and, second, that the expenses of such improvements were to be raised, not by special assessment, but by general tax.

We think that neither of these positions is well taken.

The charter (Pamph. L., 1870, p. 466, § 8, ¶ 2,) expressly authorizes the township committee to order and cause any street to be graded, and the establishment of a grade is a necessary incident to this power.

Sections thirty, thirty-one, thirty-two and thirty-three of the same statute, provide for a special assessment of the expenses of such improvements, and although other enactments may give the municipality power to raise money by general tax for works of this character, the power of special assessment is not, therefore, taken away.

Whether the rule of assessment laid down by the charter accords with constitutional principles, is a question not at all discussed before us, and which, therefore, we do not decide. But as the commissioners whom we may appoint will be bound to adopt that rule, it is, perhaps, wise for the corporate authorities to consider it. If the question be a doubtful one,, the township may find a safer remedy under “An act in relation to assessments in townships,” approved March 9th,. 1877. Pamph. L., p. 227.