For the prosecutor, George S. Hobart and John J. Gaffey.
For the town of Belleville, Lawrence E. Keenan.
Before Justices Trenchard and Parker.
The opinion of the court was delivered by
PARKER, J. There are two principal questions in the case; one is legal and the other factual. The legal question is whether a street improvement made in front of lands owned by the prosecutor is a proper subject of assessment against the prosecutor under the so-called Home Rule act of 1917 as a local improvement; and the factual question is whether Cortlandt Street, on which the lands of the prosecutor abut, is an unimproved road in the sense intended by the statute in reliance on which the proceeding was instituted. That statute in its inception was chapter 217 of the laws of 1916. Pamph. L., p. 440. The title of the act was, "An act to provide for the proper construction, grading and drainage of
the unimproved township roads of the state and to provide state aid therefor." This act of 1916 has been amended and supplemented many times. The title itself has been amended at least three times, the last amendment apparently being chapter 421 of the laws of 1933. Pamph. L., p. 1140. The first section originally provided that there should be set aside annually from the net receipts of the motor vehicle fund $105,000, to be used to meet the state's share of the cost of the work thereinafter prescribed. This section has been amended at least seven times, usually by way of increasing the amount of the fund, which by the laws of 1931 (Pamph. L., p. 980) had been raised to $2,100,000. The act stated broadly and in general terms that it was an act for state aid to municipalities; originally townships, but enlarged to include towns, villages, boroughs, and also certain cities; and by section 5 of the original act the share of the cost to be assumed by the state should not exceed fifty per cent. of the cost of the actual work. This percentage was gradually increased by several amendments until in 1933 (Pamph. L., p. 294) it had become ninety per cent.
The writ brings up three ordinances, only the first of which may be specifically considered, the other two being merely supplemental.
The first ordinance adopted September 7th, 1937, is entitled: "An ordinance providing for the improvement of Cortlandt Street from Mill Street to Little Street (excepting that part from Belleville Avenue to Joralemon Street) and providing for the issuance of bond anticipation notes to finance said improvement. Said improvement is to be made pursuant to the provisions of chapter 217, Pamph. L. 1916, and the amendments and supplements thereto, and providing for the financing of the cost thereof." It reads in the preamble that it is proposed to improve a specific portion of Cortlandt Street, that the estimated cost is $25,000, that it is proposed to make application to the state highway commission for aid in the amount of ninety per cent. of this cost pursuant to the act of 1916 and amendments and supplements thereto; and enacts, among other things, that the town is
to issue bond anticipation notes for $23,750; and section 7, which is the important section for present purposes, is as follows:
"The within improvement shall constitute a local improvement and the cost thereof shall be assessed against the abutting property to the extent of the benefits received from said improvement. It is hereby stated that the number of annual installments in which the special assessments on account of such improvement may be paid shall be five. It is hereby determined that the ...