For the prosecutors, Hannoch & Lasser (Herbert J. Hannoch) and Harold E. Grotta.
For the respondents, Louis A. Fast and Raymond Schroeder.
Before Justices Case, Donges and Colie.
The opinion of the court was delivered by
CASE, J. The writ of certiorari was directed to the City of Newark, the Commissioner of Revenue and Finance and the Board of Assessment for Local Improvements of the City of Newark. It called for the certificate of cost, a resolution by the Board of Commissioners of the City of Newark referring that certificate to the Board of Assessment for Local Improvements and the proceedings by the said Board of Assessment with respect to the assessment for benefits resulting from an improvement known as "the opening of Raymond Boulevard." It is prosecuted by certain of the landowners who have been assessed for benefits. Notwithstanding the
wide field covered by the proofs and accompanying exhibits, the review is of those matters specifically enumerated above.
Prosecutors marshal their argument under three points: First, Raymond Boulevard is the name applied to the roof of the City Railway and is not a public street or highway for which an assessment for benefits may be levied; second, the assessment commissioners were without jurisdiction under the statute to make assessments for benefits; and third, substantial sums of money were improperly included within the cost of the improvement.
We are not impressed by the allegation that Raymond Boulevard is not a public street or highway. The fact that the street was superimposed above a cut that is used for the City Railway presents incidents that have a bearing upon the controversy. It does not, in our opinion, alter the fact that Raymond Boulevard is a highway important to the City of Newark in handling traffic and with an identity that is complementary to, but nevertheless to be distinguished from, the railway over which it exists; and we think that it came within the purview of legislation for the laying out, opening or establishing of a new street or public highway (Pamph. L. 1917, ch. 152, art. XX, § 1(a); R.S. 40:56-1). Further, the ordinance which was adopted July 13th, 1932, directed that Raymond Boulevard should be "opened as a public street or highway" and that the improvement should "be undertaken as a local improvement and the cost thereof shall be assessed against the property peculiarly benefited;" and prosecutors are, we consider, in gross laches in waiting until this late day, after standing by while the improvement, of great benefit to their lands, was being completed, to make their attack upon the ordinance. For the matter of the first point is an attack upon the ordinance. Hillside Land Co. v. North Bergen Township, 112 N.J.L. 576. Finally, we think that the point is a digression from the review which the court undertook to make.
The City of Newark, acting under chapter 229, Pamph. L. 1924, and its own ordinance adopted October 21st, 1924, acquired so much of the canal lands of the Morris Canal and
Banking Company as lay within the city limits. By a series of ordinances, the first of which was passed on January 29th, 1930, the city provided for the construction of an electric railway -- in part, at least, a subway -- along the canal bed, extending from the then proposed new railroad station north of Market Street to the boundary line between the City of Newark and the Town of Dover. The improvement was undertaken as a general improvement, no part of the cost to be specially assessed against property specially benefited by the improvement. A large volume of bonds was sold to finance the enterprise. The city proceeded to acquire additional lands which were deemed necessary for that purpose -- some by ordinary purchase, some by condemnation. After the foregoing steps had been taken the city passed the ordinance of July 13th, 1932, providing for the opening of Raymond Boulevard. The last mentioned work, in contrast with the City Railway, was to be undertaken as a local improvement, the cost thereof to be assessed against property benefited thereby, except as to $300,000 which the city undertook to pay from general tax moneys.
Section 14, article XX, chapter 152, Pamph. L. 1917 (the Municipalities Act), was in effect when the city commission acted in this case. It provided:
"Upon the completion of any local improvement, the board or body in charge thereof shall immediately notify the officer or board in the municipality that is charged with the duty of making the assessment for benefits, and request that a proper assessment be made on any lands or real estate that may have been benefited or increased in value by such improvement. The board in charge of such improvement shall furnish to the assessing officer or board a statement showing in detail the cost of such improvement, which shall include the cost of any land, real estate or right of way purchased or condemned in connection with the improvement, and also the cost of advertising, financing and inspecting the same and engineering expenses."
It is the contention of the prosecutors that no such detailed statement of costs was certified and ...