For the prosecutor, Wurts & Plympton (William H. Wurts and George P. Moser, of counsel).
For the defendant, Weleck & Hawkins (James A. Major, of counsel).
Before Brogan, Chief Justice, and Justices Parker and Porter.
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. Certiorari was allowed to review certain assessments laid upon lands of the prosecutor, River Edge Homes, Inc., for benefits resulting from a "local improvement." The benefits said to have been conferred arise out of the extension of the sewer system of the Borough of River Edge.
The history of this and a companion, prior improvement in the municipality began in 1928. At that time the municipality passed an ordinance (No. 201) under which a sewage disposal plant was constructed and in which there is this provision: "* * * that the cost and expense * * *
shall be paid for by general taxation." Sufficient money was appropriated to pay for the disposal plant and the same was constructed.
In the month of May in the year 1929 the governing body caused notice of a public hearing to be given on a further ordinance (No. 221). Under this ordinance it was proposed to construct a trunk sewer as an extension of the sewer system then in service. The plan and object of the governing body was to provide sewer facilities for lands located in the "northern district of the Borough." The ordinance provided for acquiring the necessary land and the appropriation of the money necessary to build the sewer. It also ordained (sections 4 and 5) that this improvement be undertaken as a "local improvement," which is one the cost of which, in whole or in part, is borne by the lands benefited thereby (R.S. 40:56-1). This improvement was completed and assessments therefor have been made at various times under the ordinance (No. 221). The first assessment amounted to $146,464.50. Thereafter, from time to time, as laterals were built, other assessments were levied so that at the time the assessment under review was made approximately ninety (90%) per centum of the improvement cost had been assessed.
It happens that the prosecutor's land was so situated that it could not be served by the trunk sewer merely by constructing laterals. It was necessary in addition that a pumping or "ejector" station be constructed. This because of difference in elevation. One other area within the affected territory has lands similarly situated. Its owner had constructed a lateral sewer and a pumping station and paid for it, as did the prosecutor in this case. Upon completion of the pumping station and lateral sewer by the prosecutor and the acceptance by the Borough, the governing body of the municipality, on April 6th, 1942, appointed commissioners to assess for benefits to prosecutor's lands arising out of the connection thus made with the trunk sewer and the municipal disposal plant constructed under the first ordinance (No. 201). Before the prosecutor had constructed its lateral sewer and pumping station it entered into an agreement with the Borough on July 15th, 1942, in and by the terms of which it agreed to
construct such sewer and station and the municipality, in turn, agreed, provided it approved the construction, that same might be connected to the trunk sewer and that the municipality would accept it and thereafter maintain and operate the sewer and pumping station. All of this was done. One significant item of this agreement should be mentioned (paragraph 17), wherein it is provided: "Nothing herein contained shall operate to relieve the said party of the second part (prosecutor herein), or any lands benefited thereby, from assessment for benefits conferred by the connection of said lands and premises to the trunk line sewer of the Borough of River Edge." The commission on June 8th and June 15th, 1942, gave notice of hearing on the matter of assessments, indicating the several parcels of land to be assessed. (Lands other than those owned by the prosecutor were also assessed at that time.) Subsequently the commissioners filed their report in which they set forth the unassessed construction costs of the sewer and disposal plant which provided sewerage service to lands of prosecutor. The commission reported the total unassessed amount, which included an item of $52,383.14, which was the cost of the disposal plant heretofore constructed as a general improvement under ordinance 201. This report was objected to by the prosecutor before the assessment commission. It was also objected to when the report was submitted to the governing body of the municipality. The objections ...