For the prosecutors, Louis Hood and Hannoch & Lasser (Herbert J. Hannoch and Morris Weinstein).
For the defendants, Thomas L. Parsonnet.
Before Justices Case, Bodine and Perskie.
The opinion of the court was delivered by
BODINE, J. The writ brings up for review a second certificate of cost in the opening of Raymond Boulevard in Newark, the action of the city's auditor and governing body in certifying the cost, the propriety of the cost thus charged to the improvement, and the jurisdiction of the assessment commissioners to assess benefits against the prosecutors' properties upon the certificate before them. The prior certificate of cost dated June 10th, 1936, was reviewed by this court in behalf of the same prosecutors in Union Building Co. v. City of Newark, 129 N.J.L. 146. The court set aside the assessment proceedings in that case.
The ordinance authorizing the opening of the boulevard was adopted July 13th, 1932. The ordinance calls for a local improvement, and the cost was to be assessed against property specially benefited.
On August 8th, 1934, a supplementary ordinance was adopted, which, so far as pertinent, provided: "The cost * * * shall, to the extent of Three Hundred Thousand Dollars ($300,000), not be specially assessed upon property specially benefited by said improvement, anything in said ordinance to the contrary notwithstanding. The amount of such cost to be specially assessed upon property specially benefited by said improvement shall be Seven hundred thousand dollars ($700,000), or such part thereof as shall equal the benefits received by such property."
In 1936, the boulevard improvement was certified to be complete, and its cost was certified to the assessment commissioners. They filed their report in 1939. The Circuit Court confirmed the report as to all property owners except the present prosecutors and, as we have before noted, this court set aside that assessment proceeding as to present prosecutors. The judgment was entered October 6th, 1942. The cost of the improvement, as certified in 1936, was $527,440.28, of which amount under the ordinance above quoted, $300,000 was to be borne by the city as charged, and the balance of $227,440.28 would be assessed against property specially benefited, including prosecutor's lands.
Under the prior certificate of cost only six properties were charged to the boulevard improvement and only a portion of the cost of each property. The city, after the assessment was set aside, took no action until July 26th, 1944, when the governing body certified and referred to the assessment commissioners the certificate of cost now before us. By this certificate, the cost of the boulevard improvement is now stated to be $1,041,244.02. The amount to be assessed against the property specially benefited is $700,000, an increase of nearly half a million dollars over the previous certificate. The certificate charges all or part of the cost of forty-six properties instead of the partial cost of six properties. Further, interest
on the improvement is now the aggregate sum of $360,401.48 instead of the $90,389.02 used in the previous certificate.
Part of the history of the boulevard should be considered at this time.
A part of the Morris Canal was in the City of Newark. After the canal was abandoned, the city acquired title to such portion as was situate within its bounds. The city then entered into a contract on December 11th, 1928, with the Public Service Co-ordinate Transport to lay out and construct along the canal property acquired and on other property acquired by it an electric railway. When the railway was complete, the Transport was to have the exclusive use and operation thereof for a term of fifty years with the option to renew.
On January 29th, 1930, pursuant to legislation, the city adopted an ordinance authorizing the issuance of $1,000,000 railway construction bonds. The total railway construction bonds authorized was $10,850,000. Substantially all were issued and the proceeds received by the city were approximately $10,850,000.
On February 18th, 1931, the city adopted an ordinance for the planning and widening of Academy Street. On November 9th, 1932, the costs of the Academy Street opening were submitted to the Board of Commissioners of Assessment for local improvement. The cost thus certified was $1,009,644.15. No report was ever filed. On September 6th, 1944, the previous action was rescinded.
In the office of the city auditor there are three accounts: (1) entitled "Raymond Boulevard Opening account," hereafter called Boulevard account; (2) "Academy Street Opening account," hereafter called Academy account; (3) "City Railway Construction account," hereafter called Construction account.
A few of the details of the purchase of properties referred to in the 1944 statement of cost will now be considered.
The Kresge Foundation property purchased pursuant to resolution October 10th, 1933, of the purchase price $110,500 was charged to the ...