Eastwood, Proctor and Francis. The opinion of the court was delivered by Francis, J.c.c.
The complaint in this matter in lieu of certiorari was filed on October 4, 1951. By it appellants, individual property owners, attack the validity of assessments made by the respondent Township of Pennsauken against their lands. The assessments were for special benefits received by reason of a local improvement, namely, the construction of certain sanitary sewers and a sewage pumping station.
The report of the board of assessment commissioners, fixing the individual assessments, was confirmed by the governing body of the township on December 29, 1950. No appeal was taken therefrom to the Law Division of the Superior Court under R.S. 40:56-54. This proceeding in lieu of prerogative writ was brought ten months and six days after the confirmation. Defendants moved to dismiss the action primarily because of the failure of the plaintiffs, (1) to appeal under the statute referred to within 30 days after the confirmation of the assessment, (2) to institute the proceeding in lieu of certiorari within 30 days from the confirmation of the assessment as required by L. 1948, c. 381 (N.J.S.A. 2:80-7), or by Rule 3:81-15(b) (5), and (3) because plaintiffs were in laches.
Affidavits were submitted by the parties and considered by the court on the argument of the motion, and the matter seems to have been treated as a motion for summary judgment. Cf. Rule 3:12-2. In any event, the trial court dismissed the action on the three grounds set forth, without specifying any decisive individual ground. The property owners appeal.
R.S. 40:56-54 provides so far as pertinent here:
"* * * the owner of any property assessed for benefits * * * may within thirty days after confirmation of such assessment * * * appeal from the same to the circuit court of the county wherein such municipality is located by serving written notice of such appeal within such thirty days upon the tax collector * * *.
"The court * * * on the hearing thereof, shall determine whether or not the assessment * * * is a just and fair assessment * * *."
It is conceded that no such notice was served or appeal taken. However, appellants urge that the statute is inapplicable and that their remedy is by proceeding in lieu of certiorari.
There can be no question that under the Constitution of 1947 the jurisdiction of the Circuit Court in the respect covered by R.S. 40:56-54 passed to the Law Division of the Superior Court. Article XI, sec. IV, par. 3. Nor can it be disputed that the statute, even though procedural in scope, remained in force after the effective date of the new charter and until superseded by rule of the Supreme Court. Article XI, Sec. I, par. 3. It is not suggested that any such rule has as yet been promulgated.
The basis for the contention that the appeal statute could be ignored is that the assessments are being attacked on constitutional grounds and that traditionally the remedy in this event is by proceeding in lieu of prerogative writ.
It is true that the right to certiorari has been recognized even though the statutory appeal was not pursued, where property owners were denied a hearing on the assessment (Breakenridge and Tichenor v. Newark , 95 N.J.L. 436 (E. & A. 1921)), or where the assessment commissioners were legally disqualified to act (Becker v. Borough of Garwood , 96 N.J.L. 327 (Sup. Ct. 1921)), or where no notice was given of the intended adoption of the improvement ordinance (Groel v. Newark , 78 N.J.L. 142 (Sup. Ct. 1909); Walsh v. Newark , 78 N.J.L. 168 (Sup. Ct. 1909)), or of the filing of the commissioners' report (State, Evans, pros. v. North Bergen , 39 N.J.L. 456 (Sup. Ct. 1877)), or of the confirmation hearing before the governing ...