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Bung''s Bar & Grille Inc. v. Township Council of Township of Florence

Decided: March 20, 1985.


Haines, A.j.s.c.


This opinion addresses the plaintiffs' request for an allowance of counsel fees and costs incurred in the course of a successful challenge to local improvement assessments. The right to recover turns upon the applicability of 42 U.S.C.A. § 1983, the federal Civil Rights Act ("Act"), when that Act, though pleaded, was not the basis of plaintiffs' success and therefore was not addressed by this court when it decided that the plaintiffs should be granted injunctive and declaratory relief.

Florence Township adopted a local improvement ordinance appropriating $263,000 for the construction of water and sewer improvements and providing for the assessment of the improvement cost against the lands owned by the plaintiffs and others. The project was completed on October 31, 1977, when the Township Clerk, at the direction of the Township Council, certified its costs to the Assessment Commission created for the purpose of making the required assessments. The Commission, relying upon the opinion of its appraisal expert, allocated the cost of the project among the improved properties and reported its conclusion to the Council for certification. The Council, after reviewing the report at the public hearing, remanded the matter to the Commission for reconsideration because the total assessment exceeded the amount appropriated by the improvement ordinance. The Commission conducted six hearings, at which it received testimony from its own expert and from numerous experts employed by plaintiffs. Its final report, dated July 14, 1980, reflected the figures advanced in the opinion of its witness. On November 5, 1980, the Township Council, after a public hearing, confirmed the Commission's assessments.

This suit challenging the assessments on statutory and constitutional grounds was commenced on November 21, 1980. Tax bills covering the assessments were mailed to property owners on December 15, 1980. On December 22, 1980 this

court stayed the imposition of tax liens on plaintiffs' properties and, on January 22, 1981, restrained all actions to enforce the assessments. The controversy, except for issues concerning damages, costs and attorneys fees, was submitted for decision on the record of the Township proceedings, briefs and oral argument.

This court, for various reasons, set aside all of the Township's assessments and reassessed the properties, primarily on the basis of the testimony presented by the plaintiffs' experts. In doing so, the court relied upon N.J.S.A. 40:56-54, et seq., providing for appeals from assessments for local improvements, and upon McNally v. Teaneck, 132 N.J. Super. 442 (Law Div.1975), mod. 75 N.J. 33 (1977). The court's opinion did not address specifically the claims made by plaintiffs under the Civil Rights Act. Its decision was affirmed on appeal by the Appellate Division; certification was denied by the Supreme Court. Plaintiffs now move for summary judgment allowing counsel fees and costs. They agree to waive their damage claims if reasonable allowances are made for these items. Requested cost allowances include fees paid by plaintiffs to their expert witnesses and the expense of transcribing the municipal hearings. Disposition of the motion is not impeded by formal disputes. This opinion decides all remaining issues.

A. 42 U.S.C.A. §§ 1983 & 1988

New Jersey Court Rule 4:42-9(a)(8) permits the allowance of fees for legal services "in all cases where counsel fees are permitted by statute." The statute upon which plaintiffs rely in their request for fees is 42 U.S.C.A. § 1988, which provides:

In any action . . . to enforce . . . section[s] 1983 . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney fee as part of the costs.

Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State . . . subjects or causes to be subjected, any citizen of the

United States . . . to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . .

It is this section of the Civil Rights Act upon which plaintiffs relied in part in the underlying litigation. Together with Section 1988, it plays a central role in the present application. Section 1983 is enforceable in the state courts. Endress v. Brookdale, 144 N.J. Super 109 (App.Div.1976). So is § 1988, which, "like all federal law, is fully applicable to state court proceedings by virtue of the Supremacy Clause, U.S.Const., Art. VI cl. 2." Ramirez v. Hudson Cty., 169 N.J. Super 455, 457 (Ch.Div.1979).

B. The Constitutional Issue

Plaintiffs can recover attorneys' fees only by showing that a federal constitutional violation occurred. That is the basis of their civil rights claims. It is necessary, therefore, to identify the constitutional provision that supports those claims.

All Federal courts apparently determine the validity of local assessments through application of the due process clause of the Fourteenth Amendment. State courts do the same or apply like provisions of state constitutions. The decisions, however, speak in terms of "police powers" and "taxation" when dealing with the question of power to assess and in terms of "due process," "taking without just compensation" and "equal protection" when dealing with restrictions on that power, making their interpretation of the Fourteenth Amendment unclear. New Jersey's leading case, McNally v. Teaneck, 75 N.J. 33 (1977), rejects both taxation as a basis for assessment and equal protection as a concern. Most United States Supreme Court decisions may be so read; a number, however, find equal protection violations and there are frequent references to the power of taxation. Seemingly, those references are no more than alternative descriptions of the power to assess for local improvements. Many cases, state and federal, refer to takings without just compensation, the language of eminent domain.

Some correctly recognize police power as providing assessment authority limited by the Fourteenth Amendment.

The power of eminent domain is the power to take private property for public use. In the case of the Federal Government it has been described as an "inherent 'attribute of sovereignty'" and the "offspring of political necessity." Tribe, American Constitutional Law 254 (1978). New Jersey relies upon a like philosophy. Valentine v. Lamont, 13 N.J. 569 (1953). The Federal Government is restricted in its exercise of this power by the Fifth Amendment, which provides:

No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Thus, there can be no Federal taking without "just compensation." The New Jersey Constitution (1947), Art. I par. 20, is to the same effect.

The Fifth Amendment "just compensation" clause has not been applied to the states by the Fourteenth Amendment. J. Nowak, R. Rotunda & J.N. Young, Constitutional Law, 377 (1978) [hereinafter cited as Nowak]. However, the due process clause of the Fourteenth Amendment, first thought to require only procedural due process, Davidson v. New Orleans, 96 U.S. (6 Otto) 97, 24 L. Ed. 616 (1877), was soon interpreted to regulate substance as well as requiring a taking of private property only for a public use and only when just compensation is paid. Chicago, B. & Q.R. v. Chicago, 166 U.S. 226, 17 S. Ct. 581, 41 L. Ed. 979 (1897). In effect, therefore, state and Federal governments are subject to the same rule in eminent domain cases though by reason of different federal amendments. Nowak, supra, comments on Chicago:

Although some cases and commentators have viewed [this decision] as incorporating the compensation clause into the Fourteenth Amendment, this view does not appear strictly correct. Rather the Court appears to have found independent public use and just compensation requirements in the definition of due process. [at 440.]

These "taking" and "just compensation" concepts are reflected in the local assessment decisions although such assessments, as

will be shown, involve neither "takings" nor "just compensation."

Police power, the true basis of local assessments, is an inherent power of state, but not Federal, government. The Federal Government is one of enumerated powers. Nowak, supra, 112. The police power authorizes the adoption and enforcement of laws promoting the public health, safety, welfare and morals. Two Guys from Harrison v. Furman, 58 N.J. Super. 313 (1959), rev'd. on other grds., 32 N.J. 199 (1960). It is not restricted in the manner our Constitutions restrict the power of eminent domain. On some occasions, e.g., to protect the public safety, property may be taken without compensation. Rothman v. Rothman, 65 N.J. 219 (1974); Spagnuola v. Bonnet, 16 N.J. 546 (1954). Nevertheless, the police power is limited by the due process clause of the Fourteenth Amendment, which is violated when its exercise is arbitrary. Roselle v. Wright, 21 N.J. 400 (1956).

The Fourteenth Amendment provides that:

No state shall . . . deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The language of this due process clause is similar to that of the Fifth Amendment. Both clauses have been held to have the same meaning. Hurtado v. California, 110 U.S. 516, 534-35, 4 S. Ct. 111, 120, 28 L. Ed. 232 (1884). The fact that the Fourteenth Amendment has not applied the Fifth Amendment due process clause to the states is therefore immaterial. What is material here is that the Fourteenth Amendment applies to State exercise of the police power, preventing its arbitrary use in local assessment cases.

C. Norwood v. Baker

Norwood v. Baker, 172 U.S. 269, 19 S. Ct. 187, 43 L. Ed. 443 (1898), is the significant early federal case applying the Fourteenth Amendment to a local assessment. It is best described as a "target" rather than a "leading" case, since it has been cited and distinguished by nearly every subsequent United

States Supreme Court local assessment decision. It was, however, relied upon in the New Jersey case of McNally v. Teaneck. Norwood involved a street construction ordinance pursuant to which property was condemned and assessments for benefits were levied. The assessments covered all of the costs of condemnation including compensation paid for the takings. No inquiry into the value of the benefits conferred was permitted. The Court held that the assessments represented "an exercise of the power of taxation," that the Fourteenth Amendment required "compensation to be made or secured to the owner when private property is taken by a state, or under its authority, for public use." [ Norwood, supra, 172 U.S. at 277.] Then, blending these concepts, it said:

In our judgment, the exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him, is, to the extent of such excess, a taking under the guise of taxation, of private property for public use without compensation. [ Id. at 279, 19 S. Ct. at 191.]

Norwood therefore recognized the Fourteenth Amendment due process clause as the controlling constitutional proviso. It suggested that the tax power was used to disguise a taking which required the payment of compensation.

It is here that the difficulty begins. While all courts agree that an assessment substantially in excess of benefits is wrong and many talk in the "taking just compensation" language of Norwood, the fact is that neither "taking" nor "just compensation" is involved. The excess assessment, designed to recover the value of benefits conferred, "takes" nothing. Courts do not require the payment of compensation when an assessment is proved to be excessive. There is no basis, no reason for such payment. The assessment is simply set aside or its collection restrained.

D. The United States Supreme Court Decisions After Norwood

Norwood invited a flood of local assessment cases in the Supreme Court. Eleven were decided in 1901. Most distinguished

Norwood. All recognized the constitutional requirement that local assessments must be roughly equivalent to conferred benefits. None made clear the basis of the power to assess or the constitutional provisions which limited that power. Most were concerned about judicial interference with the exercise of legislative determinations concerning assessments for benefits. A brief analysis of a substantial sampling of these cases illustrates the varied approaches to the constitutional problem.

(1) French v. Barber Asphalt Paving Co., 181 U.S. 324, 21 S. Ct. 625, 45 L. Ed. 879 (1901), was a street paving case in which assessments were made against abutting lots on the basis of frontage. It is the decision most frequently cited after Norwood. The court said the authority to charge the expense of local improvements to properties specially benefited was included within the taxing power. Id. at 344, 21 S. Ct. at 632. It held that a legislative determination as to what lands are benefited by a local improvement is conclusive upon the courts, a holding echoed with considerable consistency by most subsequent United States Supreme Court cases. In reaching this conclusion the court quoted the following passage from Spencer v. Merchant, 125 U.S. 345, 8 S. Ct. 921, 31 L. Ed. 763 (1888) with approval:

But the legislature has the power to determine by the statute imposing the tax what lands which might be benefited by the improvement are, in fact, benefited and if it does so, its determination is conclusive upon the owners and the courts, and the owners have no right to be heard upon the question whether their lands are benefited or not, but only upon the validity of the assessment and its apportionment among the different parcels of the class which the legislature has conclusively determined to be benefited. [181 U.S. at 339, 21 S. Ct. at 630.]

French upheld the assessment. It distinguished Norwood saying that the assessment practice there:

appeared, both to the court below and to the majority of the judges of this court, to be an abuse of the law, an act of confiscation, and not a valid exercise of the taxing power.

[The village still had the power] to make a new assessment upon the plaintiff's abutting property for so much of the expense of opening of the street as was found upon due and proper inquiry to be equal to the special benefits accruing to the property. [ French, 181 U.S. at 344, 21 S. Ct. at 632.]

French, therefore, recognized the basic assessment-benefit principle while establishing the strong presumption that the legislative decision as to benefits is correct. This presumption, as we shall see later, is contrary to the law of New Jersey.

(2) Cass Farm Co. v. Detroit, 181 U.S. 396, 21 S. Ct. 644, 45 L. Ed. 914 (1901), is another street paving case, decided on the same day as French, upon which it relied. It said:

the Federal courts ought not to interfere when what is complained of is the enforcement of the settled laws of the state applicable to all persons in like circumstances and conditions, but only when there is some abusive law amounting to confiscation of property or deprivation of personal rights, as was instanced in the case of Norwood v. Baker. [at 398, 21 S. Ct. at 645.]

(3) Wight v. Davidson, 181 U.S. 371, 21 S. Ct. 616, 45 L. Ed. 900 (1901), decided on the same day as French, found a District of Columbia assessment for street construction to be constitutional. Norwood v. Baker was distinguished. The distinguishing language is significant:

There the question was as to the validity of a village ordinance which imposed the entire cost and expenses of opening a street, irrespective of the question whether the property was benefited by the opening of the street. The legislature of the state had not defined or designated the abutting property as benefited by the improvement, nor had the village authorities made any inquiry into the question of benefits. There having been no legislative determination as to what lands were benefited, no inquiry instituted by the village councils, and no opportunity afforded to the abutting owner to be heard on that subject, this court held that the exaction from the owner of private property of the cost of the public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use, without compensation, and accordingly affirmed the decree of the circuit court. . . .

(4) The eight additional cases decided in 1901 followed the French doctrine, and provide no additional constitutional insights. They are: (a) Lombard v. W. Chicago Park Comm'rs., 181 U.S. 33, 21 S. Ct. 507, 45 L. Ed. 731 (1901); (b) Tonawanda v. Lyon, 181 U.S. 389, 21 S. Ct. 609, 45 L. Ed. 908 (1901); (c) Webster v. Fargo, 181 U.S. 394, 21 S. Ct. 623, 45 L. Ed. 912 (1901); (d) Detroit v. Parker, 181 U.S. 399, 21 S. Ct. 624, 45 L. Ed. 917 (1901); (e) Allen v. Dist. of Columbia, 181 U.S. 402, 21 S. Ct. 609, 45 L. Ed. 921 (1901); (f) Shumate v. Heman, 181 U.S. 402, 21 S. Ct. 645, 45 L. Ed. 922 (1901); (g) Wormley v. Dist. of Columbia, 181 U.S. 402, 21 S. Ct. 609, 45 L. Ed. 921 (1901) and (h) Farrell v. Chicago Park Comm., 181 U.S. 404, 21 S. Ct. 609, 45 L. Ed. 924 (1901).

(5) Chesebro v. Los Angeles County Flood Control Dist., 306 U.S. 459, 59 S. Ct. 622, 83 L. Ed. 921 (1939), is the last local assessment case decided by the United States Supreme Court. It cited and followed French, but held that a hearing as to benefits was necessary when the Legislature itself did not fix

benefits. It also said that the legislative determination of benefits was "conclusive" Id. at 464, 59 S. Ct. at 624.

A few cases asserted "palpably arbitrary", "wholly unequal" and "plain abuse" standards as bases for Fourteenth Amendment relief:

(a) Houck v. Little River Drainage District, 239 U.S. 254, 36 S. Ct. 58, 60 L. Ed. 266 (1915), considered an assessment in connection with the establishment of a drainage district. The court held that the legislative action in fixing "the basis of taxation or assessment . . . cannot be assailed under the Fourteenth Amendment unless it is palpably arbitrary and a plain abuse." Id. at 262, 36 S. Ct. at 60. It continued:

Unless the exaction is a flagrant abuse, and by reason of its arbitrary character is mere confiscation of particular property, it cannot be maintained that the state has exceeded its taxing power. [at 266, 36 S. Ct. at 62.]

(b) Roberts v. Richland Irr. Dist., 289 U.S. 71, 53 S. Ct. 519, 77 L. Ed. 1038 (1933), recognized the rule that "the action of such a district in apportioning the burden of taxation cannot be assailed under the 14th Amendment unless palpably arbitrary and a plain abuse." Id. at 74-75, 53 S. Ct. at 520.

(c) Goldsmith v. George G. Prendergast Const. Co., 252 U.S. 12, 40 S. Ct. 273, 64 L. Ed. 427 (1920), held:

this court only interfaces with such assessments on the ground of violation of constitutional rights secured by the Fourteenth Amendment, when the action of the state authorities is found to be arbitrary, or wholly unequal in operation and effect. [at 17-18, 40 S. Ct. at 274.]

Several decisions invalidated assessments:

(i) Martin v. Dist. of Columbia, 205 U.S. 135, 27 S. Ct. 440, 51 L. Ed. 743 (1907), considered and quashed assessments for benefits supposedly conferred as the result of widening an alley in the District of Columbia. The Court said "that in any event, the apportionment is to be limited to the benefit, and if it is so limited, all serious data as to the validity of the statute disappears." Id. at 140, 27 S. Ct. at 442. Assessments, in fact, were not limited to benefits.

(ii) Myles Salt Co. v. Bd. of Comm'rs., 239 U.S. 478, 36 S. Ct. 204, 60 L. Ed. 392 (1916), dealt with an assessment of an island property located in a drainage district but 175 feet above surrounding properties. It did not benefit from the drainage plan in any way. The court held that when a drainage district "is so formed to include property which is not and cannot be benefited directly or indirectly, including it [sic] only that it may pay for the benefit of other property, there is an abuse of power and an act of confiscation." Id. at 485, 36 S. Ct. at 206. The Court reversed a decree that refused to restrain the sale of the island for failure to pay the assessment.

(iii) Gast Realty & Inv. Co. v. Schneider Granite Co., 240 U.S. 55, 36 S. Ct. 254, 60 L. Ed. 523 (1916), involved a street paving ordinance that established an arbitrary boundary line for the purpose of assessment. The court set the assessments aside, finding them to be arbitrary because differences in benefits were not considered. The court said:

[I]f the law is of such a character that there is no reasonable presumption that substantial justice generally will be done, but the probability is that the parties will be taxed disproportionately to each other and the benefit conferred, the law cannot stand against the complaint of one so taxed in fact. [at 58, 36 S. Ct. at 254.]

(iv) Kansas City So. Ry. Co. v. Road Improvement Dist., 256 U.S. 658, 41 S. Ct. 604, 65 L. Ed. 1151 (1921), reversed a judgment sustaining an assessment of railroad property. The court found "discrimination so palpable and arbitrary as to amount to a denial of the equal protection of law." Id. at 661, 41 S. Ct. at 605. The court noted that "ordinarily the levy may be upon lands specially benefited according to value, position, area, or the front foot rule." Id. at 660, 41 S. Ct. at 605.

(v) Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405, 55 S. Ct. 486, 79 L. Ed. 949 (1935), involved the assessment of the cost of eliminating a grade crossing. The court noted that there was authority to make the assessment under the police power of the state, but said that " the police power is subject to the constitutional limitation that it may not be exerted arbitrarily or unreasonably." Id. at 415, 55 S. Ct. at 488; emphasis supplied. The assessment was set aside, the court saying:

While moneys raised by general taxation may constitutionally be applied to purposes from which the individual taxed may receive no benefit, and indeed, suffer serious detriment; so called assessments for public improvements laid upon particular property owners are ordinarily constitutional only if based on benefits received by them. [at 429-30, 55 S. Ct. at 495; citations omitted.]

(vi) Road Imp. Dist. #1 of Franklin Co. Ark. v. Missouri Pac. Ry. Co., 274 U.S. 188, 47 S. Ct. 563, 71 L. Ed. 992 (1927), held that an arbitrary and discriminatory assessment violated due process and equal protection. An injunction was allowed.

(vii) In Georgia Ry. & Elec. Co. v. City of Decatur, 295 U.S. 165, 55 S. Ct. 701, 79 L. Ed. 1365 (1935), the Court, in response to an argument that the police power permitted an assessment without regard to benefit, said:

if the burden imposed is without any compensating advantage . . ., the arbitrary abuse of the power exercised is plain . . .; the assessment amounts to confiscation. [at 170, 55 S. Ct. at 703.]

Those United States Supreme Court decisions distinguished, but did not reverse, Norwood. The basic premise, that assessments and benefits must be in reasonable balance, remains intact. At most, the cases simply established a presumption that the test is satisfied by state legislative action which is not clearly arbitrary.

New Jersey does not recognize the presumption. Our cases hold that assessments cannot exceed benefits as a matter of constitutional demand regardless of how the assessments are

made. Alternatively, they may be holding that our Legislature does not have the power to assess beyond benefits, thus denying any opportunity for a presumption to arise. McNally v. Teaneck, for example, cited Norwood but none of the subsequent United States Supreme Court cases that established the presumption, apparently finding them inapplicable in a New Jersey assessment dispute. Nevertheless, the constitutional provision upon which our decisions turn is not clear.

E. New Jersey's Local Assessment Cases

The Tide-water Co. v. Coster, 18 N.J. Eq. 518 (E. & A.1866), is one of New Jersey's earliest cases dealing with local assessments. It was decided two years before the Fourteenth Amendment was adopted, but was nevertheless cited in Norwood v. Baker, a decision based upon that amendment. Tide-water held:

Where lands are improved by legislative action, on the ground of public utility, the cost of such improvement, it has been frequently held, may, to a certain degree, be imposed on the parties who, in consequence of owning lands in the vicinity of such improvement, receive a peculiar advantage. By the operation of such a system, it is not considered that the property of the individual or any part of it is taken from him for the public use, because he is compensated in the enhanced value of such property. But it is clear this principle is only applicable when the benefit is commensurate to the burthen; when that which is received by the land owner is equal or superior in value to the sum exacted; for if the sum exacted be in excess, then to that extent, most incontestably, private property is assumed by the public. Nor, as to this excess, can it be successfully maintained that such imposition is legitimate as an exercise of the power of taxation. Such an imposition has none of the essential characteristices of of a tax. [at 527.]

If the assessment to which he is subjected had been restricted so as not to exceed the benefits received by him, he would have run no risk, because he could not have suffered any loss; but as this law is framed, his land may be taken from him, if the expenses of the project require the sacrifice. This, as has been already stated, would be, in my opinion, equivalent to a condemnation of the land, without compensation, for the public benefit, and as this may result from the natural operation of the statute, I am compelled to conclude that it is unconstitutional and void. [at 529.]

There can be no quarrel with these conclusions. They are rational and thorough. The declaration that the statute was "void" follows the usual course when a statute has been held to violate substantative due process. Compensation was not a consideration. The use of the words "equivalent to a condemnation of the land without compensation," however may have been unfortunate, since they preceded a quotation from a New York case, which read: "If the assessment is confirmed and enforced, the owners of the adjacent property must pay beyond the enhanced value of their own property, and all such excess is private property taken for public use without just compensation." Id. at 529. This language may have spawned the references to "taking" and "just compensation," which appears in later cases. Three such cases, all involving local assessments (the first two of which cited Tide-water) are: Hoboken Land and Improvement Co. v. Hoboken, 36 N.J.L. 291, 293 (Sup.Ct. 1873); Agens v. Newark, 37 N.J.L. 415, 421-23 (E. & A.1874); Bogert v. Elizabeth, 27 N.J. Eq. 568 (E. & A.1876). McNally v. Teaneck, the latest New Jersey Supreme Court case involving local assessments, used the same language; it also cited Tide-water, 75 N.J. at 43.

The Tide-water opinion did not identify the constitutional provision upon which it relied by any specific reference. It could not have been referring to the Federal Constitution since the Fourteenth Amendment had not yet been adopted and the just compensation clause of the Fifth Amendment applied only to federal action. New Jersey's Constitution of 1844, Art. I, par. 16, was then in force and provided: "Private property shall not be taken for public use, without just compensation. . . ." This seems to be the obvious clause to which Tide-water referred. It could, however, anticipating Chicago, B. & Q.R. v. Chicago, have relied upon Art. I, par. 1, which then provided, in language almost identical to that which appears in our 1947 Constitution:

All men are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and

liberty, acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.

These provisions are to be employed in the same sense as the due process clause of the Fourteenth Amendment. State Bd. of Milk Control v. Newark Milk Co., 118 N.J. Eq. 504, 518 (E. & A.1935). In Chicago, B. & Q.R., the Fourteenth Amendment was held to permit a taking of private property only for a public use and only if compensation is paid.

It was suggested in State, Society for Establishing Useful Manufactures v. Paterson, 42 N.J.L. 615 (E. & A.1880), that New Jersey has no specific constitutional provision providing the power to make local assessment:

But still the question presses, are these assessments to be treated and regulated by the same rules that confine and trammel legislation in its ordinary uses? And upon full consideration, my conclusion is, that they are not to be so regarded, and that the power in such instances exercised is sui generis. The right of the public to improve a man's property against his will, and to make him pay the expense, calling it a tax, has always seemed to me a kind of procedure very dissimilar from ordinary acts of legislation. But such exercises of authority, however abnormal they may seem when tested by theory, have too long prevailed, both in this state and elsewhere, to be now called in question. The existence of the legislative power, in this province, has been settled by long usage and oft-repeated judicial recognition. And in many instances, and for a long period of time, it has been put in force in the form that is now in this case exclaimed against, for assessments confined to the lands fronting on the improved street are not novelties, but have always been a part of this exceptional system. So likewise, such partial impositions have been, from time to time, at least tacitly assented to by the courts in the state and various assessments made under laws containing this feature have been sustained by this court of last resort. And it is likewise impossible to forget the fact that there is at present much of the legislation of the state largely affecting municipal interests of great magnitude, which has grown up by reason of such apparent judicial sanction. In this state of affairs, it seems to me that the practice now in question must be taken to be a recognized part of that ancient and inveterate plan which has been resorted to in taxing the land-owner for the special benefit that a public improvement of this kind has imparted to his property. Viewing it in this light, it cannot at this late day, be discarded. [at 618-19.]

Following Tide-water, the constitutionality of a local assessment was discussed in Brittin v. Blake, 36 N.J.L. 442 (E. & A.1872), but no reference was made to either state or Federal Constitution. This was followed by Agens v. Newark, which said that the state constitution does not require uniform taxation

among political districts but the "legislative right to select the subject of taxation" is limited. Agens, 37 N.J.L. at 421. The Federal Constitution was not mentioned. Next was New Brunswick Rubber Co. v. Comm'rs. of the City of New Brunswick, 38 N.J.L. 190 (Sup.Ct.1875), which referred to the "power to tax for the expense of local public improvements, lands peculiarly benefited by such improvements," Id. at 192, and required the establishment of some rule "within constitutional limits, for the apportionment of the tax upon the lands on which such special burthen is imposed." Id. at 193. The constitutional provision was not identified. Bogert v. Elizabeth referred to "constitutional bounds," but did not identify the clause upon which it relied in either the State or Federal Constitutions. Bogert, 27 N.J. Eq. at 569. Baldwin v. Fuller, 39 N.J.L. 576 (Sup.Ct.1877) aff'd. 40 N.J.L. 615 (E. & A.1878), suggested that a local assessment was a legitimate exercise of the police power, a power, however, which was restricted so that the assessment could not exceed the benefit conferred. The court held that otherwise there would be a taking of private property for use without just compensation in violation of the New Jersey Constitution. There was no reference to the Federal Constitution. Bogert v. Elizabeth referred to "constitutional bounds," but did not identify the clause upon which it relied in either the State or Federal Constitution. Bogert, 27 N.J. Eq. at 569.

In In re Public Service Elec. & Gas. Co., 18 N.J. Super. 357 (App.Div.1952), the Court discussed the constitutional issues as follows:

Local assessments or special taxes for the payment of the cost of certain kinds of public improvements commonly prevail and are generally sustained under the exercise of the power of taxation. But they have no relation to the exercise of the power of eminent domain, and hence constitutional provisions respecting this right have no application. They differ also from general taxes, since they are not a tax at all in the constitutional sense or as taxes are generally understood, although it has been said that "assessments for local improvements form an important part of the system of taxation." [at 362-63.]

The court specifically addressed the power question, saying:

The foundation of the power to lay a special assessment or a special tax for a local improvement of any character, whether it be opening, improving or paving a street or sidewalk or constructing a sewer, or cleaning or sprinkling a street, is the benefit which the object of the assessment or tax confers on the owner of the abutting property, or the owners of property in the assessment or special taxation district, which is different from the general benefit which the owners enjoy in common with the other inhabitants or citizens of the municipal corporation. Accordingly, it is now well settled in most jurisdictions that adjacent property may be specially assessed to defray, in whole or in part, the cost of local improvements by which such property is especially benefited. That doctrine, as stated, is based for its final reason on enhancement of values. That is to say, the whole theory of local taxation or assessments is that the improvements for which they are levied afford a remuneration in the way of benefits. Whether the property has been specially benefited by an improvement is generally regarded a question of fact, depending on the circumstances in each case, for the determination of the proper tribunal. The broad question is whether the general value of the property has been enhanced, not whether its present owner receives advantage. [at 363.]

In Jardine v. Rumson, 30 N.J. Super. 509 (App.Div.1954), the assessment was held to be invalid because the plaintiff's property received no benefit from the improvement. Assessments paid were returned and further collection of assessments was restrained. The court ...

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