Opinion
05-14-1910
FRENCH et al. v. CITY OF CAMDEN.
E. A. Armstrong, for complainants. E. G. C. Bleakey and Wilfred B. Wolcott, for defendant.
Bill by Howard B. French and another, Samuel H. French's executor, against the City of Camden. Temporary injunction denied.
E. A. Armstrong, for complainants.
E. G. C. Bleakey and Wilfred B. Wolcott, for defendant.
LEAMING, V. C. Complainants seek a preliminary injunction against defendant city which shall be operative to prevent the court of common pleas from confirming a report of certain commissioners which have been appointed by that court to assess benefits for certain street improvements in defendant city. The theory of complainants' bill is that the proposed assessment is unlawful; and, if confirmed by the court of common pleas, will create a cloud upon title of complainants' land.
Complainants assert that the proposed assessment is unlawful because the act under which the assessment is being made (P. L. 1898, p. 466) is unconstitutional, in that:
(1) The assessment authorized by the act is a tax, and the act originated in the Senate.
(2) The title of the act is defective, in that the object of the act is not sufficiently expressed in its title. (3) The proposed assessment is for improvements made in a turnpike road, and takes complainants' prop erty without due process of law in that it, in effect, gives it to the turnpike company.
The views which I feel obliged to adopt touching the several objections made by complainants to the legality of the pending assessment proceedings render it unnecessary to here determine whether this court has jurisdiction to interrupt special officers in the performance of purely legal duties of the nature stated, for the purpose of granting preventive relief against acts which, if performed, may be reviewed, and, if illegal, corrected by legal tribunals.
In Manufacturer's Land & Improvement Company v. City of Camden, 73 Atl. 77, the Supreme Court of this state reviewed an assessment which had been made under the same statute which is now in question. On petition for rehearing in that case it was urged that the statute was unconstitutional because the object of the act was not sufficiently expressed in its title, and also because the act was for raising revenue and should have originated in the House. In the opinion filed (not to be reported, by order of Supreme Court) that court held the title sufficient, and also held that the act was not a bill for raising revenue, as contemplated by the Constitution.
The objection here made that the publicstreet here in question is also a turnpike road was before the Supreme Court in State v. City of New Brunswick, 30 N. J. Law, 395. It was there held that the city's control over its highways enabled it to improve the street and assess the benefit to adjacent landowners, notwithstanding the highway was occupied and operated by a turnpike company. On appeal a similar view was adopted. 32 N. J. Law, 548.
In view of the decisions referred to it is manifest that complainants' rights cannot be here regarded as sufficiently clear to warrant preliminary relief.