Opinion
Submitted May 4, 1937 —
Decided March 15, 1938.
1. The supplement to the Home Rule act ( Pamph. L. 1925, p. 239), directs that such notice of the time for hearing by the Circuit Court of objections to confirmation of assessments for benefits for local improvements shall be given to the affected property owners as the Circuit Court shall direct. Such confirmation proceedings are in rem and not in personam, and reasonable notice by publication satisfies the requirements of due process of law as guaranteed by the federal and state constitutions.
2. Where an order directs that notice of a proceeding be published for five consecutive days, and such notice is published for five days, omitting an intervening Sunday, such publication is in accordance with the general policy of our law and is sufficient.
3. While the statute relating to the confirmation by the Circuit Courts of assessments for benefits for local improvements contains the provision that the confirmation of such a report shall be final and conclusive upon the parties, the Circuit Court in such a proceeding is invested with power to vacate an order of confirmation for irregularity, mistake, fraud, c., so long as the proceeding remains under the court's control, and the moving party embraces the first opportunity he has of presenting his case; and a delay of eleven months after actual knowledge of an assessment made some four years prior thereto before attacking the assessment is fatal.
On certiorari.
Before Justices BODINE, HEHER and PERSKIE.
For the prosecutor, Frank A. Boettner ( Vincent J. Casale, of counsel).
For the defendants, Wall, Haight, Carey Hartpence ( Frederick Groel and George G. Tennant, Jr., of counsel).
The commissioners of assessments for local improvements of the city of Newark, after hearing had upon notice to the parties in interest, certified to the Essex Circuit Court their assessments for benefits ensuing from the widening of Mulberry street, in the city of Newark; and on December 2d 1932, Judge Mountain, by formal order, fixed December 9th, 1932, as the time for the hearing of objections thereto, and directed that notice thereof be given to the affected property owners by publication "in at least two of the official papers of the city of Newark, for five successive days prior to such date." The prescribed notice was published on December 3d 5th, 6th, 7th and 8th, 1932. There was no publication on Sunday, December 4th. The statute provides that the Circuit Court "shall cause such notice to be given as it shall direct." Pamph. L. 1925, p. 239.
The hearing was held at the time so designated, and the report of the assessment commissioners was confirmed, except as to certain owners who appeared and entered objections; and it was ordered to be transmitted, with the order of confirmation, to the comptroller of the city of Newark.
No objection to the report was submitted on behalf of the City Bank Farmers Trust Company, as substituted trustee of the estate of James Herbert Ledwith, deceased, the owner of two lots so assessed. The claim is that it did not have actual notice of the hearing thus scheduled. On June 3d 1936, it presented a verified petition to the Circuit Court, setting forth, inter alia, that no benefits had accrued to its lands by reason of the improvement, and the assessment was therefore "improperly made;" that, "despite the provision of the statute" adverted to, no notice of the hearing on the confirmation of the assessor's report, "other than by publication, was given" to it; that by reason thereof it was deprived of a right secured by the statute to object to confirmation of the report; that it had "neither notice nor knowledge" of the confirmation of the assessment until July 26th, 1935; and that it had ever since been engaged in efforts to "adjust the lien of the assessment" with the municipality, but without result. It was established by an attached affidavit that it did not receive actual notice of the original hearing before the commissioners for the purpose of making the assessment. Notice of this hearing was addressed to "J. Herbert Ledwith c/o City Meat Market, 103 Mulberry Street, Newark, New Jersey," although Ledwith died on August 16th, 1910. But counsel for the landowner concedes the "point is not an issue in this case." There were prayers for a vacation of the order of confirmation and a remand of the matter to the assessment board for revision and correction. Upon the hearing on an order to show cause made thereon, the order of confirmation was vacated in so far as the petitioner's lands were concerned, and the matter was remanded to the assessment board for "revision and correction," after a hearing on notice to the petitioner. The proceedings are here on certiorari sued out by the city and the assessment commissioners.
We think the order so made is coram non judice. The prescribed statutory notice of the hearing on the confirmation of the report was given to the landowner, and there was therefore jurisdiction to enter the order of confirmation. Such a confirmation proceeding is in rem and not in personam; and reasonable notice by publication satisfies the demands of due process of law as guaranteed by the federal and state constitutions. Where that is the sole requirement of the statute, actual or personal notice to the affected landowner is not requisite. State v. Plainfield, 38 N.J.L. 95; State v. Jersey City, 27 Id. 536; Wilson v. Trenton, 53 Id. 645; State, Van Solingen, Pros., v. Harrison, 39 Id. 51; Paulsen v. Portland, 149 U.S. 30; 13 S.Ct. 750; 37 L.Ed. 637; Wigth v. Davidson, 181 U.S. 371; 21 S.Ct. 616; 45 L.Ed. 900. Where the statute provides for constructive notice by publication only, the publication "must be of such a character as to create a reasonable presumption that the owner, if present and taking ordinary care of his property, will receive the information of what is proposed and when and where he may be heard." Bellingham Bay, c., R. Co. v. City of New Whatcom, 172 U.S. 314; 19 S.Ct. 205; 43 L.Ed. 460. Here, there is no claim of deficiency in this respect.
Nor is there merit in the claim of non-compliance with the direction of the order that the notice be published "for five successive days." Sunday is dies non juridicus. This is a general policy that has always pervaded our law; and the matter in hand is not within the reason of any of its exceptions, real or apparent. And it seems to be the general rule in this country. McChesney v. People, 145 Ill. 614; 34 N.E. Rep. 431; Sewell v. City of St. Paul, 20 Minn. 511; Havens v. Stiles, 8 Idaho 250; 67 Pac. Rep. 921; State v. Ricketts, 74 N.C. 193; 25 R.C.L. 1447, 1448.
We are in accord with the view expressed on behalf of the landowner that, notwithstanding the provision of the statute adverted to that the confirmation of such a report "shall be final and conclusive" upon the parties, the Circuit Court, sitting as it does in a judicial capacity as regards the confirmation of the assessor's report, is invested with the power to vacate an order of confirmation for irregularity, mistake, fraud, excusable neglect, or like just cause. But, there being no limitation in the statute itself, the jurisdiction to reopen or vacate can be exercised only while the "cause remains under `the court's' control, provided the moving party embraces the first opportunity he has of presenting his case." Assets Development Co. v. Wall, 97 N.J.L. 468; Breen Iron Works v. Richardson, 115 Id. 305; affirmed, 117 Id. 150; Katz v. Zapela, 10 N.J. Mis. R. 258; affirmed, 110 N.J.L. 14; Rose v. Wagner Construction Co., 2 N.J. Mis R 118; Bell ads. Kelly, 17 N.J.L. 270. Here, the landowner was plainly in default; it did not avail itself of the first opportunity to present its case.
The order under review is therefore reversed, with costs.