REED, V. C.
Bill by Robert Lanning against the chosen freeholders of the county of Mercer for injunction to restrain the collection of an assessment. Submitted on motion to strike out the bill for want of equity. Motion granted.
The complainant sets up that his property was specially assessed for a macadam road in the county of Mercer, and that the commissioners fixed as the basis of such assessment the rate of $3 per acre, but that by a mistake in respect to the acreage of his property he was assessed the sum of $140, instead of $65.22. All persons interested in the report of the commissioners were ordered to appear before the circuit court of Mercer county on January 21, 1902, which order was duly published in two newspapers, as directed in the order. On that day the report was confirmed. The complainant says that he had no actual notice of the day, and that the first information he had of the report was when he received his notice from the collector on the 9th day of June, 1902. He then applied to the circuit court for relief, which was refused on the ground of want of jurisdiction in the circuit court to correct the report after it had been confirmed. The prayer of the bill is that the report may be corrected, and that the board of chosen freeholders may be enjoined from receiving more than $65.22.
Aaron V. Dawes, for complainant.
J. Lefferts Conard, for defendant.
REED, V. C. (after stating the facts). The usual remedy for irregularity in the imposition of taxes or assessments is by writ of certiorari. To warrant the interference of a court of equity with an assessment, there must be some peculiar ground of equity jurisdiction. Hoagland v. Delaware Tp., 17 N. J. Eq. 106; Hoboken Land & Improvement Co. v. City of Hoboken, 31 N. J. Eq. 463. It is insisted that jurisdiction is acquired by this court in this case because of the presence of the element of accident, and this accident is said to arise from the fact that the commissioners mistook the acreage of the land to be assessed. Such a mistake, however, was a mere irregularity, entirely remediable by a writ of certiorari. The accident, if it exists at all, arises out of the fact that the complainant did not happen to see the notice published in the two newspapers. Had he received notice of the time which the circuit court had fixed for the hearing of the parties assessed, there would be no possible ground for invoking the aid of a court of equity. The scheme provided for the imposition of the assessment is to be found in 3 Gen. St. p. 2907, §§ 421-426. The scheme includes—First, an application for the appointment of commissioners to make the assessment; secondly, a hearing before the commissioners of the parties interested; thirdly, a report to the circuit court by the commissioners; fourthly, upon the coming in of the report, notice to be given to the parties interested of the time and place of hearing any objections that may be made to such assessment, and the notice shall be such as the circuit court shall deem proper; fifthly, the confirmation of the report, or a reference back to the commissioners for correction, until a report is obtained which is confirmed; sixthly, a designation by the court of what notice, if any, shall be given by publication and otherwise of the confirmation of the report. The act also provides that no certiorari shall be allowed after 30 days from the making of the order confirming the assessment The act also declares that the report of the commissioners, when confirmed, shall be final and conclusive. The effect of the latter declaration in similar statutes has received judicial consideration in the cases of Benedictine Sisters v. City of Elizabeth, 50 N. J. Law, 347, 13 Atl. 5; Stockton v. City of Newark, 58 N. J. Law, 116, 32 Atl. 67; Brown's Estate v. Town of Union, 62 N. J. Law, 142-147, 40 Atl. 632. This declaration, coupled with the 30-days limitation of time within which period the issuance of a certiorari is confined, deprives the complainant, as he insists, of any legal remedy. If I were satisfied that there was no legal remedy, and that the complainant, without fault on his part, failed to be apprised of the time and place of the hearing before the circuit court, I should regard it as a case for equitable interference. Says Mr. Freeman, "A party who has been wronged by being judged without opportunity to make defense may avoid the adjudication in various ways;" and one of these ways he indicates is equitable aid to prevent the execution of a judgment. To this same purport is the text of Freem. Judgm. § 134, and High, Inj. § 222. A defendant in a judgment at law, who has a defense which he might have successfully made at law had he had an opportunity, but" who is prevented from doing so by accident unmixed with negligence, may have the benefit of his defense by suit in equity. Herbert v. Herbert, 49 N. J. Eq. 70, 22 Atl. 789. In this case, however, it is not clear to my mind that the complainant is without means of redress at law. None of the cases cited concerning the statutory declaration as to the final and conclusive character of the confirmed report of the commissioners deal with the circumstance that an assessed party failed to appear before the circuit court because of insufficient notice of the time andplace of hearing, or because by accident he failed to receive notice. In respect to the 30-days limitation of time within which a certiorari is to be allowed, the supreme court has the power to declare such limitation unreasonable in a particular case. Green v. Jersey City, 42 N. J. Law, 118; Van Anglen v. City of Bayonne, 56 N. J. Law, 463, 29 Atl. 168. I am of the opinion that it should appear that the complainant had already applied to the supreme court for a writ upon the facts disclosed to this court in this bill.
I will remark also that the facts regarding the failure of the complainant to see the published notice are not stated in the bill with that degree of fullness which the case requires. This is the very point upon which complainant's right to relief must rest, and all the circumstances should be disclosed so that the court can see that the failure to receive notice was not the fault of the complainant. Indeed, the defendants insist that the bill itself shows that the complainant must have been negligent in not having obtained knowledge of the time and place of hearing. I cannot draw such a conclusion from the meager facts stated. It is perceived that no time is fixed by the statute within which the report shall be filed. It may be filed in three days or in three months after the hearing before the commissioners. It is also perceived that the statute itself does not prescribe the kind of notice which shall be given. Indeed, it does not say whether the notice is to be a personal notice or constructive notice, or personal notice to known or resident owners and constructive to nonresident owners; and in respect to constructive notice the statute does not require that it shall be published in any particular way, or in any specified class of newspapers. The person assessed, therefore, had no hint from the statute that he might expect a notice to be published in any class of papers, or in any newspaper at all. Indeed, it might be a query whether the legislature intended to empower the court to direct constructive notice to be given to resident owners at all. The statutory direction is that the court shall cause such notice to be given as it shall deem proper of the time and place of hearing objections to the assessment. It is to be observed also that in directing the notice of the confirmation of the assessment to be given, if given at all, the act directs that it shall be given by publication or otherwise. Upon the other ground I think the bill should be struck out.