The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1898-05-10
MARTIN ACT VALID.
Vice Chancellor Pitney Says
It Applies to All Glasses
Of Assessments.
HAS RETROACTIVE EFFECT
Important Decision in the
Case of Fountain VS..
City of Newark.

Vice Chancellor Pitney has filed a decis-
ion in a case involving the con%stitutionali-
ty Of the Martin act, In which he holds
that measure to be valid in every respect,
rot only with reference to its application
TO assessments levied since its enactment,
but also to prior assessments. The de-
cision is regarded as highly important BY
the city of Newark's law department
and by other lawyers who have enter
tanned doubts as to the legality of the
Martin act ever since It's enactment, in
1856.
1t was the case Of Seraphine Fountain
against the Mayor and Common Council
o. Newark that brought about this decis-
ion. The case attracted much interest,
iliasnnuch as il was accepted as the first
actual test of the constitutionahty of the
Martin act. The property involved was
assessed in 1873 for certain street inn
rrovements, and John Fountain. who was.
then the owner of the property, refused
to pay the assessment.
Because of that failure the property
was sold under the old law, and bought
in by the city for a period of forty-nine
years. The owner contested the right of
the city under the then existing law to
sell his property for the unpaid assess
ment, and brought suit in chancery to
nave the sale set aside. A decree was rem
dered in his favor January 20, 1878, in
which the court held
mo estate or interest in or remembrance
on said parcel of land or any part there
of under said assessment or the lien
thereof of said sale, or said certificate of
sale. OF any of the proceedings on or I'M
der said assessment, and that the said
complainant holds the said tract or parcel
of land and premises free from said as
sessment and the proceedings for the en-
foreement thereof"
From the time of that decision until the
passage of the Martin act no further ac-
ton was taken by the City of Newark.
Then the claim against the Fountain
property, along with numerous similar
claims, was adjusted by the Martin Act
Commission, and where the claims were
not paid the property was sold. The
Fountain tract was among the latter
number. and it was bought in by the
city for the amount of the claim and
costs. Subsequently Seraphine Fountain
became owner of the land and through
her counsel began suit in chancery to
have the. second sale set aside.
In the bill filed, attacking the consti-
nationality Of the Martin act, the decree
of the court in the case of the first sale
in 1878, was quoted and urged as a bar
to the second gale by the city. The Vice
Chancellor did not agree with the latter
and held the decree did not,
OF could not, operate as a bar to subse-
quent valid legislation as embodied in the
Martin act. and rendering Judgment in
favor of the city, he quotes similar de-
cisions by the late Chief Justice Beasley
and Justice Garrison. The significance of
this reference by the Court of Chancery
in the fact that with both the law and
equity courts holding similar opinions. the
Court of Errors. to which the case might
be appealed, will hardly reverse the
Vice Chancellor Pitney quotes Justice
as foiiows:-'The essentials of
that jurisdiction are that a public inn
has been made; that an as
sessment therefor has been made. and
imposed, or attempted so TO be, and that
lyme thereof has not been had. Where
these elements co-exist the authority of
the commissioners to proceed is assured,
without regard to the invalidity of the
legislation under which the assessment !
WAS made. The notification of an incl
valid assessment, whether for inherent eff
fects or because it rests upon unconssitu-
tional legislation, must not be COMPOUNDED
with the discharge of the land from its
liability to contribution. The matter Of
liability is not. The basis of all municipal
legislation of this class, as well as that
of the fundamental right out of which it
springs, is the value impaired TO the land
the Improvement.
Hence. the liability of the land to pay
the assessment arises as an incident to
the Improvements, and does not depend
upon the validity CT the legislative meth
DDS provided for its enforcement. If no |
such legislation be in existence, or,
What is the same thing, if supposed leg
.islation proved to be unconstitutional and
void, The liability remains in the form of
responsibility OF the land owner to
further legislative action looking to the
enforcement of contribution. The mode
in which this contribution shall be appor-
toned and exacted is. it is true. with cer-
tain limitations. at the will of the legis-
lator. but legislative power does not ere
ate the liability it esIorces. any more
than it does the limitations it obeys.
Hence, it follows that the partial or total
failure of the legislative scheme leaves
the liability untouched"
Vice Chancellor Pitney concurs in this
and DEGREES in favor of the defendant.