Essex Public Road Board v. Skinkle/Opinion of the Court
Was the obligation of a contract impaired, or plaintiff deprived of property without due process of law, by the act of March 31, 1882? The argument is that because the real estate assessed might, in the absence of purchasers at the sale to enforce the assessment, be struck off to the board for the term of 50 years, under the fifth section of the act of 1875, (Laws N. J. 1875, p. 420,) and might 'be held and sold, assigned and disposed of, by said board for the use of the county, with all the rights and privileges of a purchaser at such sale,' the board, whenever this happened, became vested with a term in the real estate so struck off to it by the same title, and subject to the same protection, which any other bona fide purchaser at such sale would have acquired under section 15 of the act of 1869. Laws N. J. 1869, p. 957. And that, therefore, the act of 1882, (Laws N. J. 1882, p. 256,) in providing a mode by which the assessment might be compounded, compromised, and discharge, and that this might be done where the real estate had not been sold to a bona fide purchaser other than the public road board or its representative, impaired and annulled an executed contract, and took for the defendant's private use property vested in the board. We do not concur in this view. The public road board was an involuntary quasi corporation, created to construct a public work and authorized to procure the means to accomplish the improvement by the imposition of assessments upon private property. It was purely a governmental agency, existing wholly for public purposes, and whose interests belonged exclusively to the public. The power of the legislature over it was plenary. It held, and could hold, no real estate in a proprietary or private sense, and, after it was empowered to bid in at its own sale, it acquired no more proprietary interest in the real estate struck off to it than it had had in the assessment. Its purchase was in perpetuation of the lien, and in aid of collection, and it was as competent for the legislature, as between it and its own agent, to prescribe terms upon which the land-owner might redeem, as to abolish the board and rescind the assessment altogether, as it might do, saving any vested rights of third parties. The entire transaction was matter of law, and not of contract, and, as such, open to no constitutional objection. Commissioners v. Lucas, 93 U.S. 108; Newton v. Commissioners, 100 U.S. 548; State v. Railroad Co., 3 How. 534. Even as to third parties, an assessment is not a 'contract' in the sense in which the word in used in the constitution of the United States, and whether rights arising thereon have become vested depends upon circumstances. Garrison v. New York, 21 Wall. 196; Railroad Co. v. Nesbit, 10 How. 395. In Garrison v. New York this court decided that the New York act of 1871, authorizing the supreme court of the state to vacate an rde r made in 1870, confirming the report of the commissioners respecting property taken for a public improvement, if error, mistake, irregularity, or illegality appeared in the proceedings, or the assessments for benefits or the awards for damage had been unfair and unjust, or inequitable or oppressive, and to refer the matter back to new commissioners to amend or correct the report, or to make a new assessment, was not unconstitutional. Mr. Justice FIELD, delivering the opinion of the court, said: 'In the proceeding to condemn the property of the plaintiff for a public street, there was nothing in the nature of a contract between him and the city. The state, in virtue of her right of eminent domain, had authorized the city to take his property for a public purpose, upon making to him just compensation. All that the constitution or justice required was that a just compensation should be made to him, and his property would then be taken, whether or not he assented to the measure. The proceeding to ascertain the benefits or losses which will accrue to the owner of property when taken for public use and thus the compensation to be made to him, is in the nature of an inquest on the part of the state, and is necessarily under her control. It is her duty to see that the estimates made are just, not merely to the individual whose property is taken, but to the public which is to pay for it. And she can to that end vacate or authorize the vacation of any inquest taken by her direction to ascertain particular facts for her guidance, where the proceeding has been irregularly or fraudulently conducted, or in which error has intervened, and order a new inquest, provided such methods of procedure be observed as will secure a fair hearing from the parties interested in the property. * * * Until the property is actually taken, and the compensation is made or provided, the power of the state over the matter has not ended. Any declaration in the statute that the title will vest at a particular time must be construed in subordination to the constitution, which requires, except in cases of emergency admitting of no delay, the payment of the compensation, or provision for its payment, to precede the taking, or, at least, to be concurrent with it.' In Railroad Co. v. Nesbit, the state of Maryland granted a charter to a railroad company, in which provision was made for the condemnation of land by the assessment of damages by a jury, and the confirmation of the award by the county court. The charter further provided that the payment or tender of payment of such valuation should entitle the company to the property as fully as if it had been conveyed. In 1836 there was an inquisition by a jury condemning certain lands, which was ratified and confirmed by the county court. In 1841 the legislature passed an act directing the court to set aside the inquisition and order a new one. On the 18th of April, 1844, the railroad company tendered the amount of the damages, with interest, to the owner of the land, which offer was refused; and on the 26th of April, 1844, the owner applied to the county court to set aside the inquisition, and make a new one, which the court directed to be done. It was held that the law of 1841 was not a law impairing the obligation of a contract; and that it neither changed the contract between the company and the state, nor did it divest the company of a vested title to the land. Undoubtedly the distinction exists, as counsel urges, between regulation and appropriation, and under the constitution of New Jersey, as under those of the other states, the legislative power is not so transcendent that it may at its will do that which amounts to an arbitrary divestiture of the private property of a municipal corporation. In Railroad Co. v. Ellerman, 105 U.S. 166, 172, which involved the right of the city of New Orleans to erect and maintain wharves within its limts, and to collect wharfage, under its charter and the statutes of Louisiana, it was held that no righ of  the city was infringed by a subsequent enactment of the general assembly of that state granting to a railroad company the authority to inclose and occupy for its purposes and uses a specifically described portion of the levee and batture, and maintain the wharf it had therefore erected upon its property within those limits, and exempting it from the supervision and control which the municipal authorities exercised in the matter of public wharves. And Mr. Justice MATTHEWS, delivering the opinion of the court, said: 'Neither would this be in derogation of any vested right of the city. Whatever powers the municipal body rightfully enjoys over the subject is derived from the legislature. They are merely administrative, and may be revoked at any time, not touching, of course, any property of the city actually acquired in the course of administration.' But no question involving that distinction arises here. There is no contract with or grant to the public road board which the state could not resume; and in no aspect can the board be regarded as acting in a private capacity, or as having acquired a private interest in real estate struck off to it for want of purchasers.

We may properly consider the case in another aspect, equally decisive. The road-board act prescribed that assessments should be made in proportion to, and not in excess of, the benefits conferred by the improvement; and by the law under consideration the road board was enabled to compound, adjust, and compromise any tax or taxes, assessment or assessments, that might have been, or might thereafter be, laid or imposed by virtue of the road-board acts, and in case of application by the owner or mortgagee for a compromise and adjustment, and on the failure of agreement between, the board and the applicant, the applicant could apply on notice for the appointment of arbitrators; and the statute provided for a hearing of all the parties in interest, and for a full review of the proceedings through the judicial tribunals of the state. The record clearly shows that the legislature intended by the act of 1882 to correct the results of previous action, which had been so mistaken and oppressive as to call for interference. In Commissioners v. Lucas, 93 U.S. 108, it was ruled that, unless restrained by the provisions of its constitution, the legislature of a state possesses the power to direct a restitution to taxpayers of a county, or other municipal corporation, of property exacted from them by taxation, into whatever form the property may be changed, so long as it remains in the possession of the municipality, and that the exercise of this power infringed upon no provision of the federal constitution. The supreme court of New Jersey was manifestly right in holding that the object of the law was to give an appeal to the land-owner, where the judgment against him would otherwise be final, and to so far review previous action as to secure the result of an assessment made in proportion to, and not in excess of, the benefits conferred by the improvement; and the learned judge who delivered the opinion well said: 'Restoration to the injured party, by the judgment of the tribunal established by this law, of the sum taken from him in excess of the benefits conferred, cannot constitute an illegal taking of property from the road board.' Skinkle v. Board, 47 N. J. Law, 93, 99. It is unnecessary to pursue the subject further. We concur with the views expressed by the courts of New Jersey, and the judgment is affirmed. 

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