Camp v. Neuscheler , 67 N.J.L. 21 ( 1901 )

The opinion of the court was.delivered by

Dixon, J.

This is an application for a writ of mandamus commanding the collector of the town of Union to.accept the principal and interest at the rate of six per cent, per annum in payment of an assessment levied in the town for the construction of a sewer, under authority of “An act providing for sewerage in and from certain towns in this state,” approved April 20th, 1886. Gen. Stat., p. 3546. The collector insists that interest at the rate of eight per cent, per annum is due.

By an act approved February 19th, 1880 (Gen. Stat., p. 3403), the town council of any town was empowered to determine the rate of interest chargeable upon overdue assessments at not less then seven nor more than twelve per cent, per annum, and by an ordinance passed September 1st, 1886, the council of the town of Union fixed the rate to be charged on assessments levied by the town at eight per cent, per annum. By a supplement to the above-mentioned act of April 20th, 1886, which was approved February 29th, 1888 {Gen. Stat., p. 3549), the assessments levied under that act were to be subject to the same interest and penalties as assessments for other improvements in the town.

The present assessment was levied, in j;he first instance, on September 1st, 1897, by the Circuit Court of Hudson county, in confirming the report of commissioners appointed by virtue of said act of April 20th, 1886. Although this assessment was levied in accordance with the rules prescribed in an act approved February 19th, 1895 (Gen. Stat., p. 2138), yet it was levied under the act of April 20th, 1886, for without that act neither the court nor the commissioners had any authority in the premises.

This assessment being removed by certiorari into the Supreme Court, was there affirmed, in absolute terms, by a judgment entered June 13th, 1898, and afterwards, on March 4th, 1901, that judgment was affirmed by the Court of Errors.

These judgments establish the assessment as of the date when it was first levied, September 1st, 1897, with all the incidents thereto legally attached, including the interest accruing thereon at the rate of eight per cent, per annum from the time when it became due and payable. So far as now appears, that time must be deemed the day on which the assessment was placed in the office of the collector of the town for collection. Consequently the collector should not be required to accept an amount less than the principal and interest thus indicated.

The mandamus asked for is refused.