
    THEODORE BELLIS, PLAINTIFF IN ERROR, v. THE VILLAGE OF FLEMINGTON, DEFENDANT IN ERROR.
    Submitted March 24, 1903
    Decided June 15, 1903.
    Section 71 of “An act concerning roads” (Gen. Stai., p. 2820), providing for an action by a person owning a house or other building standing and erected upon any street or highway, the grade whereof shall have been altered by virtue of the ordinance, resolution or other proceeding of any “city, borough or town corporate” in this state, to recover from said “city, borough or town corporate” all the damages which said owner shall suffer by reason of the altering of any such grade, will not authorize such an action against a village.
    On error to the Circuit Court of the county of Hunterdon.
    
      For the plaintiff in error, Willard C. Parker and H. Burdett Herr.
    
    For the defendant in error, George H. Large and Chester Van Syckel.
    
   The opinion of the court was delivered by

Garretson, J.

It is set forth in the bill of exceptions—

First. That plaintiff was, and for years had been, the owner and occupant of a dwelling located on a lot of land fronting on Mine street, in the village of Plemington, Hunterdon count}’, New Jersey.

Second. That said village of Flemington was incorporated as a village in the month of July, 1894, under the provisions of an act of the legislature of New Jersey entitled “An act for the formation and government of villages,” approved February 23d, 1891 (Pamph. L., p. 33), and amendment thereto, approved April 8th, 1892. Pamph. L., p. 116.

Third. That said village, by its governing body and board of village trustees, on September 21st, 1896, passed an ordinance which fixed and established the side lines and grades of said Mine street in front of the lot and dwelling of the plaintiff.

Fourth.. That the surface of Mine street was, by said ordinance, required to bo elevated above the previous level of saich street in front of the lot and dwelling, of plaintiff.

Fifth. That, within a year prior to the bringing of this action, the said board of village trustees, under and in accord-* anee with said ordinance, caused the surface of Mine street to be raised in front of plaintiff’s lot and dwelling, thereby causing damages to the said plaintiff.

Sixth. That said action was brought to recover the damage sustained by plaintiff by aforesaid change of grade.

Seventh. That thereupon the court, being of opinion that sufficient evidence had been introduced to sustain plaintiff’s right of action, if the defendant corporation was within the provisions of sections 70, 71, 72, 73 and-74 of tire General Road law of this state, approved March 27th, 1874, at the suggestion of the court, the plaintiff rested his case for the purpose of permitting" the defendant to interpose a motion to nonsuit; whereupon the defendant, by its attorneys, moved for judgment of nonsuit to be entered against the plaintiff, on the ground that the provisions of the General Eoad law of 1874, sections 70, 71, 72, 73 and 74, do not apply to villages such as defendant corporation, which motion was granted, and the judgment of nonsuit thus entered is brought up by this writ of error.

This action is brought under legislative provision which first appeared in our laws as an act entitled “An act to define the rights of parties whose property is damaged or taken for ‘public use in case of the alteration of the grades of streets or highways,” approved March 17th, 1858. Pamph. L., p. 415. This act is in seven sections, and the first six sections (the last only declaring when the law shall take effect) appear as sections 70, 71, 72, 73, 74 and 75 of “An act concerning roads” (Eevision), approved March 27th, 1874. Gen, 8tai., pp. 2820, 2821. .

It is provided by section 71 of the Eoad act, supra, “that an action upon the case doth and shall lie in behalf of any person owning any house or other building standing and erected upon any street or highway, the grade whereof shall be or shall have been altered by virtue of the ordinance, resolution or other proceeding of the legislative authority of any city, borough or town corporate in this state, to recover from said city, borough or town corporate all the damages which such owner shall suffer by reason of the altering of any such grade.” This section provides for the recovery from a “city, borough or town corporate” of damages caused by alteration of the grade of a street or highway by legislative authority of “any city, borough or town corporate”—villages are not mentioned. While it may be that, in 1858, when the original act was passed, there were no villages having any body with legislative authority, and they existed only as aggregations of inhabitants and houses, and for that reason were not included in that act, yet, when the Eoad act was considered by the legislature, in 1874, villages then existed as municipal organizations with legislative bodies. The legislature, however, did not then see fit to include them by name among the municipalities which might become liable to damages for taking the municipal action indicated. The motives which controlled the legislature in so enacting are not a matter for the consideration of the courts, but must remain within the legislative discretion entirely. It was here legislating for certain municipalities, as subsequently classified by -the constitution in article 1, paragraph 19, and the reason for including some and excluding others was clearly within its powers. Boorum v. Connolly, 37 Vroom 197.

In Hermann v. Guttenberg, 34 Vroom 616, 625: “The question,- therefore, is settled that it is for the legislature, not the court, to characterize the municipalities of the state, and the courts cannot inquire whether the municipality or class of municipalities is titular only. The classification of the legislature in that regard is conclusive.”

As the learned judge in his reason for nonsuit says, the eases of Hermann v. Guttenberg and Boorum v. Connolly adopt an intelligent and intelligible rule for the guidance both of the members of the legislature and of persons concerned in the construction and interpretation of the laws; and it seems to be the only safe rule, because if it is to be a question of inquiry in any and every given instance as to whether the legislature mean more than what they state they meant, that a certain statute should be applicable to other municipal corporations than those designated,' we will be in endless doubt and confusion.

When the legislature has subjected certain classes of municipalities to certain regulations, it thereby excludes all not named from such regulations, and it is not within the power of the courts to say that by using the names of certain classes it intended to include those of other classes named possessing similar powers. In the case in hand the classes named were cities, boroughs and towns corporate; neither villages nor townships were mentioned, and while some villages, such as those organized under the Yillage act, and some townships, may have legislative authority, they can only be brought under this legislation by saying that the legislature intended by using the general designation of certain municipalities as classified by the constitution, at the same time to affect others also named as classes without specifying them and without the use of any general words which might include them.

We do not consider that this is within the power' of the courts to declare. '

Judgment of nonsuit will be affirmed.

For affirmance—The Chancellor, Ci-iiee Justice, Yan Syckel, Dixon, Garrison, Fort, Garrets on, I-Iendrick.son, Swayze, Bogert, Yredenburgi-i, Yoori-iees, Yroom. 13.

For reversal—None.  