
    The State, Michael Malone, prosecutor, vs. The Mayor and Common Council of Jersey City.
    1. Notice (o repave a street is not sufficient where an assessment is made for paving; one being an original work, and the oilier repairing, the variance is material, and is fatal to the proceedings.
    2. Tiie charter of Jersey City requires that ten days’ public notice be given of the tiling of a report of commissioners making an assessment for paving, and of the time and place of a meeting of the common council to consider the assessment and all objections that may be made in writing. If councii meet according to the notice given, and after hearing the objections made, by resolution confirm the assessment, and afterwards rescind the resolution, the assessment cannot be again confirmed without giving the ten days' notice.
    • This certiorari was brought to set aside the proceedings of the common council of Jersey City, in making an assessment for paving and repaving Mercer street.
    Argued before Justices Haines and Van Dyke.
   The opinion of the court was delivered by

Raines, J.

Of the various reasons assigned for setting aside the assessment in this ease, it will suffice to notice two.

Aud first, that which is based upon an alleged variance between the proposition for the improvement, and the ordinance directing certain improvements to be made.

The proposition was to have the street filled up to the proper grade, and repaved; and the notice given followed the terms of the application. The ordinance purporting to have been passed in pursuance of it, ordained that Mercer street, between the middle of Greene and Washington streets, be filled up to the proper grade, and paved or repaved. The assessment is made for both paving and repaving.

The question is, whether paving And repaving are the same. If not, there is a material variance between the proposition, and the notice of it, and the ordinance.

That there is a manifest, difference between tbcmpappears by the expressions themselves—one is the original work, the other the repetition of if.

The assessment distinguishes between the kinds of work, and in one column exhibits that which was newly laid and that which was relaid.

The contract for the work distinguishes and fixes the price for relaying at fifteen ceñís, and for paving at fifty cents, per square yard.

It is suggested that the term paving applies to both kinds of work, and consequently includes repaving; and so the assessment places both kinds of work under the general head of paving.

It may he that the term paving includes repaving, as the greater includes the lesser; hut clearly repaving cannot include paving, any more than the lesser can include the greater.

If there is such difference, then the notice of repaving is not a notice that, it was proposed to pave. And it may well be that the lot-owner might have no objection to repaving, costing hut fifteen cents, while he might object to paving at the price of fifty cents per square yard-. Tie might have no objection to relaying, the stones over the parts- that -,had beeni-paved,' while he blight have good and- sferious objections ito paving other parts -of the street.- : ' • ■ '

The common council, in- making 'improvements, proceed ■ tinder a special delegated power, and can do nothing -lawful-fly, unless it be-in pursuance of that: power ; .and while the • courts will not require such a vigorous and literal conform- ¡ ity to the terms of the power as will tend to defeat its object, they.'are hound to.insist upon a substantial and real compli,'ance. •

, . ; The object of the proposition, and of the notice of it, is to advise those interested. of what is proposed tobó done, ..that -if any of- them have objections, he may present them at . the proper.time and place. But if the notice mention one kind of improvement, and the ordinance provide for another, ..he is-misled ; the notice deludes him into'silence, and is worse tha.n useless. ; , . - - 1

Notice of repairing is not literally nor. substantially notice .of paving; one-is the original work, the other is the repetí - , tion or repair. The variance is material, aud we think fatal to the proceedings.

•The’-other 'reason' to bé -conéidered, is that which relates -,to the final, confirmation of the report of the commissioners.

. '■ The charter requires that ten ' days’ public notice be given of -the filing of the report, and of the time and .'place, of a meeting of the common , council’ to consider the assessment, and all objections that may be presented ,in writing.. Notice was accordingly given Of such a meeting, to be held-on the .first Tuesday in'Aügúst, and Mi- • chael Malone, ..the prosecutor, .did at that .time present- his objections in writing, notwithstanding which the report was •confirmed; Blit at a subsequent-meeting, on' the-19ih Au-gust,¡then, instant, the resolution confirming -the report was rescinded,- and the report then stood as' it was when fiist filed

Without any postponement of the consideration of the subject, or any further notice or intimation to the prosecutor, at a subsequent meeting of the common council, held on the 16th September, a resolution confirming the report was presell ted and passed.

After the rescinding of the resolution, on the 19th of August, the prosecutor had a right to suppose that the report, by a vote of the common council, was not confirmed. The resolution confirming it was not reconsidered, but rescinded ; and the report might readily have been regarded as disagreed to; and the prosecutor bad a right to believe that no further action in the matter would be had without notice to bin). The action of the council, on the 16th of September, without any notice, was a departure from the requisites of the charter, and a violation of the rights of the prosecutor.

The assessment, as to the prosecutor, is void, and must he set aside.  