The opinion of the court was delivered by
Reed, J.It is clear that the present assessment cannot rest upon the act of 1881, under which it was supposedly levied.
*127That act provides for an application to the presiding judge of the Circuit Court for the appointment of three freeholders to make an assessment for the costs and expenses of grading, flagging or paving any street or section of a street, in any township or polling district in the state, in two instances :
First. "Where such costs and expenses shall not have been assessed under the act authorizing the work, and cannot now be made under such act.
Second. Where an assessment for such .work has been made, but the act under which it was made has been declared to be unconstitutional.
There was an assessment originally made under the provisions of the act for the improvement of the township of Kearny. Paraph. L. 1871, p. 1371, § 45.
It was vacated because one of the commissioners happened to be interested. The language of this act providing for assessments is such that a constitutional assessment could have been made for this improvement.
So neither of the two junctures of affairs existed, one of which was necessary to warrant the township in proceeding, under the act of 1881, to levy a new assessment.
But the counsel for the township invokes the operation of the act of 1881, p. 194. It is the act providing that no tax assessment or water rate imposed or levied, shall be set aside or reversed for any irregularity or defect in form or illegality in assessing, laying or levying the same, but the proceedings shall be amended and the court shall adjust the amount due. The concluding clause provides that it shall be the duty of the court to make a proper levy, imposition or assessment, in all cases in which there lawfully may be an assessment, imposition or levy, and such court is hereby given full and ample authority to make a lawful levy, assessment or imposition.
The exposition of the scope of the operation of this act as found in the opinion in the case of Elizabeth v. Meeker, 16 Vroom 157, decided in the Court of Errors, was such as to *128confer upon this court the widest power in dealing with assessments of the class before us.
The case before the Court of Errors was one in which an assessment for street improvements had been levied under an unconstitutional act. It was void. The Supreme Court, on certiorari, sot it aside in toto. At the time of this judgment of the Supreme Court another act had been passed providing for a constitutional assessment of the expenses of the improvement.
The Court of Errors held that the Supreme Court should have proceeded to impose this assessment and remitted the record to this court for that purpose. In that case it is observed that the matter brought up was no assessment; it was absolutely a nullity, and yet the matter being before the Supreme Court even in that shape, the duty was imposed upon it’ to retain the control of the proceedings and make the levy itself.
In the present case there is a power to make an assessment by the terms of the concluding clause of section 58 of the charter of Kearny township. Parrvph. L. 1871, jp. 1394.
It is the duty’ of the Supreme Court to see that a proper assessment shall be made. The facts which are essential as the groundwork for such an assessment are not before us.
An order will be made referring to a Supreme Court commissioner the taking of testimony to be reported to this court for future action.