The opinion of the court was delivered by

This certiorari, allowed December 14th, 1898, directs to be sent up for review an award of damages made in favor of the prosecutors and an assessment for benefits made against them, by commissioners, for the laying out and opening of Railroad avenue, in the city of Perth Amboy, and the resolution of the city council, passed March 25th, 1898, to confirm the same.

The return shows that such award and assessment were made in a single report filed with the city clerk March 10th, 1898, but does not show the tenor or substance of the report. Evidence taken in the cause discloses the fact that the report has been lost, but this also fails to indicate its purport.

It being incumbent on the city, in responding to the writ, to establish the fact that a legal award and assessment were made, its failure to do so must lead to a reversal of its proceedings, unless the prosecutors are precluded from their normal remedy.

ISTo bar for the protection of the award is suggested except the fact that, before the writ was applied for, awards made to other landowners were paid by the city. It appears that these awards were paid April 22d, 1898, within a month after the resolution to confirm them, and that these prose*522cutors had no notice that such payments were likely to be made until on the same date a check for their award was tendered. Their prompt refusal to accept that check gave the city immediate notice of their position, and no degree of diligence in applying for a certiorari would have prevented the payment of the other awards These circumstances, we think, refute the charge of laches and estoppel.

The assessment is defended on the ground that the certiorari was not apjdied for within six months after-confirmation of the assessment as the statute requires.

But this statutory limitation upon the allowance of a prerogative writ cannot be enforced for the protection of an assessment which the legislature could not constitutionally authorize. Traphagen v. West Hoboken, 10 Vroom 232; S. C. on error, 11 Id. 193; Kirkpatrick v. Commissioners, 13 Id. 510; Pardee v. Perth Amboy, 28 Id. 106.

By the failure of the city to make and tender a valid award to the prosecutors for their land needed in the opening of the street, the city failed, also, to acquire a right to furnish to the prosecutors the special benefit for the enjoyment of which this assessment was levied. When the assessment was laid the city had not obtained, nor had it taken the proper steps to obtain, the power of opening the street. No equivalent, therefore, in the form of special benefits arising from a public improvement was offered to the prosecutors for the burden thus imposed upon their lauds. Under such circumstances it is not within the constitutional power'of the legislature to sanction a special assessment. Agens v. Newark, 8 Vroom 415.

No judicial reason for denying to the prosecutors the aid Of a writ of certiorari appears, for it would • be palpably unjust to uphold the assessment when the improvement is defeated.

The award and assessment, so far as they affect the prosecutors, must be set aside, with costs.