Litchfield v. . Vernon , 1869 N.Y. LEXIS 232 ( 1869 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The question whether the act of 1859, chap. 484 of Laws, page 484, is constitutional and void, depends upon the inquiry whether the assessments thereby authorized are made in the exercise of the taxing power of the State or in that of eminent domain. If the former, the counsel of the appellant concedes them to be valid. See People v. Mayor of Brooklyn (4 Comst., 419); TheSun Insurance Company v. The Mayor, etc. (N.Y., 4 Seld., 241);Town of Guilford v. The Board of Supervisors, Chenango County (3 Kern., 143). If the latter, it is entirely clear that the act is void. An examination of the case shows that, at the time of the passage of the act, the Long Island Railroad Company had the right of way in a tunnel constructed in Atlantic street, Brooklyn, for a railroad operated by steam, and were operating their road thereon; that the legislature deemed it expedient to close the tunnel, grade the street, lay a track upon the surface to be operated by horse power, etc., and to authorize the making of a contract with the railroad company for doing the work and effecting the changes for a sum not exceeding $125,000. To carry into effect this design, the act in question was passed, authorizing the commissioners, whose appointment was provided for in the act, to make the contract, and to make an assessment for the payment of the contract price, together with the incidental expenses upon the lands and premises situate in the district specified in the act. This local assessment for those purposes, it is apparent, was based upon the ground that the territory subjected thereto would be benefited by the work and change in question. Whether so benefited or not, and whether the assessment of the expense should for this, or any other reason, be made upon the district, the legislature was the exclusive judge. The Constitution has imposed no restriction upon their power in this respect. See cases cited, supra. The counsel for the appellant concedes that this is true so far as closing the tunnel and grading the street are concerned, but insists that compensating the company for abandoning the use of steam and substituting therefor horse power, does not come within the like principles. I am unable to see upon what ground the power of the legislature can be limited in respect to the latter, consistently with the doctrine held by this court, in The Town of Guilford v. The Board of Supervisors, supra. In that case, it was held, that the legislature had the power to impose a tax upon the inhabitants of a town to pay a claim that had no legal validity, and that could in no way be enforced against the town. In other words, that it was within the power of the legislature to impose a tax upon a locality for any purpose deemed proper, and that its power in this respect is not restricted by the constitution of the State. The other cases show that when the legislature deem it proper to impose the burden upon any specified locality they have the power of so doing. The act of 1859 must, therefore, be held constitutional and valid. The act of 1860, chapter 100, among other things, authorizes an assignment of the assessments to the railroad company, in satisfaction of the money to be paid for doing the work and making the change in operating the road from steam to horse power. To this I see no objection. It in no way affects or changes the rights of the owners of the lands assessed. Whether the money, when collected upon the assessments, is paid into the city treasury and then paid to the company, or paid to the company directly, is immaterial to them. Whether the act of 1863, chapter 298, relating to this assessment, is constitutional, depends upon the question whether the owners of the lands upon which the assessments were made were personally liable for the payment, or whether the lands only were liable therefor. Section 7 of the act of 1859, among other things, provides, that the collector shall levy and collect the amount of the several assessments therein mentioned in the same manner as the county tax is levied and collected; and the same measures taken to enforce the collection thereof, as are provided by law in regard to the county tax, and in addition the collector is clothed with the same powers as the collectors in the city of Brooklyn. This places the assessments in question upon the same footing as county taxes. That the latter, when assessed upon residents, in respect of real or personal property, creates a personal liability for payment, there can be no doubt. The statutes point out the mode of enforcing this liability in a way more efficacious than that provided by law for other liabilities. Taxes assessed upon non-resident real estate impose no personal liability upon the owner. In respect to these, the collector has no duty except to receive payment if offered, and if not, to make return to the proper officer. This being so, the legislature had the power to provide such remedy to enforce the liability, whether by action or otherwise, as it deemed proper. The rule is well settled, that the remedy to enforce rights is, at all times, within the control of the legislative power, with the exception that it cannot deprive a party of all efficient remedies to enforce rights based upon contract, as that would in effect impair or destroy the obligation of the contract, which is prohibited by the federal constitution. But new and additional remedies may be provided, as in the present case. It is unnecessary, in the present case, to determine whether section 4 of the act of 1862, authorizing the company to appoint a collector, is in conflict with section 2, article 10, of the Constitution; as the plaintiff, in bringing the action, is not exercising the functions of any officer, but is acting as a suitor only. The legislature, having power to authorize an action for the collection of the assessment, had also power to provide who should be plaintiff therein. This brings us to the only remaining question in the case; and that is whether there was any competent evidence authorizing a finding that a majority of the owners of land, within the territory made subject to assessment, made application to the common council, requesting them to make application to the Supreme Court for the appointment of three commissioners, as provided by the 1st section of the act of 1859. That section provides that the common council of the city of Brooklyn shall, upon petition or application of a majority of the owners of land, at the time of the passage of the act, in the district proposed to be assessed thereby, make application to the Supreme Court, at Special Term, etc. The act itself is wholly silent as to how this essential fact shall be proved. The act to consolidate the cities of Brooklyn, etc., referred to in this section, for the mode of proceeding in procuring the appointment of the commissioners, contains nothing applicable to the present case in this respect. The right of the common council to apply for the appointment of the commissioner, lies at the foundation of the whole proceeding. Unless this right existed, all the proceedings in appointing the commissioners, and subsequent thereto, are void. This right depends upon the question whether a majority of the land owners petitioned the common council to proceed under the act. In the absence of such petition, the common council had no authority in the premises, and nothing could be done under the act. The act does not provide for the determination of this fact by the common council, nor by the Special Term upon the presentation of the petition for the appointment of the commissioners. The plaintiff seeks to show that the defendant became liable to pay the assessment. It was incumbent upon him to show the existence of the facts creating the liability. The act being silent as to what should be deemed proof of the fact that a majority of the land owners petitioned the council, the plaintiff was bound to prove such fact by competent common law evidence. This could be done by proof, showing who were the owners of the land, at the time of the passage of the act, and that a majority of such persons petitioned the common council, as required by the first section of the act. Neither the application of the council to the court, nor the affidavit of the mayor, accompanying such application, was evidence of this fact against the defendant. (Sharp v.Speir, 4 Hill, 76, and cases cited.) There was no competent evidence of this fact given upon the trial, and the exception to the finding of this fact by the judge was well taken. Upon this ground the judgment should be reversed, and a new trial ordered.

All the judges concurred for reversal, except HUNT, Ch. J., and MASON, J., who were for affirmance, and LOTT, J., who did not vote.

Judgment reversed, and new trial ordered.