Sage v. City of Brooklyn

The legislature by chapter 631, Laws of 1868, widened Sackett street in the city of Brooklyn, to the width of two hundred and ten feet. The commissioners of

The plaintiffs have never been paid their award. The aggregate amount of awards made for lands taken for the improvement was $334,000, which was assessed upon the lands within the assessment district. The sum of about $280,000 was collected and paid into the city- treasury, and was paid out by the comptroller as claims were presented until the fund was exhausted. The balance of the assessment has not been collected. The lands assessed on which the • assessments are unpaid, have been offered for sale by the city, but by reason of the accumulations of assessments thereon beyond their value, there were no bidders, and this resource for the payment of awards is practically valueless. The plaintiffs presented their claim to the comptroller of the city for payment, but payment was refused on the ground that the amount collected had been paid out to claimants who had presented their claims before the presentation of the claim of the plaintiffs. This action was subsequently brought to recover the award, as a debt owing by the defendant. The city denies its liability, and asserts that it owes no duty to pay the plaintiffs for their lands; that the

This contention, if well founded, substantially deprives the plaintiffs of any remedy. It is not claimed that the State assumed any liability under the act of 1868. The act charged the expense of the improvement upon a limited assessment district, and it turns out that the property therein is inadequate, or cannot be sold to pay the assessments in full. If no immediate or ultimate duty is imposed on the city to pay the awards, or make good any deficiencies in the assessment fund, then we repeat the plaintiffs are without remedy to recover their award. The position of the city, if sustained, leads to the inevitable conclusion that the lands of the plaintiffs were never lawfully taken for the improvement, that their title has never been divested, and that they may now enter upon and reclaim the exclusive possession of the lands of which they have been deprived.

It is so axiomatic, that it is laid up as one of the principles of government, that a provision for compensation is an indispensable attendant upon the due and constitutional exercise of the power of depriving an individual of his property under the right of eminent domain. (Gardner v. Village of Newburgh, 2 Johns. Ch. 168 .) The courts in construing the constitutional guaranty, have departed from what may seem its plain' and natural meaning, and have held that the payment for property taken in invitum for public use, need not be concurrent with the taking, but that it is sufficient if the law authorizing the taking, also provides a sure, sufficient and convenient remedy by which the owner can subsequently coerce payment by legal projoedings. If such provision is not made, then, as was said by Nelson, Oh. J., <c the law making the appropriation is no better than blank paper.” (People ex rel. Utley v. Hayden, 6 Hill, 359 .) It is, I think, a plain proposition, that a law authorizing the

In coming to the inquiry whether the city of Brooklyn i charged with the duty of paying the awards for the open ing of Saekett street, we are to bear in mind that all acts o the legislature are judicially construed to be within constitn tional limitation if susceptible of a construction which wouli make them so, and that “the court, if possible, must give statute such a construction as will enable it to have effect/ (Cooley’s Const. Lim. 184.) This is but a corollary from th principle asserted by Mr. Justice Washington in Ogden v Saunders ( 12 Wheat. 270 ), and frequently repeated in subse quent cases, that “ it is but decent respect due to the wisdom the integrity and the patriotism of the legislative body, b; which any' law is passed, to presume in favor of its validit; until its violation of the Constitution is proved beyond al reasonable doubt.” The legislature, in passing the act for th opening of Saekett street, intended to make a valid and efiecl ive law, and we may reasonably expect to find provision therein which shall make it accord with the Constitution.

The claim that the opening and widening of Saekett street i a State, as distinguished from a municipal improvement, is oj

It remains to consider whether the statute of 1868 imposed upon the city the primary or ultimate duty of paying the landowners for the land taken for the street; for we think it must be admitted upon the doctrine of McCullough v. The Mayor, etc. ( 23 Wend. 458 ), that unless the statute imposes the duty it cannot be implied from the mere fact of the taking of the

It is clear, we think, that the duty imposed by section 16, is a duty imposed upon the corporate body—the city, and not, by a desoripiio persones, upon the individual who may happen to be comptroller. The comptroller could not as an individual execute the directions given. He is, by the charter, the chief financial officer of the city. But he neither receives nor has the custody of money received from local assessments. The charter requires that the collector shall pay the money collected thereon to the city treasurer, who is required to deposit it to the credit of the city in such banks as the common council may direct. (Laws of 1854, chap. 384, title 3, § 15, title 5, §§ 11, 15.) And it prohibits any money being drawn from or paid out of the treasury, except in pursuance of orders of the common council appropriating the same, and upon warrants signed by the mayor and countersigned by the treasurer and city clerk. (Title 3, § 15.) According to common understanding, a direction to the chief financial officer of a city, State, or of the general government, to pay money for a public purpose, is a direction that the State, government or

We have been referred to title 18, section 6, of the charter of 1873, as indicating a legislative policy to exempt the city of Brooklyn from any liability for land taken for streets. If that clause has the construction placed upon it by the counsel for the respondent, the validity of the charter in respect to acquiring lands for streets, may well be doubted. If) however, it is construed as relating simply to the expense of regulating streets, to which it was confined in the original act from which it was taken .(Chap. 213, Laws of 1859), or is intended only to declare the general principle that the expense of street openings shall be a local and not a general charge, it is not subject to criticism. But however this may be, that clause does not govern the rights of the parties in this case which are regulated by prior statutes, and were fixed before the charter of 1873 was framed.

The exemption clause in the act of 1862, (Chap. 63, § 39), is not a defense. The duty of payment imposed by the act of 1868, is a corporate duty, and one from which the city can be relieved only by performance. It is not a duty imposed upon the common council or any officer of the city, and the case is not within the purview of the act of 1862. We think the liability of the defendant was properly adjudged in the courts below, and it is a satisfaction that this conclusion, warranted as we think it is by the rules of law, accords with equity and justice.

The judgment should be affirmed.

(dissenting.) The plaintiffs sued and recovered for an award made to them for land taken to widen Sackett street under the act chapter 631 of the Laws of 1868, and the sole question for our determination upon this appeal is, whether the city became responsible upon the facts proved for that award. Section 1 of the act, by its own terms, exyroprio vigore, widened rSackett street and appropriated the land needed therefor.

Under the provisions of the act of 1868, the assessments were required to be collected under the general laws relative to the

There is nothing in the act of 1868 imposing any duty or conferring any authority upon the city in reference to the improvement of Sackett street. Even after the improvement was made under the direction of the park commissioners, the city was to have no control over Sackett street, section 11 providing as follows : “ After Sackett street shall have been opened, so much thereof as lies eastward from Prospect Park shall be under the exclusive control and management of the said park commissioners, and they shall make and enforce proper rules and regulations for the public use thereof, and after it shall have been improved, as hereinbefore directed, its subsequent maintenance shall be provided for in the same manner as the public parks now under the charge of the said park commissioners are provided for.”

The land taken for the widening of Sackett street was not transferred to the city. The fee remained in the original owners and an easement even was not vested in the city, but in the people of the State. It is impossible to perceive upon what theory it can be held that the city took the land, as it acquired no interest therein. It was taken and appropriated by the di

For the position that the park commissioners were not agents of the city for whose acts the city could be made responsible, the cases of Maxmilian v. The Mayor ( 62 N. Y. 160 ), Tone v. The Mayor (70 id. 157), and New York & Brooklyn Saw-Mill & Lumber Co. v. The City of Brooklyn (71 id. 580) are abundant authority. The general rule as deduced from these cases is that a municipality is not liable for the acts or omissions of an officer in respect to a duty specifically imposed upon him, which is not connected with his duties as agent of the corporation, and that such a corporation is only liable for the acts or omissions of officers in the performance of duties imposed upon the principal.

If the statute had imposed an absolute duty upon the city to pay the awards to be made under the act, there would have been foundation for the maintenance of the action; but without some such provision we think there are no principles and certainly no authority sanctioning this recovery. In McCullough v. The Mayor ( 23 Wend. 458 ), the action was to recover money awarded to the plaintiff for land taken for opening a street, and it was held the plaintiff could not recover, because by the statute authorizing the street improvement the award was not declared to be a debt against the city, and because the statute did not make it the duty of the city to pay the money. That was a case where the street was opened by the city, and the statute under which the proceeding was taken required that when an order was made which required the corporation of. the city of Brooklyn to lay out or open any new street, or widen or extend

In Cumming v. The Mayor etc. of Brooklyn (11 Paige, 596), the corporation of the city of Brooklyn contracted with the complainants to grade and regulate one of the avenues of that city at a specified price, to be paid for out of the moneys which were to be collected by an assessment to be made for such improvement, and it was held that an action could not be maintained for the recovery of the amount due upon the contract, but that an action could be maintained because the city had not caused a proper assessment to be made, and the money thus collected. That was a case where the improvement made was a city improvement, and the city had legally bound itself by contract, and it was made liable for a breach of its contract.

In King v. The City of Brooklyn ( 42 Barb. 627 ), the legislature, by an act passed April 17,1861, provided for the widening of Fourth avenue in the city of Brooklyn, and appointed a board of commissioners with power to open and work the same, and until the work was completed all control over the avenue was taken from the common council and given to the commissioners. The city was directed to issue its bonds to a certain amount and to pay the money realized therefrom to the city treasurer, and the same was to he kept separate and paid out upon the order of the commissioners only, and to be used for no other purj>ose. The act did not provide that the corporation of the city of Brooklyn should accept of or assent to it. The commissioners named in the act contracted in their own names with K. and B. for certain work to be done upon the avenue by K. and B., at stipulated prices, which work was performed by the latter. In 1862 the legislature enacted a new charter for the city of Brooklyn, by which there was created a board of contracts, which board only could bind the city by contract, except in

Even if this street widening was a street improvement inaugurated and carried on by' the city, for which it was bound to provide payment, it could not be sued and compelled to pay out of its general funds, unless it was chargeable with fault and negligence in not collecting the assessments imposed to raise money to pay the awards. (Hunt v. The City of Utica, 18 N. Y. 442 ; Baker v. The City of Utica, 19 id. 326; Baldwin v. The City of Oswego, 1 Abb. Ct. App. 62 .) In the latter case it was held that a contractor employed for the making of a local improvement, the expense of which, under the charter, was to be assessed, not upon the city at large but only on the property benefited, cannot maintain an action for his compensation against the municipal corporation directly on the contract to recover a judgment which shall be a charge upon the general resources of the city. It was, however, held that if the common council, or officers of the city having power to raise the necessary funds by assessment, neglected to do so, the action would lie upon the ground of negligence.

We have now gone far enough to deduce the following conclusions :

First. That an action of assumpsit for this award could not be maintained against the city for the reason that there is nothing from which such an assumpsit could be implied and there is nothing in the statute obligating the city to pay the award or making it a debt upon the city. Plaintiffs’ land for the widening of the street was taken by the direct fiat of the legislature, and the legislature appointed agents, not of the city, but of the State, to enter upon the lands and make the improvements. In such a case there can be no obligation of .the city ' to pay, except the obligation be found in the statute itself. But for the constitutional inhibition land could be taken for

But it is further contended on behalf of the plaintiffs that the city is liable because the comptroller did not pay the money realized from the assessments fro rata upon all the awards. The answer to this is, that the comptroller, in what he did, did not act as the agent of the city, but as the agent of the State in accomplishing the improvement. The money, when collected, did not belong to the city or form a portion of its funds. It was a special fund to be especially appropriated by the comptroller as required in the law. (Lorillard v. The Town of Monroe, 1 Kern. 392.) If the comptroller misappropriated the money or neglected to pay the plaintiffs their share of it, their remedy was against him either by mandamus or an action against him adapted to the nature of the case.

It is further contended that the city is liable because the tax officers specified in the statute have not sold the lands assessed, and thus collected $50,000 of the assessments remaining unpaid. The answer again is that such officers were not the agents of the city, and the city is not responsible in any way for their misfeasance or nonfeasance in this matter. They were appointed to act as agents of the State for the collection of assessments, not to pay a debt of the city, but to pay for the

But there is a further answer to the contention that the city should be held liable for the misfeasance or nonfeasance of either the comptroller or the tax officers even upon the assumption that they were charged with duties as agents or officers of the city. It was provided in the city charter (Chap. 63, § 39, Laws of 1862; chap. 863, title 19, § 27, Laws of 1873) as follows: “ The city of Brooklyn shall not be liable in damages for any misfeasance or nonfeasance of the common council, or any officer of the city or appointee of the common council of any duty imposed upon them, or any or either of them, by the provisions of this act, or of any other duty enjoined upon them, or any or either of them as officers of the government by any provision of this act, but the remedy of the party or parties aggrieved for any such misfeasance or nonfeasance shall be by mandamus or other proceedings, or action to

As the city owed the plaintiffs no duty to pay the awards, and was under no obligation directly to pay, its liability, if any, could be based only upon negligence in not discharging a duty which it owed the plaintiffs under the statutes, and they imposed no such duty. The alleged negligence was not a corporate negligence, but was the negligence only of certain officers having specific duties to perform not for the- city but for the public, and particularly for the plaintiffs and others, and for the negligence of such officers the provision of law quoted, and the principles of law above referred to furnish an exemption from liability.

It cannot be said that the city ought to have put the officers in motion by mandmius, because it was under no liability or obligation to pay the award.

We are not concerned with the question as to the manner in

We may say, however, that the plaintiffs cannot be deprived of their land without compensation. The provision to be found in the State and Federal Constitutions which provides that private property shall not be taken for public use without just compensation is their protection against spoliation. ■ In the case where the property is taken by the State or a municipal corporation, the compensation' to be made need not be actually ascertained and paid before the property is taken, but it is sufficient that certain and ample provision has been made by law for the compensation of the owner. (People ex rel. Utley v. Hayden, 6 Hill, 359 ; Cooley on Constitutional Limitations, 558.) It was doubtless supposed in this case by the legislature that ample and certain provision had been made for the payment of the damages for lands taken for this improvement. It was not anticipated, and perhaps could not have been, that the expense of the improvement would be so great as to amount to a -confiscation of the lands upon which assessments were made. It was reasonably certain that a sale of the lands would produce the amount needed to pay the awards. But suppose after the plaintiffs have resorted to all the means furnished by the law to procure compensation for their lands taken, and without any fault on their part they fail, shall they lose their land % I say no! The compensation to be provided, to. answer the constitutional requirement, must be certain. It is not sufficient that it is merely formal and illusory, and if in the end the law disappoints the anticipation of the legislature and of the land-owner, and fails to give compensation without any fault of the land-owner, then his land has not been legally taken, and he may re-enter upon his land, or, if needful, bring ejectment for its recovery,

We, therefore, conclude that this recovery is wrong and that the judgment should be reversed and a new trial granted, costs to abide the event.

The foregoing opinion was written after the first argument of the case in this court. Upon the reargument additional views have been urged upon our attention by the learned counsel for the plaintiffs, which I will briefly notice.

Section 7 of chapter 631 of the Laws of 1868 is as follows: “ All laws now in force relative to the widening, opening and improving streets and avenues in the city of Brooklyn, subsequent to the appointment of commissioners of estimate, and proceedings thereon, andothe duties of the several persons to be employed therein, substituting the commissioners of Prospect Park in place of the common council, and also in place of the street commissioner of said city, and substituting the said commissioners of estimate and assessment in place of the board of assessors of said city, so far as relates to the opening of streets and avenues, including also payment for the work and the levy and collection of the assessments for such improvements and lien thereof, so far as they are not inconsistent with the provisions of this act, shall apply to and regulate all proceedings that may be had or taken under this act. But such proceedings shall continue to be under the direction of the commissioners of Prospect Park, who shall stand in the place of and act, when required, as the common council of the city or the street commissioner thereof would be required to act in the premises, and they shall employ an attorney and counsel and all such clerks, surveyors and other agents as may be required for the purposes of this act. ”

The claim is confidently made that this section in some way imposes á duty upon the city to pay this award. It is im

It is claimed that section 16 of title 4 of chapter 384 of the Laws of 1854, which was in force as part of the city charter in 1868 and subsequently, is made applicable. That section is as follows: “The city comptroller shall pay to the persons to whom damages may have been awarded in such report the amount of such damages without any deduction therefrom by way of fee or commission.” That section has reference to awards made by commissioners of estimate and assessment for damages to owners of lands taken for street openings. Upon the first argument no stress was placed upon that section and indeed our attention was not called to it. Unless it is sufficient to impose a liability upon the city for the award now in question, there is certainly no other provision of law applicable to the city which does so. The section does not, in terms, impose any obligation upon the city. It does not provide that the city shall be liable for the awards or bound to pay them in its corporate capacity out of its general or corporate funds. To hold that it imposed a general liability upon the city would be against the general scheme provided in the city charter for the payment of the expenses of opening and improving streets. It simply imposes a duty upon the comptroller, and the discharge of that duty is regulated by sections 1, 2 and 3 of title 10'of the same chapter. Section 1 provides that the accounts of the city and the management of its finances shall be under the direction of the comptroller, subject to the provisions of that act, and to the ordinances of the common council. Section 2 provides that the accounts shall be distributed in three distinct classes, the first of which shall embrace all such expenditures as are to be made out of money raised by the general tax and shall be balled the

If section 16 is made applicable to the Saekett street improvement then also are these sections 1, 2 and 3, and hence no duty was imposed upon the comptroller to pay these awards out of the general fund of the city, but it was his duty to pay and he could pay only out of the special fund created by moneys received from the assessments imposed to pay the awards. If the city could be sued for awards made for land damages, and thus compelled to pay whether the money was in the special fund for that purpose or not, then all these carefully framed provisions would be of no use and could at any time be disregarded and nullified. By section 1 above cited, the common council.was authorized to pass ordinances regulating the manner in which the comptroller should discharge his duties, and I find among the ordinances" of the city contained in a printed volume delivered to us upon the argument of this case by the counsel for the plaintiffs, which volume is made evidence of the ordinances therein contained (§ 5, tit. 11 of the same chapter), an ordinance (§ 4, art. 4 of the ordinances) which provides that the comptroller shall draw warrants to pay

It is impossible, therefore, to perceive how the plaintiffs can, in this action, enforce payment of their award out of the general fund of the city. Assuming that all the sections referred to are applicable to this improvement, the only way for the plaintiffs to procure payment of their award is to compel the collection of the assessments, and thus the creation of the special fund and then procure payment out of that fund. If through the misfeasance or nonfeasance of any of the city officers the special fund is not created or payment out of it is not made to those entitled, liability to pay awards is not cast upon the city; .and for reasons stated in the foregoing opinion, the city cannot be made liable for damages on account of such misfeasance or nonfeasance.

The conclusion I have thus reached is somewhat fortified by other provisions of law applicable to the city of Brooklyn. By section 6 of chapter 213 of the Laws of 1859, it is provided that “ in no event shall any expense for any improvement or work contemplated by the first and second sections of this act be a charge against the city of Brooklyn except so far as said city may be the owner of land to be assessed for such work or improvement; ”. and by section seven it is provided that “ it shall be a misdemeanor, and punishable as such, for any person or officer in the city of Brooklyn to take from the treasury of said city, by warrant or otherwise, any money for or on account of the expense of any local improvement hereafter to be made in said city, unless the same has first been assessed, collected and paid into the treasury to the credit of such improvement.” It is claimed on the part of the plaintiffs that these sections have reference only to the improvements specified in the first and second sections of the act, to-wit: regulating, grading and paving streets, etc., and that they have no reference whatever to expenses and payments for land damages. If this claim be well founded, then the whole scheme of the laws constituting the city charter is rendered harmonious, and the city, in its

Sections 6 and 7 of the act of 1859, above cited, are incorporated in the city charter (Ohap. 863 of the Laws of 1873, title 18, § 6), and there it is provided that in no event shall any expense for any street improvement be a charge against the city of Brooklyn; and there the word “ improvement ” is conceded to embrace the opening of streets as well as the regulating and grading them.

Section 16, above cited, was not new in the charter of 1854, but it is first found, so far as my researches enable me to say, in section 12 of chapter 319 of the Laws of 1833, which was an act to amend the charter of the village of Brooklyn. That section is precisely like section 16 substituting village treasurer in place of city comptroller, and yet it is entirely clear that that section did not impose a corporate liability upon the village to pay the awards out of its general fund, and under it an action of assumpsit could not be maintained against the village. (McCullough v. The Mayor, supra.) Section 16 is again found substantially embodied in section 27 of title 18 of the charter of 1873. That section is as follows: “ The comptroller shall pay to the persons to whom damages may have been awarded in such report the amount of such damages, with interest at the

I am therefore of opinion, upon a careful review of all the laws applicable to the village and the city of Brooklyn which have come to my attention, that there never has been a time when the village or city was liable in its corporate capacity to pay out of its general fund awards made for lands taken for street improvements. It is clear that it was always the legislative intent that such awards should be paid from' benefit assessments.

It is further contended that the city may be held liable in this action to the plaintiffs, because the moneys collected from the assessments were paid into the city treasury ;but the words “ city treasury ” are misleading. They describe nothing tangible. The moneys when collected were required to be paid to the city treasurer and were by him required to be kept separate from the other funds of the city. They were to constitute a special fund applicable only to the payment of the awards. Hot only could the comptroller and treasurer not appropriate these funds to any other purpose, but the city through its common council could not use them for any other purpose or control their disposition in any way. The money in the special fund in no sense belonged to the city and constituted no part of its assets. It was created solely for the benefit of the owners of awards, and was subject to the absolute control of the comptroller for the payment of such awards. If he mis

I recognize the rule that statutes should be so construed, if they can be, as to avoid a conflict with the Constitution, but there is a rule paramount to all others, that in the construction of statutes the intention of the legislature must govern. When that is ascertained it must have effect regardless of consequences.

Here the intent of the legislature that the awards for the Sackett street improvement should not be a general charge upon the city is so plain and manifest that it cannot be disregarded or thwarted even if the construction which I have given to the statutes would bring them under the condemnation of the Constitution.

I, therefore, adhere to the views expressed in my prior opinion which may be summarized as follows:

First. There is no provision of law expressly obligating the city to pay this award.

Second. There is no implied obligation resting upon the city to pay it.

Third. The city is not liable for the misfeasance or nonfeasance of any of its officers in consequence of which plaintiffs have failed to receive payment of the award.

Fowrth. The money collected from assessments did not come into the possession, control or ownership of the city, so as to make it hable for the payment of this award or for the misappropriation of such money.

All concur with Andrews, Ch. J., for affirmance, except Rapadlo and Earl, JJ., dissenting.

Judgment affirmed.