People ex rel. New York, Westchester & Boston Railway Co. v. Waldorf

On September 27, 1910, the common council of New Rochelle, pursuant to article 30 of the charter (chapter 559, Laws of 1910), resolved that the cost of widening North avenue be defrayed by an assessment laid upon the entire city as the area of assessment. On March 28, 1911, the common council amended its resolution by charging one-third of the cost upon an area of assessment constituted by properties fronting or abutting on the said avenue, and charged the other two-thirds upon the city at large.

[1] It is contended that in the absence of specific statutory authority the second resolution was ultra vires the common council, because in passing the first resolution it acted judicially. But the power to determine the taxing district for any particular burden “is purely a legislative power.” Cooley on Taxation (2d Ed.) 149; People ex rel. Griffin v. Mayor, etc., 4 N. Y. 419 -425, 55 Am. Dec. 266 et seq.; Spencer v. Merchant, 125 U. S. 345 -353, 8 Sup. Ct. 921 , 31 L. Ed. 763 ; State, etc., v. Road Com’rs, 41 N. J. Law 83 ; Hamilton’s Law of Special Assessments, § 213. The second resolution, changing or amending the first resolution, was within the legislative power of the common council. Dillon on Municipal Corporations (5th Ed.) § 584. The same author, in section 539, says:

“At any time before the rights of third persons have vested, a council or other corporate body may, if consistent with its charter and rules of action, rescind, pre'oious votes and orders. Thus a vote levying a tax, so long as it rests in mere resolution, and has not been acted upon, may be reconsidered, and, if rescinded, the collector cannot legally proceed to collect the tax.”

McQuillin on Municipal Ordinances, § 198, says:

“Subject to the constitutional provision forbidding the impairment of the obligation of contracts, as explained elsewhere, .improvement ordinances which are not wholly void may be amended, even after the contract is let and the work begun, in like manner as other ordinances.”

It is not contended that there were any contract rights that could be affected during the period intervening the passage of the first and the second resolutions. The learned counsel for the appellant cites Matter of Phelps, 110 App. Div. 69 , 96 N. Y. Supp. 862 . I did write as an isolated sentence that “the act of determination of the district was judicial.” I should have written the act of determination within the district was judicial. The intention of the writer is understood by reference to the authority cited (O’Reilley v. City of Kingston, 114 N. Y. 439 , 21. N. E. 1004), by turning to page 448 thereof (21. N. E. 1006). As an illustration of the distinction that should have been made, I refer to our decision in Matter of the City of New York (Opening 71st St.) 87 App. Div. 52 , 83 N. Y. Supp. 1081 . As to the character of the act and the power of the common council in the premises, see, also, People ex rel. Locke v. Common Council, 5 Lans. 11 ; Ashton v. City of Rochester, 133 N. Y. 192 , 30 N. E. 965 , 31 N. E. 334 , 28 Am. St. Rep. 619 ; People ex rel. Dady v. Supervisor, 154 N. Y. at 389, 48 N. E. 813 ; Harrison v. Village of New Brighton, 110 App. Div. 267 , 97 N. Y. Supp. 246 . People ex rel. Thomson v. Supervisors, 35 Barb. 408 , a Special Term judgment cited by the relators, may be discriminated, in that the act considered was “to apportion the tax so to be raised

[2] Another contention is that the notice published by the city clerk on March 2, 1911, in pursuance of the resolution of February 28, 1911, was insufficient notice to the relator of the proposed change in the area of assessment. Section 423 of the charter provides that upon the presentation of the report of the committee of the common council, to whom must be referred a petition for the improvement (section 422), the common council, if it determines to proceed with the improvement, shall direct the city clerk to give notice for publication thereof for at least two weeks in the official newspapers of the time and place in which the council will consider the matter. After the passage of the first resolution, the common council gave notice by due publication that it would consider the matter of said local improvement and afford a hearing thereon with reference to the district of assessment designated by its committee pn its amended and supplemental report submitted to the council February %8,1911, and that said council would take such action thereon as it deemed proper at a meeting to be held in its chambers, designating them, on a certain designated day and hour 19 days distant. The criticism that the notice was “wholly insufficient in that it did not advise that the common council proposed to change or amend the district of assessment or to consider a change thereof,” is hypercritical. I have italicized the words that indicate the sufficiency thereof.

[3] The relator, the railroad corporation, contends that the property owned by it was owned, occupied, and used by it for a public purpose in connection with the construction, maintenance, and operation of its railroad, and that the assessors were without jurisdiction, in that an assessment was imposed for benefit upon property which in law and in fact could not be benefited by said improvement. So far as the relator’s right of way is concerned, I think that we must follow our decision in N. Y., N. H. & H. R. R. Co. v. Vil. of Portchester, 149 App. Div. 893 , 134 N. Y. Supp. 883 , affirmed 210 N. Y. 600 , 104 N. E. 1135 , and that we should follow the application of the rule made in Matter of the City of New York (East 136th St.), 127 App. Div. 672 -675, 111 N. Y. Supp. 916 . The authorities in other jurisdictions are not in accord as to whether railroad property used as a station can be assessed for the improvement of an adjoining street. See Page and Jones on Taxation by Assessment, § 596, and notes. I think that the sounder rule is that which denies the right to assess station property for a street improvement such as is contemplated in this case.

It is proposed by these proceedings to widen a street near property •of a stream surface railway, and the local authorities would assess the property for the reason that there is a station thereon, wherein are two shops which are rented out by the railway corporation. The relators show that no part of- the station was constructed solely to give

[4] I think that the property of the relator the Millbrook Company abuts upon the street. The relator contends that “a large part” of its land does not abut. This is due to the fact that one side thereof is bounded by North avenue and also by another street which appears to continue North avenue. The assessment map (see section 428 of the charter) shows, however, that a part of the land lies upon, touches, and meets North avenue, and thus it is bounded by it. See Hughes v. M. E. R. Co., 130 N. Y. 26 , 28 N. E. 765 . It is not essential to abutting upon a street that any entire boundary of the land should lie along or touch the street. The land “abuts” thereon within the recognized meaning of the word.

The assessment, so far as it affects the property of the relator the railroad company, was erroneous, and it and the confirmation thereof should be vacated and set aside, with costs to the said relator. All concur.