People ex rel. Keim v. Desmond

The relators seek to have reviewed by certiorari the validity of a local assessment for constructing a sewer in the street which their lands adjoin. The primary question involved in this controversy is whether, in making their determination, any rule of law was violated by the assessors to the prejudice of the relators. We think this has not been made to appear. The lands of the relators are on the westerly side of the street. They are considerably higher than on the east side. In 1871 a stub sewer was constructed on the west side of the street about halfway across the block, evidently to accommodate temporarily the lands directly opposite the sewer on the west side of the street, which included the relator’s premises, the lands on the east side being too low to drain into it. In 1904 the sewer in question was constructed, running substantially parallel with the first, but nearer the east side, intended, no doubt, as a permanent part of the general sewer system of the city and to supersede the old sewer. It extended across the entire block, and was so built that both sides of the street can drain into it. The assessors in their return state that the “sewer as laid is a benefit to the property owners equally upon both sides of. the street, and that said sewer, so laid, is provided with necessary elbows and tees for connecting with the sewers from houses on each of the lots on the westerly side of South Hamilton street, and was built and constructed and is adapted for the purpose of draining the lots and houses on both sides of South .Plamilton street.” The assessors seem to have apportioned the expenses of this last sewer equally on both sides of the street according to the frontage of each lot. The relators appeared before the assessors and objected to the assessment, but the assessors adhered to their determination, and thereupon the relators filed their objections with the city clerk, as the charter of the city permits, to bring the matter before the common coun

It is contended that in making this assessment the assessors departed from this rule. The objection is now made that the assessment was made upon the foot frontage basis, and not according to what the improvement actually benefited the relator’s lands, although the specific objection was not-made to'either the assessors or the common council that the assessment was wrong, because made upon the foot frontage basis. It was contended there that this sewer was no benefit to the lands on the west side of the street, or, as it is put in the objections filed with the city clerk:

“That the property on the west side of the street is certainly not benefited to anything like the extent that the property on the east side of the street is by this sewer, and should not pay at the same rate as the property on the east side of the street. But, notwithstanding this, the assessment is at the same rate on both sides of the street.”

Assuming, however, that the objections are sufficient to raise the question, we still think that the relators have failed to establish that the assessors departed from the rule laid down in the charter for making assessments of this character. By commutation it appears that the assessment is at a uniform rate according to the frontage of the respective premises taxed, but this alone is not sufficient to condemn the assessment for it may still correctly represent the proportionate benefit of the improvement to each lot. People ex rel. Scott v. Pitt, 169 N. Y. 521 , 62 N. E. 662 , 58 L. R. A. 372 ; City of Ithaca v. Babcock, 72 App. Div. 260 , 76 N. Y. Supp. 49 ; Donovan v. City of Oswego, 90 App. Div. 397 , 401, 86 N. Y. Supp. 155 ), and this holds good as to premises on either side of the street, for the assessors expressly state in their return that the sewer is laid for the benefit to the property equally on both sides of the street, and for the purpose of this review the return must be taken as true. While there are other circumstances which might lead to a contrary conclusion, yet it is a question of fact for the assessors involving their judgment and discretion and not reviewable here. O’Reilley v. City of Kingston, 114 N. Y. 439 , 442, 21 N. E. 1004 Le Roy v. Mayor, etc., 20 Johns. 432 , 11 Am. Dec. 289 . Although the common council might annul this first assessment and remit the matter to the assessors for reassessment, yet the assessors were the final arbiters of the extent that these lands were benefitted by this sewer. The charter makes the reassessment final and conclusive. Utica Charter, § 107.

The cases relied upon by the relators we think do not apply. It

Writ of certiorari dismissed, and assessment confirmed, with $50 costs, and disbursements. All concur, except McLENNAN, P. J., and NASH, J:, who dissent.

(dissenting). The sole question presented by this appeal is, Was the tax imposed upon the relators on account of the cost incurred in the construction of the sewer in question levied “upon the lands benefitted by the local improvement in proportion to such benefit” ? If not, the tax was erroneous, and its collection should be restrained.

The facts are not in dispute. The relators are owners of real property situate upon the westerly side of South Hamilton street in the city of Utica, N. Y., which street extends along-the side of a hill in such manner that the lots of the relators and others similarly situated are considerably higher than the property abutting upon the easterly side of the street. About the year 1871 the city of Utica caused a 12-inch sewer to be constructed upon the westerly side of said street, in front of relators’ property, connected it with its general sewer system, and the relators immediately connected therewith, and ever since have continued to use the same, which is in perfect repair and at all times has been adequate and sufficient for their purposes and fully accommodates their property and all other similarly situated and abutting upon the westerly side of said street. The entire cost of the sewer so constructed was assessed upon the property of and paid for by the relators or their grantors, for the reason that the property upon the opposite

The method adopted by the defendants to ascertain the amount of the tax which should be levied against the relators’ property, respectively, most conclusively shows that such tax was not levied “in proportion to such benefit,” but upon the front-foot principle, and without considering the benefit to any particular owner of property. The statement in the return “that said sewer as laid is a benefit to the property owners equally upon both sides of the street,” which is simply a conclusion of law or an expression of an opinion, ought not to be regarded as in any manner establishing the proposition, in view of the conceded facts. Any claim that the tax which is complained of was levied “upon the lands benefitted by the local improvement [the new sewer] in proportion to- such benefit,” it seems to me, is. absurd in the extreme. As we have seen, the relators had a perfect sewer, which they had paid for, which was suitable and adequate for their use, as good and even more convenient for them than the new sewer. And yet it is said that the construction of such new sewer was of precisely the same benefit to their property as to the property across the street, which had no sewer facilities, and which was in urgent need of same. We will assume that the Legislature has the power to authorize the perpetration of even such a palpable injustice. Practically it has been thus held in the “Pavement Cases,” so-called, where the front-foot method of assessment has been upheld. We, however, venture to suggest that no such injustice has ever been sanctioned by the courts except in obedience to legislative mandate. In the case at bar, the Legislature, as we think, instead of authorizing, has .precluded, the adoption, of the

The act creating the board of assessors of the city of Utica (the defendants) provides (chapter 738, p. 993, of the Laws of 1897, as amended by chapter 215, p. 588, of the Laws of 1898, and chapter 384, p. 1054, of the Laws of 1901), that it shall assess the cost of local improvements “upon the lands benefitted by the local improvement in proportion to such benefit, except in those cases in which by the charter of said city or by this act the assessment is to be made upon a different principle.” Concededly no provision is contained in the act, except as above, providing how an assessment for a sewer improvement shall be made. That such assessment can only be made “in proportion to such benefit” is emphasized by section 99, subd. 2, of the charter of the city of Utica, which provides:

“In case the work (a local improvement) shall be the construction in any street of any drain or sewer, separate from- any other work, the expense thereof shall be.assessed upon such real estate as they shall deem benefitted thereby, In proportion to the amount of its benefits.”

It is not claimed that the construction of the sewer in question was not entirely “separate from any other work.” Subdivision 1 of section 99 of the charter provides:

“In case the work shall be the grading, levelling, paving, macadamizing, etc., of a street, the city surveyor shall ascertain the aggregate front length of lots on both sides thereof, and the front length of each lot or parcel * * * and the Common Council shall cause the average expense upon each foot of the lots or parcels of land on both sides of said street * * * to be ascertained, and each lot or parcel of real estate to be assessed with its. portion of the expense, by multiplying its number of feet front into the average expense per foot.” The same method is prescribed for sidewalks. Subdivision 3, § 99.

The provisions of the statutes referred to clearly indicate, as it seems to me, that the defendants in the case of the construction of a sewer, were required to exercise their judgment, and-in the other, only their mathematical skill.

In the case at bar it is evident, is established beyond controversy, that the defendants failed to exercise the first function, but relied upon their ability to properly solve the mathematical problem which they were directed to solve by the Legislature in case the local improvement was the construction of a pavement or sidewalk, instead of a sewer. There ought not to be given undue significance to the statement in the return of the defendants that said sewer “as laid is a benefit to the property owners equally upon both sides of the street,” when, as it appears, such‘proposition is wholly and entirely refuted by the conceded facts. After all has been said, we come back to the proposition, Was the construction of the new sewer, which, we must assume, was required, and needed by the property owners abutting upon the east side of South Hamilton street, only worth to them the same price per front foot as such sewer was worth to the property owners abutting upon the westerly side of said street, who already had a sewer of practically the same character, which was adequate and suitable for their purposes, and which was connected with the general sewer system of the city?

We conclude that the assessment or reassessment made by the defendants was made upon a wrong principle and contrary to the uncontradicted facts, and therefore Should be annulled, and declared void as to the relators, with costs.

NASH, J., concurs.