Hyperlawhypertext legal databasebeta People ex rel. Richmond v. Wilson 21 N.Y. St. Rep. 120

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People ex rel. Richmond v. Wilson

21 N.Y. St. Rep. 120 Court N.Y. Gen. Term Decision date 1888-12-10 English

Delivered by Barnard, P. J.

Contents

Majority

p. 120
People ex rel. Katharine H. Richmond, App’lt, v. John H. Wilson and Others, as Trustees of the Village of Flushing, resp’ts. People ex rel. William A. Smith, App’lt, v. Same, Resp’ts.
(Supreme Court, General Term, Second Department,
Filed December 10, 1888.)

Headnote

1. Taxes and assessments—Municipal cobpobations—How invalid assessment cubed—Consent of property owners.
An assessment on property for street improvement, which is invalid only for the insufficiency of the petition on which the work was ordered, ■and the lack of the number of signatures of land owners thereto required by the charter of the village corporation, may be made good by act of the legislature. The consent of the property owners might have been dispensed with by the legislature in the first instance.
2. Same—Title to act—Laws 1888, chap. 213.
The title to the act '* an act to ratify and confirm certain proceedings of the board of trustees of the village of Flushing,” is sufficient.
Certiorari on the relation of Katharine H. Richmond and William A. Smith against the defendants, trustees of the village of Flushing, to vacate an assessment made on the lands of the relators to pay the expenses of certain street improvements. The principal objection to the validity of the assessment was based on the insufficiency oaf the petition of the land owners asking for the improvement. The principal questions are whether the language of the act (Laws 1888, chap. 213) which sought to ratify and confirm the assessment, had sufficient scope to cover all the omissions of the trustees in their flagrant disregard of the charter requirements, and whether retrospective legislation, such as is contained in the act, can validate or make effectual the assignment.
The charter of the village of Flushing (chapter 248, Laws 1883), at section 5 of title 4, authorizes street and sidewalk improvements in the following language:
'£ When a majority of the owners of land fronting on any street or section half a mile or less in length of any street shall. make written application to the trustees for an improvement of a permanent character upon the carriageway of such street or section of street, such as grading, macadamizing or paving, the trustees may, if they deem propel', cause such improvement to be made, and shall assess two-thirds of the expense of making such improve
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ment on the lots on said street in front of which such improvements shall be made, in proportion to their frontage thereon, and shall cause the remaining one-third to be raised by special tax on the village at large. When a majority of the owners of land fronting on the same side of any street or section half a mile or less in length shall make written application to the trustees for an improvement of a permanent character upon their sidewalks, the trustees may, if they deem proper, cause such improvement to be made, and shall assess two-thirds of the expense of making such improvement to be made upon the lots on said side of the street in front of which such improvement shall be made, in proportion to their frontage thereon, and the remaining •one-tliird of such expense to be borne by the village, and shall be in addition to and shall be collected with the amount annually raised by general taxation.”
The petition in this case observed no distinction between the improvement and the carriageway and the sidewalk, nor did it show whether the signers were a majority of both classes, but the improvement made was of both classes. There was also an objection that a majority of the lot owners did not sign, unless a number of tenants in common could be consulted individually, instead of as one owner. It was stipulated that both cases should be heard together.
John W. Weed, for relator; Hinsdale & Sprague, for resp’ts; Edward E. Sprague, of counsel.

The petition of a majority of the land owners fronting on was a pre-requisite to the power of the trustees to lay the assessment for the proposed improvement. This essential fact was lacking. There was no other material defect. The whole work need not be done at once, and the proceedings before making the order substantially complied with chapter 248, Laws of 1883, title 4, section 3. The trustees met on the ground in accordance with the statute. The assessment roll was made out and filed. The signature by the clerk is sufficient in the absence of proof that the signing was unauthorized by the trustees.

The notice for those assessed to appear and make objection was in accordance with the charter. To meet the main, and I think only defect, the lack of the assent of the majority of the land owners, the legislature passed chapter 213, Laws of 1888, by which the assessment was ratified and confirmed with the same force as if the improvement had been applied for by a majority of the owners. The sole question therefore is whether the tax could be made

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good by the legislature. It seems plain that it can be so-ratified. , The legislature can lay a tax without the consent of the property owners. A similar act validi fating a tax, void for the same reason as existed in the present case, was held good by the court of appeals. Matter of Van Antwerp, 56 N. Y., 261 .

The land owners were heard in the usual way, so that-the special act does not take property without notice and an opportunity to object. When there is municipal jurisdiction of the subject and the defects are in the exercise of' the power, it is a subject within legislative discretion. Tifft v. City of Buffalo, 82 N. Y., 204 .

The case of Stuart v. Palmer ( 74 N. Y., 184 ) was based upon the fact that the town in question gave no right to-the tax payer to be heard. Remsen v. Wheeler ( 105 N. Y., 573 ) was decided upon the same fact.

In Jex v. The Mayor ( 103 N. Y., 536 ) it was decided that a void assessment unreversed was no defense to an action to recover back money paid under it.

In Hays v. City of Brooklyn ( 71 N.Y., 495 ) it was decided that a void assessment “made without authority or jurisdiction of the common council” could not, under general words confirming assessment, be considered included in the term of the act. The title to the ratifying act was-good. It is stated in the title that it is passed ‘1 to ratify and confirm certain proceedings of the hoard of trustees of the village of Flushing.” Such a title is held in Tifft v. City of Buffalo ( 82 N. Y., 204 ).

The tax in respect to interest is of the date of its imposition.

The judgment should be affirmed, with costs.

Same opinion on appeal of William A. Smith from same-record, by stipulation.

Pratt and Dykman, JJ., concur.

Statutes and regulations cited