People ex rel. Gage v. Lohnas — 28 N.Y. St. Rep. 246

Majority

p. 246

The People ex rel. Wm. B. Gage et al., Relators, v. Deyoe Lohnas et al., Board of Trustees of Saratoga Springs, Def’ts.

(Supreme Court, General Term, Third Department,

Filed December 11, 1889.)

Headnote

1. Constitutional law—Widening streets.

Chapter 136, Laws of 1887, is constitutional. It is not unconstitutional because it authorizes the trustees of Saratoga Springs, a municipal corporation, to widen streets upon a resolution of the board, without a petition by the property owners.

2. Same.

Such a provision is not in conflict with § 18, art. 3, of the state constitution, forbidding the legislature to pass a private or local bill laying out, etc., roads, highways and alleys. This direction does not apply to city streets.

3. Statutes—Construction oe—Laws 1887, chap. 136.

A clerical error exists in § 1 of chap. 136, Laws of 1887. In the subsection thereof numbered “sec. 75” the word “two” in the phrase “which shall have been taken therefor in the manner provided in section two of this act” should read “seventy-two.” Bead in this manner, the act provides an opportunity to the persons to be affected by the assessment to be heard thereon.

4. Same.

Effect must be given to the obvious intention of the legislature when to do so will prevent the act from failing and when no violence will be done to the language employed.

5. Assessments—Certiorari.

Upon the question whether property is benefited, the return on certiora/ri in the absence of a motion to correct or supply defects is conclusive.

6. Same.

The person aggrieved had a remedy by action under § 8, chap. 68, Laws of 1880. It appeared that more than half of the assessments had been paid. Held, that a certioi'a/ri should not have been granted and that the writ be quashed.

7. Same—Delegation op authority.

Where the hoard appointed a committee, consisting of two of its mem

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tiers and its clerk, to prepare an assessment, and afterwards passed upon their report and adopted it, this was not such a delegation of power to the clerk as made the assessment invalid.

This is a common law certiorari to review the action of the board of trustees of the village of Saratoga Springs in widening a street of the village and imposing an assessment upon the relators and others to defray the costs and expenses thereof.. The street was one continuous street, though the several sections of it bore different names. It was about sixty-six feet wide, and this width was, by the resolution of the board of trustees, increased to 100 feet by taking the increased width from the lots on the northerly side of the street. By the act authorizing the board of trustees to widen streets in the village, chap. 136, Laws 1887, the board is authorized to assess the expense upon such property as they shall deem to be benefited, except the lots of which a portion is taken to make the widening; these are exempted. The relators own property near but not upon the street in question, and their property was deemed by the trustees to be benefited and was included in the property assessed. A motion is also made to dismiss the writ as improvidently issued.

T. F. Hamilton, for relators; H. T. Brackett and O. >S. Lester, for def’ts.

The imposition of local assessments for benefits is an exercise of the taxing power. Subject to constitutional limitations, the legislature may prescribe how this power shall be exercised. Unless there is some constitutional restraint the act in question is valid. Chap. 136, Laws 1887. That is to say, the legislature could authorize the board of trustees of Saratoga Springs by a resolution of the board without a petition of property owners to widen any of the streets of the village, and also to prescribe the extent and details of such widening. The legislature could direct that the expense thereof should be imposed upon the property to be benefited, other than the property some part of which should be taken for the widening; and also could authorize the board of trustees to determine what property other than that exempted would be benefited, and to apportion the assessment upon such property. Spencer v. Merchant, 100 N. Y., 585 ; Genet v. City of Brooklyn, 99 id., 296 ; Matter of Van Antwerp, 56 id., 261.

It is urged that the act, or so much of it as authorizes a street of the village to be widened pursuant to a resolution of the board of trustees, is unconstitutional because in conflict with § 18, article 3 of the state constitution, which forbids the legislature to pass a private or local bill “ laying out, opening, altering, or discontinuing roads, highways or alleys.”

It was held in Matter of Woolsey, 95 N. Y., 135 , that this provision of the constitution does not apply to city streets. The reasoning is based upon the fact that pending the consideration of the provision, the commissioners who reported it added the words “streets and alleys” to “roads and highways,” and the legislature in submitting the provision struck out the

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word “ streets.” That § 1 of article 8 of the constitution provides for the formation of municipal corporations by special act, and that such acts may be altered or repealed, thus authorizing the legislature by special act to provide a street or highway system for municipal corporations different from the general highway system of the state, outside of such corporations. Saratoga Springs is a municipal corporation created by special acts, and hence the legislature may by special act regulate its highway or street system. The objection that the act does not provide an opportunity to the persons to be affected by the assessment to be heard thereupon is based upon a clerical error in the act. Chap. 136 of the Laws of 1887, under which this street was widened, consists of two sections, but the first section provides that there shall be added to the charter of the village (chap. 220, Laws 1866, and the several acts amendatory thereof) “ the following sections, to be known and numbered as §§ 71, 72, 73, 74, 75, 76, 77 and 78.” Then follow the sections as so numbered, the first being § 71 and the second 72, etc. Section 72 provides in detail for the assessment for the cost of constructing sewers with ample provisions for the hearing of all persons to be affected by the assessment. Section 73 embraced in § 1 of the same act provides for the widening of any street in the village by the board of trustees. Section 75 of the same section and act provides as follows: “ In case of real estate and easements taken for the purpose of widening a street, the amount of the awards and fees of the commissioners and other expenses of the appraisal shall be forthwith assessed by the board of trustees upon the property which they may deem benefited thereby other than the property, a portion of which shall have been taken therefor in the manner provided in § 2 of this act.”

Section 2 of the act simply provides that “this act shall take effect immediately.” It is obvious that § 72, being the second section of the new sections added to the charter by § 1 of the act. of 1887, is intended by the words “§ 2 of this act.” We must give effect to the obvious intention of the legislature, when to do' so will prevent the act from failing, and when no violence will be done to the language employed. “ Section 2 of this act” means the second new section added by this act to the charter, namely § 72. So understood, the trustees must assess the expense of widening a street in the manner provided in § 72. This the trustees did, and the parties affected by the assessment had, in pursuance of the terms of the section, their “ day in court,” before the assessment was confirmed.

It is objected that the property of the relators is not benefited by the improvement. This was a question for the trustees to determine. The return affirms that their property was benefited.

Section 2135, Code of Civil Procedure, provides that if the return is defective the court may direct a further return. The return should, in addition to a transcript of the record or proceedings, state the whole truth in respect of the other matters specified in and required by the writ, § 2134, and in the absence of any motion to correct or supply its defects, the presumption is conclu

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sive that it does so. People ex rel. Cummings v. Koch, 2 N. Y. State Rep., 110; People ex rel. Cronk v. Weld, 6 id., 173 . The return is an answer to this objection.

The board of trustees appointed a committee consisting of two-trustees and the clerk of the board to prepare an assessment. This, committee did prepare an assessment and submitted i‘t to the-board. The board then made the assessment and gave notice thereof and of the time and place to hear grievances. It is objected that in placing the clerk upon the committee to prepare the-assessment the board delegated to him a function which was incapable of delegation.

It is probable that the clerk was placed upon the committee in order to do the necessary clerical work, but assuming that he participated in the deliberations of the committee, and influenced the result, the result was only a report in the form of a proposal or* scheme. Nothing was passed upon or determined by it. The board of trustees were no doubt aided by it, but it remained for-them to exercise their judgment and make the assessment, and they performed that duty; they did not delegate it to the-clerk.

We conclude that the objections urged by the relators should' be overruled upon the merits.

The defendants, however, urge that certiorari is not the proper1 remedy, and a motion is made to dismiss the writ upon grounds - of public policy. It appears by affidavit that more than half of the assessments have been paid. A common law writ of certiorari' issues where the statute has not expressly taken it away, or provided some other method of review, in cases where a review is-appropriate, where no other adequate remedy is available, and in the discretion of the court a remedy should be allowed. The-court grants it, lest the error, perverseness or partiality of officers-not accustomed to judicial functions may work an irremediable injury. If a party conceiving himself aggrieved has an adequate-remedy as a right, he does not need apply to the court for the-favor of this.

Here a remedy by action is given the relator by chapter 68 of the-Laws of 1880, being an act to authorize the sale of lands in the village of Saratoga Springs for unpaid taxes and special assessments. Section 8 provides that “Any person interested in property upon which a tax or assessment has been or may be assessed or levied may bring an action to vacate and set aside such tax or assessment, or any sale made by virtue thereof and to enjoin and restrain the sale of any real or personal property.” Of course, he may in his .complaint set forth every fact constituting his cause of action, and therefore may there rely upon every ground urged here. The appropriateness of a resort to action is apparent. The majority of persons affected by the assessment in question do not complain. Public interests would seem to require that the relators confine-their litigation to the protection of their individual interests instead of extending it to the overthrow of a work of public utility. Matter of Flushing Avenue, 101 N. Y., 678 .

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The writ of certiorari is superseded and quashed, with fifty dollars costs and disbursements against the relators.

Learned, P. J., concurs; Putnam, J., not acting.