7 How. Pr. 198 | N.Y. Sup. Ct. | 1852
The assessment of which the plaintiff complains, was made by the street commissioner of the city of Brooklyn for grading Washington park. The plaintiff alleges that the charter of that city did not authorize such assessment, and asks that this court shall declare it to be null and void, and not a lien or incumbrance upon the property assessed; that the defendant Briant, who is the collector of the taxes and assessments of the city, may be perpetually enjoined from proceeding under the warrant to him to collect the amount of the assailed assessment, and that the city of Brooklyn may be required to pay the damages sustained by the plaintiff by reason of such unauthorized proceedings.
The first, and as I view the case, the most material question involved in this controversy is, whether the assessment was warranted by the statute; that the legislature has the power to provide for making and enforcing local assessments for local improvements has been decided, and in my opinion correctly decided, by the Court of Appeals.
Several acts have been passed relative to Washington park. They all speak of it as a public improvement, and as public
The act of April 27, 1847, relative to Washington park (§8), authorized the city of Brooklyn to make any improvement on the park or square in connection with it, which they might deem proper. The act of March 24th, 1848, relative to the same park, provided for the payment of the expenses caused by any proceedings then had under the act of 1847, but has no reference to any future improvements. When the act of April 4th, 1850, to revise and amend the several acts relating to the city of Brooklyn, and which constitutes its existing charter was passed, there was no statute providing specially and separately for paying for future improvements to Washington park. The provisions of that act extended to that park as they purported to relate to all such establishments in the city, and they conferred all the power possessed by the corporation or any of its officers to make improvements upon it, or to provide for their payment. The first section of title 4, of that act, authorizes the common council to cause streets and avenues to be opened and widened, and to be regulated and paved, and to cause public squares and parks to be opened, regulated, ornamented and protected, and streets and avenues to be kept in repair, and from time to time to be repaved, or regraded and repaired; to close up and discontinue roads, streets, lanes and avenues; to provide that lamps and lamp-posts be erected, and cisterns made for the purpose of furnishing water in case of fire; to cause sewers and drains, wells and pumps, to be constructed and repaired, and generally to make such other improvements in and about such streets, avenues and squares, as the public convenience may require; and it provides that the expenses of all such improvements, except for repairs, shall be assessed, and be a lien upon the property benefited thereby, in proportion to the amount of such benefit. The third
It was admitted on the argument, by the counsel for the plaintiff, that the power to grade this park was conferred upon the corporation by the first section of the fourth title of the act which I have quoted. If so, that section also directs that the expenses of such improvement shall be assessed, and be a lien on the property benefited thereby, in proportion to the amount of the benefit conferred. This, then, confers upon the corporation the power, and imposes upon them the duty of making an assessment to pay for such expenses. The question very naturally suggests itself, whether the legislature would have conferred such power and imposed such duty, without at the same time providing the requisite means for performing the power and discharging the duty. That is not to.be presumed. The inference is altogether the other way. Judge Jewett remarks, in Stief vs Heart. (1 Comst. R. 30), that when a power is given by the statute, every thing necessary to making it effectual or requisite to obtaining the end, is implied. Probably the remark is too general. Where ordinary common law incidents are necessary to render a power effectual, they may undoubtedly be inferred, although not mentioned in the statute; but when such incidents do not go far enough, and no statutory means are provided to carry the power into effect, it must fail. Where, however, there are provisions in the statute, probably designed to give effect to
The other important question involved in this controversy is, whether if the assessment had been invalid the plaintiff would have been entitled to the relief demanded in his complaint. I shall consider this question, as the determination of it will be materia], if the opinion which I have adopted upon the point vrhich I have already discussed should be erroneous.
The relief demanded, except the compensation in damages, can be awarded by this court, if at all, only in the exercise of its equitable jurisdiction. Damages may be given as a part of a remedy strictly equitable; and when, as in this case, the principal relief demanded is of that class, the claim for such damages partakes of the same character. Is it, then, competent for this court, under the additional powers recently conferred upon it, to award the desired relief? It has entire cognizance of cases both at law and in equity. The distinction betAveen legal and equitable remedies has been abolished by the Code. The mode is identical, but the limits of either have not been extended. This court, in administering equity, is confined to the cases in Avhich courts of equity had jurisdiction previous to the late change. If not, the question may Avell be asked, Avhere will it stop?
Abstract ideas of equity are someAvhat indefinite, and there could not be an uniform rule governing the several branches, and numerous judges of this court. We have not yet necessarily arrived at that degree of uncertainty and consequent confusion^ and I trust that we never shall. The most that can be effectecf by the change is, that Avhen a plaintiff states a case Avhich entitles him to some redress in the law, he shall not be turned out
Now, no court of law or equity could directly annul the proceedings of an inferior tribunal of a municipal corporation, unless they were regularly brought before it upon a certiorari, or some other appropriate process addressed to the subordinate court or body. Nor could a court of law in any other way make any order or render any judgment generally sustaining the action of such tribunal or body? That could be done only in a court of equity. This court has now the same powers; but neither that, nor the class of cases over which it can be exercised, has been increased Now, in this case, no process has been issued to the corporation to bring up specifically the proceedings complained of, nor are they here in such a manner as to enable this court to set them aside: but an appeal is made to the court in the exercise of its power in equity, to declare their nullity, and to prevent their operation. Can this appeal be successful according to the established rules which have heretofore prevailed in a Court of Chancery? The plaintiff claims the desired interposition of this court, because, first, he has no other remedy; secondly, the assessment casts a' cloud upon his title to the land affected by the lien; and third, it will prevent a multiplicity of suits. These are all valid causes for relief in proper cases. The question is, whether this is one of that class?
The plaintiff, and those who are associated with him in this suit, have another, and I think an adequate remedy for any wrong which they may have sustained by the assessment. If it was a judicial proceeding, it can be reviewed on certiorari, and set aside, if invalid, from a want of jurisdiction. If, as is alleged, it is void for that cause, and the moneys should be collected and paid into the city treasury, they could be recovered by the payers, in an action against the corporation. True, it might be better in this case to prevent the wrong than to allow it to go on, and when perpetrated, redress it. But the law does not regard particular cases; it is necessarily applicable to the exigencies of
If the assessment is void from a want of the requisite power to make it¿ it can not constitute a lien upon the plaintiff’s real estate. It might, nevertheless, be a cloud upon his title, were it not for the fact that the objection, if any, is apparent on the face of the proceedings. They show that the assessment was made by the street commissioner for grading a park, and if the statute gave no authority for the procedure, its nullity must be evident to any one examining the papers, as all are supposed to know the law. In such cases the court does not interpose to remove the cloud, because, if there be any, it is so thin that it can do no serious injury. Besides, it was decided by both the late Court of Chancery and the Court for the Correction of Errors, that a court of equity will not, even for the purpose of removing an alleged cloud, review the proceedings of subordinate tribunals of municipal corporations (Mooers vs. Smedley, 6 Johns. Ch. R. 28; Mayor, &c. of Brooklyn vs. Messerole, 26 Wend. 132). If it was competent for this court under the existing system, to extend its jurisdiction in this particular to that class of cases, it would be highly inexpedient to do so, as it would constitute a source of excessive and unnecessary litigation.
The remaining question is, whether, supposing the assessment to be invalid, the circumstances attending it present a proper case for the desired interposition of this court to prevent a multiplicity of suits. The practice was originally introduced for the protection of any one who might be threatened with the attacks of numerous litigants having, in common, claims against him, based upon the same facts and principles. In this case there has not been any such suit nor is any threatened. The plaintiff ap7 prehends that something may be done which will lead to a law suit, and probably to many. But that is not enough to justify the interposition of this court by way of prevention. That is not granted until the plaintiff has established his right by at least one successful suit at law; a bill of peace is sometimes entertained to settle the rights of several parties in a single suit brought
Upon the whole, I am satisfied that the facts set forth in the complaint are not sufficient to entitle the plaintiff to the remedy he demands. I rest my opinion upon the following principles. A court of law only provides a redress for a wrong actually sustained. A court of equity grants a preventive within certain limits, which do not include the case presented by the plaintiff. A court in which the functions of both are joined, can not extend its power beyond what was possessed by the one or the other previous to the junction of the two. And an assimilation of remedies can not extend the operation of either beyond the limits assigned to the most extensive, when each operated in its own separate sphere.
There must be judgment for the defendants on the demurrer, and the complaint must be dismissed.