| N.Y. Sup. Ct. | May 21, 1891
Lead Opinion
It was intended by title 11 of the new charter above set forth-to accomplish these results: (1) To prevent for the future the vacation of an assessment because of the failure on the part of the contractor to make strict performance, but to make the contractor ahd his bondsmen liable for his default,, and to reduce the amount of the assessment if justice should require it; (2) to validate and confirm all assessments levied prior to January 15, 1883, as to which no litigation was then pending; (3) to preserve existing remedies as-to such pending litigation; (4) to provide a new remedy for future eases and to abolish the existing remedy as to them; (5) to forbid any remedy as to past assessments declared by the act to be validated and confirmed. The present assessment falls within the class last mentioned. Prior to the enactment of' the statute the existing remedy was by an action in equity to vacate the assessment, or remove the cloud cast by it upon the title. The third section of the title forbids resort to an action in equity for such purpose, but only in respect to assessments thereafter made. It is claimed that the new remedy applies to this case, but it is obvious that the legislature did not suppose any remedy was applicable or could be effectual to invalidate an assessment which, it declared validated. It contemplated three classes of cases: (1) Past assessments in litigation; (2) past assessments not in litigation; (3) future assessments. It preserved existing remedies as to the first class, provided a, new remedy for the third class, and intended to validate and confirm the second class, and thereby dispense with the necessity of any remedy. If the declared validation did in fact validate this assessment, then no reniedy could, avail, and this proceeding would fail. If it did not validate it, since the new remedy is applicable to future assessments, and the previous equitable remedy is neither prohibited as to past cases nor expressly abolished, it still exists. It is simply a failure to apply the new or supersede the old remedy as to past assessments not in litigation January 15, 1883. Where the right exists, if' the remedy is omitted from the statute, it is left to the common law, or, iff that is inadequate, to equity. Broom, Leg. Max. 46; Ewer v. Jones, 2 Salk. 415; Dudley v. Mayhew, 3 N.Y. 9" court="NY" date_filed="1849-12-05" href="https://app.midpage.ai/document/dudley-v--mayhew-3617855?utm_source=webapp" opinion_id="3617855">3 N. Y. 9. We do not think the county judge had jurisdiction. But if we assume that the county judge had jurisdiction of the-proceeding, the question is presented whether the first section of title 11 of the new charter, which provides: “And all assessments heretofore levied in. the city of Albany, proceedings to vacate, review, or set aside which were-not pending January 15,1883, are hereby validated and confirmed,”—did validate the assessment in question. If the legislature had the power to validate- and confirm this assessment, then the county judge could not subsequently vacate it. It would be like trying a prisoner for crime after he had been pardoned for its commission. This assessment did not come before the county judge simply as the act of the municipal authorities. It came with the added sanction of what purports to be legislative confirmation. Unless there is-some constitutional restriction, the validating section of the charter did vali
Most of the objections above specified in the petition under which this proceeding was instituted were mere irregularities which it was competent for the legislature to cure. It is objected that if under the statute then existing the proper jurisdictional steps were not taken, the common council had no jurisdiction, and all subsequent proceedings were void. Such an objection would no doubt be valid if there were no validating statute; but the ample jurisdiction of the legislature over the whole subject of taxation enables it to make •and impose by its own statutory command a complete assessment, save only in the respect of providing that the individual shall be heard by the proper authority with respect to its apportionment. Spencer v. Merchant, supra. The defect in the jurisdiction of the common council, if any, becomes immaterial when the legislature assumes within its constitutional limitations jurisdiction of the entire matter. It is for the same reason unnecessary to inquire whether chapter 77 of the Laws of 1870, under which the assessment was ■made, was constitutional. An assault upon that act does not touch the validating act if it is free from the like objection. The statute did not require that the work should be let to the lowest bidder. We do not hold that the legislature could ratify a tax or assessment which, in addition to the sums •necessary for the public purpose, concealed a gratuity to individuals, or a fraudulentincrease for private or official plunder, for as to such excess the individual tax-payer would be deprived of his property without due process of law; but the evidence does not show that the sum proper to be levied was increased by such an unlawful increment. It does show that the contract was not awarded to the lowest bidder. That fact might create suspicion, but it is consistent also with honest action. Something more is needed to justify a finding of fraudulent addition. The notice of the apportionment is criticised, not that it was •deceptive or misleading, but that it was not published for 15 full days, in lit
Mayham, J., concurs.
Concurrence Opinion
(concurring.) Chapter 298, Laws 1883, is the law es-tablishing the city government of Albany,—in ordinary language, its char-ter. Title 11 of that section is entitled, “Reducing and Vacating Assessments.” Its first section begins: “No assessment that may be hereafter levied shall be void or shall be vacated by any court because of a failure on the-part of the contractor to comply,” etc. It then provides for proceedings by tax-payers and owners during the progress of the work to prevent payment, to the contractor if his work is not properly done, and it closes with the-words, “And all assessments heretofore levied in the city of Albany, proceedings to vacate, review, or set aside which were not pending January 7,. 1883, are hereby validated and confirmed.” The act was passed April 23d. The second section of the title provides that if, in the proceedings rela-. tive to any assessments in the city, any fraud or defect in the work or substantial error shall be alleged, the party aggrieved may apply to a judge - of the supreme court or to the county judge to have the assessment vacated. Section 3 provides that in such proceeding the assessment may be vacated, “and hereafter no suit or action in the nature of a bill in equity- or otherwise shall be commenced for the vacation of an assessment in said city, or to remove a cloud upon title arising from any assessment hereafter-made. Owners of property shall hereafter, in proceedings to reduce or va-. cote or stay payment of assessments, be confined to the form of proceed-, ing in this title mentioned.” Section 1 of this title by its terms applies, only to assessments made after the passage of the act. Section 2, which, authorizes proceedings of the kind taken in this case, does not expressly say to what assessments it is applicable. But section 3 in its first sentence declares what may be done in proceedings thus taken, and the same senteneecontains the words above quoted, prohibiting thereafter any suit to vacate or to remove a cloud upon title arising from any assessment thereafter made.. It is plain, then, that the prohibitory clause applies only to suits in respect, to assessments thereafter to be made. Since, then, the ground of the prohibition is the establishing of a new and peculiar remedy, it must be that the-new and peculiar remedy applies to the cases as to which actions are prohibited, and not to any other. To say that a part of a sentence applies to all-cases, and the conclusion only to cases thereafter arising, is unreasonable, unless the language compels such a construction, and when the evident ground of the prohibition of actions is the substitution of a different mode of' relief, it is obvious that the substituted relief and the prohibition are co-extensive. If the prohibition applies only to assessments thereafter made, so., does the substituted remedy; otherwise we have this condition: That as to,. assessments made before the act the aggrieved party may adopt either the remedy taken in this case or the action in equity or at law, as the case may be; while as to assessments made after the passage of the act he is confined..
Further, as to the effect of the validating clause: In Ensign v. Barse, 107 N.Y. 346" court="NY" date_filed="1887-11-29" href="https://app.midpage.ai/document/manchester-v--braedner-3603304?utm_source=webapp" opinion_id="3603304">107 N. Y. 346, 14 N. E. Bep. 400, and 15 N. E. Bep. 401, the very important and sensible distinction is stated between defects which are jurisdictional under ■the law as it stood when the proceeding was had, and those other defects which are so jurisdictional that the legislature could not have dispensed.with what was lacking, and therefore could not cure the omission by subsequent legislation. For instance, a man’s property cannot be taken away without •due process of law, including notice to him. A proceeding, therefore, even ■in the mode provided by law, which was defective in this respect, could not be validated. To validate it would be to violate a constitutional right. On the other hand, the legislature may authorize cities to improve streets with or without petition of adjacent owners. The legislature may leave it in the absolute discretion of the city authorities whether and how they shall grade, pave, and sewer the streets. If the legislature lias required the presentation of a petition of certain persons, before the city authorities shall do these acts, the legislature may say that these acts shall be valid, although such petition was not fully obtained. In People v. Turner, 117 N.Y. 227" court="NY" date_filed="1889-11-26" href="https://app.midpage.ai/document/people-v--turner-3609776?utm_source=webapp" opinion_id="3609776">117 N. Y. 227, 22 N. E. Rep. 1022, the question was as to the title of land, and this question arose as to a ■title acquired under an assessment. It was held that a statute was valid whicli limited in effect the time within which the validity of the assessment sale could be questioned. In People v. Brooklyn, 71 N.Y. 495" court="NY" date_filed="1877-12-21" href="https://app.midpage.ai/document/people-ex-rel-hays-v--city-of-brooklyn-3577250?utm_source=webapp" opinion_id="3577250">71 N. Y. 495, the court concede the power of the legislature to legalize assessments, but say that the language of the section is too loose and indefinite to include those in question. The section under discussion provided for the reducing assessments and the ■confirmation of those reduced, and the court did not decide that an assessment could not be confirmed when the petition was insufficient. In Clementi v. Jackson, 92 N.Y. 591" court="NY" date_filed="1883-06-05" href="https://app.midpage.ai/document/matter-of-applicatn-of-clementi-v--jackson-3600871?utm_source=webapp" opinion_id="3600871">92 N. Y. 591, it was held that the validating act only validated