42 Barb. 288 | N.Y. Sup. Ct. | 1864
By the Court,
The constitutionality and force of the act of the 19th of April, 1859, to provide for closing the entrance of the tunnel of the Long Island Bail Boad Company, in Atlantic street, city of Brooklyn, &c. (Lotos of 1859, p. 1109,) as well as of the act modifying the same,
The three acts to which I have referred, were designed to effect the same object. They are acts in pari materia, and must be construed in reference to one another. Their purpose was to acquire a part of the franchises of the rail road company, and to provide compensation therefor. The company’s right of property in the tunnel, and the right to use steam as a motive power in Atlantic street, had become obnoxious to the owners of property there, and detrimental to
Having ascertained that the assessment in question was a tax imposed for a local improvement, and that the power
The act of the 19th April, 1859, directed the commissioners to deliver to the collector the assessment list with a warrant thereto attached, authorizing him to levy and collect the same. And the collector was directed to collect the sums or assessments therein mentioned in the same manner as the county tax is levied and collected. And the same measures might be taken to enforce the collection thereof as are provided by law in regard to the county tax. This means nothing less than “a levy of the same by distress and sale
The learned judge at the special term thought that the terms and provisions of the law under which the assessment was laid operated, in effect, as the contract between the public and the owners of the land, which could not be changed so as to confer a new or additional right on the public at the will of the legislature without the consent of the party to be charged. I respectfully submit that there are none of the elements of a contract between the land owners and the public, in the transaction. Assuming, as I do, and as the court has held, that the extinguishment and acquisition of the rights of the rail road company was a just and legitimate exercise of the law of eminent domain, and beneficial to the public, then the case is the ordinary assessment for benefits for a local improvement, and does not partake of the nature or essence of a contract. The rights and property of the company are acquired by the public under the proceedings, and the expenses and compensation awarded is charged, like any other public burden, upon those thought to be benefitted. They acquired thereby no rights against the public in the nature of a contract, beyond the right to the appropriation of the property taken to the public use. Their position was that of tax payers, citizens charged with a public burden, and nothing else. But suppose, for a moment, that I am in error in this particular. What have the legislature done to impair the obligation of this contract ? They have changed the remedy for the realization of the assessment, but the assessment itself remains the same. They have not enlarged or diminished it, or modified in any degree the proportions in which payments are to be made by the several owners; nor have they attempted to appropriate the proceeds of the tax to uses not contemplated by the original act. In every thing except an additional remedy given for its collection,
Thinking, as I do, that the assessment of the tax imposed upon the owners of the property benefitted an obligation to make payment, I conclude that it was quite competent for the legislature to add to the remedies given by the original act an action at law for the recovery of the sums assessed to the owners respectively.
We encountered, upon the appeal, an objection made to the plaintiffs’ right to maintain the action, which does not seem to have been considered at the special term. Section 4 of the act of March 23, 1860, before referred to, gave to the Long Island Rail Road Company authority to appoint the collector to collect so much of the assessment as had not been voluntarily paid, and under this authority the plaintiff in the action received his appointment. The defendant now contends that this act is in violation of section 2 of article 10 of the constitution of the state, and therefore void. The defendant does not assign as a cause of demurrer that the plaintiff has not the legal capacity to sue. His demurrer is
The judgment should be reversed, and the demurrer overruled ; with leave to the defendant to answer upon the payment of costs.
Brovin, Scruglmn, Lott and /. F, Barnard, Justices.]