52 N.Y.S. 571 | N.Y. Sup. Ct. | 1898
This is a suit in equity to vacate an assessment on plaintiff’s lands in the city of Lockport, levied to defray part of the expenses of a local improvement.
The improvement was the grading, curbing and paving of West avenue, East Main street and East avenue, which form one continuous street from Transit street on the west, through the principal business and residence part of the city to the easterly city line, a total distance of nearly one and a half miles. The plaintiff owns a tract of lánd situate on the northerly side of East avenue which is used as a family residence and for agricultural proposes.. It consists of twenty-nine and thirtyrseven one-hundredths acres, and has a frontage of 372 21/100' feet on that part of the avenue so improved, and is bounded easterly by the city line, but lies wholly within the city limite.
The total cost or contract price of the improvement was $84,930.13) of which $2,066.25 was assessed- on plaintiff’s said lands..
This action purports to be brought for the benefit of all others assessed upon this roll who' may come in and contribute to the expense thereof, but no other person assessed has come in and asked to be made a party or to be-given the benefit of any judgment that may be entered herein, and, therefore, we are only called upon to consider these questions so far as they affect the plaintiff. Knell v. City of Buffalo, 54 Hun, 80.
These objections and the grounds therefor will now be considered in the order stated. The claim of want of jurisdiction is twofold; first, that sufficient property-owners did not petition for the improvement, and, secondly, that the determination of the common council as to such sufficiency was wilful, wrongful, fraudulent and unlawful. Section 202 of the charter of Lockport confers jurisdiction on the common council to determine that the expense of such an improvement shall be defrayed by an assessment upon the real estate which it deems benefited thereby, and to order such improvement by adopting an ordinance in the form therein prescribed, specifying the portion of the city which it deems will be benefited thereby, after, “ there shall be filed with the city clerk a petition or petitions to the common council for such improvement, signed by persons owning at least one-third of the street frontage on the street or streets wherein such assessment is to be laid, of the lands to be assessed for the improvement.” Section 203 of the charter provides as follows: “ The decision of the common council as to whether any petition or petitions for a local improvement is or are signed by persons owning at least one-third of the frontage of the lands to be assessed for such improvement shall be final and conclusive and not subject to question or appeal, but it shall not base its action on signatures on more than one petition, if such petitions
The clerk duly advertised for, and on September 11th, reported the proposals received, and they were read and a recess taken to examine them, after which they were referred to the committee of. the whole which met, and after considering the proposals, rose and reported in favor of awarding the contract to Charles Whitmore & Co., on their proposal to pave with Chnton shale repress brick, at' $2.02 per square yard, and by resolution adopted by a vote of seven ayes to five noes, the council determined that the proposal of said firm was the lowest and directed the mayor'and city clerk to contract .with' them for the work. The mayor approved this resolution on the 18th day of September, 1893, and the city clerk, pursuant thereto, in behalf of the city, signed a contract with said firm for doing the work, for paving the streets with Canton shale. repress brick and Medina Sandstone curbing, in accordance with the plans ‘ and specifications and proposals therefor. Thereafter the total cost of the improvement, according to such contract, was ascertained and determined, and the making of this assessment was ordered by resolution of the cpmmoiL council, adopted by an affirmative vote of eleven, there being no vote in the negative.
The petitions of certain property-owners, in due form, for this improvement and the giving of the notice' of hearing on the ordinance, as required by the charter, gave the common council jurisdiction, and it became the duty of that body to inquire into the sufficiency of the petitions and determine whether they were signed by the owners of one-third of the frontages to be assessed for the improvement. ■
The legislature, realizing that it is difficult and in most cases impossible for a common council to determine such questions with
It will be observed that the plaintiff and all others interested had due notice of the hearing on the adoption of thq last ordinance involving the determination of the sufficiency of the petitions and that neither the plaintiff nor any other person appeared in opposition to the improvement or questioned the proposed determination that the same had been applied for by the necessary proportion of property-owners.
It is manifest from the action of the council on the mayor’s veto message, and from the testimony of the aldermen, that there was an honest effort to remedy defects and remove objections, and no objections having been made to the last ordinance, they had reason to believe that they had accomplished the end desired. If the members of the common council acted honestly and had any facts before them tending to support their determination, there would seem to be no propriety in a court of equity’s undertaking to- review such determination at tins late day after the improvement has been made and paid for by the city. The determination of the common council, if made in good faith, pursuant to this statute, surely cannot be attacked collaterally as in this suit in equity, for such errors or mistakes. Such determination is an adjudication in the nature of a judgment and can only be reviewed by a direct proceeding where the error or mistake may be correctéd or the determination may be reversed and the municipal authorities may be at liberty to proceed anew. Porter v. Purdy, 29 N. Y. 106; Matter of Commissioners of Central Park, 50 id. 493; Matter of Kiernan, 62 id. 457; Hunt v. Hunt, 72 id. 217; Matter of Department of Parks, 73 id. 560; People ex rel. Francis v. Common Council, 78. id. 33; Matter of Kendall, 85 id. 306; De Peyster v. Mali, 92 N. Y. 269; Moody v. City of Lockport, MS Opinion, Justice Corlett; Miller v. City of Amsterdam, 149 N. Y. 288.
Section 226 of the Lockport charter provides that an appeal may be "taken to the County Court from such an ordinance within
An expression of an opinion as to whether the action of the council in determining the sufficiency of these petitions can be reviewed on the appeal from .the ordinance would be obiter dicta- and not binding on the court in which such appeal is pending, and, therefore, I shall not attempt to decide the point. If this question, is reviewable on the appeal, then that furnishes an adequate remedy and the appeal having been taken in form to review it, the question is pending in another litigation between the same parties which., has been pleaded here as a bar and such we hold it to be. Bell v. Merrifield, 109 N. Y. 202.
Counsel have exhaustively argued the question as to the authority of a court of equity to annul such a determination of a municipal legislature for fraud; but no case in point has been cited, and I believe that the proposition has not been directly involved in any of the reported decisions. I have for a number of years had occasion to give the subject some little consideration and have no doubt as to the jurisdiction of the courts of equity, or as to the propriety of their intervening in such cases. I think, the claim for such authority is sustained by legislation and analogous decisions.
The law known as the Taxpayers Act, authorizing the courts to enjoin threatened illegal or fraudulent acts of public officers which include municipal councils, emanated not from a want of jurisdiction in the courts, but for the purpose of giving' individual taxpayers a standing in the courts where those who represent the city as .its governing body and should protect its taxpayers, are either parties to the fraud or connive thereat. Ayers v. Lawrence, 59 N. Y. 192; Talcott v. City of Buffalo, 125 id. 280.
Chapter 338, Laws 1858, as amended by chapter 312, Laws 1874, provides summary remedy to review local assessments in New York city, by petitions, and expressly provides that no suit in equity shall be brought to set aside such assessment on the ground of fraud. Eno v. Mayor, 68 N. Y. 214.
The learned justice writing in People ex rel. Holler v. Board, etc., of Albany, 2 How. Pr. (N. S.) 423, assumed that if fraud were shown, such a determination made final by the statute could' be reviewed. Assessments have been set aside for fraud on the part of assessors. Brennan v. City of Buffalo, 13 App. Div. 453. Municipal contracts may be enjoined and annulled for fraud, and why should not the court have power to annul assessments for the fraud of the common council as well as that of other officers? I think such
•" This improvement was needed and was generally favored by the taxpayers. I am not satisfied that the vote of any member of the common council was fraudulently cast in favor of the adoption of the ordinance for the improvement. Alderman Davis was at that time agent of the Canton Shale Brick Exchange and expected a commission on all brick of that company’s manufacture used by the city contractors. The petitions and specifications did not, however, require the use of tins particular kind and brand of brick, but permitted of open competition. In view of these facts and of the further fact that nearly all of the property-owners who- took an interest in the matter wanted a brick pavement and there being no satisfactory evidence tha(t any other member of the common council or city official was either directly or indirectly interested at that time, I do not feel warranted in finding, that even Alderman Davis would not have voted for the improvement ordinance, but for the fact that he was such agent, or that his vote on the adoption of such ordinance was controlled by fraud or corruption. Later on in voting on awarding the contract, he was directly interested in having it awarded to the contractors who had submitted proposals for furnishing Canton shale repress brick, one of whom! have no doubt in consideration agreed to and did give him $1,00.0, represented by two $500 accommodation notes. . It has also been established to my satisfaction that the vote of Alderman O’Connor on awarding the contract was improperly .influenced and controlled by a promise made to him by a representative of said Shale Brick Exchange at the time the contract was awarded, that if the contract were awarded as he voted to award it, the brick company would give him $600 for pretended services in inspecting and supervising the piling of the brick on the street along the line of work. The evidence shows that the brick company’s contract with Whitmore & C’o. only required it to deliver the brick free on board the. cars at Lock-* port. It had nothing to do with "unloading the brick, or delivering them on the street. The pretended services were not rendered, but the money was paid pursuant to agreement. It should be said here'
As has been seen, no fraud is alleged with respect to awarding the contract and the evidence as to fraud at that time was only received as bearing on the alleged fraud in adopting the ordinance.
I am of opinion that upon principle and grounds of public policy, the action of the common council in adopting the ordinance by the unanimous affirmative vote of twelve could not be annulled even if it satisfactorily appeared that all three of these aldermen whose good faith is questioned acted fraudulently and corruptly in so voting, for the reason that there would still be an honest three-fourths vote in favor of the ordinance. Owners, etc. v. Mayor, 15 Wend. 378; Throop on Public Officers, § 567; 19 Am. & Eng. Ency. of Law, 459; Brooklyn El. R. R. Co. v. City of Brooklyn, 11 App. Div. 128.
The next question to be considered is, did the common council wilfully, wrongfully and fraudulently omit from the district of assessment, lands abutting on the improvement which were necessarily. benefited?*
The omission of lands acquired and held by the state as part of the Erie canal furnishes the sole ground of this complaint. The blue lines which mark the exterior boundaries of the Erie canal lands are ninety-two and one-half feet apart, the waterway being several feet narrower. At about the center of the city of Loekpor't, the canal, Avhich runs nearly east and west, is spanned by a wooden bridge, knoAvn as the Big Bridge, about seventy-five feet in Avidth and* extending along the canal 300 feet. The. northerly blue line passes 7.90 feet northerly of the northerly side of this bridge apd
Possibly the common council could have determined that the narroAy strips of land forming the banks and support for the canal upon either side thereof east and west of the Big Bridge, and considerably removed from this improvement were benefited thereby and could have assessed the same; but it has not been satisfactorily shown how such lands could receive more than mere nominal, if any, benefit. The law does not deal with trifles and it is incumbent-on the plaintiff to show substantial prejudice. Colman v. Shattuck, 62 N. Y. 363; O’Reilly v. City of Kingston, 39 Hun, 287; Workman v. City of Worcester, 118 Mass. 168; Petition of Voorhis, 5 Supt. Ct. (T. & C.) 345. The Constitution expressly provides that such lands cannot be sold even by the* legislature, and requires that they, shall be forever held and used-for eana^ purposes. FTo error can be predicated on the. omission of such lands from a district for a local assessment. § 6, art. 7, State Constitution; Elwood v. City of Rochester, 43 Hun, 114; People ex rel. Dillon v. Gilon, 41 id. 510; People ex rel. Howlett v. Mayor, 63 N. Y. 291; Matter of Mayor, 11 Johns. 77; In re. Albany St., 11 Wend. 149; Owners of Grounds, etc., v. Mayor, 15 id. 378; Gilbert v. City of New Haven, 39 Conn. 467; Chicago, B. & Q. R. R. Co. v. Siders, 88 Ill. 321-7.
The connection between and relative location of the property assessed and the improvement and the ability of the owner of the land to use and enjoy the improvement all enter into the question of benefits. Voght v. City of Buffalo, 133 N. Y. 463.
If the canal lands should have been assessed, then omission was an error of judgment on the part of the common council in determining the lands benefited and the plaintiff’s remedy was by certiorari and not by suit in equity. Kennedy v. City of Troy, 77 N. Y. 493; Hoffeld v. City of Buffalo, 130 id. 387; County of Monroe v. City of Rochester, 154 id. 570.
The next complaint is that the common council wilfully and wrongfully failed to include in the district of assessment all of certain indivisible parcels of land, part of which were included, and that the assessor failed to assess the lands thus omitted.
The Grand Hotel is built on the junction of West avenue and Canal street, upon two lots, which are, according to the record title and official maps, separate and distinct parcels. One of these lots
The office and theater building known as Hodge Opera House occupies a large tract of land on the northwesterly junction of Main and Market streets, with the comer only abutting on Main street, and- the building actually fronts upon and lies principally upon -Market street. By. the ordinance the common council determined that only the westerly sixteen and one-half feet of this- property, including the comer abutting on Main street, was benefited.
The Young Men’s Christian Association building occupies nearly the entire parcel of land situate at the southeasterly comer of Main and Locust streets, having a frontage of fifty-six feet on Main street and extending in depth back at right angles 165 feet to Pearl street, and abuts bn the latter street about 116 feet. It is bounded easterly by an alley running from Main to Pearl street. The entire frontage and to a depth of seventy feet only was included in the ordinance as benefited. y
The assessor adopted the frontage rule of assessment, and assessed the same amount on these parcels of land in proportion to their frontage that he assessed on all other lands.
It has been held that a local assessment may not be spread upon an entire tract of land by the description contained in the deed or general tax-rolls where only part of the lands are benefited, although all are owned together, and it has also been held that where a whole parcel of land is benefited, but the assessment is spread only on the frontage, it is valid. People ex rel. L. V. R. Co. v. City of Buffalo, 36 N. Y. Supp. 181; 86 Hun, 618; 147 N. Y. 675; Parmelee v. City of Youngstown, 43 Ohio St. 162.
It is urged that these assessments are void and not enforcible, because these properties are indivisible. If that were conceded the plaintiff would not be prejudiced and it would furnish no legal or equitable ground for setting aside the assessment upon her lands. The evidence shows that the owners of these respective parcels have paid all installments of the assessments due and some in advance and there is, therefore, no probability that the payment of any of the installments will be resisted. But even if payment should be successfully resisted or if the city should be unable to enforce payment it has no authority under its charter to make a reassessment, and the plaintiff cannot be compelled to bear any of the deficiency. Tingue v. Village of Port Chester, 101 N. Y. 294. The only debatable point is, therefore, whether the common council had authority to determine that only that part of the parcels in question constituting the frontages and a reasonable depth back from the improved street was especially benefited; and that they should be assessed only to that extent. I think the common council had jurisdiction to determine this question, and while such course is somewhat unusual and I might differ with them and reverse their judgment if the question were 'presented by appeal or by writ of certiorari (People ex rel. L. V. R. Co. v. City of Buffalo, 147 N. Y. 675; Matter of Gardner, 41 How. Pr. 255, which arose under Lock-port eliarter), yet the dét'ermination of what lands were benefited involved the exercise of discretion and judgment, and the court should not, in a collateral suit in equity, without other evidence that they acted upon an erroneous principle or upon a rule wrong in law, annul their determination where such a decision would have the in equitable effect, inevitable in this case, of entirely relieving the lands specially benefited from bearing any part of this expense other than their proportion of a general tax upon the whole city to defray the .same.
It appears from the evidence that the taxpayers generally have, acquiesced in their assessments and are paying the same and that a much larger sum has been paid in upon the roll than was due. It is manifest also, that the improvement was a very substantial special benefit to the plaintiff’s lands and to all lands assessed therefor, and
A party has nó constitutional right to maintain a suit in equity to vacate a local assessment and he may be confined to such legal remedies as are provided, and where a suit in equity lies he must show substantial prejudice. Lennon v. Mayor, 55 N. Y. 361; People v. Wasson, 64 id. 167; Mac Laury v. Hart, 121 id. 636; Garratt v. Trustees of Canandaigua, 135 id. 436; Matter of Peugnet, 67 id. 441; Matter of Kendall, 85 id. 306; Tifft v. City of Buffalo, 82 id. 204; Matter of Marsh, 83 id. 435.
It is more equitable and just in this case to give the city the full benefit of the legal presumption that the assessment is valid until clear and satisfactory proof of its invalidity is presented and that its officials have properly performed their duty, and to apply to these facts the well-settled rule of law that the determination of the legislature or of the local authorities authorized- by the legislature, as to what lands are benefited and as to the quantum of benefits, is final and conclusive and cannot be reviewed collaterally. Smith v. City of Buffalo, 90 Hun, 118; Harriman v. Howe, 78 id. 280; Morse v. City of Buffalo, 35 id. 613; Tingue v. Village of Port Chester, 101 N. Y. 294; Colman v. Shattuck, 62 id. 348; Bouton v. City of Brooklyn, 2 Wend. 395; Le Roy v. Mayor, 4 Johns Ch. 352; Lyon v. City of Brooklyn, 28 Barb. 612; In re. Church St., 49 id. 455; Matter of Broadway, 63 id. 575; In re. Cruger, 84 N. Y. 621-2; Kennedy v. City of Troy, 77 id. 493; Genet v. City of Brooklyn, 99 id. 306; Spencer v. Merchant, 100 id. 588; Matter of Sacket Street, 4 Hun, 92; People ex rel. Gage
The objection with respect to filing the plans and specifications was not urged or argued upon the trial.
The plans and specifications were filed as recited in the ordinance and interested, parties had sufficient notice thereof and opportunity to inspect or object thereto.
The last question to be considered is whether the assessor spread the assessments upon the lands described by the common council as benefited and in proportion to such benefits. It is claimed that the assessor failed to assess all of the lands included within the district of assessment. H any lands were omitted it is evident that they were omitted through mistake; but it does not satisfactorily appear that any assessable lands were in-fact omitted. The complaint in this respect relates to a few feet of land that are a public alley, to a few feet of land that are part of a public street, or to cases where there is' a discrepancy between the record and actual frontage as shown by official maps, or where, there is a clerical error as to the frontage in the assessment-roll and where the amount of the assessment shows that the parcel was assessed for its whole frontage, or to cases of corner lots or lots of irregular shape or of less than the ordinary depth, and while the whole parcels are assessed, deductions or allowances were made from the frontage rate on account of their-not sustaining the same amount of benefits as regular formed lots of ordinary depth and situate- in the middle of blocks. It is evident that where the frontage rule is adopted, equity requires that such allowance and deduction shall be made in some manner in such cases. It is not very material whether they be made by.first assessing such lots and deducting the amount thus assessed from the total to be assessed and then dividing this balance by the total feet frontages of the unassessed lands and thus get the'frontage rate, or whether as is often done and has been repeatedly sanctioned by the courts, the assessor deeming a particular lot having twenty-five feet frontage, only, benefited equal to an interior lot of uniform width and ordinary depth having a frontage of twenty feet for the purpose of ascertaining the ratio,' calls the former twenty feet frontage, for in that case he assesses all of the land, but does not assess the irregular or comer or shallow (Lot at the same rate per foot frontage as adjacent lots, because he deems the benefits to it less.
The assessor adopted the frontage rule of assessments, that is, he determined that all lands similarly situated with reference to this improvement were benefited alike, the cost of one-half the pavement- as constructed in front thereof. This action of the assessor is complained of as arbitrary and not a proper, exercise of his judgment. The frontage rule of assessment has been repeatedly approved and sanctioned by the courts and adopted by the' legislature in almost innumerable special acts, and experience demonstrates that for such an improvement as this it is quite as just and equitable as any other method of arriving at the amount to be assessed upon each parcel of land. The principal complaint is that many parcels of land occupied by large business blocks are assessed no -more than other vacant parcels of the same dimensions and otherwise similarly situate with reference to the improvement. The frontage rule has- been sustained by the Court of Appeals in similar cases. The assessor having full knowledge of the dimensions and location of all the parcels of land within the district of assessment and of the improvements thereon, was obliged to determine the proportion of benefits as well as the amount- of benefits. He could not take up each parcel and assess it independently the amount he deemed it benefited, for by so doing he might raise more or less than the sum needed' and he would
It was competent for the assessor to determine that a vacant lot was benefited just as much as an improved lot similarly situated. It is not the building that is increased in value by a pavement, but the land itself. It would often cost less to duplicate the building after the approach to the premises is made more accessible by the improvement, than before. If the building could be replaced for less it is difficult to see how it would be worth more. State v. City of Newark, 31 N. J. L. 360-4.
The owner of the vacant land may next day after the assessment is levied invest moré in improvements upon his land than his neighbor who built before the levying of the assessment. The adoption of a different rule for such assessments would in addition to working such injustice be putting a premium upon leaving lands vacant until such improvements are made, and Tyould stifle enterprise, investments and progress which are so essential to the prosperity of a city, that public policy forbids the encouragement of a rule of local ássessments in proportion to valuations. Voght v. City of Buffalo, 133 N. Y. 463; Matter of Eager, 46 id. 109; Matter of Cruger, 84 id. 619; O’Reilley v. City of Kingston, 114 id. 439; Hoffeld v. City of Buffalo, 130 id. 387; Matter of Gardiner; 41 How. Pr. 255; Lebenthal v. City of Yonkers, 8 App. Div. 138; Osterhout v. Hyland, 27 Hun, 170.
The following cases in other states show how generally it has been held that assessors may adopt the frontage rule of assessment regardless of improvements. Cleveland v. Tripp, 13 R. I. 50; Uping
The plaintiff’s lands were hot assessed at the same rate per foot as the lands on the business part of the. street, for the. reason that the pavement is not so wide in front of - her lands as in the heart of the city. . It does seem that the assessment, upon the plaintiff’s lands is large and that the frontage rule may be inequitable in this particular case. It must be remembered, however, that this assessment-roll and the action of the assessor in the premises have been unanimously approved and confirmed by the common council and the mayor, all of whom possessed greater knowledge of all the facts necessary- to a proper determination of this question than could be presented to the court. They have acted judicially and had no interest in doing what they believed to be an injustice to any.person assessed. The assessor appears to possess, and I think he does possess, greater intelligence than is shown by some of his answers to questions. He was not called to the. stand until more than three - .years after hé spread this assessment-roll .and his official action should not be annulled with all the inequitable Consequences that would follow in this case, .on account of any careless or unintelligible •answers given by him at this'late day when his" memory is not clear. This assessor did not act arbitrarily in this matter.
The first assessment roll Was. not made until long after the plaintiff appealed from the ordinance, and the city authorities had determined to defend and sustain it. After the first roll was made objections were filed to it, and a hearing was had before the common ■council and the roll was annulled. The assessor was aware of these •objections and of the arguments made against the roll; .he freely conferred with the mayor and was advised by the learned city attorney, now the county judge of that county. . He knew well what his duty was ifi the premises and how he should make this assessment roll. . The most that the plaintiff was entitled to was the assessor’s honest judgment in apportioning these benefits, and I have no doubt, whatsoever that the assessor acted honestly and conscientiously and had in mind to assess each parcel, its just and equitable proportionate part of this total amount which the common
While these conclusions lead to a dismissal of the complaint, I do not award costs against the plaintiff, A public service has heen performed by the plaintiff in bringing this action and exposing fraud and corruption on the part of a public official which has resulted in his prosecution and conviction.
For .these reasons, if I had the power to award costs to the plaintiff, or to cancel any excess of interest that has been added to her assessment pending this litigation, I would do so.
A penalty should not be attached, to bring an action disclosing such facts as have been shown on this trial and I recommend that whatever excess of interest has heen added to this assessment as a penalty for nonpayment be canceled by the city authorities. In view of the fact that there is no provision of the charter making such assessments presumptively valid and that the only method for their enforcement is by a foreclosure of the lien of the assessment in which action the validity of the assessment could he contested it is not entirely clear that this suit in equity could he maintained, but the conclusion arrived at on the questions involved renders it unnecessary to consider this question at length.
The complaint is dismissed upon the merits, but without costs.
Complaint dismissed, without costs.