134 N.Y.S. 883 | N.Y. App. Div. | 1912
The trustees of the appellant, The Village of Port Chester, pursuant to chapter 511" of the Laws of 1899 and the acts amendatory thereto, have levied an assessment for grading,
The respondent contends that as no special benefits inure to its right of way from the street improvements, the assessment operates as a taking of its property without due process of law, contrary to the doctrine established by the Supreme Court of the United States in Norwood v. Baker (172 U. S. 269). That case, however, presented an instance where by village ordinance, apparently aimed at one person, a portion of whose property was condemned for a street, the entire costs and expenses of the street opening, including the amount awarded for the land taken and the costs and expenses of the condemnation proceedings, were assessed against the abutting property of the person whose land was condemned. The Supreme Court of the United States seems to have limited the case to its own peculiar facts, which amounted to an actual confiscation of property without compensation, and has repeatedly declared that the case is not a precedent authorizing a review of legislative discretion in determining the benefits accruing from local improvements and the proper method of assessing taxes therefor. (See French v. Barber Asphalt Paving Co., 181 U. S. 324; Tonawanda v. Lyon, Id. 389; Detroit v. Parker, Id. 399; Cass Farm Co. v. Detroit, Id. 396; Webster v. Fargo, Id. 394.).
The Legislature has by general statute declared a public policy regarding this matter, and has specifically provided that a highway passing under any railroad shall be maintained and kept -in repair by the municipality in which the highway is situated (Gen. Laws, chap. 39 [Laws of 1890, chap. 565], § 64, as added by Laws of 1897, chap. 754, and amd. by Laws of 1902, chap. 140).
We do not think that chapter 517 of the Laws of 1899 evinces a legislative intention to depart from the general policy established for street assessments similar to those in question. It is true that the statute provides (§ 12) that “No abutting or adjoining property shall be exempt from assessment under this act.” It seems highly improbable, however, that the’Legislature, by the terms “ abutting or adjoining property,” intended to include the respondent’s mere right of way over the streets contrary to the general policy established by section 64 of the Railroad Law (supra). It is much more probable that this clause of the act of 1899 was devised to include churches and charitable institutions which, although benefited by the proposed improvements, would not otherwise have been taxed. In the absence of a clearly and unmistakably expressed legislative intention the act in question should not receive a construction necessitating the imposition of a tax upon the respondent’s right of way contrary to the- general policy of the State and for improvements of no direct benefit to the property taxed, and the constitutionality of which is at least open to question.
The action in equity may be maintained. (Scott v. Onderdonk, 14 N. Y. 9; Guest v. City of Brooklyn, 69 id. 506; Providence Retreat v. City of Buffalo, 29 App. Div. 160; Trumbull v. Palmer, 104 id. 51.)
The judgment should he affirmed.
Thomas, Carr, Woodward and BicH, JJ., concurred.
Judgment affirmed, with costs.
Since amd. by Laws of 1909, chap. 153, now Railroad Law (Consol. Laws, chap, 49; Laws of 1910, chap. 481), § 93.— [Rep.