41 N.Y. 137 | NY | 1869
This case comes here by appeal from a judgment of the Supreme Court, rendered upon a return to a certiorari, made by the commissioners appointed under an act of the legislature, passed April 19, 1859, entitled “An act to provide for the closing of the entrances of the tunnel of the Long Island Railroad Company, in Atlantic street, in the city of Brooklyn, and restoring said street to its proper grade, and for the relinquishment, by said company, of its right to use steam power within said city.” This return brings before us for review, the proceedings had to assess certain sums upon the lands of the relators, and the relators claim and insist that the said assessments are illegal, by reason of the unconstitutionality of the law under which said assessments were made. If this act of April 19, 1859, is a valid law, these assessments are legal, and the judgment of the Supreme Court must be affirmed, without reference to the act of March 23, 1860, which authorizes an assignment of the assessments to the Long Island Railroad Company, and the collection thereof by the said company. (Laws 1860, chapter 100.)
The last mentioned act authorized the commissioners, appointed under the act of April 19,1859 (Laws 1859, chapter 454), to assign the assessments made by them, pursuant to the first named act, to the Long Island ¡Railroad Company, or their assigns, provided the latter would receive the same in lieu of money, and in satisfaction of the amount to be paid
The return of the commissioners in this ease shows that an assignment of the assessments to the Brooklyn - and Jamaica Railroad Company, who have succeeded by purchase to all the rights and property of the Long Island Railroad Company has been duly made. It does not appear from the return, that any collector has been appointed, or what, if any, steps have been taken for the collection of the said assessments. I do not deem it very material to inquire into the legality of the provisions of the act of March 23d, 1860, providing for the mode of collecting these assessments, if the assessments as originally made by the commissioners under the act of April 19, 1859, shall be found to be legal and valid.
The authority and direction to assign these assessments contained in the act of 1860, certainly could not invalidate the assessments already legally made by the commissioners under the act of April 19, 1859.
The validity of these assessments are properly before us on this return of the commissioners to the certiorari, and we will proceed to consider them, so far as the return itself presents them. It is proper to observe in this connection, that we cannot go out of the return itself, as that must control as to the facts upon which our judgment must be pronounced.
The return presents no question whether a majority of the owners of land in the district to be assessed, petitioned for the appointment of commissioners or not. These proceedings were had before the Supreme Court, in Special" Term, and that court have decided that a majority had petitioned, and the return of the commissioners affirms that such was the case. There is nothing in the return to show the contrary, and we must assume, therefore, that the order appointing the commissioners was made on the petition supported by a majority of the land owners in the district.
The objection that this act is unconstitutional, because it authorizes the taking of private property for a use not sanctioned by the Constitution, cannot be sustained. The exercise of the right of eminent domain is not in the case. These commissioners were duly authorized to enter into an agreement with this railroad, for the surrender of then’ franchises and road, on condition that the company should be willing to make a contract; and as they were willing, and volun arily entered into the arrangement, they cannot complain. These
Many of the views above expressed, are affirmed in the case of Brewster et al. v. The City of Syracuse (19 N. Y. R., 116), and also in the case of The Town of Guilford v. The Board,
The act relating to local improvements in the city of Brooklyn (Laws 1861, p. 462) does not repeal these acts of 1859 and 1860, under consideration. This act of 1861 applies only to work done by the common council, or under their direction, in the ordinary administration of the municipal affairs of the city. The judgment of the Supreme Court should be affirmed, u
All the judges concurring except Lott, J., who did not vote.
Judgment affirmed.