97 N.Y.S. 795 | N.Y. App. Div. | 1906
Lead Opinion
The relators seek to have reviewed by certiorari the validity of a local assessment for constructing a sewer in the street which their lands adjoin. The primary question involved in this controversy is whether, in making their determination, any rule of law was violated by the assessors to the prejudice of the relators. We think this has not been made to appear. The lands of the relators are on the westerly side of the street. They are considerably higher than
It is not claimed that the officers of the city in constructing this sewer did not proceed as the charter
By subdivision 2 of section 99 of .the charter (Laws of 18.62, chap. 18, ás amd. by Haws of 1894, chap. 437) it is .provided that, as regards work of this character, the expense thereof shall be assessed
It is contended that in making the assessment the assessors departed from this rule. The objection is now made that the assessment was made upon the foot-frontage basis and not according to what the improvement actually benefited the relators’ lands, although the specific objection was not made to either the assessors or the common council that the assessment was wrong because made upon the foot-frontage basis. It was contended there" that this sewer was no benefit to the lands on the west side of the street, or as it is put in the objections filed with the city clerk, “ That the property on the west side of the street is certainly not benefited to anything like the extent that the property on the east side of the street is by this sewer, and should not pay at same rate as the property on the east side of the street. But, notwithstanding this the assessment is at the same rate on both sides of the street.” Assuming, however, that the objections are sufficient to raise the question, we still think that the relators have failed to establish that the assessors' departed from the rule laid down in the charter for making assessments of this character. By computation it appears that the assessment is at a uniform rate according to the frontage of the respective premises taxed, but this alone is not sufficient to condemn the assessment, for it may still correctly represent the proportionate benefit of the improvement to each lot (People ex rel. Scott v. Pitt, 169 N. Y. 521; City of Ithaca v. Babcock, 72 App. Div. 260; Donovan v. City of Oswego, 90 id. 397, 401), and this . holds good as to premises on either side of the street, for the assessors expressly state in their return that the sewer is laid for the benefit to the property equally on both sides of the street, and for the purpose of this review the return must be taken as true.
While there are other circumstances which might lead to a contrary conclusion, yet it is a question of fact for the assessors involving their judgment and discretion and not reviewable here. (O'Reilley v. City of Kingston, 114 N. Y. 439, 448; Le Roy v. Mayor, etc., of N. Y., 20 Johns. 439.)
The cases relied upon by the relators we think do not apply. It appeared in those cases from the physical situation and undisputed facts, that the local improvement was of no benefit to the lands assessed, as in the Dunkirk case, where it appeared that the lands were so low that they could not be drained into the 'sewer. (Clark v. Village of Dunkirk, 12 Hun, 188.) Such is not this case. It cannot be said that this sewer is no benefit, and the amount or extent of its benefit to the relators’ lands was a question for the assessors. They saw the premises, knew their precise location, area, depth of lots, the extent of the improvements, the relative value of the lots on the west side, which are on high ground as compared with those on the low ground on the east side, the condition of the old sewer, the service and added value of the new sewer to these lands and other circumstances, which we cannot know, and regarding which the record is silent:
The objection is also made by the defendants that the writ of certioiari will not lie to review the determination of the assessors for the reason that their determination after the review by the common council is made final and conclusive by the express provisions of the charter and the act creating the board of assessors (People ex rel. Schuylerville & U. H. R. R. Co. v. Betts, 55 N. Y. 600; People ex rel. Rothschild v. Muh, 101 App. Div. 423), but upon that we express no opinion. We rest our decision upon the ground that the relators have not shown .that the assessors violated any rule of law in making their assessment prejudicial to their rights. This they are required to establish to successfully attack its validity.
The writ of certiorari must be dismissed, and" the assessment confirmed, with fifty dollars costs and disbursements.
. All concurred, except McLennan, P. J., and Hash, J., who dissented in an opinion by McLennan, P. J.
See Laws of 1862, chap. 18, § 99, as amd. by Laws of 1894, chap. 437.— [Rep.
Dissenting Opinion
(dissenting):
' The sole question presented by this appeal is, was the tax imposed upon the relators on Account of the cost incurred in the construction of the sewer in question levied “ upon the lands benefited by the .local improvement in proportion to such benefit?” If not, the tax was erroneous and its collection should be restrained.
The facts are not in dispute. The relators are owners of real property situate upon the westerly side of South Hamilton street in the city of Utica, ÍL Y., which street extends along the side of a hill in such manner that the lots of the relators and others similarly situated are considerably higher than the property abutting upon the easterly side of the street. About the year 1871 the city of Utica caused a twelve-inch sewer to be constructed upon the westerly side of said street, in front of relators’property, connected it with its general sewer system, and the relators immediately connected therewith and ever since have continued to use the same, which is in perfect repair and at all times has been adequate and sufficient for their purposes and fully accommodates their property and all other similarly situated and abutting upon the westerly side of said street. The entire cost of the sewer so constructed was assessed upon the property of and paid for by the relators or their grantors, for the reason that the property upon the opposite side of the street, it being so much lower, could not be drained into it. Thereafter and in the year 1904 the city of Utica duly authorized the construction of a sewer upon the easterly side of South Hamilton street, to be laid at such depth as to. furnish sewer facilities to those residing upon that side of the street, and also in such manner that it could be used by the relators if they desired to incur the expense of connecting therewith and were willing to abandon the sewer which they had fully paid for and which was in every way as suitable for their purposes as the new s'ewer, and even more convenient, because connections with it could be made at much less expense.
The new sewer so authorized was constructed in the manner indicated, but the connections of the relators with the old sewer were left intact and their sewage and drainage was in all respects properly cared for as before. To raise the money with which to pay for the new sewer the defendants' ascertained the entire cost of the same, the number of feet front of property abutting upon both
The method adopted by the defendants to ascertain the amount of the tax which should be levied against the relators’ property-respectively, most conclusively shows that such tax was not levied “ in proportion to such benefit,” but upon the front-foot principle, and without considering the benefit to ■ any particular owner of property. The statement in the return “ that said sewer as laid’ is a benefit to the' property owners equally upon both sides of the street,” which is simply a conclusion of law'or an expression of an opinion, ought not to be regarded as in any manner, establishing the proposition, in view of the conceded facts. Any claim that the tax which is complained of xvas levied “ upon the lands benefited by the local-improvement (the new sewer) in proportion to-such " benefit ” it seems to me is absurd in the extreme. As we have seen, the relators had a perfect sewer, which they had paid for, which was -suitable and adequate for their- use, as good and evén more convenient for them than the new sewer. And yet it is said that the construction of such new sewer Was of precisely the same benefit to their property as to the property, a'cross the street,- which had no sewer facilities and which was, in urgérít need, of same.
We will assume that the Legislature has the power to authorize the perpetration of even such a palpable-in justice. Practically it has been thus held in the pavement cases, so called, where the front-'foot method of assessment has been upheld. We,-however, venture to suggest that no such injustice has ever been sanctioned by the courts, except in obedience to legislative mandate. In the case at" bar the Legislature, as we think; instead of authorizing, has precluded, the adoption of the frontifoot principle, in fixing the amount óf ah assessment like the one in question.
The act creating the board of assessors of the city of Utica (the
The provisions of the statutes referred to clearly indicate, as it seems to me, that the defendants in the case of the construction of a sewer, were required to exercise their judgment, and in the other cases, only their mathemati.cal skill.
In tlie case at bar it is evident, is established beyond controversy, that the defendants failed to exercise the first function, but relied upon their ability to properly solve the mathematical problem which they were directed to solve by the Legislature in case the local
There ought not to be given undue significance to the statement in the return of the defendants that said sewer “ as laid is a benefit to the property owners equally upon both sides of the street,” when, as it appears, such proposition is wholly and entirely refuted by the conceded facts. After all has been said, we come back to the proposition, was the construction of the new sewer, which, we must assume, was required and needed by the property owners abutting upon the east side of South Hamilton street, only worth to them the same price per front foot as such sewer was worth to the property owners abutting upon the westerly side of said street, who already had a sewer of practically the same character, which was. adequate ■ and suitable for their purposes, and which was connected with the general sewer system of the city ? If not, then the tax complained of was illegal, because, as pointed out, there was in existence no legislative mandate which authorized the same or such injustice. If the contention of the defendants is correct, may they not insist that even a third sewer may be constructed in South Hamilton street for the sole accommodation of the owner of some particular piece of property which is at a much lower grade than any of the rest, and then declare that the cost of such sewer, if constructed so as to accommodate all, should be levied equally, upon the owners of property abutting upon each side of'said street, according to the number of front feet owned by them respectively ? As before suggested, we think the proposition is absurd, has no support in reason or in law, except where the Legislature has seen fit to authorize such iniquity, which it has not done in this case.
We conclude that the assessment or reassessment made by the defendants was made upon a wrong principle and 'contrary to the uncontradicted facts, and, therefore, should be annulled and declared void as to the relators, with costs.
Hash, J., concurred.
Writ of certiorari dismissed and assessment confirmed, with fifty dollars costs and disbursements. . . ■ . .
