49 N.Y. 587 | NY | 1872
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *589
Conceding that the purchase and use for which the lands of the relators were authorized to be taken and occupied by chapter 774 of the Laws of 1867 was a public use, and such as authorized the exercise of the sovereign right of eminent domain, the lands could only be taken or appropriated in invitum upon just compensation to the owner. (Const., art. 1, § 6.) Although the occupancy and use of the lands for the purpose of constructing and maintaining a ditch for the draining of the low lands upon its borders did not deprive the owner of the fee and gave the public but an easement, it was such an interference with the proprietary interests of the owner as entitled him to the just compensation made necessary by the Constitution as a condition precedent to the taking of private property for public use. It was the imposition of a burden upon the lands, subjecting them to an easement in behalf of the public derogatory to the rights of the proprietor, and depriving him of the full and free enjoyment of them. (Williams v. N.Y.C.R.R. Co.,
It was suggested that they might hereafter proceed to acquire the title to the easement, and make a second assessment for that. It is a sufficient answer to say, that the power *593 to make an assessment is not a continuing power, but simply an authority to perform a single act, and once exercised it is exhausted. It becomes functus officio. (Sherman v. Boyce, 15 J.R., 443, per PLATT, J.) Having completed the work and made the assessment, they ceased to be commissioners for any purpose, even to review their own work and correct their own errors. Conceding this assessment to be valid and the authority well exercised, the power was exhausted and its exercise could not be repeated and no proceedings could be taken under the act to secure a title to the easement. Whether the commissioners could, the present assessment being vacated, proceed to acquire the title and then make a new assessment may be questionable, but need not now be considered. (Strachey v. Turley, 11 East., 194, per Lord ELLENBOROUGH, C.J.) Another and a sufficient answer to the suggestion, so far as it is invoked to uphold this assessment and the action of the commissioners in making it and the supervisors in enforcing its collection is, that the law does not authorize the making of an assessment for the costs and expenses incurred in the doing of a work and the construction of ditches in which the actors were trespassers. It is only for an improvement lawfully made that an assessment can be lawfully levied. It is only for work done and expenses incurred as authorized by law, that the property of the citizen can be taxed.The People v. Nearing (supra) is cited as authority for the proposition that an assessment can be made upon property for the benefits resulting from a trespass upon individual property. If the case goes this length it cannot be sustained upon any principle. It is very well settled, and so well established that no departure from the rule would be tolerated, that to authorize the taking or the appropriation of the property of the citizen, or the imposition of any burden upon him or his property by officers of a special or limited jurisdiction, the statute authorizing it, the power conferred must be strictly pursued. If the officer so far departs from the statutory power and the directions for its exercise as to become a trespasser, he necessarily loses the protection of the statute, and *594 cannot charge the burthen of his acts upon the citizen. In such case there would be no substantial compliance with the act granting the power to tax property, which in all cases is a condition precedent to the right of taxation by public officers. It would seem that four of the eight judges of the court were of the opinion that the act under which the commissioners acted in entering upon property making ditches and assessing the cost upon the property benefited was unconstitutional, and yet the proceedings of the commissioners were affirmed. I can discern no sufficient reason for this judgment, except as it may be found in the enabling act of 1860 (chap. 258) which authorizes a new assessment to be made for the work done under the original act of 1858, and that the assessment was regarded as the proper exercise of the taxing power by the legislature.
There has been no such enabling act passed in respect to this assessment, and it is not therefore necessary to consider how far or to what extent the case cited would be followed as an authority in a case in all respects like it in circumstances. This assessment cannot be sustained upon any principle or upon the authority of any well considered case.
The judgment of the Supreme Court and the assessment of the commissioners and all proceedings under it must be reversed.
All concur.
Ordered accordingly. *595