14 N.Y.S. 101 | N.Y. Sup. Ct. | 1891
Section 1 of title 3 of the charter of the city of Buffalo provides that “the city shall hold its corporate meetings for the exercise and performance of its corporate duties and the management of its property and affairs by means of a common council, composed of the aldermen of the several wards of the city, a majority of whom shall constitute a quorum. The legislative power of the city is vested in the common council. ” Section 14 of title 8 is as follows: “Upon the confirmation of the report of the commissioners the common council shall ascertain the amount of money required to pay the compensation awarded and the cost of the proceeding, and shall, when it is not provided in this act that the expenses of the improvement for which such lands were taken shall be assessed upon a certain district, or upon the parcels of land benefited by the improvements, determine whether the whole of such amount, or any part of it, shall be raised by general tax or by local assessment. The amount which is to be raised by general tax shall be included in and raised in the general tax next thereafter to be levied. The amount which is to be raised by local assessment it shall cause to be assessed upon the real estate benefited. ” Section 11, tit. 9, confers power upon the city to construct, maintain, and repair a city hall, markets, public buildings, etc. Section 39, tit. 2, provides that “the assessors shall constitute a board of valuation and assessment, and a majority of them shall constitute a quorum.” Section 1 of title 8 confers power upon the city to take lands for public or corporate purposes. On the 1st day of October, 1888, the common council passed a resolution, of which the following is a copy: “That the common council of the city of Buffalo intends to take the land and property necessary for public market purposes, described as follows: All that certain piece or parcel of land situate in the city of Buffalo, county of Erie, and .state of ZsTew York, bounded and described as follows: Beginning at a point in the easterly line of Michigan street, at its intersection with the southerly line of Fulton street; running thence southerly along the easterly line of Michigan street 302 feet, more or less, to the north line of Elk street; thence easterly at right angles along the northerly line of Elk street 127 feet, more or less, to the westerly line of West Market street; thence northerly and at right angles along the westerly line of West Market street 302 feet, more or less, to the southerly line of Fulton street; thence westerly and at right angles along the southerly line, of Fulton street to the westerly line of Michigan street, the place of beginning; and that the city clerk be, and he is hereby, .directed to cause this notice of such intention to be duly published. ” On the 20th day May, 1889, the common council passed the following resolutions: “Resolved, that the common council has ascertained and hereby determines the amount of money required to pay the compensation awarded in and the costs and expenses of said proceedings to be the sum of $169,097.50; and resolved, that it be and it is hereby determined that one-half of said sum, to-wit, $84,548.75, be raised by general tax, and that one-half of said sum, to-wit, $84,548.75, be raised by local assessment; and resolved, that the board of assessors be, and they are hereby, directed to assess the said sum of $84,548.75 upon the real estate benefited by such improvement, to-wit, the improvement of acquiring
The learned counsel for the appellant insists that the complaint is defective in not clearly stating the grounds upon which the assessment was void. It is well settled that on demurrer all reasonable intendments will be indulged in support of the pleading demurred to. Lorillard v. Clyde, 86 N. Y. 384; Marie v. Garrison, 83 N. Y. 14. The allegations in the complaint were sufficient. Property assessed for local improvements may be sold if the assessments are not paid, and the owner’s title divested. Strict compliance with the law is therefore required. Stebbins v. Kay, 123 N. Y. 31, 25 N. E. Rep. 207; Merritt v. Village of Portchester, 71 N. Y. 309; Angel v. Town of Hume, 17 Hun, 374. Where the board of officers materially depart from the authority delegated, they act without jurisdiction, (Cagwin v. Town of Hancock, 84 N. Y. 532,) and a right of action is vested in the persons injured, (Hassen v. City of Rochester, 65 N. Y. 516.) A ratification of the assessors report by the common council did not render it valid. Danks v. Quackenbush, 3 Denio, 594. The only express power conferred upon assessors is to value and assess property. There is nothing in the charter which confers authority upon them to determine what particular property will be benefited by the improvement. The existence of such power might involve serious consequences. The city of Buffalo, through its council, should determine and specify the property benefited. The board of assessors could then value that property and make the assessment. The mischief of such authority is illustrated in this case, for, in addition to omitting wards and parts of wards proximate to the market, the board refused to assess any of the property of the Eleventh or Twelfth wards for the reason that those wards might be liable thereafter to be assessed for another public market. In taking property the common, council should not be allowed to relieve itself from responsibility by imposing its duties upon the assessors. The learned counsel for the city argues with great earnestness that the board of assessors had power not only to value the property and make the assessment, but also to determine the lands which would be benefited by the improvement, including the proportions, and cites title 6, §S$ 1-3, inclusive, in support of this contention. Section 3 is: “They shall assess the whole amount ordered to be assessed upon the parcels of land benefited by work, act, or improvement in proportion to such benefit, except in those cases in which, by this act, the assessment is to be made upon a different principle; and in those cases they shall make the assessment upon the principle prescribed in each case, pursuant to this act.” It will be observed that this section does not in express words confer power upon the board of assessors to determine the particular property that would be benefited. The section is entirely consistent with the assumption that this power is exclusively vested in the city through its council. The section directs that, the assessment shall be made in proportion to the benefits conferred, but ife
The meaning of the provision, “They shall assess the whole amount ordered fto be assessed upon the parcels of land benefited by the work, act, or improvement in proportion to such benefit,” is not obscure. Abundant caution induced the legislature to compel the assessors to adjudge valuations and impose assessments upon such adjudications; that is, a certain percentage would be imposed upon one piece of property, and so through the list. The assessors, therefore, are commanded to make their assessment upon that basis. If the city is required to make the determination, then its attorney would represent it in protecting the municipality, including its property owners and the citizens affected. Appropriate ordinances would be adopted defining the mode of procedure, and the persons affected would have full opportunity to be heard through counsel or otherwise. Then, when an adjudication was made, showing the parcels to be benefited and the proportions, the result would be put upbn record, and parties deeming themselves aggrieved could resort to legal methods of redress. If errors were committed to the prejudice of the city or of the citizens, relief might be obtained. If, on the other liand, the power rests in the assessors, they have practically arbitrary authority. The dignity of real estate, and tlm caution which must be exercised in transferring title from the owner to another, has its root, in the very nature of things, in the origin of the law and the rights of man, and extends back beyond “the time whereof the memory of man runneth not to the contrary.” Assessors are riot elected on account of their judicial ability, or aptness in the construction of statutes. They are chosen on account of their supposed general knowledge of the value of property. When a tax is general, embracing all the property in the corporation, their duties are very simple. They determine the value and assess on that basis. If injustice is then inflicted, or errors are committed, provisions are made for redress. But if those officers can determine the proportions of benefit without any prescribed methods of procedure or relief, the power vested in them would be absolute and extreme to 4he last degree. They would have more authority than any tribunal in the state or union. It was never the intent of the legislature to confer any such ¡power. It has not been conferred in express terms, and cannot be implied. Jf it has been exercised and acquiesced in, the safety of citizens requires that ¡the question of power should be determined. A rule should be adopted which will alike protect the city and prevent confiscation. In case of omission to pay assessments, the property can be sold, and title vested in a stranger. Where lands are needed for railway or city purposes, the court appoints commissioners. The city is heard through its attorney, and the land-owners have