Opinion
Argued June 9, 1875
Decided September 28, 1875
Henry H. Anderson for the appellant. William Barnes for the respondents.
This action was a bill in equity to restrain the collection of an assessment upon plaintiff's lots, situate in the city of New York, under proceedings taken for the widening of Broadway. The proceedings are assailed upon various grounds, which, so far as material to the decision of the case, will be examined and considered.
An objection is made that the final report of the commissioners was signed by only two of them, and that the Constitution of the State requires the concurrence of all three of the commissioners. It appears that one of the commissioners dissented. Article 1, section 7, of the Constitution provides that when private property shall be taken for any public use, the compensation therefor, when "not made by the State, shall be ascertained by a jury or by not less than three commissioners appointed by a court of record as shall be prescribed by law." There is nothing in the section of the Constitution cited which requires the concurrence of all three of the commissioners, and in the absence of any express provision on the subject it is not to be presumed that any intention existed so to provide. If such was the case it would have been expressed in appropriate phraseology. In fact it would be extraordinary and unusual to place the entire control of a commission of this character in the power of a single member, who, perhaps without any reason whatever, or from mere willfulness and perversity, or from an improper motive, might render the entire proceedings nugatory. The authorities are quite uniform that in such cases where, a majority act and all are notified, it is sufficient, and the proceeding is valid. The cases bearing upon the question are examined in the opinion of the General Term upon the appeal from the order confirming the report of the commissioners of assessment in this case, and further discussion is not required. (See 63 Barb., 591, and authorities there cited.)
The plaintiff also relies upon the fact alleged, that the report was made by two of the commissioners without any conference or consultation with the third. It does not appear that it was the fault of the two commissioners who signed the report that the third one did not unite with them. It appears that the commissioner who failed or neglected to sign the report took the oath of office, attended the meetings regularly for several months, charged the same fees as the other commissioners, and put in a dissenting report at the close of the proceeding, thus showing that he claimed to understand the nature of the business in which he was engaged, and had his own particular views in regard to the subject. It is also proven by the clerk of the board that he attended thirty-one of the seventy-six meetings which were actually held, and that notices were sent to him, of every meeting at which he was absent, by special messenger. This evidence is not as positive and direct, perhaps, as to establish actual personal service of notice; but this is not material, as the presumption is that due notice was given to the absent member until a want of notice is affirmatively shown. It was for the party objecting to show the alleged defect. ( In re Anderson, MS. opin. this court, April, 1875.)
60 N.Y., 457.
The court below found that although it was not proved that he was notified as to some of the meetings, including that at which the report was signed, it was not important, as the plaintiff was bound to establish he was not. And as his absence may account for his not being consulted, it is a fair assumption that the fault was with the delinquent commissioner and not with the majority. It was the duty of the dissenting commissioner to be present, to act and advise with his associates, and, if he voluntarily absented himself when he should have been present after notice, it is no ground for assailing the report of those who performed their duty. It would be an encouragement to official neglect of a duty voluntarily assumed, and lead to the most serious consequences, if one of a body of men, appointed to discharge public functions, could by his absence or by refusing to confer with his associates entirely set aside the action of the majority.
It is also urged that the report is from two of the commissioners, one of whom had no jurisdiction to act, his appointment being ex parte and a nullity. The commissioner who did not unite with the majority was appointed to fill a vacancy occasioned by the resignation of one of the commissioners. No provision is made by law for notice in such a case, although it is required upon the original application. (S.L. 1839, chap. 209, § 2; S.L. 1862, chap. 483, § 8.)
Without however discussing the question as to the legality of the appointment of this commissioner, it is sufficient to say that it is too late to raise the question after the report of the commissioners has been confirmed by a competent tribunal, upon the grounds discussed in the opinion of RAPALLO, J., in the case of Dolan v. The Mayor, recently decided in this court. The last remarks are also applicable to the point made, that the omission to give notice of the presentation of the petition, required by section 4 of the act of 1839, was error. As to the last mentioned, as well as the other irregularities discussed, it may also be said that they are cured by the seventh section of chapter 580 of the Laws of 1872. (See also, S.L. 1874, chaps. 312, 313.) The seventh section of the act of 1872 enacts that no assessment "for any local improvement or other public work," shall be vacated or set aside for any "irregularity or technicality," except in cases where fraud shall be shown. This provision is broad and comprehensive and covers entirely all the irregularities which are claimed to exist in the case. There is no such want of authority or jurisdiction in the action, of the commissioners, as would present an exceptional case, which would sanction a disregard of its provisions. The effect of section 7 is, however, sought to be avoided upon the ground that it has no application to proceedings for acquiring title to lands for streets, which it is claimed does not come within the term "local improvements or public works," and which latter phrase means assessments laid after streets are actually opened. This interpretation of the section cited cannot be sustained; and there is no provision in the act itself which thus circumscribes and limits its operation. If a street opening is not a local improvement or a public work, it is difficult to determine what terms are appropriate to define it. It is certainly local in fact, being confined to the corporate boundaries of a city; and cannot be properly said to be a general public improvement, divested entirely of any local characteristics. The property of the locality pays for it, and the citizens mainly enjoy the advantages to be derived from it. That it is a "public work," in which the community are more or less interested, cannot be questioned.
See ante, page 472.
The learned counsel seeks to establish a distinction between proceedings for opening a street (2 Revised Laws of 1813, chap. 86, p. 342, §§ 177-192) and proceedings for regulating, grading and sewering streets (2 R.L. 1813, chap. 86, § 175; S.L. 1861, chap. 308); but there is no such difference as authorizes the conclusion that both of these classes of improvements are not embraced within the terms employed in the seventh section of the act of 1872.
In The matter of Brown, an unreported case in the Supreme Court, cited by the plaintiff's counsel, which arose upon a petition to vacate an assessment under chapter 338, Session Laws of 1858, some doubt is expressed whether a street opening was intended by the term "local improvement," but the question was not decided, and the case must have been disposed of upon another ground. In re Arnold, decided in this court, which was a petition to vacate an assessment for widening a street, it was held that the act of 1858 ( supra) had no application to an assessment made under the provisions of 2 Revised Laws of 1813, 409, as amended by chapter 906, Session Laws of 1862. Considerable stress is laid in the opinion upon section 5 of the act, as showing that it was not intended to include assessments made to pay for lands taken for streets, etc., but the decision does not dispose of the question now considered. In In re Mayer ( 50 N.Y., 504), it is said in the opinion of CHURCH, Ch. J., that the terms "other public works" refer to a class of improvements, and embrace those defined in section 4 of the act of 1872. But there is nothing in the phraseology or terms of the section referred to which would exclude an assessment for a street opening. The provision that bonds authorized under the act of 1852 may be issued in the same manner and with the same effect as if the improvement or work had been ordered to be done by contract, etc., does not militate against the interpretation given. This clause may have full force in its application to such cases without impairing its effect in cases of street openings. The provisions of section 5 of the act in relation to the making, entering and collection of assessments for local improvements may have full force and effect without in any way interfering with the construction already placed upon the seventh section. It is full and sufficiently comprehensive to cover all assessments made, whether completed or otherwise. The opening of a street may be completed as a public improvement or public work when the commissioners have determined lawfully to lay it out. The assessment made and the work to be done follow its completion.
60 N.Y., 26.
The act was, no doubt, intended to meet some existing exigency and to provide a remedy for evils which had existed to a large extent, and which would be perfect, complete and controlling in all cases of assessments. Looking at the intention of the legislature, as we have a right to do in the construction of statutes, it is not to be supposed that the design was to limit and confine the operation and effect of the act to one class of cases alone. If it had meant the grading and regulation of the street alone, it is to be presumed that it would have so read and provided, and not have left it to be inferred, or to be found by a constrained and technical construction, that it was limited in this respect. It provided against any assessment, and there is no reason why assessments for street openings, which comprise no inconsiderable portion of assessments in the city of New York, and are one of the most fruitful sources of contention and litigation in the courts, should be excluded from its operation. Any different interpretation would be adverse to the clear spirit of the law-makers, and render the act ineffectual in guarding against the evils which it was evidently designed to avert. The conclusion is inevitable, that the act in question embraces assessments of the character presented by this case.
The claim that the act of 1872 is unconstitutional is not well founded. The power of the legislature over the subject of taxation is not restrained by any constitutional provision, and assessments for public improvements comprehend a mode of taxation which is under the control of the legislative power. There can be no doubt of the right to hold a lien upon lands for an assessment properly imposed.
Nor is there any force in the point made, that the legislature could not deprive the Superior Court of the power to remove a cloud upon the title of the plaintiff's land.
It may also be observed that the plaintiff has had his day in court, and presents no such case as calls for the interposition of its equitable power to protect his rights.
No other question arises which demands especial consideration. The judgment of the General Term must be affirmed.
All concur; except FOLGER, J., not voting.
Judgment affirmed.