In re Delaware & Hudson Canal Co.

14 N.Y.S. 585, 67 N.Y. Sup. Ct. 204, 37 N.Y. St. Rep. 839, 60 Hun 204, 1891 N.Y. Misc. LEXIS 2414

• Court: New York Supreme Court
• Decided: May 21, 1891
• Status: Published

Opinions

Landon, J.

It was intended by title 11 of the new charter above set forth-to accomplish these results: (1) To prevent for the future the vacation of an assessment because of the failure on the part of the contractor to make strict performance, but to make the contractor ahd his bondsmen liable for his default,, and to reduce the amount of the assessment if justice should require it; (2) to validate and confirm all assessments levied prior to January 15, 1883, as to which no litigation was then pending; (3) to preserve existing remedies as-to such pending litigation; (4) to provide a new remedy for future eases and to abolish the existing remedy as to them; (5) to forbid any remedy as to past assessments declared by the act to be validated and confirmed. The present assessment falls within the class last mentioned. Prior to the enactment of' the statute the existing remedy was by an action in equity to vacate the assessment, or remove the cloud cast by it upon the title. The third section of the title forbids resort to an action in equity for such purpose, but only in respect to assessments thereafter made. It is claimed that the new remedy applies to this case, but it is obvious that the legislature did not suppose any remedy was applicable or could be effectual to invalidate an assessment which, it declared validated. It contemplated three classes of cases: (1) Past assessments in litigation; (2) past assessments not in litigation; (3) future assessments. It preserved existing remedies as to the first class, provided a, new remedy for the third class, and intended to validate and confirm the second class, and thereby dispense with the necessity of any remedy. If the declared validation did in fact validate this assessment, then no reniedy could, avail, and this proceeding would fail. If it did not validate it, since the new remedy is applicable to future assessments, and the previous equitable remedy is neither prohibited as to past cases nor expressly abolished, it still exists. It is simply a failure to apply the new or supersede the old remedy as to past assessments not in litigation January 15, 1883. Where the right exists, if' the remedy is omitted from the statute, it is left to the common law, or, iff that is inadequate, to equity. Broom, Leg. Max. 46; Ewer v. Jones, 2 Salk. 415; Dudley v. Mayhew, 3 N. Y. 9. We do not think the county judge had jurisdiction. But if we assume that the county judge had jurisdiction of the-proceeding, the question is presented whether the first section of title 11 of the new charter, which provides: “And all assessments heretofore levied in. the city of Albany, proceedings to vacate, review, or set aside which were-not pending January 15,1883, are hereby validated and confirmed,”—did validate the assessment in question. If the legislature had the power to validate- and confirm this assessment, then the county judge could not subsequently vacate it. It would be like trying a prisoner for crime after he had been pardoned for its commission. This assessment did not come before the county judge simply as the act of the municipal authorities. It came with the added sanction of what purports to be legislative confirmation. Unless there is-some constitutional restriction, the validating section of the charter did validate this assessment. That the legislature could have originally authorized the proceedings which were taken in this case there is no doubt. Spencer v. Merchant, 100 N. Y. 585, 3 N. E. Rep. 682; Genet v. City of Brooklyn, 99 N. Y. 296, 1 N. E. Rep. 777; In re Van Antwerp, 56 N. Y. 261. The proceedings it could originally authorize it could subsequently ratify. People v. Turner, 117 N. Y. 227, 22 N. E. Rep. 1022; Ensign v. Barse, 107 N. Y. 329, 14 N. E. Rep. 400, and 15 N. E. Rep. 401. The limitation upon the legislative power to impose taxation is that it shall pass no act which shall deprive any person of his property without due process of law. Remsen v. Wheeler, 105 N. Y. 573, 12 N. E. Rep. 564; Stuart v. Palmer, 74 N. Y. 183. The individual has no constitutional right to be heard upon the question whether the law, either state or municipal, directing the imposition of a tax or local assessment, shall be enacted, but'he has a right to be heard as to what proportion of the tax or assessment shall be imposed upon him or his property. Id. It is for the government to determine for what public purposes a tax shall be imposed, and upon what districts or persons; but every individual has a right to be heard with reference to the basis of his own contribution to the public burden. If based upon his property,'what property? and its proportion by value, frontage, benefits received, or otherwise, to the other like property included within the assessment. It therefore follows that it is no objection to the legislative validation of this assessment that the petition for the ordinance for the improvement was insufficiently signed. The legislature could have dispensed with the petition in the first instance, and therefore could validate an assessment based upon an imperfect one. In the town-bonding cases for aid ■to railroads it was held that the consent of the towns, or of any portion of the tax-payers thereof, was not a necessary condition precedent to the legislative ■power to authorize the issue of the bonds, and to provide for their payment. Hence bonds issued without the consent required by the original statutes were validated. People v. Mitchell, 35 N. Y. 551; Town of Duanesburgh v. Jenkins, 57 N. Y. 177; Williams v. Town of Duanesburgh, 66 N. Y. 129.

Most of the objections above specified in the petition under which this proceeding was instituted were mere irregularities which it was competent for the legislature to cure. It is objected that if under the statute then existing the proper jurisdictional steps were not taken, the common council had no jurisdiction, and all subsequent proceedings were void. Such an objection would no doubt be valid if there were no validating statute; but the ample jurisdiction of the legislature over the whole subject of taxation enables it to make •and impose by its own statutory command a complete assessment, save only in the respect of providing that the individual shall be heard by the proper authority with respect to its apportionment. Spencer v. Merchant, supra. The defect in the jurisdiction of the common council, if any, becomes immaterial when the legislature assumes within its constitutional limitations jurisdiction of the entire matter. It is for the same reason unnecessary to inquire whether chapter 77 of the Laws of 1870, under which the assessment was ■made, was constitutional. An assault upon that act does not touch the validating act if it is free from the like objection. The statute did not require that the work should be let to the lowest bidder. We do not hold that the legislature could ratify a tax or assessment which, in addition to the sums •necessary for the public purpose, concealed a gratuity to individuals, or a fraudulentincrease for private or official plunder, for as to such excess the individual tax-payer would be deprived of his property without due process of law; but the evidence does not show that the sum proper to be levied was increased by such an unlawful increment. It does show that the contract was not awarded to the lowest bidder. That fact might create suspicion, but it is consistent also with honest action. Something more is needed to justify a finding of fraudulent addition. The notice of the apportionment is criticised, not that it was •deceptive or misleading, but that it was not published for 15 full days, in literal compliance with the terms of the statute. The legislature could have authorized its publication.for less than 15 days, and hence its ratification is. effective. A sewer was embraced in the improvement. The charter did not require the same steps to be taken to confer jurisdiction to construct sewers, as to pave streets. Its expense was apportioned at the same time as that for the paving, etc., and the notice of the apportionment was “of the expense for paving, grading, draining, etc., South Pearl street,” etc. We perceive no. objection to the notice or apportionment which is beyond the cure of the stat-ute. The order and decree must be reversed, with costs, and the proceeding-dismissed with costs in the court below. There are 38 other cases dependent upon this one. We reverse the orders and decree of the court below in each, case, and dismiss the proceeding, without costs.

Mayham, J., concurs.