Hirsohberg, P. J., Jenks, Burr, Rich and Carr, JJ., concurred.
The following is the opinion delivered at Special Term:
KellY, J.:
The petitioner, a property owner on Sixteenth street in the former town of Flatbush, now in the borough of Brooklyn, makes application under the provisions of section 959 of the Greater New York charter (Laws of 1901, chap. 466) for an order reducing the assessment imposed upon his property in this matter by the board of assessors and affirmed' by the board of revision of assessments. He avers that the assessment has been increased by reason of substantial error in the proceedings of the assessors, the alleged error consisting chiefly in the inclusion by the board in the cost of the sewer, of certain items of expenditure for connecting or lateral sewers at points distant from the property of the petitioner.
The sewer which is the subject of the assessment is said to be one of the largest improvements of its kind ever undertaken. It drains practically the entire territory of the old town of Flatbush, as well [37] as parts of the former city of Brooklyn and towns of Flatlands and New Utrecht. It is approximately five or six miles in length, beginning at or near the old line dividing Brooklyn and Flatbush, near Montgomery street, and running diagonally across Flatbush and the border line between New Utrecht and Brooklyn, emptying into New York bay at Sixty-fourth street. The total cost of the improvement to the city was $3,394,108.97.
In apportioning the expense on the property benefited in proportion to the amount of the benefit, as required by'section 434 of the charter, the board of assessors laid out a benefit district comprising over five square miles of territory. Within the bounds of the benefit district were various cemeteries, Prospect Park, and the Parade Grounds, all of which were included by the board in the assessment, with the practical result that nearly five hundred thousand dollars of the assessment is paid by the city. The balance due was assessed upon the private property in the district which the board of assessors deemed benefitéd and in proportion to the amount of benefit deemed by the board to have been received. The action of the board of assessors was deliberate, after hearing the objections of property owners; the reasons actuating them are set forth in their proceedings, and their action has been confirmed by the board of revision. In apportioning the assessment, they divided the benefits • received from the improvement into two classes — direct and indirect. Where property fronted on a street in which a new sewer was constructed, whether the main trunk sewer or a lateral or connecting sewer leading into the trunk sewer, the assessors put such property in the class of property directly benefited and imposed an assessment of three dollars and thirty-eight cents per foot. In some streets where old sewers had previously been laid and new ones substituted, they made an allowance of one dollar per foot, for the old line, making the direct charge in such streets, two dollars and thirty-eight cents per foot. The balance of the cost of the improvement, not raised by assessment for direct benefit, was assessed on the remaining property to the district at the uniform rate of one dollar and ninety cents per one hundred square feet.
The" district assessed, which the assessors deemed benefited, comprised, as has been suggested, some five square miles of territory. It extended all the way down to New York bay. And in consider[38] ing the cost of the improvement, the assessors included not only the expense of building the main trunk sewer, but also the cost of constructing new lateral sewers or replacing old sewers deemed by them to be inadequate, not only in Flatbush in the neighborhood of the petitioner’s property, but all the way to tidewater. They regarded the whole Construction,'trunk sewer and. lateral branches, as one vast undertaking, and all the remaining property in tile district was assessed for-this indirect benefit. Thus the cpst of constructing new lateral sewers or replacing old lateral sewers in the northeast part of Flatbush, and the cost of like construction at the westerly end of the sewer in' Bay Ridge or Flew Utrecht, was all included; the property owner in Flatbush, at the northeast end of the improvement, bore his fro rata of the cost of the lateral construction at the southwest end and, vice versa, the property owner within the improvement district in Bay Ridge, at the southwest end, bore his fro rata of the entire cost.
It is upon the last method of apportioning the cost of the improvement that the petitioner bases his most strenuous complaint of substantial error. He says that his property in Flatbush is in no way benefited by the construction of lateral sewers in Bay Ridge. He ávers that, - in many instances, the property in Flatbush was supplied with what, he says, were adequate sewer facilities before the installation of this new system.. He was satisfied with the old condition. He objects to the assessment for direct benefit at a uniform rate ; he says the old sewer in front' of his property was sufficient for him if it still remains, or if it has been • altered or enlarged he. objects to paying an assessment for, direct benefit at the same rate as a man whose property fronts on the large trunk sewer. He wants the assessment for. direct benefit proportioned to the diameter "of the sewer.' There may be other criticisms on' the detail by which the board of assessors reached their final conclusion. I have care-, fully examined the exhaustive and able brief submitted by the learned counsel for the petitioner, and the cases cited by them, but I am forced to the conclusion that, in this proceeding, the court cannot grant him relief.
The matter,of collecting the expense incurred in-making an improvement of this kind, the.determination of what property shall bear the expense, and the details of apportioning the.assessment are [39] acts legislative iii character. This is not an assessment wliichneeds confirmation by a court, it is an improvement determined upon and originating with the municipal authorities, without. any action by the courts — a matter of legislative policy resting altogether in the discretion of a co-ordinate branch of the government, a policy which the courts cannot legitimately question where it is not inconsistent with the fundamental law of the State. ' When the purpose for which a tax is demanded is not a public purpose, where there is fraud or extravagance or where some essential element in the scheme of taxation is wanting, the court will interfere to protect the citizen ; but simply because a tax may seem unnecessary or even unjust to the judicial mind, constitutes no reason for interference by the courts. The distinction between the two branches of government must be constantly kept in mind. The courts are not a cure-all for the mistakes or bad judgment of elective officials. . The remedy is with the people to elect other officials, not by destroying the limitations between the powers of the different branches of government.
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Hirsohberg, P. J., Jenks, Burr, Rich and Carr, JJ., concurred.
The following is the opinion delivered at Special Term:
KellY, J.:
The petitioner, a property owner on Sixteenth street in the former town of Flatbush, now in the borough of Brooklyn, makes application under the provisions of section 959 of the Greater New York charter (Laws of 1901, chap. 466) for an order reducing the assessment imposed upon his property in this matter by the board of assessors and affirmed' by the board of revision of assessments. He avers that the assessment has been increased by reason of substantial error in the proceedings of the assessors, the alleged error consisting chiefly in the inclusion by the board in the cost of the sewer, of certain items of expenditure for connecting or lateral sewers at points distant from the property of the petitioner.
The sewer which is the subject of the assessment is said to be one of the largest improvements of its kind ever undertaken. It drains practically the entire territory of the old town of Flatbush, as well [37] as parts of the former city of Brooklyn and towns of Flatlands and New Utrecht. It is approximately five or six miles in length, beginning at or near the old line dividing Brooklyn and Flatbush, near Montgomery street, and running diagonally across Flatbush and the border line between New Utrecht and Brooklyn, emptying into New York bay at Sixty-fourth street. The total cost of the improvement to the city was $3,394,108.97.
In apportioning the expense on the property benefited in proportion to the amount of the benefit, as required by'section 434 of the charter, the board of assessors laid out a benefit district comprising over five square miles of territory. Within the bounds of the benefit district were various cemeteries, Prospect Park, and the Parade Grounds, all of which were included by the board in the assessment, with the practical result that nearly five hundred thousand dollars of the assessment is paid by the city. The balance due was assessed upon the private property in the district which the board of assessors deemed benefitéd and in proportion to the amount of benefit deemed by the board to have been received. The action of the board of assessors was deliberate, after hearing the objections of property owners; the reasons actuating them are set forth in their proceedings, and their action has been confirmed by the board of revision. In apportioning the assessment, they divided the benefits • received from the improvement into two classes — direct and indirect. Where property fronted on a street in which a new sewer was constructed, whether the main trunk sewer or a lateral or connecting sewer leading into the trunk sewer, the assessors put such property in the class of property directly benefited and imposed an assessment of three dollars and thirty-eight cents per foot. In some streets where old sewers had previously been laid and new ones substituted, they made an allowance of one dollar per foot, for the old line, making the direct charge in such streets, two dollars and thirty-eight cents per foot. The balance of the cost of the improvement, not raised by assessment for direct benefit, was assessed on the remaining property to the district at the uniform rate of one dollar and ninety cents per one hundred square feet.
The" district assessed, which the assessors deemed benefited, comprised, as has been suggested, some five square miles of territory. It extended all the way down to New York bay. And in consider[38] ing the cost of the improvement, the assessors included not only the expense of building the main trunk sewer, but also the cost of constructing new lateral sewers or replacing old sewers deemed by them to be inadequate, not only in Flatbush in the neighborhood of the petitioner’s property, but all the way to tidewater. They regarded the whole Construction,'trunk sewer and. lateral branches, as one vast undertaking, and all the remaining property in tile district was assessed for-this indirect benefit. Thus the cpst of constructing new lateral sewers or replacing old lateral sewers in the northeast part of Flatbush, and the cost of like construction at the westerly end of the sewer in' Bay Ridge or Flew Utrecht, was all included; the property owner in Flatbush, at the northeast end of the improvement, bore his fro rata of the cost of the lateral construction at the southwest end and, vice versa, the property owner within the improvement district in Bay Ridge, at the southwest end, bore his fro rata of the entire cost.
It is upon the last method of apportioning the cost of the improvement that the petitioner bases his most strenuous complaint of substantial error. He says that his property in Flatbush is in no way benefited by the construction of lateral sewers in Bay Ridge. He ávers that, - in many instances, the property in Flatbush was supplied with what, he says, were adequate sewer facilities before the installation of this new system.. He was satisfied with the old condition. He objects to the assessment for direct benefit at a uniform rate ; he says the old sewer in front' of his property was sufficient for him if it still remains, or if it has been • altered or enlarged he. objects to paying an assessment for, direct benefit at the same rate as a man whose property fronts on the large trunk sewer. He wants the assessment for. direct benefit proportioned to the diameter "of the sewer.' There may be other criticisms on' the detail by which the board of assessors reached their final conclusion. I have care-, fully examined the exhaustive and able brief submitted by the learned counsel for the petitioner, and the cases cited by them, but I am forced to the conclusion that, in this proceeding, the court cannot grant him relief.
The matter,of collecting the expense incurred in-making an improvement of this kind, the.determination of what property shall bear the expense, and the details of apportioning the.assessment are [39] acts legislative iii character. This is not an assessment wliichneeds confirmation by a court, it is an improvement determined upon and originating with the municipal authorities, without. any action by the courts — a matter of legislative policy resting altogether in the discretion of a co-ordinate branch of the government, a policy which the courts cannot legitimately question where it is not inconsistent with the fundamental law of the State. ' When the purpose for which a tax is demanded is not a public purpose, where there is fraud or extravagance or where some essential element in the scheme of taxation is wanting, the court will interfere to protect the citizen ; but simply because a tax may seem unnecessary or even unjust to the judicial mind, constitutes no reason for interference by the courts. The distinction between the two branches of government must be constantly kept in mind. The courts are not a cure-all for the mistakes or bad judgment of elective officials. . The remedy is with the people to elect other officials, not by destroying the limitations between the powers of the different branches of government.
In this case the petitioner does not attempt to question the judgment of the board of assessors in laying out the assessment district. Suppose he did—suppose he honestly thought that instead of five square miles bearing the expense of this sewer a larger area should be included. And suppose a judge might think that an- enterprise of this magnitude might well be charged upon the city at large, could the judicial branch of the government interfere ? One-half of the cost of depressing the steam railroad tracks on Atlantic avenue was placed by the Legislature on the whole city of Brooklyn,