Long Island R. Co. v. Hylan

• Decision Date: 05 May 1925
• Citation: 148 N.E. 189,240 N.Y. 199
• Parties: LONG ISLAND R. CO. v. HYLAN, Mayor, et al.
• Court: New York Court of Appeals Court of Appeals

240 N.Y. 199

148 N.E. 189

LONG ISLAND R. CO.

v.HYLAN, Mayor, et al.

Court of Appeals of New York.

May 5, 1925.

In the matter of the application of the Long Island Railroad Company for a certiorari order against John F. Hylan, Mayor, and others, constituting Board of Estimate and Apportionment of the City of New York, to review determination of Board in the matter of opening Archer Avenue, Borough of Queens. From order of Appellate Division (210 App. Div. 761, 206 N. Y. S. 239) sustaining writ of certiorari and annulling determination of Board, the City of New York appeals.

Orders reversed, and application for certiorari denied.Appeal from Supreme Court, Appellate Division, First Department.

George P. Nicholson, Corporation Counsel, of New York City (Joel J. Squier and William B. R. Faber, both of New Pork City, of counsel), for appellants.

Alfred A. Gardner and Joseph F. Keany, both of New York City, for respondent.

LEHMAN, J.

On or about March 31, 1922, the board of estimate and apportionment of the city of New York, assuming to act under and pursuant to powers conferred upon it by the provisions of section 970 of the Greater New York Charter (Laws 1901, c. 466), adopted a resolution which authorized proceedings for the acquisition by the city of New York of the title to the real property required for the ‘opening and extending of Archer avenue from Sutphin boulevard to New York boulevard.’ In that resolution it was provided, among other things, that ‘the compensation to be made to the owners of the real property to be acquired shall be ascertained and determined by the Supreme Court without a jury,’ and that the whole cost and expense of the proceedings ‘shall be assessed upon the property within the areas of assessment hereinafter determined.’ The area of assessment, fixed in the resolution, comprised only the right of way of the Long Island Railroad Company. Thereafter the Long Island Railroad Company, upon a petition which alleged that ‘the action of the board of estimate and apportionment in creating said area of assessment is illegal, void, palpably arbitrary and is a plain abuse of power,’ obtained from the Supreme Court an order of certiorari to review the action of the board of estimate and apportionment in adopting the resolution and fixing the area of assessment. Upon the hearing, after return made by the board of estimate and apportionment, the Appellate Division ordered that ‘the said certiorari order be and the same hereby is sustained, and that the determination of the respondents hereby reviewed be and the same hereby is in all things annulled.’

[1] The Legislature has provided in section 970 of the Greater New York Charter that ‘the real property benefited by the improvement may be assessed for the benefit and advantage derived therefrom.’ The cost of the improvement must be assessed by the court ‘upon such real property as the board of estimate and apportionment may deem to be benefited thereby.’ There can be no doubt that ordinarily the courts of this state will not by writ or order of certiorari review action taken by a local governmental body in fixing an area of assessment pursuant to authority delegated to it by the Legislature. Whatever may have been the earlier practice, at least since the case of Matter of Mount Morris Square, 2 Hill, 14, the courts have refused to issue a writ directed to such body to review such action. In considering a somewhat similar application, this court has stated in People ex rel. Trustees of Village of Jamaica v. Board of Supervisors of Queens County, 131 N. Y. 468, 471,30 N. E. 488, 489:

‘When the action of a public officer, or of a public body, is merely legislative, executive or administrative, although it may involve the exercise of discretion, it cannot be reviewed by certiorari; and so it has been so often held that the rule has become elementary’-citing People v. Mayor, etc., of New York, 2 Hill, 9; Matter of Mount Morris Square, 2 Hill, 14, and other cases.

Further discussion or a multiplication of authority for a rule which has long been regarded in this state as elementary would serve no useful purpose. Even though in the case under consideration the courts below have granted the order of certiorari and have assumed a right to review the action of the board of estimate and apportionment, they have not done so in disregard of the rule. They recognize its existence, but have held that it does not apply under the extraordinary circumstances of this case.

[2][3][4] Undoubtedly the circumstances of this case are extraordinary. The board of estimate and apportionment has assumed to assess the entire cost of a public improvementupon the right of way of a railroad company though, as a matter of law, a railroad right of way can derive no benefit from such an improvement. New York, N. H. & H. R. Co. v. Village of Port Chester, 149 App. Div. 893, 134 N. Y. S. 883, affirmed 210 N. Y. 600,¹Matter of City of New York (Juniper Ave.) 233 N. Y. 387, 135 N. E. 825 Though the power to determine the incidence of an assessment for benefit is part of the taxing power of the state (People v. Mayor, etc., of City of Brooklyn, 4 N. Y. 419, 55 Am. Dec. 266), and the exercise of that power, under delegation from the Legislature, constitutes legislative action and as such is not subject to review by the court ( Matter of Baldwin Street in City of Rochester, 169 App. Div. 128, 154 N. Y. S. 728, affirmed 218 N. Y. 636, 112 N. E. 1053), yet such action by the board of estimate and apportionment is void whenever it transcends the powers which have been delegated to it. It is clear that the local board has no power to assess for benefit through a public improvement any property which as a matter of law can derive no benefit from it. The Legislature should not be deemed to have intended to grant such power, if indeed it could do so without violation of the Constitution. N. Y., N. H. & H. R. R. Co. v. Village of Port Chester, supra. Discrimination in taxation which is palpable and arbitrary amounts to a denial of the equal protection of the law, and even a statute enacted by the Legislature providing for such discrimination is void. Norwood v. Baker, 172 U. S. 269, 19 S. Ct. 187, 43 L. Ed. 443,Kansas City Southern R. Co. v. Road Imp. Dist. No. 6, of Little River County, 256 U. S. 658, 41 S. Ct. 604, 65 L. Ed. 1151. The resolution itself shows that the board of estimate and apportionment did not base its action solely upon the power delegated by the Legislature; for the resolution recites that the entire cost of the street opening is imposed upon the railroad right of way ‘pursuant to the terms of the agreement between the city of New York and the Long Island Railroad Company dated July 21, 1911.’ It was because the attempted action of the board of estimate and apportionment is based at least in part upon its conclusion that it could properly take such action under the provisions of a written contract that the Special Term granted the order of certiorari, and it was because the Appellate Division held upon the return that the provisions of the contract did not justify this action that it vacated the determination.¹

[5] We agree fully with the Appellate Division that the board of estimate had no power under the charter and derived no...