Moore v. City of Yonkers

• Decision Date: 18 April 1916
• Docket Number: 212.
• Citation: 235 F. 485
• Parties: MOORE v. CITY OF YONKERS.
• Court: U.S. Court of Appeals — Second Circuit

235 F. 485

MOORE v. CITY OF YONKERS.

No. 212.

United States Court of Appeals, Second Circuit.

April 18, 1916

Dunlop & Smith, of New York City (James N. Dunlop and Heber Smith both of New York City, of counsel), for appellant.

Thomas F. Curran, of Yonkers, N.Y., for appellee.

Before COXE and ROGERS, Circuit Judges, and HOUGH, District Judge.

ROGERS Circuit Judge.

This case arises out of special assessments levied by the defendant against certain premises in the city of Yonkers in the state of New York. The action is in form a suit in equity to remove a cloud upon the title to appellant's premises. The alleged cloud consists of two assessments levied in certain proceedings for the laying out, opening and extending of Convent Place from Convent avenue to Palisade avenue in the city aforesaid. It is alleged in the complaint and contended on the trial that, while the proceedings resulting in the assessment were entirely regular on their face nevertheless, the assessment was void as a taking of private property for public use without compensation in contravention of the fourteenth amendment to the Constitution of the United States. The complaint prays for a decree vacating the assessments and enjoining their collection. The court below dismissed the bill for want of equity, but filed no opinion.

In this case the plaintiff was the owner in fee of a parcel of land in the city of Yonkers, lying between Palisade avenue on the west and Park avenue on the east, and fronting on Shonnard Place on the north. The land had a frontage of some 800 feet on Palisade avenue and Park avenue, and of some 440 feet on Shonnard Place. The common council of Yonkers on August 1 1910, adopted a resolution initiating proceedings to open Convent Place between Convent avenue and Palisade avenue. Convent avenue ran parallel with Palisade avenue and Park avenue and was the second avenue east of Park avenue. To do this it was necessary to take a part of the tract of plaintiff's land, and for the portion of his land appropriated for this purpose plaintiff was awarded the sum of $10,203.

The city council adopted an ordinance directing the proper officers to assess the whole cost of the opening of this avenue upon the property included within the boundaries of the district of assessment as fixed by the council; and a portion of the premises designated by the council as deemed to be benefited by the opening of Convent Place included the plaintiff's property as above described. The board of assessors of the city accordingly prepared an assessment roll assessing the entire cost of the proceedings upon the property within the designated district.

This assessment was presented to the council and on November 10, 1913, was confirmed by it, and the various assessments thereupon became liens upon the parcels of land affected thereby. The amount assessed against the property of the plaintiff amounted to $14,175.38, being $6,952.85 on lot 9 and $7,222.53 on lot 10. The aggregate amount of all the assessments on the property within the taxing district was $22,410.17. More than one-half of the whole amount thus fell upon the property of the plaintiff.

The plaintiff claims that the assessments on his premises are in excess of the benefit conferred upon the whole of his premises; that in fixing the limits of the assessing district property has been included which was not benefited, and property excluded which was benefited; that the proceeding is illegal and erroneous, in that it was not made in accordance with the benefit received; that to the extent the assessments exceeded the benefit conferred his property has been taken from him for public use without just compensation and in contravention of the Constitution of the United States.

The plaintiff alleges that on December 27, 1913, 'being ignorant of the fact that said assessment was invalid,' he was compelled to pay and did pay to the defendant under coercion of law $5,250 on account of the assessment on lot 9, and that the balance of the assessment on that lot, $1,702.85, remains unpaid, and is a lien on the lot, and constitutes a cloud upon the title; and he also alleges that he paid $5,250 on account of the assessment on lot 10, and that the balance of that assessment, $1,972.53, is unpaid, and a lien on the premises, and constitutes a cloud on the title. He also alleges that on August 22, 1914, and as soon as he became aware of the illegality of the assessment, he presented to the common council a petition in which he prayed that the council would reverse and correct the assessment roll to make it accord with the benefit conferred on each parcel. His petition for relief was denied.

Thereupon he filed his bill in the court below, asking that the defendant be directed to repay to him so much of the sums received from him as may be found to be in excess of the benefits conferred upon his premises; the assessments to be vacated and set aside in so far as they exceed the benefits received. He also asks an injunction restraining and enjoining the defendant from taking any steps to enforce its lien upon his land, or to collect the amount of the assessment still unpaid.

The Legislature has power to create an assessment district and fix its boundaries, and charge the cost of a local improvement in whole or in part on the property within the defined area, either according to valuation or frontage or superficial area. Instead of exercising the power directly, it may delegate the right to a municipal corporation, and when the power is so delegated the municipal corporation exercises its discretion in determining what property should be included in the assessment district and the extent to which the property therein is benefited.

The question of what territory is to be included in the area to be assessed is legislative, and not judicial. And the action of the Legislature, or of the common council, to which body the legislative discretion may have been delegated, is ordinarily conclusive. Williams v. Eggleston, 170 U.S. 304, 311, 18 Sup.Ct. 617, 42 L.Ed. 1047. But the power of a common council or of a Legislature is not in these matters altogether unlimited. Norwood v. Baker, 172 U.S. 269, 19 Sup.Ct. 187, 43 L.Ed. 443. In Norwood v. Baker the Supreme Court laid down the law respecting assessments as follows:

'In our judgment, the exaction from the owner of private property of the cost of a public improvement in substantial excess of the special benefits accruing to him is, to the extent of such excess, a taking, under the guise of taxation, of private property for public use without compensation. We say 'substantial excess,' because exact equality of taxation is not always attainable, and for that reason the excess of cost over special benefits, unless it be of a material character, ought not to be regarded by a court of equity when its aid is invoked to restrain the enforcement of a special assessment.'

In that case land was taken for street purposes without compensation, and, in addition, the property owner was assessed $218.58 to pay the costs of condemnation proceedings. The court below held that the complainant was deprived of his property without due process of law, and issued a permanent injunction enjoining the village from enforcing the assessment.

In the case at bar the assessment against the complainant's lots aggregated $14,175.38, and exceeded the award made to him by the sum of $3,972.38. In other words, not only was the complainant not compensated by the city for surrendering a strip of land containing more than half an acre, but, on the contrary, was required to pay $3,972.38 for the privilege of giving up his land; and of this sum of $3,972.38 the sum of $1,966.21 was paid in awards to other property owners, who appear to have received a benefit from the street, but who were not required to pay any portion of the expense of the proceeding, as their property was not included in the assessment district. Moreover, the annual assessment of complainant's property the year after the improvement was made and the special assessment was laid was no greater than it was before the improvement was made. The Tax Law of the state requires the assessors each year to assess all the taxable property in their district at its value. The same assessors, therefore, who levied a special assessment of $14,175.38 against complainant's property for benefits created by the improvement, swore nine months later that the value of the property had not increased over its value of a year before. The case is a much more aggravated one than that of Norwood v. Baker, supra. The complainant's expert testified that in his opinion complainant's property was benefited by the opening of the street by an amount some $9,000 less than the assessments levied on the property. The experts of the defendant testified, however, to the contrary, and according to their testimony the plaintiff derived a net benefit of $2,388.48.

As to the assessment district the District Judge was satisfied that there was injustice in fixing its limits, and that property which ought plainly to have been included was left out of it. He said:

'There is no question at all about it, if you take the physical situation that has been described here, the great advantage of opening this street was not to the property through which it was cut, but to those people up there who wanted to get down to the trolley line,' etc.

What was done in Norwood v. Baker and in the case at bar was not a legitimate exercise of the taxing power, but was an act of confiscation of this complainant's property.

The question, however, is whether the courts of the United States can afford the plaintiff the relief which he seeks, in view of the situation in which he stood at the time...