People ex rel. Davidson v. Gilon

• Decision Date: 14 April 1891
• Citation: 27 N.E. 282,126 N.Y. 147
• Parties: PEOPLE ex rel. DAVIDSON et al. v. GILON et al., Assessors.
• Court: New York Court of Appeals Court of Appeals

126 N.Y. 147

27 N.E. 282

PEOPLE ex rel. DAVIDSON et al.

v.GILON et al., Assessors.

Court of Appeals of New York.

April 14, 1891.

Appeal from supreme court, general term, first department.

D. J. Dean, for appellants.

Truman H. Baldwin, for respondents.

RUGER, C. J.

This is an appeal from a judgment of the general term, in certiorari proceedings, reversing an assessment made by the board of assessors, upon the ground that they omitted to assess the tracks of the New York & Harlem Railroad Company for a share of the expenses incurred in repairing Madison avenue in the city of New York. The proceedings were instituted under the provisions of the Code, and the facts appear in the return made by the board of assessors to the certiorari. It appears therefrom that the relator was the owner of a house and lot on Madison avenue, subject to assessment for the expense of repaving such street, and the railroad company was the owner of a doubletrack surface horse railroad in the same street. The repavement was constructed of granite blocks laid over the face of the entire street, including the space between the railroad tracks. It is claimed by the relator that the railroad was benefited by the improvement, and for that reason should have been assessed for a share of the expense in making it. No evidence was given by him showing the benefit received by the railroad from such improvement, and the case was heard before the general term upon the return of the defendants, certifying that the railroad acquired no benefit by the repavement of the street.

The questions presented are: First, whether the railroad was liable, under the charter, if benefited, to be assessed for the expense of the improvement; and, second, whether the general term was authorized to determine that it was so benefited, and reverse the opposite finding by the board of assessors, and require the imposition of an assessment upon it. The sole authority for making improvements in streets and levying assessments therefor in the city of New York, is found in the provisions of its charter, and unless the power of assessing street railroad companies is conferred thereby, the assessors have no authority to assess such property. The fact that the rails, ties, and tracks of a street surface railroad are property, and subject to taxation generally, affords no sufficient reason for taxing them for street improvements, unless the law has made them specially assessable for such purposes. The scheme of the charter of New York, and of municipal corporations generally, in this state, has been to assess the burdens of street improvements in some form upon the property benefited, and it is upon that theory that such assessments have usually been justified. It cannot be said, we think, as a matter of course, that street railroads are benefited by repavement of the streets through which they are laid, and if they are not so in fact it would be contrary to the general policy of the law to tax them with the expense of such improvements. It is the general custom of municipal corporations, in granting privileges to railroad companies to occupy streets, to impose terms as a condition to the exercise of such right, and such conditions are undoubtedly lawful, and may be enforced in some form for the benefit of the municipal corporation making such grants. These conditions frequently refer to repairs upon the streets, or contributions to the public treasury in lieu thereof, and, when imposed, usually define the right of the corporation to levy taxes, and the limits of the liability of the railroad corporation to pay them. In the case of Gilmore v. City of Utica, 121 N. Y. 561, 24 N. E. Rep. 1009, it was held that the private owners of property fronting on a street in said city, have no vested right or claim de jure that a railroad company lawfully operating its road in the street shall repair or bear the expense of repairing it. In that case the city charter specially authorized the common council to require street railroads to repave between their tracks, and at least two feet on each side thereof, when the common council deemed such repavement necessary; but it was held that this provision was directory merely, and that an assessment upon the lot-owners for the expense of a repavement was not erroneous because it omitted to assess the property of the street railroad therefor. No such provision is contained in the charter of New York, or the law authorizing street railroads therein; and a solution of the first question must, therefore, be found by an examination of the provisions in the charter relating to the powers of the municipal authorities in respect to local improvements and assessments. If the power of making such assessments is not found in the charter, then they do not possess it, for they have no authority on the subject except such as the charter confers upon them. These powers are found in chapter 410, Laws 1882, in the sections herein after referred to, from title 2, headed ‘As sessments for improvements other than opening and closing streets. For what purposes assessments may be imposed, and how.’ Section 865 states that the board of assessors are ‘charged with the duty of making the estimates and assessments required by law for building wells, erecting pumps, pitching, paving, regulating, and repairing streets, relaying pavements, constructing sewers, fencing vacant lots and public slips, and all other improvements directed by corporation ordinance, for which an assessment may be made.’ By section 868 it is provided that ‘all assessments hereafter imposed for local improvements in said city shall be made by the board of assessors' upon certificates of the expense thereof made to it by the head of the department charged with the execution of the work, and of the comptroller, certifying the interest of installments advanced or payments made on account of such work; and continues that ‘thereafter the said board of assessors shall assess upon the property benefited, in the manner authorized by law, the aggregate amount of such certificates.’ By section 878 it is made lawful for the mayor, aldermen, and commonalty to cause street improvements and an estimate of the expense thereof to be made, and a ‘just and equitable assessment thereof among the owners or occupants of all the houses and lots intended to be benefited thereby, in proportion, as nearly as may be, to the advantage each shall be deemed to acquire.’ These provisions are simple and unambiguous, and, if it was deemed desirable for any reason to the description of property liable to assessment for repaving streets, there seems to be no room for a construction which should authorize a departure from the plain signification of the language of the statutes. The owners and occupants of houses and lots are obviously benefited by improvements in the streets on which they reside, and which add to the value of their property, and increase the comfort and convenience of living in such localities, and are therefore properly subjected to the expense of making them. Others may be...