People ex rel. Lehigh Val. Ry. Co. v. City of Buffalo

• Decision Date: 10 December 1895
• Citation: 147 N.Y. 675,42 N.E. 344
• Parties: PEOPLE ex rel. LEHIGH VAL. RY. CO. v. CITY OF BUFFALO.
• Court: New York Court of Appeals Court of Appeals

147 N.Y. 675

42 N.E. 344

PEOPLE ex rel. LEHIGH VAL. RY. CO.

v.CITY OF BUFFALO.

Court of Appeals of New York.

Dec. 10, 1895.

Appeal from supreme court, general term, Fifth department.

Certiorari by the Lehigh Valley Railway Company against the city of Buffalo to review an assessment. From an order of the general term (36 N. Y. Supp. 191) affirming an order for defendant, relator appeals. Affirmed.

Herbert P. Bissell, for appellant.

Frank C. Laughlin, for respondent.

ANDREWS, C. J.

We think the order in this case should be affirmed, and we shall briefly consider some of the questions not referred to in the elaborate opinion of Judge Green at special term.

1. The claim that the district of assessment should have been fixed by the common council, and not by the assessors, depends upon the provisions of the charter. It was competent for the legislature to prescribe the public agency to which this power should be committed. It could have imposed this duty upon the common council, or on a board of commissioners, or on the assessors. Spencer v. Merchant, 100 N. Y. 585, 3 N. E. 682. The charter does not in direct terms declare that the assessors are to determine the district of assessment. But we think this is the clear implication from its provisions. By section 405 of the charter (chapter 105, Laws 1891). the city is authorized to dredge, deepen, and maintain the Buffalo river, and to defray the expense out of the general fund, or by local assessment. Section 143 provides that the common council shall estimate and fix the amount of money to be raised by local assessment. There is no provision that the common council shall fix the assessment district. In the absence of any indication that the assessors or other body should possess this power, it might very well be that it would reside with the common council, under the grant of legislative power. But section 145 declares that the board of assessors shall assess the amount ordered to be assessed for local improvements upon the parcels of land benefited by the work, act, or improvement, in provportion to such benefit. The common council, under the charter, are to determine what local improvements shall be made, and the amount to be locally assessed therefor. But the clear implication from section 145, in the absence of any other charter provision on the subject, is that the assessors are both to fix the district of assessment and distribute the tax. The parties interested are authorized to file objections to the assessment when made, and are entitled to a hearing before the common council, and they have an opportunity in this way of having the common council pass upon the question whether the assessors erred in fixing the assessment district.

2. The order directed that the assessment roll should be returned by the comptroller of the city to the common council to amend or correct the same according to law. The order sending back the assessment to the common council for amendment or correction was based on the finding of the court that the assessment of the relator's property was unauthorized and illegal in so far as it included the portion of its land not abutting on Buffalo river, and lying south of the Buffalo Creek Railroad, which portion, consisting of more than 200 acres of land, was separated by the roadway of the Buffalo Creek Railroad Company from the portion of the relator's land, comprising about 30 acres, abutting on the Buffalo river. The court reached the conclusion that the portion of relator's land south of the Buffalo Creek Railroad was so situated that it could not be benefited by the proposed improvement, and was therefore illegally embraced in the assessment. But the court decided that the 30 acres was properly assessable. There is in the evidence some color for the claim made in behalf of the city that the assessors, in making the assessment, considered not only the benefit to the 30 acres, but included the whole tract in the assessment by inadvertence. It is contended in behalf of the relator that, the council having decided that the assessment was illegal as to the larger portion of the land included therein, it was the duty of the court to court to...