People ex rel. Scott v. Pitt

• Decision Date: 28 January 1902
• Citation: 169 N.Y. 521,62 N.E. 662
• Parties: PEOPLE ex rel. SCOTT v. PITT et al.
• Court: New York Court of Appeals Court of Appeals

169 N.Y. 521

62 N.E. 662

PEOPLE ex rel. SCOTT

v.PITT et al.

Court of Appeals of New York.

Jan. 28, 1902.

Appeal from supreme court, appellate division, Second department.

Certiorari by the people, on the relation of Robert H. Scott, to review an assessment made by William R. Pitt and others, constituting the board of sewer commissioners of the city of New Rochelle. From an order of the appellate division (72 N. Y. Supp. 191) dismissing the writ, the relator appeals. Affirmed.

Bartlett, J., dissenting.

Charles H. Young and J. A. Young, for appellant.

Michael J. Tierney, for respondents.

O'BRIEN, J.

The order from which this appeal was taken dismissed the writ of certiorari procured by the relator to review an assessment for a local improvement, and the order also confirms the assessment. The assessment was imposed as part of the expense of the construction of a sewer in the city of New Rochelle, in a street in front of the relator's property. It appears that, prior to the incorporation of the city by chapter 128 of the Laws of 1899, the then village authorities had projected and mapped out an extensive sewer system, under chapter 311 of the Laws of 1888, and chapter 201 of the Laws of 1889, and other statutes. When the city chater went into effect this system of sewerage had been nearly completed, and the assessment in question was made under the provisions of the city charter. It seems to be admitted that the sewer system projected and planned under the village government was authorized by law, and that the scheme for the imposition of local assessments to defray a portion of the expenses was entirely valid. What the relator claims is that the method of imposing local assessments prescribed by the new charter, under which the assessment in question was made, violates the provision of the constitution which forbids the taking of property without due process of law.

The questions arising upon this appeal must be decided upon the facts as they appear in the relator's petition for the writ, and the return thereto by the municipal authorities. It appears from the allegations of the petition that the proceedings for the construction of the sewer in question could be initiated either by a resolution of the common council or of the city board of health. The board of health passed a resolution declaring the construction of the sewer to be necessary for the protection of the public health, and transmitted the same to the common council, and the latter body thereupon directed the construction of the sewer. In the conduct of the proceedings resulting in the assessment, the various provisions of the charter were strictly complied with; and the assessment is assailed only upon one ground, and that is that the legislature had no power, under the constitution, to enact that section of the charter which provides for the assessment. The provisions of the section of the charter which it is contended is violative of the constitution are as follows: ‘There shall be assessed and levied by the board of sewer commissioners by direct tax or assessment on the property located or fronting on the street, road, lane or alley, through which any sewer may be laid or built, or on property draining therein, for each linear foot of sewers built within said street, road, lane or alley, three dollars and forty cents per linear foot of sewers laid or built under the provisions of this article, and when any sewer shall be completed in any street, road, lane or alley, the commissioners may levy and assess such tax on the property thereon fronting as aforesaid or draining therein; the tax to be assessed one-half on property fronting on each side of such streets, roads, lanes or alleys, per linear foot of said frontage, or on property draining therein; exempting from such tax or assessment property so situated that it cannot connect with or use the sewers for any of the purposes for which said sewers were built.’ It is contended that the legislature had no power to provide for the assessment upon the plaintiff's property of a fixed sum, based upon each linear foot of sewer built in the street in front of his premises, without any opportunity to be heard with respect to the benefits to his property arising from the construction of the sewer, or the justice and equity of the burden imposed. Section 210 of the charter provides for a hearing of the property owners, in the following terms: ‘On the completion by the commission of any area of assessment, and the assessment thereof, the said commissioners shall designate by advertisement once in the official newspapers published in said city a time and place where the said commissioners will meet and hear all persons appearing before them who conceive themselves aggrieved in relation to said assessment, and after such hearing the said commissioners shall make such corrections in the assessment roll as will, in their judgment, render the said assessment roll just and equitable.’ The statute, in terms, provides for a fixed sum per linear foot as the basis of the assessment; that is to say, $3.40 upon the property on both sides of the street through which the sewer is to be constructed. In this case the relator's land was situated on one side of the street, and hence the assessment upon him was at the rate of $1.70 per linear foot. It appears that the total cost of the sewer in front of the relator's premises was $4,087.20, and the assessment imposed was $570,-about 14 per cent. of the actual cost.

It is doubtless true that, while the charter provides for a hearing of the property owner before he is required to pay the tax, the local authorities are not required or empowered to change the basis of the assessment (that is to say, they have no power to make it less than $1.70 per linear foot), and the question is whether a statute imposing a local assessment in this manner to defray a portion of the expense of a public sewer is a valid exercise of legislative power. The whole controversy resolves itself into an inquiry with respect to the power of the legislature, when enacting a city charter, to provide for imposing assessments for local improvements to defray a portion of the cost upon property situated upon the street, in and upon which the improvement is made, according to the frontage or width of the several lots or parcels of land. The power of the legislature to impose the entire cost of the improvement, whatever it may be,-whether regulating, grading, or paving the street itself, or the construction of a sewer therein,-upon some rule or principle of apportionment prescribed in the statute, I assume, cannot be doubted; and hence the power to impose some portion of the cost upon the local property owners must follow as a necessary conclusion, and, unless the legislature is restricted in the choice of methods, it may adopt such rule or principle of apportionment as it determines to be just and equitable. It may select as the basis of the rule or principle of apportionment the assessed value of the several lots, the actual benefits to be derived from the improvement, a fixed percentage of the cost of the work, or a fixed sum per linear foot of the frontage of the parcels of property affected by the improvement. In this case it adopted the principle that $1.70 of the actual cost of a linear foot of the sewer in front of each lot, on each side of the street, should be charged upon the abutting property according to frontage. If it had declared that the property should pay 14 per cent. of the cost of the work in front of the lot, it would amount to practically the same thing, and that...