Sage v. . City of Brooklyn

Andbews, Gh. J. The legislature by chapter 631, Laws of 1868, widened Sackett street in the city of Brooklyn, to the width of two hundred and ten feet. The commissioners of *194 Prospect Park were directed by the act to take proceedings within sixty days after its passage, to open, grade and otherwise improve the street, and for the purpose of determining the amount to be paid to the land-owners for the lands required for the improvement, to apply to the court upon notice to be personally served on the counsel of the city, and to be also published for ten days in the corporation newspaper, for the appointment of commissioners to estimate the expense of the improvement and -the damages of the land-owners, and to apportion and assess the same upon the property benefited within the district of assessment to be fixed by the park commissioners. (§§ 4, 5, 10.) The commissioners of estimate and assessment awarded to the plaintiffs for their lands within the limits of the widened street the sum of $7,125, and the award was duly confirmed February 28,1870. The improvement was completed in 1873, and the street so widened and improved, forming a broad avenue bordering on Prospect Park, has since that year been open to public use. The plaintiffs have never been paid their award. The aggregate amount of awards made for lands taken for the improvement was $334,000, which was assessed upon the lands within the assessment district. The sum of about $280,000 was collected and paid into the city- treasury, and was paid out by the comptroller as claims were presented until the fund was exhausted. The balance of the assessment has not been collected. The lands assessed on which the • assessments are unpaid, have been offered for sale by the city, but by reason of the accumulations of assessments thereon beyond their value, there were no bidders, and this resource for the payment of awards is practically valueless. The plaintiffs presented their claim to the comptroller of the city for payment, but payment was refused on the ground that the amount collected had been paid out to claimants who had presented their claims before the presentation of the claim of the plaintiffs. This action was subsequently brought to recover the award, as a debt owing by the defendant. The city denies its liability, and asserts that it owes no duty to pay the plaintiffs for their lands; that the *195 widening of Saekett street was a State, and not a municipal improvement, and that the only special relation which the city sustained to the award, grew out of the fact that the State for its convenience availed itself of certain existing municipal agencies to collect and pay over the assessments to the parties entitled to payment. This contention, if well founded, substantially deprives the plaintiffs of any remedy. It is not claimed that the State assumed any liability under the act of 1868. The act charged the expense of the improvement upon a limited assessment district, and it turns out that the property therein is inadequate, or cannot be sold to pay the assessments in full. If no immediate or ultimate duty is imposed on the city to pay the awards, or make good any deficiencies in the assessment fund, then we repeat the plaintiffs are without remedy to recover their award. The position of the city, if sustained, leads to the inevitable conclusion that the lands of the plaintiffs were never lawfully taken for the improvement, that their title has never been divested, and that they may now enter upon and reclaim the exclusive possession of the lands of which they have been deprived. It is so axiomatic, that it is laid up as one of the principles of government, that a provision for compensation is an indispensable attendant upon the due and constitutional exercise of the power of depriving an individual of his property under the right of eminent domain. (Gardner v. Village of Newburgh, 2 Johns. Ch. 168.) The courts in construing the constitutional guaranty, have departed from what may seem its plain' and natural meaning, and have held that the payment for property taken in invitum for public use, need not be concurrent with the taking, but that it is sufficient if the law authorizing the taking, also provides a sure, sufficient and convenient remedy by which the owner can subsequently coerce payment by legal projoedings. If such provision is not made, then, as was said by Nelson, Oh. J., <c the law making the appropriation is no better than blank paper.” (People ex rel. Utley v. Hayden, 6 Hill, 359.) It is, I think, a plain proposition, that a law authorizing the *196 taking of a man’s land, and remitting him for his sole remed; for compensation to a fund to be obtained by taxation of cer tain specified lands in a limited district, according to benefits ■is not a sure and adequate provision, dependent upon no “ haz ard, casualty or contingency whatever,” such as law and justic require to meet the constitutional requirement. The pledg of the faith and credit of the State, or of one of its política divisions, for the payment of the property owner, accompaniet with practical and available provisions for securing the appli cation of the public faith and credit to the discharge of th constitutional obligation of payment, has been held to be certain and sufficient remedy within the law. But a remed; for compensation, contingent upon the realization of a fun< from taxation for benefits within a limited assessment district does not meet the constitutional requirement. The inadequac; of such a provision finds in the circumstances of this case ampl illustration. (See Chapman v. Gates, 54 N. Y. 146.) In coming to the inquiry whether the city of Brooklyn i charged with the duty of paying the awards for the open ing of Saekett street, we are to bear in mind that all acts o the legislature are judicially construed to be within constitn tional limitation if susceptible of a construction which wouli make them so, and that “the court, if possible, must give statute such a construction as will enable it to have effect/ (Cooley’s Const. Lim. 184.) This is but a corollary from th principle asserted by Mr. Justice Washington in Ogden v Saunders (12 Wheat. 270), and frequently repeated in subse quent cases, that “ it is but decent respect due to the wisdom the integrity and the patriotism of the legislative body, b; which any' law is passed, to presume in favor of its validit; until its violation of the Constitution is proved beyond al reasonable doubt.” The legislature, in passing the act for th opening of Saekett street, intended to make a valid and efiecl ive law, and we may reasonably expect to find provision therein which shall make it accord with the Constitution. The claim that the opening and widening of Saekett street i a State, as distinguished from a municipal improvement, is oj *197 )osed to the inferences flowing from the nature and object of he improvement, its connection with the system of parks in Brooklyn (of which it is an adjunct) and from the provisions )f the act itself. The State, it is true, took the lands required 'or the widening of Sackett street by direct legislative enactnent (§ 1). It also committed to the park commissioners the nitiation of the proceedings for opening the street, investing hem, for that purpose, with the powers which, under the gennal law relating to street openings in Brooklyn, are conferred ipon the common council (§§ 4, 5). The act also placed the street, when opened, under the exclusive control and managenent of the park commissioners (§ 11).' But these provisions ire not inconsistent with the theory that the opening of Sackett street was a city improvement. The same features are found in the Prospect Park Act of April 17, 1860. The legislature, in that act, declared certain designated lands “to be a public place to be .known as Prospect Park” (§ 1); the park was placed under the exclusive control and management of the park commissioners (§§ 16, 18), and by the third section it is declared that the lands “ shall be deemed to have been taken by said city of Brooklyn for public use.” By other provisions the city was to be vested with the fee of the lands taken, upon payment being made therefor. A municipal corporation is the creature of the State, deriving its public faculties and political powerg from the legislature. The legislature may, in place of remitting the question to the discretion of the city authorities, prescribe what local improvements shall be made, and create special agencies for their execution. It is not required to commit their execution to the ordinary representatives of the municipal body; and it may charge the expense of such improvements upon the locality. It does not, therefore, go far toward establishing the claim that a street improvement within a city is a State and not a municipal work, to show that it was directed by the legislature, and that its execution was committed to special agents appointed by the legislative act. In the case of Sackett street, the improvement was not one in which the State at large was specially interested, nor did the State assume *198 the burden of the expense. The people at large were interested in the same sense and no other, that they are interested in the opening of every highway within the State. But the improvement was peculiarly for the local convenience and advantage of the city of Brooklyn. When the act of 1868 was passed, Sackett street was designatéd on the commissioners’ map of the city as one of the city streets. The improvement to be made was limited territorially to the city. The unusual width of the proposed avenue was fixed, as may be inferred, not because the accommodation of public travel required so wide a street, but because it was supposed that a wide avenue, set with trees and otherwise improved, would enhance the beauty and attractiveness of the city, and promote the pleasure and comfort of its citizens. The improvement was, as we have said, a part of the park system, and it wras with great propriety placed under the control of 'the park commissioners. That the improvement of Sackett street was regarded by the legislature as a city and not a State improvement also plainly appears from the supplementary act, chapter 592, Laws of 1873. The park commissioners were by that act authorized and directed to improve Sackett street by grading, paving, planting shade trees, constructing carriage-ways, etc., and, by the fourth section, the city was required to issue its bonds for the purpose of raising money to pay the expense of the improvement, and the money collected on assessments was directed to be paid to the commissioners of the sinking fund, for the redemption of the bonds. We think then there can be no doubt that the widening and improvement of Sackett street was a local, municipal improvement, as completely as if it had been primarily undertaken by the city under the general powers conferred by the charter. It remains to consider whether the statute of 1868 imposed upon the city the primary or ultimate duty of paying the landowners for the land taken for the street; for we think it must be admitted upon the doctrine of McCullough v. The Mayor, etc. (23 Wend. 458), that unless the statute imposes the duty it cannot be implied from the mere fact of the taking of the *199 land for a city street. The authority to take, and the duty of the corporation to pay for the land taken, depend upon positive law. The authority to take will be ineffectual unless accompanied with proper provisions for payment, but the duty of the corporation to pay the land-owners must be found in the affirmative prescriptions or reasonable intendments of the statute. But we think the obligation of payment was imposed on the city. The seventh section of the act of 1868 makes all laws in force relative to the widening, opening and improving streets in the city of Brooklyn (with certain exceptions not here material), applicable to proceedings under the act. By the charter of 1854 (Chap. 8841, in force when the act of 1868 was passed, power was conferred on the common council to open and widen streets within the city, upon petition, etc. The fourth title relates to assessments for local improvements, and provides for ascertaining and awarding the damages of land-owners for land taken for streets. The sixteenth section is as follows : “ The city comptroller shall pay to the persons (or to the attorneys or legal representatives of such persons) to whom damages may have been allowed in such report the amount of such damages, without any deduction therefrom by way of fee or commissions.” This section was plainly incorporated into the Sackett Street Act by the seventh section referred to. If this could be successfully controverted, the result would be that there is in the Sackett Street Act, no direction whatever for the payment of the land-owners, and their right to payment (under the act) if it existed at all, is left to inference from the provision for an assessment of damages awarded for lands taken. The direction in section 16, that the comptroller shall pay the land damages, is absolute and unqualified. It is not a direction to pay them out of the assessments when collected or out of a particular fund. It is doubtless true that the act of 1868 was a local improvement act, and in accordance with the general theory of such acts, the expense of the improvement was made a local and not a general charge. But it is not inconsistent with this theory that the municipality may be required to pay the cost of the improvement in anticipation *200 of the collection of assessments therefor. This is precisely what was done under the supplementary act of 1873, to which we have referred, in respect to the expense of grading, regulating, etc. The city, under that statute, was required primarily to advance the necessary funds. The provision in the act of 1873 furnishes a strong inference, in favor of the claim that the legislature by incorporating section 16 of the charter into the act of 1868, intended to impose upon the city the duty, either primary or ultimate, of paying the land-owners. The acts of 1868 and 1873 are i/n pari materia, and it would be an anomaly which it cannot be reasonably supposed the legislature intended, that the city should be bound to pay for paving and regulating the street, and be under no obligation to pay for the-' land taken therefor. There are doubtless some difficulties in the construction we have given to the act of 1868, but none we'think which cannot be resolved, and courts are bound to go to the very verge of construction to sustain the constitutionality of statutes. It is clear, we think, that the duty imposed by section 16, is a duty imposed upon the corporate body—the city, and not, by a desoripiio persones, upon the individual who may happen to be comptroller. The comptroller could not as an individual execute the directions given. He is, by the charter, the chief financial officer of the city. But he neither receives nor has the custody of money received from local assessments. The charter requires that the collector shall pay the money collected thereon to the city treasurer, who is required to deposit it to the credit of the city in such banks as the common council may direct. (Laws of 1854, chap. 384, title 3, § 15, title 5, §§ 11, 15.) And it prohibits any money being drawn from or paid out of the treasury, except in pursuance of orders of the common council appropriating the same, and upon warrants signed by the mayor and countersigned by the treasurer and city clerk. (Title 3, § 15.) According to common understanding, a direction to the chief financial officer of a city, State, or of the general government, to pay money for a public purpose, is a direction that the State, government or *201 municipality pay the sum stated. This is especially so in a case like this, where the direction is found in a charter act, and relates to a duty of a public character. (N. Y., etc., Lumber Co. v. Brooklyn, 71 N. Y. 580.) We have been referred to title 18, section 6, of the charter of 1873, as indicating a legislative policy to exempt the city of Brooklyn from any liability for land taken for streets. If that clause has the construction placed upon it by the counsel for the respondent, the validity of the charter in respect to acquiring lands for streets, may well be doubted. If) however, it is construed as relating simply to the expense of regulating streets, to which it was confined in the original act from which it was taken .(Chap. 213, Laws of 1859), or is intended only to declare the general principle that the expense of street openings shall be a local and not a general charge, it is not subject to criticism. But however this may be, that clause does not govern the rights of the parties in this case which are regulated by prior statutes, and were fixed before the charter of 1873 was framed. The exemption clause in the act of 1862, (Chap. 63, § 39), is not a defense. The duty of payment imposed by the act of 1868, is a corporate duty, and one from which the city can be relieved only by performance. It is not a duty imposed upon the common council or any officer of the city, and the case is not within the purview of the act of 1862. We think the liability of the defendant was properly adjudged in the courts below, and it is a satisfaction that this conclusion, warranted as we think it is by the rules of law, accords with equity and justice. The judgment should be affirmed.