People ex rel. New York, Westchester & Boston Railway Co. v. Waldorf

Jenks, P. J.: On September 27,1910, the common council of New Bochelle, pursuant to article 30 of the charter (Laws of 1910, chap. 559), resolved that the cost of widening North avenue be defrayed by an assessment laid upon the entire city as the area of assessment. On March 28, 1911, the common council amended its resolution by charging one-third of the cost upon an area of assessment constituted by properties fronting or abutting on the said avenue and charged the other two-thirds upon the city at large. It is contended that in the absence of specific statutory authority the second resolution was ultra vires the common [475] council because in passing the first resolution it acted judicially. But the power to determine the taxing district for any particular burden “ is purely a legislative power. ” (Cooley Taxn. [2d ed.] 149; People ex rel. Griffin v. Mayor, etc., of Brooklyn, 4 N. Y. 419, 425 et seq.; Spencer v. Merchant, 125 U. S. 345, 353; State, Freeholders of Hudson, etc., v. Road Comrs., 41 N. J. L. 83; Hamil. Special Assessments, § 213.) The second resolution, changing or amending the first resolution, was within the legislative power of the common council. (Dillon Mun. Oorp. [5th ed.] § 584.) The same author, in section 539, says: “At any time before the rights of third persons have vested, a council or other corporate body may, if consistent with its charter and rules of action, rescind previous votes and orders. Thus a vote levying a tax, so long as it rests in mere resolution, and has not been acted upon, may be reconsidered, and, if rescinded, the collector cannot legally proceed to collect the tax.” McQuillin on Municipal Ordinances (§ 198) says:- “ Subject to the constitutional provision forbidding the impairment of the obligation of contracts, as explained elsewhere, improvement ordinances which are not wholly void may be amended, even after the contract is let and the work begun, in like manner .as other ordinances.” It is not contended that there were any contract rights that could be affected during the period intervening the passage of the first and the second resolutions. The learned counsel for the relators cites Matter of Phelps (110 App. Div. 69). I did write as an isolated sentence that “ The act of determination of the district was judicial.” I should have written the act of determination within the district was judicial. The intention of the writer is understood by reference to the authority cited (O’Reilley v. City of Kingston, 114 N. Y. 439), by turning to page 448 thereof. As an illustration of the distinction that should have been made, I refer to our decision in Matter of City of New York (Opening 71st St.) (87 App. Div. 52). As to the character of the act and the power of the-common council in the premises, see also People ex rel. Locke v. Common Council of City of Rochester (5 Lans. 11); Ashton v. City of Rochester (133 N. Y. 192); People ex rel. Dady v. Supervisor (154 id. 389) and Harrison v. Village of New [476] Brighton (110 App. Div. 267). People ex rel. Thomson v. Supervisors of Schenectady (35 Barb. 408), a Special Term judgment cited by the relators, may be discriminated in that the act considered (1 R. S. [5th ed.] 848, § 3, subd. 2; Laws of 1838, chap. 314, §1, subd. 2) was “To apportion the tax so to be raised, among the several towns and wards of their county, as shall seem to them to be equitable and just,” and this the court pronounced judicial. Even so, the decision is both questioned and explained in People ex rel. Hotchkiss v. Supervisors (65 N. Y. 227) and in People v. Stocking (50 Barb. 581-583). When cited elsewhere it is to sustain acts plainly judicial or quasi judicial. Another contention is that the notice published by the city clerk on March 2, 1911, in pursuance of the resolution of February 28, 1911, was insufficient notice to the relator of the proposed -change in the area of assessment. Section 423 of the charter provides that upon the presentation of the report of the committee of the common council, to whom must be referred a petition for the improvement (§ 422), the common council, if it determines to proceed with the improvement, shall direct the city clerk to give notice, by publication thereof for at least two weeks in the official newspapers, of the time and place at which the council will consider the matter. After the passage of the first resolution, the common council gave notice by due publication that it would consider the matter of said local improvement and afford a hearing thereon with reference to the district of assessment designated by its committee on its amended and supplemental report submitted to the council February 28, 1911, and that said council would take such action thereon as it deemed proper at a meeting to be held in its chambers, designating them, on a certain designated day and hour 19 days distant. The criticism that the notice was “ wholly insufficient ” in that it did not advise that the common council proposed to change or amend the district of assessment or to consider a change thereof, is hypercritical. I have italicized the words that indicate the sufficiency thereof. The relator, the railroad corporation, contends that the property owned by it was owned, occupied and used by it for a public purpose in connection with the construction, mainte [477] nance and operation of its railroad, and that the assessors were without jurisdiction in that an assessment was imposed for benefit upon property which in law and in fact could not be benefited by said improvement. , So far as the relator’s right of way is concerned, I think that we must follow our decision in New York, N. H. & H. R. R. Co. v. Village of Port Chester (149 App. Div. 893; affd, 210 N. Y. 600), and that we should follow the application of the rule made in Matter of City of New York (East 136th St.) (127 App. Div. 672, 675). The authorities in other jurisdictions are not in accord as to whether railroad property used as a station can be assessed for the improvement of an adjoining street. (See Page & Jones Taxation by Assessment, § 596 and notes.) I think that the sounder rule is that which denies the right to assess station property for a street improvement such as is contemplated in this case. It is proposed by these proceedings to widen a street near property of a steam surface railway, and the local authorities would assess the property for the reason that there is a station thereon, wherein are two shops which are rented out by the railway corporation. The relators show that no part of the station was constructed solely to give space for shop purposes; that the kind of structure was required by the fact that the railroad is above the grade of North avenue, crosses it by a bridge, that the platforms and other appurtenances are necessarily on a level with the railroad tracks, that access from North avenue is by means of stairways, and that the stores will be rented out by the railway company for newsstands or such other booths as are usually found in railway stations for the convenience* of passengers. The respondents answer that one of the shops is rented to an agent of the Union News Company and the other to a real estate dealer. The theory of local assessment is benefit. And the reason for exemption rests in the inability to perceive how such premises are made by the improvement any more valuable for the purposes for which the railroad company can use them. The widening of the street presumably improves it for travel and for access, but the railroad is not benefited in that it carries more passengers or receives a greater compensation. (See New York & New Haven R. R. Co. v. City of New Haven, [478] 42 Conn. 279, 284; Old Colony & Fall River R. R. Co. v. County of Plymouth, 14 Gray [Mass.], 155, 163; Naugatuck Railroad Co. v. Waterbury, 78 Conn. 193; Boston & Maine R. R. v. County of Middlesex, 1 Allen, 324; State, Morris & Essex R. R. Co., Pros., v. Jersey City, 36 N. J. L. 56.) To assess this railroad station property for the reason that the widening of the street might make such shop space in its station more valuable is, I think, assessing for benefits too remote and too speculative, and is to destroy the rule by refinement. I think that the property of the relator the Millbrook Company abuts upon the street. The relator contends that “a large part ” of its land does not abut. This is due to the fact that one side thereof is bounded by North avenue and also by another street which appears to continue North avenue. The assessment map (See § 428 of the charter) shows, however, that a part of the land lies upon, touches and meets North avenue, and thus it is bounded by it. (See Hughes v. M. E. R. Co., 130 N. Y. 26.) It is not essential to abutting upon a street that any entire boundary of the land should lie along or touch the street. The land “ abuts ” thereon within the recognized meaning of the word. The assessment, so far as it affects the property of the relator the railroad company, was erroneous, and it and the confirmation thereof should be vacated and set aside, with costs to the said relator. Thomas, Carr, Stapleton and Putnam, JJ., concurred. Assessment, in so far as it affects the property of the relator railroad company, and the confirmation thereof, vacated and set aside, with costs to said relator. Order to be settled before the presiding justice.