Moran v. City of Troy

BoARDMAN, J.: By 1 Laws of New York, 1872, chapter 129, title 4, section 1, page 309, the c.ommon council of the city of Troy is given power to cause the streets of said city to be paved, and from time to time to be repaved. “ The expense of all new work and improvements and alterations, not in the nature of ordinary repairs, shall be assessed and be a lien upon the property benefited, when completed in sections or as a whole, and so certified to the comptroller by the local assessors.” Under this act, the plaintiff was assessed for repaving Broadway in front of his own premises. About twenty years before, the street had been paved [542] with cobble-stone, and assessed upon the adjoining property. This pavement being out of order along the greater part of the street, it was ordered repaved with granite blocks, and for such repave-, ment plaintiff was assessed for the portion in front of his premises. The only question presented is this : Had the city the power to order such repavement, and assess the adjoining premises for the expenses thereof, as benefits ? The language of the act is too plain to leave a doubt of the legislative intent. The paving of the- street with granite in lieu of cobble-stone is in no- proper sense an ordinary repair, or repair of any kind. It is wholly a new pavement of new material. The old pavement is discarded and abandoned. We are not called upon to say whether such legislation is wise or just. All we can do is, to ascertain the legislative intent and carry it into effect,'unless it violates the fundamental .law as contained in the Constitution. It is claimed, by the plaintiff, that when the benefit is to be exclusively enjoyed by the public, the legislature cannot lawfully impose the expense of an'improvement upon individuals, and that this is such a case. In other words, it is claimed that this is an exercise .of the right of eminent domain, by which the plaintiff’s property, in the shape of money, is taken for the public use. As to the first assessment for paving the street with cobble-stone, it is, and must be conceded to be, an ordinai-y exercise of the power of taxation. (People v. Mayor, etc., of Brooklyn, 4 N. Y., 419.) Rugg-les, J., shows very clearly why the exercise of such a power is not the exercise of the right of eminent domain. I do not see any essential difference between the first paving of a street and its repaving after a long interval of time. In each case the greatest benefit is derived therefrom by the general public, and not by the individual assessed. Certainly there is no such wide difference between the circumstances surrounding the orignal paving and those attending the repaving, as could lead to the conclusion that the former was constitutional, legal and proper, while the latter was a violation of the Constitution, illegal and unjust. The two cases present only a question of degrees of benefit. No distinction arising out of legal principles can exist. The right to repave by means of assessment is recognized in The Matter of Astor (53 N. Y., 617). The charter of the city expressly gives a continuing power to repave. [543] The necessity or expediency of its exercise is controlled by the municipality, and not by the courts. (Dillon on Oorp., §§ 543, 619, and cases there cited; In Matter of Lewis, 51 Barb., 82.) The reasoning in the prevailing opinion in Hammett v. Philadelphia (65 Penn. St., 146) would sustain the theory of the appellant in this ease. But I think the reasoning is in conflict with the authorities in this State. Besides, the case was finally decided upon the ground that the act thus construed authorized special taxation for general purposes, and not for a local object. I conclude that the city of Troy had the power, in the discretion of the common council, to repave Broadway, and to assess the plaintiff for benefits thereby bestowed, or supposed to be conferred, upon him; that such assessment is a species of taxation not covered by the clause of the Constitution, forbidding the taking of private property for public uses without just compensation (Howell v. City of Buffalo, 37 N. Y., 267); and that the complaint of the plaintiff, seeking to enjoin the collection of such assessment, was properly dismissed. The judgment is therefore affirmed, with costs. LeabNED, P. J., and Bocees, J., concurred. Judgment affirmed, with costs.