Robert v. Board of Supervisors , 38 N.Y.S. 521 ( 1896 )

Pratt, J.:

This is an appeal from a judgment dismissing the plaintiff’s •complaint.

The action was brought to declare invalid, certain assessments levied upon plaintiff’s property for the opening and grading of certain streets in New Utrecht, and also seeking to enjoin the defendants, as supervisors, from selling such property on account of non-payment of such assessments.

The plaintiff, so far as appears, lay by while the improvement was being made and his property brought into the market and made available for sale, until asked to pay his share of the expense of such improvement, when he seeks to nullify the assessment and throw the cost upon the public.

The facts are few and simple. By the Constitution (Art. 3, § 23) it was provided that the Legislature might, by general laws, confer upon boards of supervisors such powers of local legislation as it might deem proper. In p ursuance of this authority the Legislature — by chapter 482 of the Laws of 1875, as finally amended by chapter 289 of the Laws of 1892 — granted to the board of supervisors of the county of Kings, which was embraced within the provisions of the law, powers of local legislation in regard to the opening, grading, construction and improvement of streets and highways in the county towns of Kings county. Under this act the board of supervisors of the county of Kings duly passed a resolution providing for the opening, grading and construction of the streets in question and for the levying of assessments for the same and collection thereof and the sale by the supervisors for non-payment.

Commissioners were duly appointed, strictly in accordance with said resolution, to open the streets in question. They made their report of awards and assessments which the respective pieces of real estate should bear, which said report was duly confirmed by the Supreme Court. Grading commissioners were then duly appointed who made their report which was also confirmed by the Supreme Court.

Upon what ground there was any delegation of the authority of the board of supervisors I fail to comprehend. The board of supervisors were authorized to legislate, and when this power was exercised the laws passed by them within their powers had the same force and effect as if passed by the Legislature. The case cited by the appellant (Thompson v. Schermerhorn, 6 N. Y. 92) is not in point. It was held in that case that the statute authorizing the common council of Schenectady to mahe by-laws and ordinances ■to pave, pitch and level streets “ within such time and in such manner,as they ■ may prescribe,” did not authorize the common council to .delegate to a city officer, or committee authority to determine the manner in which such improvement .should :be made. . It was the common council alone under the statute that was authorized to determine the manner in which" it should be made.

In this ease it was the power of legislation that was delegated to ■ the board of supervisors and not simply an administrative power. The same criticism applies to the other cases cited.

• This subject of the delegation of. power to legislate, to the board -of supervisors in .pursuance of the powers authorized by the. Constitution has been repeatedly before the Court of Appeals. (In re Woolsey, 95 N. Y. 135 ; Matter of Church, 92 id. 5 ; Hubbard v. Sadler, 104 id. 223-228.) It is clear, therefore, .that there is no unlawful delegation of power by the board of supervisors.

The same statement applies to the provision of the resolution which provides for the appointment -of grading commissioners. It has been the practice for many years" for the Legislature to pass similar laws authorizing the appointment of -local officers by some other local official. (Astor v. Mayor, 62 N. Y. 580.)

In the case of Van Brwit v. Ferguson, Special Term case, Judge Cullen wrote as follows: “The act confers upon boards of supervisors, in express terms, powers not only of administration but of legislation, arid the resolution here challenged is one ¡of legislation within the limits expressed by the general statutes of the State. Its forms of" legislation are as broad as those of the. Legislature itself formerly were, and unless the Legislature could not have passed an act conferring .upon the .town' supervisor .the appointment of grading .commissioners, I cannot see that this resolution is invalid.” (Hubbard v. Sadler, 104 N. Y. 223-228; People v. Supervisors, 112 id. ;585.) It does not seem, therefore, that the right of the board of supervisors to pass this act, and that it should be treated as .an act of the Legislature, can be questioned.

The point raised by appellants, that no notice was given the plains tiff, is answered by the fact that the resolution provided for a legal notice which was strictly complied with. (See Matter of Union Elevated R. R. Co., 112 N. Y. 61.)

The objection, that the resolution embraced more than' one street and, therefore, fell within the inhibition of article 3, section 16 of the Constitution, is without meritthat restriction is limited to acts of the Legislature. (Const, art. 3, §§ 14-16; People v. McCann, 16 N. Y. 58.)

The objection that the resolution referring to the act of 1875 (Chap. 482) referred to an act that had been repealed is answered by chapter 448 of the Laws of 1894. ■

Many of the objections raised by the appellant are answered by the statement that the order of confirmation of these reports has the effect of a judgment and cannot be assailed collaterally. By section 11 of resolution No. 6, folio 91, it is provided that the order of confirmation shall have the effect of a judgment. Upon this point there are a number of authorities. (See In re Dept. of Parks, 73 N. Y. 560, 565 ; In Matter of Arnold, 60 id. 26, 28; Matter of the Union El. R. R. Co., 112 id. 78. See, also, Dolan v. The Mayor, 62 N. Y. 472 ; The Methodist Church v. The Mayor, 55 How. Pr. 57.) In the last-named case the court in the opinion said: “ I do not thiilt that a person owning land within the limits liable to be assessed, who has allowed the confirmation of the report to be made without objection, should, after the lapse of years, and when it is too late to make any readjustment of the expense, be allowed by action to question it.”

It seems clear that the judgment below was right and it must be affirmed, with costs.

All concurred in the result, except Brown, P. J., not sitting.