Summary
In Matter of Church (92 N.Y. 1) an act giving to the board of supervisors in any county containing an incorporated city of 100,000 inhabitants or upwards, where contiguous territory in the county had been mapped out into streets and avenues, power to lay out, open, grade and construct the same and to provide for the assessment of damages on the property benefited, was held not to be a local law within the meaning of article 3, section 18, of the Constitution.
Summary of this case from Hermitage Co. v. GoldfogleOpinion
Argued March 6, 1883
Decided March 20, 1883
George B. Ely for appellants. William Sullivan for respondent.
We are satisfied that the law under which the present application was made is constitutional. It is not a local, as distinguished from a general, act, and so is not prohibited by the fundamental law. (Const., art. 3, §§ 18, 23) It is not easy to define with accuracy the difference between the two forms of legislation, and the difficulty is better solved by adding examples to definitions. Of the latter, the most useful and accurate is that given in The Matter of the N.Y. Elevated R.R. ( 70 N.Y. 328). A law relating to particular persons or things as a class was said to be general; while one relating to particular persons or things of a class was deemed local and private. The act of 1881 relates to a class, and applies to it is such, and not to the selected or particular elements of which it is composed. The class consists of every county in the State, having within its boundaries a city of one hundred thousand inhabitants, and territory beyond the city limits mapped into streets and avenues. How many such counties there are now, or may be in the future, we do not know, and it is not material that we should. Whether many or few, the law operates upon them all alike, and reaches them, not by a separate selection of one or more, but through the general class of which they are individual elements. The force of the law of 1881 is not localized in Kings county and confined to its territory. By its terms it applies equally to every other county which may prove to be within the constituted class. It is said there is but one such county; and so it was said there was but one elevated railroad. Neither fact at all narrowed the terms of the law. Those terms in each case were broad enough to cover every county in the State if it had the required city and the mapped territory on the one hand, or its own elevated road on the other. The case cited adds example to definition, and, following its doctrine, we must hold the law of 1881 to be general and not local, and so not a violation of the Constitution.
The jurisdiction of the Supreme Court to appoint the commissioners of estimate is assailed upon the ground that its sole authority to act came from the mandate of the county board, which was ineffectual for that purpose. But the Constitution gave to the Supreme Court general jurisdiction in law and equity, and, by the specific provision requiring the damages for property diverted to the public use to be ascertained by a jury or commissioners appointed by a court of record, conferred upon all such courts the necessary jurisdiction. The mode and manner of its exercise was put within the control and regulating power of the legislature, because it was to be exercised "as prescribed by law." In that respect the legislature could not delegate its authority except by the permission of the Constitution. Such permission was given. (Art. 3, § 23.) The legislature was allowed to transfer a power of local legislation, so far as it should deem necessary or prudent, to the county boards. What it could do, over all the State and in every locality, in providing the occasion for and requiring the appointment of commissioners of estimate, it could transfer for a particular county to the board of supervisors of that county, so that the latter became within its prescribed authority a local legislature. This was done in the county of Kings by the act of 1875 as amended in 1881. Thereby the local legislature, acting within the authority conferred, could create the occasion for and call into exercise the power of the Supreme Court to appoint commissioners, and that appointment when made was "as prescribed by law." The county board did not create the jurisdiction. That came from the fundamental law. What it did was to call it into play, to furnish occasion for its exercise, and to require its aid. When it did that the jurisdiction of the court in the particular instance was complete.
There is no force in the objection that after fixing the assessment district the total expense cannot be assessed upon the property included, but only so much as is found to be the actual benefit. That is but another form of saying that the legislature cannot impose the whole cost upon the area which it decides is benefited to that extent. The case of Stuart v. Palmer ( 74 N.Y. 185), cited by the appellant, expressly holds that the legislature may cause local improvements to be made and authorize the expense thereof to be assessed upon the land benefited thereby. The resolution of the county board imposes upon each owner his share of the cost in proportion to his benefit accruing.
Nor is the system of awards and the provision for the payment thereof inadequate and uncertain. By force of the resolutions of the county board the public purse of the town is made responsible for any deficiency in the awards resulting from failure of the assessments, and to enable payment to be more readily made, the town is authorized to borrow the necessary amount by the issue of its bonds, and these are to be paid out of the general tax of the whole town so far as the assessments are inadequate. The difficulty and uncertainty of payment commented upon in Chapman v. Gates ( 54 N.Y. 145) and Sage v. City of Brooklyn (89 id. 189) does not here exist.
Other objections taken are founded upon the general system of laying out and opening highways which have no application to the present case.
The order should be affirmed, with costs.
All concur.
Order affirmed.