Opinion
Argued June 18, 1884
Decided June 27, 1884
Charles E. Miller for appellant. D.J. Dean for respondent.
The jurisdiction of the board of supervisors to lay any assessment for the expense of the improvement of the Boulevard, depended upon a prior apportionment by the commissioner of public works of the share of the expense, not exceeding one-half, which should be charged upon the property benefited. The eighth section of chapter 565 of the Laws of 1865, under which the Boulevard was laid out and improved, declares that "such amount or portion of the expense of such regulating, grading and improvements as the said commissioners (of Central park) may deem equitable and may determine, not exceeding as to streets and roads more than one mile in length, one-half of such expense shall, and may be, assessed upon the owners and occupants of the lands, etc., benefited." By the act chapter 872 of the Laws of 1872, the powers vested in the commissioners of the Central park by the act of 1865, in respect to the improvement in question, were transferred to, and vested in the department of public works, and thereafter the commissioner of public works was vested with the power and discretion of fixing the share of the expense of improving the Boulevard, which should be a local charge.
The assessment in this case was laid by the board of assessors in 1883. On April 27, 1880, the commissioner of public works certified in writing that the work for which the assessment was made had been completed and accepted by the department of public works; that the total cost was $29,562.04, and added at the close of the certificate, "the apportionment of the assessment may be made." This was the only certificate made by the commissioner (except a certificate as to interest, not now material) prior to the assessment in question. The board of assessors thereupon assessed upon the property benefited by the improvement the sum of $14,438.28, a little less than one-half of the total cost as reported by the commissioner.
It seems very plain that the certificate of April 27, 1880, was not a compliance with the requirements of the eighth section of the act of 1865. It was in no sense a determination by the commissioner of public works of the equitable share of the expense to be assessed upon private property. It stated the total cost of the improvement, and it remitted to the board of assessors the question of apportionment. This duty the statute imposed upon the commissioner. It was his judgment and discretion which was to be exercised, and not that of the board. The statute did not contemplate in all cases an equal division of the expense of improvements under the act of 1865, as between the city at large and the owner of property benefited. It might in case of a Boulevard of unusual width, and improved at great cost, be inequitable to burden the adjacent property with so large a share of the expense. The assessment might be one-half, or a much less proportion, as the commissioner should deem equitable. The power conferred upon him was incapable of delegation, within well-settled principles. It would, we think, be a perversion to attribute to the language at the close of the certificate the meaning that the commissioners had apportioned one-half of the expense upon the property owners. A strained and unnatural construction of language is not usually indulged to justify the imposition of a tax.
It is claimed by the learned counsel for the corporation that if there was a want of authority in the board of assessors, it is cured by section 7 of chapter 582 of the Laws of 1872 as amended by chapter 313 of the Laws of 1874. We cannot concur in this view. There was a total want of power in the board of assessors to make any assessment in the absence of an apportionment by the commissioner of public works. This brings the case within our decision In re Second Avenue Church ( 66 N.Y. 395).
The order of the General Term should be reversed, and that of the Special Term affirmed.
All concur.
Ordered accordingly.