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EDITED BY E. MERIAM.]

STATE CONVENTION.

THURSDAY, July 30. MUNICIPAL CORPORATIONS. Mr. MURPHY, from the fourteenth standing committeee, made the following report:—

ARTICLE.

1. Private property shall not be taken for improvements in cities and villages, unless the compensation therefor shall be first determined before a judicial tribunal, by a jury of twelve freeholders of the city or village where the same shall be situated, who shall be chosen and qualified as jurors in civil cases.

2. No local assessment for any improvement in any city or village, shall be laid, unless a majority of all the owners of the lands to be assessed shall apply for such improvement, nor unless such improvement shall be ordered by a vote of two-thirds of the common council or board of trustees of such city or village.

3. No debt shall be created by any city or village corporation, except to suppress insurrection, or to provide against an existing pestilence or casualty, unless the same shall be authorized by act of the legislature, for some single object or work to be distinctly specified therein, which shall provide the ways and means exclusively of loans to pay the interest of such debt as it shall fall due, and also to pay and discharge the principal thereon within twenty years, by tax to be assessed and collected upon the taxable property of such city or village, in equal amount as near as may be, annually, and such law shall be irrepealable until such debt, and the interest thereon, shall be fully paid and discharged. And no such law shall take effect until it shall have been approved by a majority of the electors of such city or village; and no money so raised shall be applied otherwise than to the object specified in such law.

By order of the committee,

H. C. MURPHY, Chairman. Mr. M. said that, regarding the first section, the committee was unanimous; but with regard to the others, it was not so. Differing himself from the committee on this, that the provisions which they had submitted did not go into the defects of our system of municipal corporatians, he had prepared a minority report, which he asked permission to submit at this

time.

The Secretary read the minority report, as follows:

ARTICLE -.

1. No charter or special act for the incorporation of any city or village shall be granted, but general and uniform laws shall be passed for the incorporation of cities; and like laws for the incorporation of villages, subject to such alterations as the legislature shall from time to time deem proper to make. The boundaries and limits of the territory included within any city or village corporation shall be determined in such manner as the legislature shall prescribe.

2. No assessment for any improvement in any city or village shall be laid otherwise than by general tax upon the taxable property of such city or village, levied and collected with an annual tax for other expenses.

3. Private property shall not be taken for any improvement in any city or village other than for state purposes, unless the compensation shall be first fixed by a jury in a court proceeding according to the course of the common law.

4. No debt shall be contracted by any city or village corporation on a longer credit than twenty years, nor unless there shall be levied and collected in its annual tax of the preceding year one-twentieth part of such

NEW-YORK, AUGUST 31, 1846.

debt towards the repayment of the same, unless such debt be necessary to provide against pestilence or casualty. After the creation of any debt there shall be levied and collected in said annual tax annually thereafter one-twentieth part, or as near one twentieth part as may be, of such debt, towards its repayment.

5. Money shall not be borrowed by any city or village corporation in anticipation of its annual tax, except for the purpose of paying interest about to become due on any debt now existing, or to be created under the limitations of this article, nor unless the amount shall have been previously levied in such annual tax.

6. No liability shall be contracted by any city or village corporation, unless provision have previously been made in its annual tax, for discharging the same, or unless the same be incurred under the limitations of this article.

HENRY C. MURPHY.

Mr. MURPHY moved that these reports be printed, and referred to the committee on the whole. The motion was agreed to.

REMARKS.

The reports which we have given above, are highly important. We had intended to have reviewed the various propositions contained in the two reports in this paper, but have concluded to defer it and issue an Extra; in which we will discuss the principles, set forth the existing mischiefs, to be remedied, and examine the remedies proposed by committee No. 14. At the same time we will review the remaining sections of Mr. Allen's bill, which bill was given in Municipal Gazette, No. 43, with a review of the first 20 sections.

Monday July 13. TAXATION OF PERSONAL PROPERTY. Mr. MURPHY offered the following: Resolved, That the Comptroller be requested to cause to be prepared and furnished to this Convention, a statement showing the amount of the capital stock actually paid in, and secured to be paid in of the monied or stock corporations deriving an income or profit from their capital or otherwise, including free banking associations, and having their principal office or place for transacting their financial concerns in the city and county of New-York; and also showing what portions of such capital stock are held by persons residing respectively in the city and county, or elsewhere in the state of New-York, elsewhere in the United States, and by persons residing out of the limits of the United States, and also the amount of such stock, if any belonging to the state, and to incorporated literary and charitable institutions; and that such statement distinguish the amount so held in each of said corporations and associations.

Mr. TAGGART said he should like to hear some reason for calling upon the Comptroller for all the information contemplated by that resolution.

Mr. MURPHY said there were various reasons.They were approaching a discussion when it would be well to know how much of the stock of incorporated companies of this state are held elsewhere than in this state. His particular object in offering this resolution was in regard to the duties of the special committee, which was raised on the motion of the gentleman from New-York (Mr. MORRIS) who proposed, for the consideration of this convention, a proposition to be inserted in the constitution to tax personal property where it was used and not at the domicil of

[VOL. I. No. 44

the owner. There are in the city of New-York many incorporated companies and associations, the capital of which is not all held by the people of the city of New-York, but by persons residing elsewhere, in the state and out of the United States. The capital of those companies and associations exceeds thirty millions of dollars, which is assessed in the city of NewYork. That city has drawn together that capital, and she enjoys the benefit of it, and he was willing she should; but some nevertheless might object that after having drawn in all this capital from all other parts of the state, she should have the right to tax other property which is now exempt from her taxation.

Mr. TAGGART was satisfied with the explanation.
The resolution was adopted.

Mr. RUGGLES presented the following which had been presented to him from a highly respectable gentleman. It was on the subject of taxation, which is already before a committee of the Convention, but there were some suggestions which were not referred and therefore he desired this resolution to go to that committee. The resolution was referred to the 2d standing committee, as follows:

Resolved, That it be referred to the standing committee nu: ber two, to inquire into the expediency of adopting a permanent and uniform system of taxation, which shall operate equally upon all classes of citizens; which shall regard actual property, whether real or personal, including all debts due from solvent debtors, as the only legitimate object of taxationwhich shall define what is real and what is personal property, and shall take from the legislature the power of converting the one into the other, and thereby interfering with private and vested rights-which shall protect the citizen from double taxation--in any form or under any pretence whatever—which shall secure to resident citizens the right to be assessed for their personal estate in the city. town and county, where they reside, and not elsewhere-and which shall assert and perpetuate the principle of assessing all property at is full value, subject however to a deduction on account of any debts which the owner may in good faith have contracted, and be liable to pay; so that each one may bear his due proportionate share of the public burthens according to the value of what he really possesses.

REMARKS.

The question of equal and equitable taxation presents the same difficulty as that of the National Tariff in fixing a proper rate of duty on imports. The member from Kings-Mr. Murphy-will be unable to obtain the information he seeks from the Comptroller, or even from the Banks, for their stock is every day changing hands, and in many instances the Banks do not know the residence of the stockholder.

Equality of valuation is a matter of great consideration, and then equal apportionment follows as a neWho shall be taxed? What cessary consequence. shall be taxed? Where taxed, and how taxed, are important questions, but a further enquiry is made, where shall the tax be imposed?

Men possessing large estates in personal property will reside where the taxes are the least--they have the ability to choose their place of residence. The rate of taxation is, in cities, becoming so much increased, that the portion required by the tax gatherer, will soon exceed that collected by King Pharoah.

LEGISLATIVE DEPARTMENT OF THE STATE OF NEW-YORK.

1

Common Sewers, Drains, or Vaults; Pitching and Paving Streets, cutting into any drain, or Sewer, altering, amending, cleansing, and scouring of any Street, vault or sink, or common Sewer, the raising, reducing, levelling or fencing in any vacant, or adjoining lot.

"And be it further enacted, That it shall be lawful for the said mayor, aldermen and commonalty, to cause common sewers, drains and vaults, to be made in any part of the said city, and to order and direct the pitching and paving the streets thereof, and the cutting into any drain or sewer, and the altering, amending, cleansing and Scouring of any street, vault, sink or common sewer, within the said city; and the raising, reducing, levelling or fencing in, any vacant or adjoining lots in the said city; and to cause estimates of the expense of conforming to such regulations to be made, and a just and equitable assessment thereof among the owners or occupants of all the houses and lots intended to be benefitted thereby, in proportion, as nearly as may be, to the advantage which each shall be deemed to acquire; and the said mayor, aldermen and commonalty shall appoint such skillful and competent disinterested persons as they shall or may think proper to make every such estimate and assessment, who before they enter upon the execution of their trust, shall severally take an oath before the mayor or recorder of the said city, to make the said estimate and assessment fairly and impartially, according to the best of their skill and judgment; and the said persons, after having made such estimate and assessment, shall certify the same in writing to the said mayor, aldermen and commonalty, in common council convened, and being ratified by the said council, shall be binding and conclusive upon the owners or occupants of such lots so to be assessed respectively, and shall be a lien or charge on such lots as aforesaid; and such owners or occupants shall also respectively be liable upon demand, to pay the sum at which such houses or lots respectively shall be so assessed, to such person as the common council shall appoint to receive the same; and in default of such payment or any part thereof, it shall be lawful for the mayor, recorder and aldermen of the said city, or any five of them, of whom the mayor or recorder shall be one, by warrant under their hands and seals to levy the same by distress and sale of the goods and chattels of such owner or occupant refusing or neglecting to pay the same, rendering the overplus, (if any) after deducting the charges of such distress and sale to such owner or occupant, and the money, when paid or recovered, shall be applied towards making, altering, amending, pitching, paving, cleansing and scouring such streets, and making and repairing such vaults, drains and sewers as aforesaid, and raising, reducing, levelling or fencing in, such lots as aforesaid. Provided however, That nothing herein contained shall affect any agreement between any landlord and tenant, respecting the payment of any such charges, but they shall be auswerable to each other in the same manner as if this act had never been made; and if any money so to be assessed, be paid by any person, when by agreement or law the same ought to have been borne and paid by some other person, it shall then be lawful for the person paying, to sue for, and recover the money so paid, with interest and costs, as so much money paid for the use of the person who ought to have paid the same; and the assessment aforesaid, with proof of payment, shall be

conclusive evidence in such suit.

"And be it further enacted, That if upon completing any such regulation, it shall appear to the said mayor, aldermen and commonalty, that a greater sum of money had been bona fide expended in making such regulation than the sum estimated and collected as aforesaid, it shall then be lawful for the said mayor, aldermen and commonalty, to cause a further assessment equal to such excess, to be made and collected in manner aforesaid; and in case the sum actually expended shall be less than the sum expressed in such estimate, and collected as aforesaid, the surplus shall forthwith be returned to the persons from whom the same were collected, or their legal representatives."-[Passed April 9th, 1813. 2 R. L., p. 407, § 175 and 176.

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And all the resolutions and reports of committees, which shall recommend any specific improvement involving the appropriation of public moneys, or taxing or assessing the citizens of said city, shall be published immediately after the adjournment of the board, under the authority of the common council, in all the newspapers employed by the corporation; and whenever a vote is taken in relation thereto, the ayes and noes shall be called and published in the same manner.-[Session Laws of 1830, ch. 122, §7.

SUPREME COURT.

SAMUEL S. DOUGHTY,

VS.

THOMAS HOPE.

By the Court, BRONSON, Ch. J.

The judge was right in holding that the estimate and assessment in such cases should be made before the work is done, It is difficult to give any other construction to the statute. [2 R. L. 407, $175, 176] A suggestion was thrown out by the late Chief Justice, in Elmendorf vs. The Mayor of New-York, [25 Wend. 696,] that the assessment might be made after the work had been done. But the point was not decided; and I do not see how a distinction can well be made as to time, between the estimate and the assessment. As I read the statute both should precede the making of the improvement.

But the question remains whether this objection is fatal to the proceedings. The charter of the city of New-York provides that when a vote is taken in the common council upon a resolution involving a tax or assessment upon the citizens, the ayes and noes shall be called. In Striker vs. Kelly (7 Hill 9,) the Court held against my opinion, (p. 29) that this provision was merely directory, and that the ordinances under which the plaintiff's land had been assessed and sold was well passed, although the ayes and noes were not called. That is a stronger case than the one at bar. There the mode in which the common council should have acted was pointed out in express terms: while here it can only be made out by construction. And the calling of the ayes and noes was likely to be much more important to land owners than was the time when an estimate and assessment should be made, although the judgment in Striker vs. Kelly has been reversed, the reversal as we understand went upon another ground, and left this question untouched. That case is therefore an authority for holding that as to time the statutes under consideration is only directory, and need not be strictly followed.

We have before followed the decision in Striker vs. Kelly, upon another point notwithstanding the reversal. In that case a majority of the members of this court rejected the doctrine which had long prevailed that in the New-York Street cases we did not act as a court, but as commissioners. And as the Court of Errors had left that branch of the decision untouched, we held at the last February special term that when a party wishes to bring error in a street case, it is no longer either necessary or proper to pursue the former practice of issuing a certiorari to the Justices of this Court as Commissioners. (See. 7 Hill 27) but that a writ of error, if error will lie, should be sued out without a certiorari as is in other cases.

The next question arises upon the fact that only two of the assessors signed the estimate and assess

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EJECTMENT. The plaintiff seeks in this suit to obtain possession of a lot in the 12th Ward, which he bought for eight hundred years at a corporation assessment sale, and the whole question is, whether that sale and the proceedings out of which it grew, have been regular and valid?

A corporation must show a grant either in terms or by necessary implication for all the powers it attempts to exercise, especially when it claims the right to divest individuals of their property without their consent. The exercise of this franchise being restrictive of individual rights cannot be extended beyond the letter and spirit of the grant, and being a high prerogative, should not be exercised, where the right is doubtful. (Beatty vs. Knowler, 4 Peters 152. Vanhorne's lessee vs. Dorrance, 2 Dall. 316. Sharp vs. Spier, 4 Hill. 83.)

Every statute authority in derogation of the Common Law to divest the title of one, and transfer it to another, must be strictly pursued, or the title will not pass. The power under which the plaintiff claims, is a mere naked power in the corporation, and its due execution cannot be made out by intendment-it must be proved. He must show step by step that every thing has been done, which the statute makes essential to the due execution of the power, and he must therefore be careful to collect and preserve all the facts and muniments on which the validity of his title depends. (Willams vs. Peyton, 4 Wheat. 77.— Rorkindorf, vs. Taylor, 4 Pet. 349. Jackson vs. Shepard, 7 Cowen, S8. Atkins vs. Kinnan, 20 Wend. 241, &c.

Testing this case by these rules, it is objected to the legality of the sale,

1. That the resolution authorising the improvement out of which the assessment grew, was not published, nor were the ayes and noes taken or published. It is insisted that this is not a mere idle ceremony; a mere direction to the Common Council, which they may disregard at pleasure, but was designed by the statute for a wise and benificent purpose, namely, that of giving to the parties interested, notice of the threatened invasion upon their individual property. That it was devised as the mode of putting all upon their guard, and giving to all the opportunity of defending themselves.

No principle is more familiar to the Common Law than that which secures to every one due notice and a full opportunity of defence against all invasions of life, liberty or property; and it would seem that publication of the resolution and the votes, being the only notice which the statute requires, should be indispensably necessary to the validity of the proceedings under it. But that question is not now open for discussion, at least before me, because the Supreme Court have held that the part of the statute which requires this publication is merely directory-that the Common Council may disregard it at their pleasure, and that therefore a compliance with its requirements is not essential to the validity of a title acquired under it.

II. It is objected that the estimate of the expense of the improvement, and the assessment of the amount thereof were not made out before the improvement was made, but afterwards. It is evidently, the whole scope and object of the statute, that an estimate of the expense shall be made out before the work is done, and, that that estimated amount shall be collected prior

ment and the statute contains no provision that a majority may act. The rule in such cases is that where all meet and consult, a majority may decide unless the statute otherwise directs. (Exparte Rogers 7 Cow. 526. Babcock vs. Lamb, 1 ib. 238: Crocker vs. Crane, 21 Wend. 211. Woolsey vs. Tompkins 23 ib. 324.) This rule of the common law has now passed into a statute. (2. R. S. 555 27.) When nothing appears to the contrary; it may be presumed that the person or officer who did not sign the proceedings met and consulted with those who did sign. (Yates vs. Russell, 17 John. 461, 468. Mc Cay vs. Curtice, 9 Wend. 17. Downing vs. Rugan, 21 ib. 178.) In addition to this presumption it was proved that all of the assessors took the oath of office: and, as I understand the case, all were together and settled the principle, on which the assessment should be made. The witness adds that all of the assessors were in the Street Commissioner's office at the time the assessment was made. If there was any room for doubt upon the point that all met and consulted, there was clearly evidence enough to carry the cause to the jury, and this without the aid of any presumption on the subject.

The only remaining question is upon the warrant. The sale of the land was not made under the warrant. That process issues for the purpose of collecting the assessment from goods and chattels, without resorting to the land. (175, and Statutes of 1816, p. 113, 1, 2.) The assessment in this case was against the owner by name; and the warrant directed the officer to collect the money from him. Thus far all was right. But the warrant went further, and directed the officer to levy the money by distress and sale of the goods of the owner or occupant. Now if it be conceded that the process was void, so far as related to the occupant, I see no reason why it was not good as against the owner of the land. It may well be that a levy upon the goods of a third person would have been a trespass, and yet the warrant may be perfectly good as against the person who was assessed and against whom by name the process was issued. We think the verdict must be set aside. New trial granted. (A Copy,)

Fees $1.

H. DENNIO,

State Reporter.

To guard against these evils, and protect the citizens against the imposition of unnnecessary burthens, it was provided by the seventh section of the amended charter, that the ayes and noes shall be called and published, whenever a vote of the common council should be taken on any proposed improvement involving a tax or assessment upon the citizens. (Stat. 1830, p. 126.) The lan guage is imperative-the ayes and noes shall be called. When the particular mode in which the corporation is to act is thus specially declared by its charter, I think it can act only in the prescribed form. The contrary doctrine wants the sanction of legal authori ty, and is fraught with the most dangerous consequences. It would place corporations above the laws, and there is reason to fear that they would soon become an intolerable nuisance."-Striker vs. Kelly. Mr. Justice Bronson.

"These assessment sales for real or fictitious improvements, sometimes fall very heavily upon the owners of city and village prop erty. The lots which are sold are usually vacant, and consequently produce no revenue. If there were an occupant, there would of course be a person to discharge the burden. The loss resulting from a sale most commonly falls upon absent owners, who have no notice until it is too late; upon women, who are not accustomed to watch the movements of a corporation and its officers; and upon children, who want discretion to defend and protect their rights." Sharp vs. Spier. Mr. Justice Bronson.

to the same event. The corporation, who are the actors, being possessed of a mere naked power, and having no interest in the matter, the object of the statute was to protect the parties really interested: those, for instance, whose lands are to be burdened, and whose money is to make the improvement, against an improvident expenditure of that money, and to insure them that due economy shall be regarded in making it. The whole machinery devised by the statute of estimates, assessments, and collections, can have no other object in view than to insure to those at whose expense the improvement is to be made, that it shall be done in the cheapest manner, and that is, to have the money collected beforehand, and the work done for cash. If this is not the sole object of that machinery, all its parts are exceedingly cumbersome and clumsy; but if it is the object, they are well calculated, if fairly carried out, to answer the end in view.

This object was entirely disregarded in this case. The form of the law was attempted to be followed. but its spirit neglected. The work was done by contract before the money was collected, and for a price necessarily enhanced by the credit which the contractor was obliged to give for his labor. This augmentation is not at the expense of the corporation, through whose acts the plaintiff claims title, but of the owners, whose property is to be taken away from them to pay it, and is not rendered a matter of necessity, growing out of a strict compliance with the law, but flows solely from a violation of its provisions.

The owners of property have a right to demand the protection of every provision of the law, and it cannot be that one so essential as this can be disregarded, and have the consequences fall only on those for whose benefit it was established.

III. Another objection to the plaintiff's title is, that the statute requires that there should be assessors appointed, and that they should make the assessment-that the power is nowhere given for a majority to act, yet that this assessment was made by only two of the three assessors appointed. This is a fatal objection, and renders the whole proceeding for collecting the assessment void.

It is a well established principle, that where a statute creates a board of officers to decide any matter, but makes no provision that a majority may act, all must be present to hear and consult. (Crocker vs. Crane. 21 Wend. 218. Ex parte Rogers, 7 Cowen 526.

In this case the assessment is signed by only two of the assessors, and it does not appear that the third one ever took any part in the matter, except to agree upon the principle of the assessment in form; while in fact the whole process seems to have been an idle ceremony performed by the subordinates in the Street Commissioner's office.

IV. The statute authorises the assessment to be imposed upon the owner or occupant of the land benefitted by the improvement. It is, as I read the statute, for the assesors to select the one, either owner or occupant, against whom is to be rendered, their judgment for the amount of the assessment, and when the warrant shall be issued for the collection of the amount, it must be against the person thus designated. Whereas, in the proceedings, the warrant is against the owner, naming him, "or those who may occupy the premises and neglecting or refusing to pay." If this proceeding is correct, then it is in the power of the assessors to collect of one who is occupant to-day an assessment imposed upon one who was occupant some years past, and collect it, not merely by selling or leasing the land, but of the individual property of the present occupant. There is no proceeding known to the law where one can thus be made to be answerable for the debt of another without his consent, without notice to him or opportunity for defence, The assessment ought to have been against some one who was either owner or occupant, and the warrant ought to have issued against him thus selected,, but being general against "an owner or occupant," whoever he might chance to be, and authorizing a levy of his individual property, is clearly void, and plaintiff can make no title under it.

These considerations satisfying me that I ought to render judgment for the defendant, I abstain from noticing the other points in the case.

THOMPSON & CARTER, for Plaintiff......R. MOTT & E. SANFORD, for Defendant.

REMARKS.

We here present to the State Convention a copy of the Opinion of the Supreme Court (in an assessment case) delivered by Chief Justice Bronson, at Utica, on the of July, ult. It is a very important opinion. We have also placed before the Convention the Opinion of the same tribunal delivered by the same learned Judge in the assessment case of Sharp vs. Spier, which is to be found in the Municipal Gazette, p. 249 and 250, and in 4 Hill. 83. We also place before the Convention the Opinion of the Supreme Court delivered by Mr. Justice Bronson in the matter of opening 39th, and other Streets, in the city of New-York. See Municipal Gazette p. 191. And also the opinion of Mr. Justice Bronson in the case of Striker vs. Kelly, delivered in the Supreme Court. We likewise present the opinion of Mr. Justice Bronson in the case of Agnew vs. The Mayor, Aldermen and Commonally of the city of New-York. See Municipal Gazette, p. 181. Also extracts from Mr. Justice Bronson's opinion in the case of the People vs. Purdy, delivered in the court for the correction of errors. We accompany the opinion of the Supreme Court delivered at Utica, at the July term of 1846, with the opinion of Judge Edmonds, Circuit Judge of the first Judicial Circuit, and place the two opinions in parallel columns for easy comparison, preceding both with a copy of the law under which the decisions were made, and giving extracts from the opinions in the case of Sharp vs. Spier Striker vs. Kelly; Matter of 39th Street, &c., and People vs. Purdy. We intend to republish these opinions all on the same sheet, in order that they may be presented at one and the same view to the public.

As this cause is sent back to the Circuit Judge to be tried over again, it is to be hoped that the learned counsel will introduce all the testimony and raise all the questions involved, that it may be taken to the Court for the Correction of Errors for final and conclusive adjudication.

By the act of April 9, 1813, the Supreme Court of Judicature of this State, or one of the Justices thereof are vested with the power of appointing commissioners to levy assessments for opening streets and confirming their reports, and they appoint their own clerk a commissioner, and by the same act the mayor, aldermen and commonalty of the city of N. York are authorised to make order for regulating and improving Streets, and to appoint assessors, and they appoint their own street commissioner and clerk. If a citizen feels aggrieved by the acts of the commissioners, or assessors, he complains to the very tribunals for redress, of which the Commissioner or assessor indirectly, form a part. This cannot be right. Provision should be made for adjudication of assessment questions by an independent tribunal.-And if the doctrine that a public officer who acts in violation of the constitution, is liable in damages to the injured party, is correct, then surely the Supreme Court is not the proper tribunal to adjudicate questions involving the pecuniary liability of their own members. For further remarks see next page.

REMARKS

On the Opinion of Chief Justice BRONSON in the Assessment Case of Doughty vs. Hope.

The act of April 9, 1313, authorizing assessments upon the property of owners and occupants of houses or lots, is a very special law. The particular kind of improvements authorized, are particularly stated. One class of these improvements are to be made under authority and by the direction of the Supreme Court of the State of New-York; the other class of improvements are required to be made by the authority of the Mayor, Aldermen and Commonalty of the City of New-York. The power is thus specially vested in two distinct classes of public officers.

That portion of the act of April 9, 1813, which makes it lawful for the Mayor, Aldermen and Commonalty to cause improvements to be made, as set forth in full on page 600, enumerates the making of common sewers, drains and vaults, "the pitching and paving of streets-the cutting into any drain or sewer -the altering, amending, or scouring, of any Street, vault, sink, or common sewer, within the said Citythe raising, reducing, levelling, or fencing in of any vacant or adjoining lots in said City"-these are the only improvements named in this class which it shall be lawful for the Mayor, &c. to cause to be made.

They are to cause estimates of the expense of conforming to such regulation to be made, and a just and equitable assessment thereof, among the owners and occupants intended to be benefitted in proportion as nearly as may be to the advantage which each shall be deemed to acquire.

The said Mayor, &c. shall appoint skilful, competent, disinterested persons to make the estimate and assessment; who, before they enter upon the execution of their trust, shall severally take an oath before one of two officers, viz: the Mayor or Recorder of said city.

The estimate and assessment when made, shall be certified in writing to the said Mayor, Aldermen and Commonalty and when ratified by them, shall be conclusive, &c.; and the owner or occupant shall be liable to pay the amount to such person as the Common Council shall appoint to receive the same.

In default of payment, it is made lawful for the Mayor, Recorder and Aldermen, or any five of them, of whom the Mayor or Recorder shall be one, by warrant under their hands and seals, to levy the same by distress and sale of the goods and chattels of such owner or occupant refusing or neglecting to pay, &c. That if, upon completing such regulation, that a greater sum of money has been lawfully expended in making such regulation, than the sum assessed and collected, it shall be lawful to cause a further assessment, equal to such excess, to be made and collected in manner aforesaid; and in case the money expended shall be less than the sum expressed in such estimate, and collected as aforesaid, the,surplus shall be forthwith returned.

If this act is not clear and explicit in reference to the assessments being made and collected before the work is begun,-then we say, in the language of Mr. Justice Bronson, in the Court for the Correction of Errors, in the Purdy case, "the English language is too poor for the framing" of any law for the protection of property.

JUDGE BRONSON has overlooked one great and important bearing of the provisions requiring the assessment to be collected before the work is begun, in this -the collection of the assessment either by voluntary payment, or by distress, is an actual notice to owner or occupant, and therefore more important to those interested than the calling of the ayes and noes and publishing the same. Surely the learned Chief Justice in this opinion is changing ground, and at once abandons his old rules of strict construction. The opinion of the learned Chief Justice in the Hope case which is to be found on the next preceding page, is at variance with many of his recent opinionsand seem to partake of those which he once abandoned as untenable.

INCOMPATIBLE OFFICES.

The communication made by Burtis Skidmore, Esq. of the city of New-York, in reference to the official acts of the Clerk of the Supreme Court, (Mr. Hallet,) in relation to his holding and exercising two distinct offices at the same time, and offices wholly incompatible, was presented to the Convention on Friday the 10th day of July, by the President of that

body. Mr. Hallet holds the office of Clerk of the Supreme Court by appointment from the Justices of that Court, and he also holds the office of Chairman of Commissioners in the matter of the widening the Bloomingdale Road, and the office of Chairman of Commissioners, in the matter of extending Leroy St., appointments he also received from the same judicial officers.

Mr. Hallet has heretofore been appointed by the Supreme Court Justices, a Commissioner in the matter of widening Cedar Street; in the matter of widening and extending Wooster Street; in the matter of widening and extending Beaver Street; in the matter of widening New St.; in the matter of opening Mount Morris Square; in the matter of opening 32d Street; in the matter of opening the 10th Avenue, in the matter of widening William Street, and in the matter of widening Anthony Street, in which proceedings the fees and charges were enormous. In 1839, Burtis Skidmore, Esq., as one of the executors of a large estate which would be injuriously affected by the widening of William Street and also by the widening of Anthony Street, proceeded to Albany and appeared in person before the Street Department of the Supreme Court and opposed the confirmation of the reports made by Mr. Hallet and his associates in the premises. Mr. Skidmore also appeared before a committee of the house of Assembly, consisting of the New-York Delegation, and urged the passage of a law requiring the fees, costs and charges in assessment proceedings to be taxed. The Committee convened and Mr. Skidmore appeared before them-one of the members objected to the passage of such a law, on the ground that the corporation of New-York had not asked for it. Mr. Skidmore enquired of the member if he represented the corporation of the city of New-York, or the citizens of the city, in the Legislature-for if he represented the former, he would put on his hat aud withdraw, but if he represented the latter, he would proceed. The member replied that he was elected by the citizens. Mr. S. then proceeded in his statement. This member was father of one of the Commissioners appointed by the Supreme Court. The legislature passed the bill requiring the costs to be taxed. The Supreme Court made a rule that the Clerk of the Supreme Court, the Circuit Judge, or the Recorder of the City of New-York, should tax the bills. Mr. Hallet then held the office of Commissioner, and also the office of Clerk of the Supreme Court.

In the month of February, 1846, three several notices appeared in the New-York Express, two of which were signed by Mr. Hallet, and the other by two of his associates and all of them also signed by John Leveridge attorney, stating among other things that the said signers, W. P.Hallet, John W. C. Leveridge, and Chas. A. Whitney, had, by a rule of the Supreme Court entered on the 4th day of September, 1845, been appointed Commissioners, &c.; the said Wm. Paxson Hallet, Commissioner in two of the said matters and the said J. W. C. Leveridge and the said C. A. Whitney Commissioner in three of the said matters, and stating also that they had completed their estimates and assessments, and requiring any person interested, to make objections in writing within a certain time named in said notice. Mr. Skidmore made written objections in one of the proceedings and delivered the same in person to W. Paxson Hallet, Esq., and in these he insisted that it was not competent for the justices of the Supreme Court to appoint Commissioners, that it was the discharge of the duties of another office, and belonged to the Executive, and not the judiciary department.

Mr. Skidmore also made an objection in these words viz: "that the said William Paxson Hallet is a clerk of the Supreme Court, and by a rule of the said Court is authorised to tax the cost or charges of the said Commissioners, their attorney, counsel or others, as by section 12 of the Act of April 20, 1839 is provided, and also on the ground that he has awarded to himself fees in this matter for services, notwithstanding he is a salary officer and already paid for all services rendered for all the time he discharges the duties of Clerk."

Mr. Skidmore made ten other objections in writing all of which he delivered to Mr. Hallet.

The Commissioners disregarded these objections and made application to the Supreme Court for confirmation of their Reports-the Court confirmed the Reports in the matter of Leroy Street and Houston Street, and sent back the report in the matter of the Bloomingdale Road for taxation. Mr. Hallet and his associates gave public notice in the newspapers

that the costs, &c., in the three proceedings would be taxed on a certain day, and on a certain hour of that day, by Wm. Paxson Hallet, Esq., Clerk of the Supreme Court at his office in the City Hall, and two of these notices were also signed by said

Hallet.

The following is a copy of one of the notices. NOTICE NO. 1.

BLOOMINGDALE ROAD,

"SUPREME COURT. In the matter of the application of the Mayor, Aldermen and Commonalty of the city of New-York, relative to opening a certain new street laid out under and by virtue of an act of the Legislature of the people of the State of New-York entitled "An act to lay out a new street in the twelfth and sixteenth wards of the city of New-York, and to keep open a part of the Bloomingdale Road in said city," passed April 16, 1838-Public notice is hereby given, that the costs and charges incurred by reason of the proceedings in the above entitled matter will be taxed by WILLIAM P. HALLET, Esq., one of the clerks of this Court, at his office in the City Hall of the city of New-York, on the twenty-second day of June instant, at ten o'clock in the forenoon of that day. Dated New-York, June 4, 1846. WM. P. HALLET,

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On the day and hour named, John Leveridge, Esq., Attorney in the matter, and his son John W. C. Leveridge, Esq., Commissioner in all three of the proceedings, and Charles A. Whitney, Esq., also a Commissioner in all three of the proceedings, and William Paxson Hallet, Esq., a Commissioner in two of the proceedings, appeared before the said Wm. Paxson Hallet, Esq., at the office of Wm. Paxson Hallet, Esq., Clerk of the Supreme Court. Mr. Skidmore and his counsel, Mr. Mott, also appeared and placed in the hands of Wm. Paxson Hallet, Esq., written objections in the premises, and in these insisted that Mr. Hallet was incompetent to tax the costs, and also objected to other matters, and then withdrew. On the first Monday in July, John Leveridge, Esq., presented their report to the Supreme Court, at Utica, for confirmation, and Mr. Mott in behalf of Mr. Skidmore, also made a journey to Utica, and presented himself before the court and objected to the confirmation of their Report, and called upon Mr. Leveridge to read the objections made before Mr. Hallet by Mr. Skidmore. The objections were read and the Judges took the papers, and next morning when they came into Court decided that the taxation by Mr. Hallet was no taxation at all. Mr. Skidmore had previous to this prepared his communication to the Convention, and forwarded it to the President of that body, before he heard from the Supreme Court, believing it to be a public matter, and a grave subject also. He had no unkind feeling toward Mr. Hallet in the matter, and his communication to the Convention was kindly but plainly expressed. It is well known that the citizens of New-York have long complained of abuses in assessment matters, and one great and very serious difficulty has been that the tribunal to which the complaints were addressed were the tribunals of whose acts they complained-it was therefore they found that the various offices and trusts were incompatible, and hence the necessity of the application to the State Convention that a provision might be made to guard against such a state of things in future. The duty was an unpleasant one for Mr. Skidmore, but it was nevertheless, a duty, he would not shrink from. Mr. Skidmore is one of our best citizens, extensively engaged in business, knows his own rights and has independence enough to insist upon themhe represents a large amount of real estate, and the collector's of assessments have had a beaten path to his office for years to present assessment bills for a large amount of worthless improvements, that he has been under the necessity of paying, because he could get no redress in the premises. When application was made to the Justices of the Supreme Court, the reply was, that the Court acted as Commissioners, and could not review their proceedings-then objections were made to the judges holding and exercising the office of Commissioners as being repugnant to the constitution-the court entertained this objection and decided that the office of Street Commissioner was incompatible with that of Judge, and was not permitted by the Constitution to be held by a justice of the Supreme Court, but what had already been done by them in the usurped office, was valid. One of the Justices who held this opinion departed this life a few days after this opinion was delivered-a new judge was appointed and the court ordered a re-argument of the

question, and then decided that they did not act as Commissioner but as a court of limited jurisdiction. Judge Bronson dissented from this decision. The cause was carried up to the Court for the Correction of errors where it was held by Senator Porter that the judges acted as Commissioner, and by Lieut. Gov. Gardiner, that the Street law was an enlargement of the general jurisdiction of the Court, notwithstanding the exercise of the power was confined to the boundaries of a local district, and limited within the boundaries of a single county. Thus the question stood in the Court for the Correction of errors, when a resolution was offered by Senator Lott to sustain the opinion of Lieut. Gov. Gardiner-but sixfmembers of the court voted in favor of Mr. Lott's resolution-and it was lost-The Court for the Correction of Errors however reversed the opinion of the Supreme Court by a vote of 16 to 1.

Hundreds of citizens have been deprived of their lands and involved in litigation by these extraordinary proceedings. The subject was brought before the legislature, a committee was appointed to investigate the abuses, and they devoted a long time to that duty, and made a report, in which, they say:

"It is well known that the Judges of the Supreme Court in confirming these Reports in Street openings do not act as a Court but as Commissioners under the statute, it may be well therefore to authorise the Court to examine their proceedings as Commissioners."

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Again the Committee say:

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This appraisement is now made by three commissioners appointed by the Supreme Court, who are generally nominated at the instance of the Counsel of the Corporation, although there has been instances where one of these commissioners has been selected by the Court from names proposed by the Corporation counsel and by the opponents of the application, and another has been named by these opponents."

And again the Committee say:

"It is difficult now to comprehend how the expenses in opening streets and avenues in that city could have been so great as they are represented to have been, but of the fact of their being so very great, there can be no doubt, it is established by the receipts of the commissioners for the same, exhibited before the Committee."

The Committee in their report, further state:

"In the opening of the 7th avenue, from 21st to 129th Street, which was confirmed in Feb., 1839, the amount awarded to the owners for land taken for the avenue, was $28,141.41, while the fees and expenses of that opening amounted to the large sum of $12,436.70, and if to that is added the collector's fees for collecting the assessments, $1,115.00, it will show a total of expenses paid by the owners of land on that portion of the seventh avenue for its formal opening, amounting to 13,550.70.

"The amount paid to the commissioners on that avenue for their services, at the rate of four dollars per day, which is the highest sum allowed by the statute, is pay for sixteen month's services for each commissioner, in making the estimate of the land (taken for opening that avenue, and assessing that value back again upon the land) on each side of the avenue, and in opening this one street, of one hundred and eight blocks of about 270 feet each, the commissioners were each engaged three times the whole period that the Legislature is employed in legislating for the State, and each of them received about three times the compensation that is paid to a legislator for passing the whole winter from his home in attending to the public business. And in addition to that it was shown to the committee that commissioners were frequently engaged on several streets or avenues at the same time, taking their four dollars per day on each of those improvements; and that they received and were paid that compensation in some instances where they did not attend to the duties of their appointment, and in others where they attended but once or twice. If the case of the seventh avenue had been a solitary instance, the committee might have supposed that it had taken place through some mistake; but they"

found the same principle of enormous expenses to ex-
tend throughout the whole system of street openings
in that city, and that to such an amount that the surprise
should be not that the inhabitants now complain of it,
but that they had not done so at a much earlier
period."

There is an incompatibility of office arising from
the fact that the Court and their officers form one party
while the opponents of the proceedings form another
-an impartial hearing, under such circumstances,
would be open to suspicions, and even if the sus
picions were not well founded, would, notwithstand-
ing cause unpleasant feelings. The Court were wrong
in appointing Mr. Hallet commissioner-Mr. Hallet
was wrong in accepting the appointment, and wrong
in persisting in the attempt to tax his own charges.

This communication, addressed by Mr. SKIDMORE, to the President of the State Convention, with a request that he would present it to the body over which he presides, caused a very extensive discussion-the report of the debates occupies near four columns of the Albany Atlas. Mr. Mann, of New-York, took very decided ground in the matter, and persevered successfully to the end.

Messrs. Nicoll, Shepard, Stow, Brown, Townsend, Richmond, Morris, Cambreleng, Chatfield, Ruggles, Ward, Stetson, Tilden, Harrison, Crooker, Forsyth, Simmons, Bascom, Kirkland, and Taggart, also took part in the debate. The communication was referred to the Judiciary Committee,―a very proper reference. and by a very large vote. It is the duty of the Convention to provide against such abuses. There was no dispute about the facts. Mr. Hallet had given public notice in several newspapers that he had been appointed a Commissioner by the Supreme Court. He gave the same publicity that the cost and charges of himself as Commissioner, with others, would be taxed by himself as Clerk of the Supreme Court, and as to the charges of the Commissioners, these were a matter of public record, for a copy of the bill of charges was filed in the Street Commissioner's Office, and these amounted to the very large sum of $6,182 50. The appointment by the Court of their own Clerk, a Commissioner, was improper, from the incompatibility of the two offices. Complaints had been made repeatedly of their appointments, and frequent complaints had been made of the extraordinary charges, and these charges of commissioners have been the subject of legislative investigation, and a report has been made, which is Senate Doc. No. 100, for 1842,(extracts from which we have here given.) It is the Supreme Court which requires to be restrained in the exercise of princely patronage in the bestowing of these appointments. The present Constitution, we say, not only does not authorise the court, or the justices thereof, to exercise this office; but on the contrary prohibit it. But the Court sitting in judgment in their own case, adjudicate their own case, and decide in their own favor. Surely this is inconsistent. This is not "a government of laws but a government of men."

The following is a copy of a letter addressed by Mr.Hallet, to the President of the State Convention.

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"City Hall,

New-York, July 13, 1846.)

Hon. John Tracy, President, &c.
Sir-I have this morning observed in the public papers
that a memorial has been presented to the Convention from
Mr. Burtis Skidmore, reflecting on my official conduct in
taxing the costs and charges in the opening of a street in
which I had acted as one of the Commissioners.

"Permit me to say that if the Convention should think
proper, I am not only willing, but desirous that the same
should be thoroughly investigated.

Your ob't. serv't,
"W. P. HALLET."

Referred to Committee on the Judiciary, July 20, 1846.
NOTICE NO. 2.

BLOOMINGDALE ROAD.

cation of the Mayor, Aldermen and Commonalty SUPREME COURT-In the matter of the appliof the city of New-York, relative to opening a certain New Street, laid out under and by virtue of an act of the Legislature of the People of the State of NewYork, entitled "An Act to lay out a New Street in the Twelfth and Sixteenth Wards of the City of NewYork, and to keep open a part of the Bloomingdale Road in said city," passed April 16, 1838.

Notice is hereby given, that the costs and charges incurred by reason of the proceedings in the above entitled matter, will be taxed by the Honorable John W. Edmonds, Circuit Judge of the First Circuit of the State of New-York, at the office of the said Judge in the City Hall in the City of New-York, on the

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At ten o'clock on the morning of the 13th, Mr. Skidmore, with his counsel, Richard Mott, Esq., attended at the office of the Circuit Judge, in pursuance of the above notice, and was informed by a clerk in the office, that the Circuit Judge had left town that morning; they then proceeded to the office of the Recorder, where they found Mr. Commissioner Hallett and Mr Commissioner Whitney, with their attor ney, John Leveridge, Esq., in attendance; and also Edward Ewen, Esq., the brother of the Corporation Comptroller, who acted as surveyor. The Recorder was not in attendance. Mr. Skidmore and his counsel waited till past 11 o'clock, and then withdrew.

In the afternoon, Edward Ewen, Esq., gave notice to Mr. Mott, counsel of Mr. Skidmore, that the Recorder would tax the costs at 5 P. M. Mr. Mott attended and made objections to the jurisdiction of the Recorder in the premises. The Recorder said he would take the papers and decide the following morning, whether it was his duty to officiate in the matter. Mr. Commissioner Whitney and the attorney of the Commissioners, John Leveridge, Esq.. Edward Ewen, Esq., the surveyor and brother of John Ewen, Esq., Corporation Comptroller, and Robert Emmett. Esq., former Corporation Counsel, and recently appointed Assistant Register of the Court of Chancery, were also in attendance on the side of the applicants for the fees and charges.

On the following morning, the same parties again attended before the Recorder, and argued the question. The recorder decided that the Supreme Court could not impose upon him duties not required by the Statutes. The Recorder, was, in 1841, one of the Select Committee appointed by the Senate of this State to investigate assessment abuses in the City of New-York, and was several months engaged in that duty, a report of which will be found in Senate Doc. No. 100, of 1842. In that report, the Committee disscuss the acts and doings of the Supreme Court in street matters, and made report thereon.

Judge Edmonds is under a constitutional disability, in the premises. A Circuit Judge can, (under the present Constitution,) hold no other office, and the notice here to audit Surveyors' fees, is another office than that of Circuit Judge.

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NOTICE NO. 3.
BLOOMINGDALE ROAD.

UPREME COURT.-In the matter of the application

"So the Mayor, Aldermen and Commonalty of the city

of New-York, relative to the opening a certain new street laid out under and by virtue of an act of the Legislature of the people of the State of New-York, entitled "an act to lay out a new street in the twelfth and sixteenth wards of the city of New-York, and to keep open a part of the Bloomingdale Road in said city," passed April 16, 1838. The Circuit Judge of the First circuit having been absent from the city of New-York at the time when the bill of the costs and charges in the above entitled matter was noticed for taxation before him, and the said bill of costs and charges having been pursuant to said notice, presented to the Recorder of the city of New-York for taxation, and he having declined to tax the same, on the ground that he had no power to do so -Notice is hereby given that a motion will be made to the Supreme Court at the next special term thereof,, to be held at the Capitol, in the city of Albany, on the first Tuesday of September next, at the opening of the Court on that day, or as soon thereafter as counsel can be heard, that the said court review their de cision made at the last July term thereof, as to the taxation of said costs and charges by the clerk thereof in the city of NewYork, and that the taxation thereof by said clerk do stand and be confirmed, or that said costs and charges be taxed by the court, or one of the Judges thereof at that time and place, or by the clerk of the said court at the office of the said clerk in the city of Albany, at the time or for such other or further order in the premises as the said court shall think proper to grant.-New-York, August 15, 1846.

WM. P. HALLET,

J. W. C. LEVERIDGE,
CHAS. A. WHITNEY.

J. Leveridge, Attorney.

Commissioners.

N. B. This is a notice of a motion for one Judge to set aside the decision of the full bench !!!

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