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NEW-YORK, AUGUST 31, 1846.

[Vol. I. No. 44


debt towards the repayment of the same, unless such

the owner. There are in the city of New-York many THURSDAY, July 30.

debt be necessary to provide against pestilence or cas- incorporated companies and associations, the capital MUNICIPAL CORPORATIONS.

ualty. After the creation of any debt there shall be of which is not all held by the people of the city of

levied and collected in said annual tax annually there- New-York, but by persons residing elsewhere, in the Mr. Murphy, from the fourteenth standing com- after one-twentieth part, or as near one twentieth part state and out of the United States. The capital of mitteee, made the following report:

as may be, of such debt, towards its repayment. those companies and associations exceeds thirty milARTICLE ,

5. Money shall not be borrowed by any city or vil- lions of dollars, which is assessed in the city of New

lage corporation in anticipation of its annual tax, exYork. That city has drawn together that capital, and 1. Private property shall not be taken for improvements in cities and villages, unless the compensation

cept for the purpose of paying interest about to be. she enjoys the benefit of it, and he was willing she therefor shall be first determined before a judicial

come due on any debt now existing, or to be created should ; but some nevertheless might object that after

under the limitations of this article, nor unless the tribunal, by a jury of twelve freeholders of the city or

having drawn in all this capital from all other parts of village where the same shall be situated, who shall

amount shall have been previously levied in such an. the state, she should have the right to tax other prop

nual tax. be chosen and qualified as jurors in civil cases.

erty which is now exempt from her taxation. 2. No local assessment for any improvement in any

6. No liability shall be contracted by any city or vil. Mr. Taggart was satisfied with the explanation. city or village, shall be laid, unless a majority of all lage corporation, unless provision have previously the owners of the lands to be assessed shall apply for been made in its annual tax, for discharging the same,

The resolution was adopted. such improvement, nor unless such improvement

or unless the same be incurred under the limitations of Mr. Ruggles presented the following which had shall be ordered by a vote of two-thirds of the comthis article.

been presented to him from a highly respectable genmon council or board of trustees of such city or vil


tleman. It was on the subject of taxation, which is lage.

Mr. Murphy moved that these reports be printed,

already before a committee of the Convention, but 3. No debt shall be created by any city or village and referred to the committee on the whole.

there were some suggestions which were not refercorporation, except to suppress insurrection, or to pro

red and therefore he desired this resolution to go to The motion was agreed to.

that committee. The resolution was referred to the vide against an existing pestilence or casualty, unless the same shall be authorized by act of the legislature,


2d standing committee, as follows: for some single object or work to be distincily speci.

The reports which we have given above, are highly

Resolved, That it be referred to the standing comfied therein, which shall provide the ways and means

mittee nu : ber two, to inquire into the expediency exclusively of loans to pay the interest of such debt important. We had intended to have reviewed the

of adopting a permanent and uniform system of taxaas it shall fall due, and also to pay and discharge the various propositions contained in the two reports tion, which shall operate equally upon all classes of principal thereon within twenty years, by tax to be in this paper, but have concluded to defer it and issue

citizens ; which shall regard actual property, whether assessed and collected upon the taxable property of an Extra ; in which we will discuss the principles, set

real or personal, including all debts due from solvent such city or village, in equal amount as near as may

debtors, as the only legitimate object of taxationbe, annually, and such law shall be irrepealable until forth the existing mischiefs, to be remedied, and which shall define what is real and what is personal such debt, and the interest thereon, shall be fully paid examine the remedies proposed by committee No. 14. property, and shall take from the legislature the powand discharged. And no such law shall take eifect At the same time we will review the remaining sec

er of converting the one into the other, and thereby until it shall have been approved by a majority of the electors of such city or village; and no money so raistions of Mr. Allen's bill, which bill was given in Muni

interfering with private and vested rights--which

shall protect the citizen from double taxation in ed shall be applied otherwise than to the object specipal Gazette, No. 43, with a review of the first 20 sec- form or under any pretence whatever-which shall cified in such law. tions.

secure to resident citizens the right to be assessed for By order of the committee,

their personal estate in the city, town and county, H. C. MURPHY, Chairman.

Monday July 13.

where they reside, and not elsewhere—and which

TAXATION OF PERSONAL PROPERTY. Mr. M. said that, regarding the first section, the

shall asseri and perpetuate the principle of assessing committee was unanimous; but with regard to the Mr. Murphr offered the following:

all property at is full value, subject however to a de others, it was not so. Differing himself from the com- Resolved, That the Comptroller be requested to

duction on account of any debts which the owner may mittee on this, that the provisions which they had sub- cause to be prepared and furnished to this Convention,

in good faith have contracted, and be liable to pay ; mitted did not go into the defects of our system of mu- a statement showing the amount of the capital stock

so that each one may bear his due proportionate share nicipal corporatians, he had prepared a minority re- actually paid in, and secured to be paid 'in of the

of the public burthens according to the value of what port, which he asked permission to submit at this monied or stock corporations deriving an income or

he really possesses. time. profit from their capital or otherwise, including free

REMARKS. The Secretary read the minority report, as fol- banking associations, and having their principal office lows: or place for transacting their financial concerns in the

The question of equal and equitable taxation preARTICLE

city and connty of New-York; and also showing what sents the same difficulty as that of the National Tariff 1. No charter or special act for the incorporation of portions of such capital stock are held by persons re

in fixing a proper rate of duty on imports. The memany city or village shall be granted, but general and

siding respectively in the city and county, or elseuniform laws shall be passed for the incorporation of where in the state of New York, elsewhere in the

ber from Kings—Mr. Murphy-will be unable to cities; and like laws for the incorporation of villages, United States, and by persons residing out of the limits

obtain the information he seeks from the Comptroller, subject to such alterations as the legislature sball from

of the United States, and also the amount of such or even from the Banks, for their stock is every day time to time deem proper to make. The boundaries stock, if any belonging to the state, and to incorpora

changing hands, and in many instances the Banks do and limits of the territory included within any city or

ted literary and charitable institutions; and that such village corporation shall be determined in such manner statement distinguish the amount so held in each of

not know the residence of the stockholder. as the legislature shall prescribe. said corporations and associations.

Equality of valuation is a matter of great considera2. No assessment for any improvement in any city Mr. Taggart said he should like to hear some reason tion, and then equal apportionment follows as a neor village shall be laid otherwise than by general tax for calling upon the Comptroller for all the informa

cessary consequence. Who shall be taxed ? What upon the taxable property of such city or village, lev- tion contemplated by that resolution.

shall be taxed? Where taxed, and how taxed, are imied and collected with an annual tax for other ex- Mr. Murphy said there were various reasons.penses.

They were approaching a discussion when it would portantquestions, but a further enquiry is made, where 3. Private property shall not be taken for any im- be well to know how much of the stock of incorpo- shall the tax be imposed ? provement in any city or village other than for state

rated companies of this state are held elsewhere than purposes, unless the compensation shall be first fixed in this state. His particular object in offering this

Men possessing large estates in personal property by a jury in a court proceeding according to the course resolution was in regard to the duties of the special

will reside where the taxes are the least--they have of the common law.

committee, which was raised on the motion of the gentle- the ability to choose their place of residence. The 4. No debt shall be contracted by any city or village man from New-York (Mr. Morris) who proposed, corporation on a longer credit than twenty years, nor for the consideration of this convention, a proposition

rate of taxation is, in cities, becoming so much inunless there shall be levied and collected in its annu- to be inserted in the constitution to tax personal

creased, that the portion required by the tax gatheral tax of the preceding year one-twentieth part of such property where it was used and not at the domicil of

er, will soon exceed that collected by King Pharoah.

LEGISLATIVE DEPARTMENT OF THE STATE OF NEW-YORK. Common Sewers, Drains, or Vaults; Pitching and Paving Streets, cutting into any drain, or Sewer, altering, amending, cleansing, and scouring of any Street, raul!

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 asscssinent 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 saine in writing to the said mayor, aldormen and communalty, 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 attect any agreement between any landlord and tenant, respec the payment of any such charges, but they shall be answerable 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, ý 175 and 176.

"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 pnblished 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, 07.

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V8. 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 inight 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 calleu. 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 streetcase, it is no longer either necessary or proper to pursue the former practice of issuing a certioruri 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

S. S. Doughty,

T. Hope.

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, 88. 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 inay 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 statuto. (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 aldition 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 to the land. ($175, and Statutes of 1816, p. 113, Š 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)

H. DENNIO, Fees $1.

State Reporter.

to the same event. The corporation, who are the actors, being possessed of a mere vaked 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 assessinentthatthe 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 assessinent 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 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.

power of the

"To guard against these evils, and protect the citizens against the imposition of unnnecessary barthens, 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. 128.) 'The language 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 assessinent sales for real or fictitious improvements, sometimes fall very heavily upon the owners of city and village property. The lots wbich are sold are usually vacart, 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 10 watch the movements of a corporation and its officers; and upon children, who want discretion to defend and protect their rigtits." Sbarp vs. Spier. Mr. Justice Bronson.


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, fc., 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 clerka commissioner, and by the same actthe 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.


body. Mr. Hallet holds the office of Clerk of the that the costs, &c., in the three proceedings would On the Opinion of Chief Justice Bronson in the Supreme Court by appointment from the Justices of be taxed on a certain day, and on a certain hour Assessment Case of Doughty vs. Hope.

that Court, and he also holds the office of Chairman of that day, by Wm. Paxson Hallet, Esq., Clerk

of Commissioners in the matter of the widening the of the Supreme Court at his office in the City Hall, The act of April 9, 1313, authorizing assessments

Bloomingdale Road, and the office of Chairman of and two of these notices were also signed by said upon the property of owners and occupants of houses

Commissioners, in the matter of extending Leroy St., Hallet. or lots, is a very special law. The particular kind of

appointments he also received from the same judicial The following is a copy of one of the notices. improvements auihorized, are particularly stated. officers.

NOTICE NO. 1. One class of these improvements are to be made un

Mr. Hallet has heretofore been appointed by the der authority and by the direction of the Supreme

Supreme Court Justices, a Commissioner in the matter
Court of the State of New-York ; the other class of
of widening Cedar Street; in the inatter of widening “S

6 SUPREME COURT.-In the matter of the application

of the Mayor, Aldermen and Commonalty of the city improvements are required to be made by the auand extending Wooster Street; in the matter of widen

of New York, relative to opening a certain new street laid thority of the Mayor, Alderinen and Commonalty of

ing and extending Beaver Street; in the matter of out under and by virtue of an act of the Legislature of the the City of New-York. The power is thus specially widening New St. ; in the matter of opening Mount

people of the State of New York entitled “ An act to lay out vested in two distinct classes of public officers.

a new street in the twelfth and sixteenth warıls of the city Morris Square ; in the matter of opening 32d Street ; That portion of the act of April 9, 1813, which

of New York, and to keep open a part of the Bloomingdale in the matter of opening the 10th Avenue, in the Road in snid city," passed April 16, 1832—Public notice is makes it lawful for the Mayor, Aldermen and Com

matter of widening William Street, and in the matter hereby given, tha: the costs and charges incurred by reason monalty to cause improvements to be made, as set of widening Anthony Street, in which proceedings

of the proceedings in the above entitled matter will be taxed forth in full on page 600, enumerates the making of

by WILLIAM P. HALLET, Esq., one of the clerks of this the fees and charges were enormous. In 1839, Burtis

Court, at his office in the City Hall of the city of New York, common sewers, drains and vaults, “ the pitching and

Skidmore, Esq., as one of the executors of a large on the twenty-second day of June instant, at ten o'clock in paving of streets the cutting into any drain or sever

estate which would be injuriously affected by the the forenoon of that day. Dated New York, June 4, 1216. -the altering, amending, or scouring, of any Street,

WM. P. HALLET, widlening of William Street and also by the widening

J. W. C. LEVERIDGE, vault, sink, or common sewer, within the said City

Commissioners. of Anthony Street, proceeded to Albany and appeared

CHAS. A. WHITNEY, the raising, reducing, levelling, or fencing in of any in person before the Street Department of the Su

J. Leveridge, Attorney. vacant or adjoining lots in said Cily''-these are the

preme Court and opposed the confirmation of the only improvements named in this class which it shall

reports made by Mr. Llallet and his associates in the On the day and hour named, John Leveridge, be lawful for the Mayor, &c. to cause to be made. premises. Mr. Skidmore also appeared before a

Esq., Attorney in the matter, and his son John They are to cause estimates of the expense of con- committee of the house of Assembly, consisting

W. C. Leveridge, Esq., Commissioner in all three forming to such regulation to be made, and a just and of the New-York Delegation, and urged the passage

of the proceedings, and Charles A. Whitney, Esq., equitable assessment thereof, among the owners and of a law requiring the fees, costs and charges in assess

also a Commissioner in all three of the proceedings, occupants intended to be benefitted in proportion as

and William Paxson Hallet, Esq., a Commissioner ment proceedings to be taxed. The Committee connearly as may be to the advantage which each shall vened and Mr. Skidmore appeared before them-one

in two of the proceedings, appeared before the said be deemed to acquire. of the members objected to the passage of such a law,

Wm. l'axson Hallet, Esq., at the office of Wm. Paxson The said Mayor, &c. shall appoint skilful, compeon the ground that the corporation of New-York had

Hallet, Esq., Clerk of the Supreme Court. Mr. Skidtent, disiuterested persons to make the estimate and not asked for it. Mr. Skidmore enquired of the

more and his counsel, AIr. Mott, also appeared and assessment; who, before they enter upon the execumember if he represented the corporation of the city

placed in the hands of Wm. Paxson Hallet, Esq., tion of thcir trusl, shall severally take an oath beof New-York, or the citizens of the city, in the Legis

written objections in the premises, and in these infore one of two oflicers, viz: the Mayor or Recorder lature—for if he represented the former, he would

sisted that Mr. Hallet was incompetent to tax tlie of said city put on his hat aud withdraw, but if he represented

costs, and also objected to other matters, and then The estimate and assessment when made, shall be the latter, he would proceed. The member replied

withdrew.—On the first Monday in July, John Levercertified in writing to the said Mayor, Aldermen that he was elected by the citizens. Mr. S. then pro

idge, Esq., presented their report to the Supreme and Commonalty ; and when ratified by them, ceeded in his statement. This member was father of

Court, at Utica, for confirmation, and Mr. Mott in beshall be conclusive, &c.; and the owner or occupant one of the Commissioners appointed by the Supreme

half of Mr. Skidmore, also maile a journey to Utica, shall be liable to pay the amount to such person as the Court. The legislature passed the bill requiring the costs

and presented himself before the court and objected Common Council shall appoint to receive the same. to be taxed. The Supreme Court made a rule that the

to the confirmation of their Report, and called upon In default of payment, it is made lawful for the Clerk of the Supreme Court, the Circuit Judge, or the

Mr. Leveridge to read the objections made before Mr. Mayor, Recorder and Aldermen, or any five of them, Recorder of the City of New York, should tax the bills.

Hallet by Mr. Skidmore. The objections were real of vrhom the Mayor or Recorder shall be one, by Mr. Hallet then held the office of Commissioner, and

and the Judges took the papers, and next mornwarrant under their hands and seals, to levy the same also the office of Clerk of the Supreme Court.

ing when they came into Court decided that the taxby distress and sale of the goods and chattels of such In the month of February, 1846, three several notices

ation by Mr. Hallet was no taxation at all. Mr. Skidowner or occupant refusing or neglecting to pay, &c. appeared in the New-York Express, two of which were

more had previous to this prepared his communication That if, upon completing such regulation, that a great- signed by Mr. Hallet, and the other by two of his

to the Convention, and forwarded it to the President er sum of money has been lawfully expended in ma- associates and all of them also signed by John Leveridge

of that body, before he heard from the Supreme king such regulation, than the sum assessed and col- attorney, stating among other things that the said

Court, believing it to be a public matter, and a grave lected, it shall be lawful to cause a further assessment, signers, W.P.Hallet, John W.C. Leveridge, and Chas.

subject also. He had no unkind feeling toward Mr. equal to such excess, to be made and collected in A. Whitney, had, by a rule of the Supreme Court en

Hallet in the matter, and his communication to the manner aforesaid; and in case the money expended tered on the 4th day of September, 1845, been ap

Convention was kindly but plainly expressed. It is shall be less than the sum expressed in such estimate, pointed Commissioners, &c.; the said Wm. Paxson

well known that the citizens of New-York have long and collected as aforesaid, the surplus shall be forth- Hallet, Commissioner in two of the said matters and

complained of abuses in assessment matters, and one with returned. the said J. W. C. Leveridge and the said C. A. Whitney

great and veryserious difficulty has been that the tribunal If this act is not clear and explicit in reference Commissioner in three of the said inatters, and stating

to which the complaints were addressed were the trito the assessments being made and collected before also that they had completed theirestimates and assess

bunals of whose acts they complained it was therethe work is begun,—then we say, in the language of ments, and requiring any person interested to make ob

fore they found that the various oflices and trusts were Mr. Justice Bronson, in the Court for the Correction jections in writing within a certain time named in said incompatible, and hence the necessity of the applicaof Errors, in the Purdy case, the English language notice. Mr. Skidmore made written objectionsinone of

tion to the State Convention that a provision might be is too poor for the framing” of any law for the pro- the proceedings and delivered the same in person to W.

made to guard against such a state of things in future. tection of property, Paxson Hallet, Esq., and in these he insisted that it

The duty was an unpleasant one for Mr. Skidmore, Junge Bronson has overlooked one great and im- was not competent for the justices of the Supreme

but it was nevertheless, a duty, he would not shrink portant bearing of the provisions requiring the assess- Court to appoint Commissioners, that it was the dis

from. Mr. Skidmore is one of our best citizens, exment to be collected before the work is begun, in this charge of the duties of another office, and belonged to

tensively engaged in business, knows his own rights -the collection of the assessmenteither by voluntary the Executive, and not the judiciary department.

and has independence enough to insist upon thempayment, or by distress, is an actual notice to owner Mr. Skidmore also made an objection in these words

he represents a large amount of real estate, and the or occupant, and therefore more important to those viz: " that the said William Paxson Hallet is a clerk

collector's of assessments have had a beaten path to interested than the calling of the ayes and noes and of the Supreme Court, and by a rule of the said Court his office for years to present assessment bills for a publishing the same. Surely the learned Chief Jus- is authorised to tax the cost or charges of the said

large amount of worthless improvements, that he has tice in this opinion is changing ground, and at once Commissioners, their attorney, counsel or others, as

been under the necessity of paying, because he could abandons his old rules of strict construction. The || by section 12 of the Act of April 20, 1839 is provided,

get no redress in the premises. When application opinion of the learned Chief Justice in the Hope case and also on the ground that he has awarded to him. was made to the Justices of the Supreme Court, the which is to be found on the next preceding page, is at self fees in this matter for services, notwithstanding reply was, that the Court acted as Commissioners, and variauce with many of his recent opinionsand seem to he is a salary officer and already paid for all services

could not review their proceedings—then objections partake of those which he once abandoned as unten- rendered for all the time he discharges the duties of

were made to the judges holding and exercising the able. Clerk."

office of Commissioners as being repugnant to the conMr. Skidmore made ten other objections in writing

stitution—the court entertained this objection and deINCOMPATIBLE OFFICES. all of which he delivered Mr. Hallet.

cided that the office of Street Commissioner was in. The communication made by Burtis Skidmore, The Commissioners disregarded these objections

compatible with that of Judge, and was not permitted Esq. of the city of New-York, in reference to the and made application to the Supreme Court for con

by the Constitution to be held by a justice of the Suofficial acts of the Clerk of the Supreme Court, (Mr. firmation of their Reports--the Court confirmed the preme Court, but what had already been done by them Hallet,) in relation to his holding and exercising two Reports in the matter of Leroy Street and Houston

in the usurped office, was valid. One of the Justices distinct offices at the same time, and offices wholly in. Street, and sent back the report in the matter of the

who held this opinion departed this life a few days compatible, was presented to the Convention on Fri. Bloomingdale Road for taxation. Mr. Hallet and

after this opinion was delivered a new judge was day the 10th day of July, by the President of that his associates gave public notice in the newspapers

appointed and the court ordered a re-argument of the




question, and then decided that they did not act as found the same principle of enormous expenses to exCommissioner but as a court of limited jurisdiction. tend throughont the whole system of street openings Judge Bronson dissented from this decision. The in that city, and that to such an amount that the surprise cause was carried up to the Court for the Correction should be not that the inhabitants now complain of it, of errors where it was held by Senator Porter that but that they had not done so at a much earlier the judges acted as Commissioner, and by Lieut. period." Gov. Gardiner, that the Street law was an enlargement There is an incompatibility of office arising from of the general jurisdiction of the Court, notwith- the fact that the Court and their officers form one party standing the exercise of the power was confined to while the opponents of the proceedings form another the bonndaries of a local district, and limited within -an impartial hearing, under such circumstances, the boundaries of a single county. Thus the question would be open to suspicions, and even if the susstood in the Court for the Correction of errors, when picions were not well founded, would, notwithstanda resolution was offered by Senator Lott.to sustain the ing cause unpleasant feelings. The Court were wrong opinion of Lieut. Gov. Gardiner—but six{members of in appointing Mr. Hallet commissioner-Mr. Hallet the court voted in favor of Mr. Lott's resolution and

was wrong in accepting the appointment, and wrong it was lost— The Court for the Correction of Errors in persisting in the attempt to tax his own charges. however reversed the opinion of the Supreme Court This communication, addressed by Mr. Skidmore, by a vote of 16 to 1.

to the President of the State Conventiou, with a reHundreds of citizens have been deprived of their guest that he would present it to the body over which lands and involved in litigation by these extraordinary he presides, caused a very extensive discussion—the proceedings. The subject was brought before the report of the debates occupies near four columns of legislature, a committee was appointed to investigate the Albany Atlas. Mr. Mann, of New-York, took the abuses, and they devoted a long time to that duty, very decided ground in the matter, and persevered and made a report, in which, they say:

successfully to the end. " It is well known that the Judges of the Supreme Messrs. Nicoll, Shepard, Stow, Brown, TownCourt in confirming these Reports in Street openings send, Richmond, Morris, Cambreleng, Chatfield, Rug. do not act as a Court but as Communissioners under the gles, Ward, Stetson, Tilden, Harrison, Crooker, Forstatute, it may be well therefore to authorise the syth, Simmons, Bascom, Kirkland, and Taggart, also Court to examine their proceedings as Commission- took part in the debate. The communication was ers."

referred to the Judiciary Committee, -a very proper Again the Committee say:

reference, and by a very large vote. It is the duty · That there has been great and serious abuses in of the Convention to provide against such abuses. the mode of opening streets and avenues in the city There was no dispute about the facts. Mr. Hallet of New-York, and in the expenses attending the sam had given public notice in several newspapers that cannot be doubted by any person who has examined he had been appointed a Commissioner by the Suthe subject, and these evils have mainly arisen from preme Court. He gave the same publicity that the the loose and unguarded manner in which this import- cost and charges of himself as Commissioner, with ant branch of authority has been exercised."

others, would be taxed by himself as Clerk of the Again the Committee say:

Supreme Court, and as to the charges of the Commis“This appraisement is now made by three com- sioners, these were a matter of public record, for a missioners appointed by the Supreme Court, who are copy of the bill of charges was filed in the Street generally nominated at the instance of the Counsel of Commissioner's Office, and these amounted io the the Corporation, although there has been instances very large sum of $6,182 50. The appointment by where one of these commissioners has been selected the Court of their own Clerk, a Commissioner, was by the Court from namnes proposed by the Corporation improper, from the incompatibility of the two offices. counsel and by the opponents of the application, and Complaints had been made repeatedly of their apanother has been named by these opponents." pointments, and frequent complaints had been made And again the Committee say :

of the extraordinary charges, and these charges of " It is difficult now to comprehend how the expen- commissioners have been the subject of legislative ses in opening streets and avenues in that city could investigation, and a report has been made, which is have been so great as they are represented to have Senate Doc.No. 100, for 1842,(extracts from which we been, but of the fact of their being so very great, there have here given.) It is the Supreme Court which can be no doubt, it is established by the receipts of the requires to be restrained in the exercise of princely commissioners for the same, exhibited before the Com- patronage in the bestowing of these appointments. mittee."

The present Constitution, we say, not only does not The Committee in their report, further state : anthorise the court, or the justices thereof, to exercise “ In the opening of the 7th avenue, from 21st to this office; but on the contrary prohibit it. But the 129th Street, which was confirmed in Feb., 1839, the Court sitting in judgment in their own case, adjudicate amount awarded to the owners for land taken for the their own case, and decide in their own favor. Surely avenue, was $28,141.41, while the fees and expenses

this is inconsistent. This is not “a government of of that opening amounted to the large sum of $12,- laws but a government of men." 436.70, and if to that is added the collector's fees for The following is a copy of a letter auldressed by Mr.Hallet, collecting the assessments, $1,115.00, it will show a to the President of the State Convention. total of expenses paid by the owners of land on that

"City Hall,

New York, July 13, 1816. ) portion of the seventh avenue for its formal opening, " Hon. John Tracy, President, &c. amounting to 13,550.70.

"Sir-I have this morning observed in the public papers “ The amount paid to the commissioners on that that a memorial has been presented to the Convention from avenue for their services, at the rate of four dollars

Mr. Burtis Skidmore, retlecting on my official conduct in

tuxing the costs and charges in the opening of a street in per day, which is the highest sum allowed by the which I had acted as one of the Commissioners. statute, is pay for sixteen month's services for each “ Permit me to say that if the Convention should think commissioner, in making the estimate of the land (taken proper, I am not only willing, but desirous that the same

should be thoroughly investigated. Your ob't. serv't, for opening that avenue, and assessing that value

" W. P. HALLET." back again upon the land) on each side of the avenue, Referred to Committee on the Judiciary, July 20, 1816. and in opening this one street, of one hundred and


1 eight blocks of about 270 feet each, the commissioners were each engaged three times the whole period that

BLOOMINGDALE ROAD. the Legislature is employed in legislating for the State, UPREME COURT-In the matter of the appliand each of them (received about three times the compensation that is paid to a legislator for passing the of the city of New York, relative to opening a certain whole winter from his home in attending to the public New Street, laid out under and by virtue of an act business. And in addition to that it was shown to of the Legislature of the People of the State of Newthe committee that commissioners were frequently York, entitled “ An Act to lay out a New Street in engaged on several streets or avenues at the same the Twelfth and Sixteenth Wards of the City of Newtime, taking their four dollars per day on each York, and to keep open a part of the Bloomingdale of those improvements ; and that they received and Road in said city," passed April 16. 1838. were paid that compensation in some instances where Notice is hereby given, that the costs and charges they did not attend to the duties of their appointment, incurred by reason of the proceedings in the above and in others where they attended but once or twice. entitled matter, willpbe taxed by the Honorable John If the case of the seventh avenue had been a solitary W. Edmonds, Circuit Judge of jhe First Circuit of instance, the committee might have supposed that it the State of New-York, at the office of the said Judge had taken place through some mistake; but they " in the City Hall in the City of New-York, on the

Thirteenth day of August next, at ten o'clock in the
forenoon of that day; and in case the said Circuit
Judge shall be unable to attend, or be absent from
the city of New York, the same will be taxed by his
Honor the Recorder of the City of New-York, at his
office No.27 Beekman Street, in said city, on the above
mentioned day and at the above mentioned hour.
New-York, July 27, 1846.

J. W. C. LEVERIDGE, Commissioners.

J. LEVERIDGE, Attorney.

At ten o'clock on the morning of the 13th, Mr. Skidmore, with his counsel, Richard Mott, Esq., atteuded 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

John Leveridge, Esq., in atiendance; 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. Skidınore, 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 ques. tion. 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.



of 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 Blooming. dale Road in said city," passed April 16, 1838. The Cirenit 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 neut special term thereof,, to be held at the Capitol, in the city of Awany, on the first Tuesday of September neri, at the opening of the Court on that day, or as soon thereafter as counsel can be heard, that the said court revieno their de cision made at the last July term thereof, as to the taration of said costs and charges by the clerk thereof in the city of NoroYork, 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.

J. W. C. LEVERIDGE, Commissioners.

J. Leveridge, Attorney.

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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