The first above entitled case is an appeal from a judgment at the General Term in the second district, affirming a judgment rendered on trial without a jury, before Judge Babkaed, at the Kings county Special Term, in favor of the plaintiff.
In the year 1859 there was a tunnel through about a mile of the length of Atlantic street, in the city of Brooklyn, over which there was a paved street on the regular grade. This tunnel was used by the Long Island Railroad Company, as assignees of the Brooklyn and-Jamaica Railroad Company, for the purpose of running with steam power their cars down to the terminus of the road, the foot of Atlantic street, Brooklyn.
This-railroad extended from Jamaica, and intermediate points, through Atlantic street, to its terminus at the East River. • On the trial of the, issues herein, the defendant below offered to prove that the closing of this tunnel and the removal of steam from the street conferred no benefit, but rather inflicted injury upon the property in question. At all events, opinion was divided upon the question, whether or not the existence of that tunnel and the use of steam upon the said street were beneficial or injurious to the interest of the property owners upon the said street, or those contiguous .thereto. The offer was excluded, and the defendant excepted.
On the 19th of April, 1859, an act was passed by the legislature of the State of Kew York (Session Laws, pp. 1109, etc., chap. 484), entitled “An act to provide for the closing of the entrances of the tunnel of the Long Island Railroad Company, in Atlantic street, in the city of Brooklyn, and restoring that street to its proper grade, and for the relinquishment by the railroad company of its right to use steam power within said city.”
Which act enacted as follows:
Section one provided that the common council of the city of Brooklyn shall, upon petition or application of a majority of the owners of land in the district proposed to be assessed by the said act, make application to the Supreme Court, at a Special Term, for the appointment of three commissioners under act of April 17th, 1854.
■ Section two provides that the commissioners shall qualify and file a bond.
Section three provides that the commissioners are authorized an d empowered to enter into a contract in writing with the Long Island Railroad Company, or its assigns, that they shall close the entrances of the tunnel in Atlantic street, in the city of -y Brooklyn, and pave and regulate the same to its proper grade; and also for the relinquishment by said company, and its assigns, of the right to use steam power within said city, and that they shall lay rails upon the surface of street, and run horse-cars from foot of Atlantic street to city line. And that the said Long Island Railroad Company, and its assigns, shall receive, as compensation for compliance with such contract, and the surrender of the right of said company and the Brooklyn and Jamaica Railroad Company to use steam within the city limits, the sum of not exceeding one hundred and twenty-five thousand dollars, which sum shall he assessed, together with the expenses of collecting the same, commissions, etc., which may not have exceeded five thousand dollars, upon the lands and premises (except those of religious denominations) within the following districts: Commencing at the East river at the foot of Atlantic street, and including the lot upon east side of Atlantic street and Atlantic avenue, or Schuyler street, to the city line; and commencing at the city line at the end of Pacific and Dean streets, and including the lots upon east side of Pacific and Dean streets to Smith street. Lots fronting on all streets and avenues crossing said Atlantic street and avenue, or Schuyler street, comprised in the foregoing limits, shall he included in said assessment district. * Section four provides that the street or streets, to he used by the company are to conform to grade lines.
Section five provides that the contract, when duly executed and acknowledged, shall be recorded in the office of the register of Kings county, and that, thereupon, it shall be the duty of the commissioners to determine the amount for which the assessment shall be levied, not exceeding the sum of one hundred and thirty thousand dollars, and to estimate the amount of benefit to be derived therefrom by the owners of the land within the assessment limits, and to assess the same.
Section six specifies the powers and duties of the commissioners, and provides, that upon the confirmation of their report, the right to use steam within city limits by the Brooklyn and Jamaica Railroad Company and Long Island Railroad Company shall cease, and that all laws allowing the use of steam within city limits, to said companies, are repealed.
Section seven provides, that upon compliance with the contract on the part of the railroad company, the commissioners are to appoint a collector, and sets forth the powers and duties of the collector.
Section eight provides how assessments are to be paid.
Section nine empowers commissioners to take legal measures to enforce fulfillment on the part of the Long Island Railroad Company, or its assigns, of the said contract.
Thereupon the common council of the city of Brooklyn presented a petition, verified by the mayor, to the Special Term of the Supreme Court of the county of Kings, to appoint commissioners under said act of April 19 th, 1859. The only evidence before the court, that a majority of the property owners within the assessment district had petitioned the common council, to make said petition to the Supreme Court, was the statement contained therein. The court below, at Special Term, excluded all evidence which would tend to show that a majority of the property owners had not, in point of fact, signed any such petition to the common council, and which according to the act of April 19th, 1859, must form the basis of the action of the common council in the premises. \"Upon the presentation of the petition, and proof of notice, etc., the Special Term of the Supreme Court of the county of Bangs, on or about the 1st day of August, made an order appointing John Winslow, Theodore T. King, and John D. Lawrence commissioners as aforesaid. The said commissioners then took their oaths of office, and filed the bonds required by the statute.
There was thereupon a further and other act of the legislature, passed March 23d, 1860, entitled “ An act in relation to the collection, payment, and application of certain assessments in the city of Brooklyn” (Sessions Laws, 1860, pp. 173, etc., chap. 100), making it the duty of the commissioners appointed under the act of April 19th, 1859, to assign the assessment list, and all the right to collect and receive payment of the said assessment, to the Long Island Railroad Company, or its assigns, on condition that the Long Island Railroad Company, or its assigns, deliver to the said commissioners an agreement in writing agreeing to accept said assignment, and the moneys to be received thereunder, in lieu of the moneys to be paid them under said contract, and agreeing to discontinue the use of steam within the city limits; agreeing also to close the tunnel on Atlantic street, to restore the said street to its proper grade, to lay a railway thereon, and to do such other acts and things as were required by the said act of April 19th, 1859.
It is farther provided, among other things, by the last mentioned act, that, upon receiving the said assignment, the Long Island Railroad Company, or its assigns, are authorized and empowered to receive for their own use, from each of the persons or owners named in said assessment, oi liable to pay any portion of the same, and that the said Long Island Railroad Company, or its assigns, may appoint a collector to collect so much of the said assessment as shall not be voluntarily paid as hereinbefore provided, with the same power, after taking oath and giving security, as if the said collector had been appointed under the ninth section of the act of 1859.
Whereupon (April 26th, 1860) the Long Island Railroad Company assigned, by virtue of a-certain agreement, to the Brooklyn and Jamaica Railroad Company, for certain considerations mentioned in said assignment, all the right and title of said Long Island Railroad Company in and to said tunnel on Atlantic street, and surrendered by said agreement all and every interest, in and to, a certain lease to the said Long'Island Railroad Company from the said Brooklyn and Jamaica Railroad Company. And the said Brooklyn and Jamaica Railroad Company therefore became vested with all rights possessed hy the said Long Island Railroad Com pany. And thereupon, about the same day and year, the commissioners made the assignment contemplated by the act of March 23d, 1860, to the Brooklyn and Jamaica Railroad Company.
July 28th, 1860, the commissioners made their report, certifying that the whole cost of the improvement was $129,801.81, of which amount the sum awarded to the Long Island Railroad Company, or its assigns, amounted, to $125,000.
September 27th, 1861, the report was confirmed.
January 19, 1863, the plaintiff, E. Darwin Litchfield, was appointed (by the Brooklyn and Jamaica Railroad Company) collector of the assessment.
April 29th, 1863, an act was passed by the legislature of the State (Session Laws of 1863, p. 526, chap. 298), entitled “ An act relating to an assessment in Brooklyn,” directing that it shall be the duty of the collector of the assessments, made in pursuance of chapter 484 of the laws passed in the. year 1859, to deposit in the office of the collector of taxes of the city of Brooklyn the original assessment list, to cancel every assessment already paid, and that the amounts which the several persons named in said assessment list are liable to pay may be sued for and recovered by the collector of said assessment, provided that in any action brought for this purpose, no costs, except disbursements, shall be recovered by said collector, unless the amount recovered exceeds two hundred and fifty dollars.
It is under the last provision of the last mentioned act, that the proceedings in personam, against the defendant have been commenced and prosecuted in this court by the plaintiff, as collector, etc., of said, assessments.
The defendant offered to show that a majority of the owners of land within the district did not sign the petition. The plaintiff’s counsel objected to such evidence; the court excluded it, and the defendant excepted.
There is no evidence in the case to show that a majority of the owners of land in the assessed district signed the land owners’ petition except the official petition of the mayor.
The defendant offered to show that the scheme was for the benefit of the railroad company, and not the land owners ; the evidence was excluded, and the defendant excepted.
The defendant twice moved to dismiss the complaint. The motions were denied, and the defendant excepted..
The judgment entered on the authority of the finding is not only for a sale of the lot assessed, but against the defendant personally for any deficiency.
Eight other appeals were submitted, brought by other defendants, from judgments recovered against them by the plaintiff as collector.
The second above entitled action is an appeal, brought- by the relators, who are owners in the district affected by these assessments, from a judgment of the General Term of the second judicial district of the Supreme Court, in favor of the defendants (who are the commissioners appointed by the Special Term under the act of 1859), upon a certiorari, bringing up for review the proceedings of the said commissioners with reference to the contract with the railroad companies, the assessments, and assignments thereof. ' .
insisted that the act of 1859 was unconstitutional and void, as not being within the exercise of the taxing power, and cited 39 Pennslvania, 70 ; Opinion of Judge Woodruff in re Peter Townsend, 39 New York Reports, page 174; Matter of Oliver Lee Co.'s Bank, 21 New York, 9 ; Power v. Bergen (2 Selden, 366) ; Williams v. Leland (6 Peters, 657); Opinion of Hamilton, in 84th number of Federalist; Sharpless v. Mayor of Philadelphia (21 Penn. State R., 167) ; Locke on Government, § 140 ; Id., §§ 134, 135 and 137; Beattie v. Holan (4 Peters, 152); Van Horn's Lessee v. Dorants (2 Dallas, 316); Montesquieu, Esprit des Lois, 13th book, 1st chapter; Report of French Assembly, 1793, quoted by Garnier in his Traitê de Finance; Smith’s Wealth of Nations, book 5, chap. 2, part 2; Free Government, by Johnson ; Locke on Government; Lieber on Civil Liberty, page 129 ; Say's Political Economy, book 1, chap. 14; Id., chap. 8, book 2 ; J. S. Mill’s Political Economy (Appleton’s edition), 5th book, 5th chapter, § 4; Confirmation Charter, Edward I, article 6 ; 2 Burrill’s Law Dictionary, page 967; Philadelphia Association v. Wood (39 Penn. State R., 82); Satterlee v. Matherson (2 Peters, 412).
The act is unconstitutional as taking property of a person without due process of law. A statute is unconstitutional which authorizes the private property of one man to be taken against his consent for the private use of another. (Coke 2 Inst., 50; 19 Wend, 676; Taylor v. Porter, 4 Hill, 140; Matter of Fourth avenue, 3 Wendell, 452 ; Matter of Albany street, 11 Wendell, 149 ; Matter of John and Cherry street, 19 Wend., 657; Taylor v. Porter, 4 Hill, 140; Varick v. Smith, 5 Paige, 134; Cochran v. Vangurley, 20 Wend., 365; Embury v. Conner, 3 Comstock, 511; People v. Mayor of Brooklyn, 6 Barbour, 218 ; Matter of Canal street, 11 Wendell, 155 ; Matter of Flatbush avenue, 1 Barbour, 291; Sharpless v. Mayor, etc., 21 Penn., 169.)
It is void, as in violation of section 7 of article 1 of the constitution. (Matter of Albany street, supra ; Cheaney v. Hooser, 9 B. Monroe, 343; Pierce’s Heirs v. Patten, 7 B. Monroe; Warner v. People, 2 Den., 275 ; 27 Cal., 613, 630.)
It is void, as in violation of the constitutional requirement that no private or local bill shall embrace more than one subject, which shall be expressed in the title. (People v. Hill, 35 N. Y., 449 ; People v. Brien, 38 N. Y., 193.) And the act of 1860 is also in plain conflict with this clause of the constitution.
If the act is an exercise of the taxing power, it is void, as not complying with the requirement' that every law imposing a tax must distinctly state the tax and the object to which it shall he applied.
The act of 1863, giving the plaintiff power to sue, is repugnant to the constitution. (People v. Draper, 15 N. Y., 32; Warner v. People, 2 Den., 275.)
As points applicable peculiarly to the first entitled case, Mr. Stern urged that the defendant was not personally liable .to pay the assessment; it was intended only as a charge on the land in the original act, and the act of 1863, changing it to a personal liability is unconstitutional. (Sharp v. Speir, 4 Hill, 76, 84; Creighton v. Manson, 27 Cal. R., 613; Sharp v. Johnson, 4 id., 92.)
It was necessary for the plaintiff to establish, as a jurisdictional fact, that a majority of the owners had applied to the common council, and the defendant could not he concluded on this question by ex parte proceedings. (Matter of Trustees, 31 N. Y., 529 ; Sharp v. Speir, 4 Hill, 83 ; People v. Mayor, 2 Hill, 9 ; Matter of Mount Morris, 2 Hill, 14.)
as to the constitutionality of the act of 1859, cited Sun Insurance Company v. Mayor (5 Sandf., 10); S. C., 4 Seld., 241; Conner v. Mayor, etc. (1 Seld., 255); People v. McCann (16 N. Y., 58); Brewster v. City of Syracuse (19 N. Y., 116); Sinclair v. Jackson (8 Cow., 543); Embury v. Conner (3 Comst., 523); Baker v. Brandon (6 Hill, 47); People v. Murray (5 id., 468); People v. Mayor of Brooklyn (4 Comst., 149) ; Thomas v. Leland (24 Wend., 65); Town of Guilford v. Suprs. of Chenango (3 Kern., 143); Howells City of Buffalo (4 Trans. Appls., 505).
On the question of the sufficiency of the evidence of the application of a majority of the owners, he cited In re Falconer (4 Hill, 508) ; People v. City of Rochester (21 Barb., 570).
