
    The People of the State of New York ex rel. Cayadutta Plank Road Company, Relator, v. Curtis S. Cummings, Mayor, and Others, Aldermen, the Members of and Composing the Common Council of the City of Gloversville, Respondents.
    
      Assessment for a street improvement in Gloversville against a plank road company, in what cases improper—jurisdiction of the Fulton Oouniy Court over proceedings for its review — the cha/rter restriction is not applicable to the remedy by certiorari.
    
    Section 105 oí the charter of the city of Gloversville (Laws of 1899, chap. 275), authorizing the expenses of a street improvement to be assessed against any “ plank road company whose roads or tracks occupy any portion of that part of the street or other way or public place so improved,” operates as a pro tanto withdrawal of the exemption from taxation granted to plank road companies by chapter 87 of the Laws of 1854 and chapter 566 of the Laws of 1892.
    The operation of the section is, however, confined to streets occupied by plank road companies over which the city has control and power to alter, pave or improve, and does not extend to a roadway owned by a plank road company, which, although within the corporate limits of the city, is not a public highway, and for the care and maintenance of which the company, and not the city, is responsible.
    Section 109 of the charter of the city of Gloversville, providing “The county court of Fulton county shall always be open for the transaction of any busiess or making of any motion or application contemplated by this title,” does not furnish any method of reviewing an assessment for a local improvement.
    Subdivision 10 of section 89 of the charter, providing that “No action to set aside, cancel or annul any assessment * * * shall be maintained by any person unless such action shall have been commenced within thirty days after the delivery * * * of the first assessment roll and warrant, * * * and unless within said thirty days an injunction shall have been procured * * * restraining the common council from issuing the bonds,” does not make the procuring of the injunction prescribed in that section a condition precedent to the maintenance of a proceeding by certiorari to review the determination of the mayor and common council of the city in levying the assessment.
    Smith, J., dissented.
    
      Certiorari issued out of the Supreme Court and attested on the 13th day of November, 1899, directed to Curtis S. Cummings, mayor, and others, aldermen, the members of and composing the common council of the city of Gloversville, commanding them to certify and return to the office of the clerk of the county of Fulton all and singular their proceedings in assessing against the relator the sum of §3,225.22 for a local improvement, viz., the paving of a street in said city, which street is a part of the plank road created and maintained by the relator before the city of Gloversville was incorporated and now by the relator occupied as a part of its road.
    
      Harwood Dudley and John M. Carroll, for the relator.
    
      Frank Talbot, for the respondents.
   Kellogg, J.:

The petition and the return to the writ show that the relator organized many years ago under the act of 1847 (Chap. 210) as a plank road company; that for many years before the incorporation of the city of Gloversville the relator became the possessor of and used the road in question as a portion of its roadway; that the limits of the city were made to include a portion of this roadway, and that portion is now known as South Main street. Since the incorporation of the city the relator has not surrendered any of its rights over the roadway, but has continuously collected tolls from travelers thereon. In 1899 the authorities of the city of Gloversville, by proceedings which appear to have been authorized by the city charter, resolved to pave this street with other streets. The proceeding resulted in a final adjustment of the cost of paving and an assessment against those benefited, the amount assessed to the relator being the sum of $3,225.22. It is admitted that the relator is not the owner of any land bordering on the street. Whether it is the owner of the roadbed of the street is not clear. The assessment is not predicated upon any ownership except the relator’s right to maintain the street as a roadway and collect tolls for traveling thereon; and the authority for this claimed right to assess relator for local improvement benefits, if any such right exists in the city of Gloversville, is found in section 105 of the city charter (Chap. 275, Laws of 1899): “ The balance of the expense of such

improvements shall be paid by and become a charge upon * * * and by and against any railroad company or plank road company whose roads or tracks occupy any portion of that part of the street or other way or public place so improved.” That the Legislature here intended to confer the power to tax a railroad or plank road company occupying the street for the improvement of that street must, I think, be admitted. And this, so far as the cost of local improvements go, must be taken as a withdrawal by the Legislature of the exemptions from taxation granted by chapter 87 of the Laws of 1854 and chapter 566 of the Laws of 1892 to plank road companies. Those laws created no vested rights which a subsequent Legislature might not abrogate. The Legislature is restricted by the Constitution of 1846 from conferring, by general or special laws, any rights upon corporations which are beyond the control of the Legislature to subsequently change, modify or wholly withdraw. (People ex rel. Kimball v. B. & A. R. R. Co., 70 N. Y. 570; Genet v. City of Brooklyn, 99 id. 296.) This cannot be called confiscation; it is simply the recall of an exemption from taxation. The exemption might properly be termed unreasonable; not the recall. The power to assess or tax a ¡dank road company for a local improvement must, however, be confined to such companies as occupy streets in the city of Gloversville, over which the city has control and power to alter, pave or improve. And just here is the serious question in the case. What power in this respect has the city of Gloversville over the roadway of this company ? All the public streets and highways within the city limits are in the exclusive charge and control of the city ; but is the roadway of this relator such a public street or highway?. I think not. In a limited sense it is. undoubtedly a highway. No one who offers to pay the toll or fare fixed within the legal limits can be prevented from traveling upon it. In that particular it differs from a private road. The law which authorizes the creation of the company and confers upon it the right of eminent domain, confers also exclusive rights over its roadway and imposes certain duties. The public has nothing to do with its repair or its maintenance in any respect. Neither is the town through which it passes nor the-city of Gloversville, as to that portion within its limits, in any way responsible for the roadway being out of repair, or for damages resulting from its negligent maintenance. The company alone is responsible for that; and it would seem that this responsibility is the true test of the rights of the parties to order or make repairs or improvements.

I find nothing in the charter of the city of Gloversville which conflicts with the law governing plank road companies beyond the authority to tax before referred to. The Plank Road Law (Trans. Corp. Law, art. IX, chap. 566, Laws of 1890) is sufficiently explicit on the question of control and maintenance of the roadway. Section 134 provides: “ The commissioners of highways of the several towns and the trustees or other officers in the incorporated cities and milages of the state, who perform the duties of commissioners of highways in such cities and villages, shall be inspectors of planlcroads and turnpikes, in their respective towns, cities and villages.” And their duties as such- are specifically pointed out. They are to notify the toll gatherer to repair, and in default of repair shall order the toll gate on the road to be thrown open until the repairs are made. This is the extent of their powers. They have no right to make repairs and charge the same over either against the company or the town, city or village they represent. Section 127 of the same law provides in what way and out of what material the road shall be made. “ Every such plank-road shall be so constructed as to make, secui'e and maintain a smooth and permanent road, the track of which shall be made of timber, plank or other hard material forming a hard and even surface. * * * Any corporation which ■shall have once laid its road with plank may relay the same, or any part thereof, with broken stone, gravel, shells or other hard materials, forming a good and substantial road.”

Failure to construct and maintain the roadbed as required would, without doubt, subject the company to payment of any damages suffered, by reason of such failure, by any traveler thereon. This responsibility is not shifted by the city charter upon the city of Gloversville; and it is not reasonable to infer that the city has any more than the sujiervisory authority of inspector, which the law gives, as above quoted, over that portion of the roadway which lies within the city limits. If the Legislature had the power — which I seriously doubt — to take from this company its property rights in .any part of the roadway, or the right to confer upon another the control of that roadway and leave upon the company a liability for that other’s negligence or bad judgment, it has not exercised it; the legislative intention would not, in such a matter, he left to inference.

The respondents urge that this proceeding by certiorari cannot be maintained for two reasons :

First. Section 109 of the charter, providing as follows: “ The county court of Fulton county shall always be open for the transaction of any business or making of any motion or application contemplated by this title,” in effect, it is claimed, provides an exclusive mode of review. The complete answer to this seems to lie in the fact that it does not provide for any review; and only provides that the County Court shall be always open. All original motions and applications proper to be made in that court may be made at any time, in term or out.

Second. That subdivision 10 of "section 89 of such charter, providing: “No action to set aside, cancel or annul any assessment * * * shall be maintained by any person unless such action shall have been commenced within thirty days after the delivery * * * of the first assessment-roll and warrant, * * * and unless within said thirty days an injunction shall have been procured * * * restraining the common council from issuing the bonds,”’ etc., is in the way of this proceeding for the reason that no injunction was obtained. The answer to that claim is that-this is not an action, but simply a means of review. The section does not contemplate a special proceeding of this nature, but an action in which a preliminary injunction might be issued. That the charter contemplates that a review of the action of the common council may be had is expressly stated in section 109, but no method of review is provided — in such a case certiorari is the proper method.

The determination of the mayor and common council of the city of Gloversville should be set aside and the assessment of the relator should he annulled, with fifty dollars costs and disbursements to the relator against the respondent.

All concurred, except Smith, J., dissenting.

Determination of the assessors reversed and the assessment annulled as to relator, with fifty dollars costs and disbursements.  