
    People ex rel. Gage et al. v. Lohnas et al., Board of Trustees.
    
      (Supreme Court, General Term, Third Department.
    
    December 11, 1889.)
    1. Municipal Corporations—Streets—Constitutional Law.
    Const. N. Y. art. 8, § 1, provides for the formation of municipal corporations by-special acts, and that such acts maybe altered or repealed. Held, that this authorized the legislature to provide a street system by special act for municipal corporations, and hence Laws N. Y. 1887, c. 136, authorizing the board of trustees of the village of Saratoga Springs, a municipal corporation created by special acts, to widen its streets, was not in conflict with Const. N. Y. art. 3, § 18, which prohibits a private or local statute “laying out, opening, altering, or discontinuing roads, highways, or alleys, ” as this did not apply to city streets.
    2. Same—Assessments.
    Laws N. Y. 1887, c. 136, consists of two sections, and section 1 provides that there shall be added to the charter of the village of Saratoga Springs “the following ad- " ditional sections, to be known and numbered as sections 71, 72, 73, ” etc. The sections, as numbered, then follow in detail, all being contained in section 1 of the act. Section 72 comes second, and provides for assessments for sewers, with ample provisions for a hearing of persons affected. Section 75 provides for assessments for widening streets “in the manner provided in section two of this act. ” Section 2 of the act simply provided that it should take effect immediately. Held, that the words “section two of this act, ” in section 75, referred to section 72, and that therefore persons affected by assessments for widening streets had an opportunity to be heard in regard thereto.
    8. Same. -
    Appointment by the board of trustees, who are authorized to make the assessment, of a committee to prepare the assessment, consisting of two trustees and the clerk of the board, is not an unauthorized delegation of power to the clerk, where the assessment prepared by the committee is reported to and passed on by the board.
    4, Same—Certiorari.
    As Laws ST. Y. 1880, c. 68, § 8, provides that any persons interested in property in Saratoga Springs upon which an assessment is levied may bring an action to vacate it, certiorari will not lie to review an assessment for widening streets under the act of 1887, where the majority of persons affected thereby do not complain, the remedy by action being adequate.
    6. Certiorari—Return—Presumption.
    Under Code Civil Proc. N. Y. § 2135, providing that if the return to a writ of certiora/ri is defective the court may direct a further return, in the absence of a motion to correct a return to a writ of certiorari to review an assessment it will be conclusively presumed that the return states the whole truth in respect to matters specified in the writ, as required by section 2134.
    This is a common-law certiorari, on the relation of William B. Gage and two others, to review the action of the board of trustees of the village of Saratoga Springs in widening a street of the village, and imposing an assessment upon the relators and others to defray the cost and expense thereof. The street was one continuous street, though the several sections of it bore different names. It was about 66 feet wride, and this width was, by the resolution of the board of trustees, increased to 100 feet by taking the increased width from the lots on the northerly side of the street. By the act authorizing the board of trustees to widen streets in the village, (chapter 136, Laws 1887,) the board is authorized to assess the expense upon such property as they shall deem, to be benefited, except the lots of which a portion is taken to make the widening. These are exempted. The relators own property near, but not upon, the street in question, and their property was deemed by the trustees to be benefited, and was included in the property assessed. A motion is also made to dismiss the writ as improvidently issued.
    Argued before Learned, P J., and Landon and Putnam, JJ.
    
      T. F. Hamilton, for relators. E. T. Brackett and C. S. Lester, for defendants.
   Landon, J.

The imposition of local assessments for benefits is an exercise of the taxing power. Subject to constitutional limitations, the legislature may prescribe how this power shall be exercised. Unless there is some constitutional restraint, the act in question is valid, (chapter 186, Laws 1887;) that is to say, the legislature could authorize the board of trustees of Saratoga Springs, by a resolution of the board, without a petition of property owners, to widen any of the streets of the village, and. also to prescribe the extent and details of such widening. The legislature could direct that the expense thereof should be imposed upon the property to be benefited other than the property some p,.rt of which should be taken for the widening; and also could authorize the board of trustees to determine what property ■other than that exempted would be benefited, and to apportion the assessment upon such property. Spencer v. Merchant, 100 N. Y. 585, 3 N. E. Rep. 682; Genet v. City of Brooklyn, 99 N. Y. 296, 1 N. E. Rep. 777; In re Van Antwerp, 56 N. Y. 261.

It is urged that the act, or so much of it as authorizes a street of the village to be widened pursuant to a resolution of the board of trustees, is unconstitutional, because in conflict with section 18, art. 3, of the state constitution, which forbids the legislature to pass a private or local bill “laying out, opening, altering, working, or discontinuing roads, highways, or alleys.” It was held in Re Woolsey, 95 N. Y. 135, that this provision of the constitution does not apply to city streets. The reasoning is based upon the fact that, pending the consiueration of the provision, the commissioners who reported it added the words “streets and alleys” to “roads and highways,” and the legislature, in submitting the provision, struck out the word “streets;” that section 1 of article 8 of the constitution provides for the formation of municipal •corporations by special acts; and that such acts may be altered or repealed, thus authorizing the legislature by special act to provide a street or highway system for municipal corporations different from the general highway system of tne state, outside of such corporations. Saratoga Springs is a municipal corporation created by special acts, and hence the legislature may by ■special act regulate its highway or street system.

The objection that the act does not provide an opportunity to the persons to be affected by the assessment to be heard thereupon is based upon a clerical error in the act. Chapter 136 of the Laws of 1887, under which this street was widened, consists of two sections, but the first section provides that there shad be added to the charter of the village (chapter 220, Laws 1866, and the several, acts amendatory thereof) “the following additional sections thereto, to be known and numbered as sections 71, 72, 73, 74, 75, 76, 11, and 78.” Then follow the sections as so numbered, the first beingsection 71, and the second 72, etc. Section 72 provides in detail for the assessment for the cost of constructing sewers, with ample provisions for the hearing of all persons to be affected by the assessment. Section 73, embraced in section 1 of the same act, provides for the widening of any street in the village by the-board of trustees. Section75 of the same section and act provides as follows: “In case of real estate and easements taken for the purpose of widening a street, the amount of the awards and the fees of the commissioners, and other expenses of the appraisal, shall be forthwith assessed by the board of trustees upon the property which they may deem benefited thereby other than the-property a portion of which shall have been taken therefor in the manner provided in section «two ’ of this act.” "Section 2 of the act simply provides that “this act shall take effect immediately.” It is obvious that section 72, being the second section of the new sections added to the charter by section 1 of the act of 1887, is intended by the words “section two of this act.” We must give effect to the obvious intention of the legislature, when to do so will prevent the act from failing, and when no violence will be done to the language employed. “Section two of this act” means the second new section added by this act to the charter, namely “section 72.” So understood, the trustees-must assess the expense of widening a street in the manner provided in section 72. This the trustees did, and the parties affected by the assessment had, in pursuance of the terms of the section, their “day in court” before the assessment was confirmed.

It is objected that the property of the relators is not benefited by the improvement. This was a question for the trustees to determine. The return affirms that their property was benefited. Section 2135, Code Civil Proe., provides that if the return is defective the court may direct a further return. The return should, in addition to a transcript of the record or proceedings,, state the whole truth in respect of the other matters specified in and required by the writ, (section 2134;) and, in the absence of any motion to correct or supply its defects, the presumption is conclusive that it does so. People v. Koch, 2 N. Y. St. Rep 110; People v. Weld, 6 N. Y. St. Rep. 173. The return is an answer to this objection.

The board of trustees appointed a committee, consisting of two trustees and the clerk of the board, to prepare an assessment. This committee did prepare an assessment, and submitted it to the board. The board then made the assessment, and gave notice thereof, and of the time and place to hear grievances. It is objected that in placing the clerk upon the committee to prepare-the assessment the board delegated to him a function which was incapable of delegation. It is probable that the clerk was placed upon the committee in order to do the necessary clerical work; but, assuming that he participated in the deliberations of the committee, and influenced the result, the result was only a report in the form of a proposal or scheme. Nothing was passed upon or determined by it. The board of trustees were no doubt aided by it, but it remained for them to exercise their judgment and make the assessment, and they performed that duty. They did not delegate it to the clerk.

We conclude that the objections urged by the relators should be overruled, upon the merits.

The defendants, however, urge that certiorari is not the proper remedy, and a motion is made to dismiss the writ upon grounds of public policy. It-appears by affidavit that more than half of the assessments have been paid. A common-law writ of certiorari issues where the statute has not expressly taken it away or provided some other method of review, in cases where a review is appropriate, where no other adequate remedy is available, and, in the discretion of the court, a remedy should be allowed. The court grants it, lest the error, perverseness, or partiality of officers not accustomed to judicial functions may work an irremediable injury. If a party conceiving himself aggrieved has an adequate remedy as a right, he does not need to apply to the court for the favor of this. Here a remedy by action is given the relator by chapter 68 of the Laws of 1880, being an act to authorize the sale of lands in the village of Saratoga Springs for unpaid taxes and special assessments. Section 8 provides that “any person interested in property upon which a tax or assessment has been or may be assessed or levied may bring an action to vacate and set aside such tax or assessment, or any sale made by virtue thereof, and to enjoin and restrain the sale of any real or personal property.” Of course, he may in his complaint set forth every fact constituting his cause of action, and therefore may there rely upon every ground urged here. The appropriateness of a resort to action is apparent. The majority of persons affected by the assessment in question do not complain. Public interests would seem to require that the relators confine their litigation to the protection of their individual interests, instead of extending it to the overthrow of a work of public utility. In re Flushing Avenue, 101 N. Y. 678, 5 N. E. Rep. 561.

The writ of certiorari is superseded and quashed, with $50 costs and dis-1 bursements against the relators.

Learned, P. J., concurs; Putnam, J., not acting.  