
    Christopher Smith, App’lt, v. City of Buffalo, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 16, 1895.)
    
    1. Municipal corporation—Public improvements—Assessments.
    Where there has heep no material change in the provisions of a city charter on the subject of the apportionment of assessments for public improvements in the last forty years, and the common council has never determined the territory benefited by the assessments but left it to the board of assessors, such acquiescence and recognition on the part of the municipality for so long a period must be regarded as controlling in the interpretation of the charter upon such point.
    2. Same.
    A requirement of the city charter that an assessment for public improvement shall be made by the common council is complied with by its action in appointing the assessors to make the assessment and adopting their report.
    3. Same—Streets.
    The assessment must be limited to the houses and lots benefited by the improvements, and no legal assessment can be imposed upon the public streets.
    4. Same—Presumption.
    If the streets are not included .in the assessment rolls, the presumption is that they were public highways and exempt from assessment.
    5. Same—Dedication.
    Streets, which appear on the official city maps, and which the city has recognized by grading; and constructing sidewalks and putting in water pipes and hydrants, will be held to have been dedicated to and accepted by tlje public.
    6. Same—Procedure.
    The duties, imposed upon the common council by the provisions of section 435 of the charter of the city of Buffalo, are, in this respect, not mandatory, but simply directory; the omission to confirm the report within a year does not invalidate the subsequent proceedings.
    
      1. Same—Legislative confirmation.
    Chapter 376 of 1892 validates a resolution of the common council, authorizing an assessment for the improvement of Bailey avenue, adopted January 19, 1890.
    8. Same.
    The legislature has' power to legalize proceedings to collect taxes, where the law has not been strictly pursued in cases where the taxes were not invalid because of a want of jurisdiction to impose them, or where no constitutional right of the taxpayer had been violated.
    Appeal from a judgment dismissing the complaint.
    
      Stephen Lockwood, for app’lt; Frank 0. Laughlin, for resp’t.
   Davy,' J.

This action was brought to set aside a local assessment on the plaintiff’s land, located in the city of Buffalo, amounting to $81.31, made to defray the costs and expenses of acquiring lands for the extension of Bailey avenue. It was stipulated, for the purpose of condensing the evidence, that there were four questions only to be submitted on this appeal.

It appears from the evidence that in September, 1890, the common council of the city of Buffalo instituted proceedings for the extension of said avenue. The report of the commissioners who were appointed to appraise the damages to the landowners was confirmed on the 19th day of January, 1890. The common council thereupon passed the following resolution:

Resolved, That the amount of expenses to be assessed for improvements in extending Bailey avenue from its present terminus at the city line to Main street be, and is hereby, determined to be $16,258.07; and the city assessors be, and they are hereby, directed to make an assessment of the said sum upon the real estate benefited by such improvement, in proportion to the benefit resulting thereto.”

In pursuance of the above resolution, the assessors decided what lands, in their judgment, were benefited by the improvement, and filed the assessment roll, which was confirmed by the common council June 1,1892. The learned counsel for the appellant contends that, under the city charter, the authority to apportion this assessment was delegated to the common council only, and not to the board of assessors. It was contended on the argument, and not disputed, that there has been no material change in the provisions of the city charter on this subject in the last forty years, and that the common council had never determined the territory benefited by the assessments, but left it to the board of assessors. Such acquiescence and recognition on the part of the municipality for so long a period must, it seems to me, be regarded as controlling in the interpretation of the charter upon the point under discussion. Easton v. Pickersgill, 55 N. Y. 310 ; In re Washington St., A. & P. R. Co., 115 id. 442 ; 26 St. Rep. 504. If the language of the charter was obscure or doubtful as to its meaning, we think that we would not even then be justified in disregarding the construction put upon it by the municipal authorities for so many years. There would be no safety to the taxpayers if it could be successfully contended that the officers representing the municipality in this class of cases had been mistaken as to the true meaning of the charter. The injurious consequences of a different construction after an acquiescence of so long a period might prove very disastrous to the taxpayers of the city. But, aside from the rule of long acquiescence on the part of the municipality, it appears that the courts, through all this long period, have been constantly passing upon the validity of the assessments, and in no case called to our attention has it been held that the board of assessors did not have the power, under the city charter, to determine the territory benefited by local improvements similar to the one in question. The superior court of the city of Buffalo, in Re Ferris, 10 St. Rep. 482, held that the legislature had delegated the powers to the board of assessors, under the city charter, to determine what property was benefited by local improvements. The views expressed by the learned court in that case seem to have met the approval of this court in the case of Broozel v. City of Buffalo (Sup.) 6 N. Y. Supp. 724. I am inclined to think that the plaintiffs are not in position to complain, even if the correctness of our views upon this point could be doubted. The mode of designating the territory to be benefited and assessed was not prejudicial to the appellants; at least, they have failed to show that they have been, injured or aggrieved by the assessors designating the territory, instead of the common council.

It was held in Voght v. City of Buffalo, 133 N. Y. 464; 45 St. Rep. 739, that where there was a technical irregularity of the common council in the mode of making assessments in street improvements, in the absence of evidence showing a substantial injury to the plaintiff, he was not in position to complain, and therefore could not maintain the action. Morse v. City of Buffalo, 35 Hun, 613 ; In re Mutual Life Ins. Co., 89 N. Y. 530 (to vacate an assessment).

Judge Gardner, in Manice v. Mayor, etc., of New York, 8 N. Y. 120, in discussing the powers vested in the common council under the city charter, says :

“If the common council, as the plaintiffs insist, were bound to designate the territory to be assessed, as the charter was silent as. to the time when and the manner in which this was to be done, a confirmation of the report of the assessors which included the whole subject would be a substantial compliance with the requirement.”

If there was any question as to the power of the board of assessors to designate the territory benefited by the improvement, the confirmation of the report by the common council, with full knowledge of all the facts, amounted to a substantial compliance with the requirements of the statute

The appellant also contends that the public streets opening into Bailey avenue were rendered more valuable to the .city of Buffalo* by the improvement, and that it was error on the part of the board of assessors to omit said streets from the assessment roll, and from contributing to the expenses of the improvement. Streets are intended for the public travel, and the opening of the avenue in question would naturally tend to increase the travel over all the connecting streets, and thereby impose greater expense upon the municipality in cleaning and keeping them in repair. So that the improvement could not be considered a benefit to the city in a pecuniary point of view. As a rule, all property within the municipality is subject to taxation by the general laws of the state; and, where property is taxable for one purpose; it is usually held to be taxable for all purposes of general taxation. But this rule does not apply to municipal property devoted to public purposes. Such property is not taxable by the corporation whose property it is, unless expressly made so by statute.

Ho provisions are made in the city charter or the statute laws-of the state authorizing the city of Buffalo to tax its public streets. It has been repeatedly held that property devoted to public use, such as public buildings and parks, cannot, in the absence of express legislative authority, be taxed or taken to satisfy a judgment against the corporation.

Judge Andrews, in People ex rel. Mayor, etc. v. Board of Assessors, 111 N. Y. 509, 19 St. Rep. 638, says :

“Property of a municipality acquired and held for government and public use, and used for public purposes, is not a taxable subject, within the purview of the tax laws, unless specially included.” City of Rochester v. Town of Rush, 80 N. Y. 302.

While property owned by a municipality for public purposes is exempt from taxation, it is liable, however, to be assessed for local improvements.

Judge Earl, in Roosevelt Hospital v. Mayor, etc., of New York, 84 N. Y. 114, says :

“The exemption claimed finds no sanction in the general legislation of the state or in public policy. All colleges, churches, seminaries of learning, courthouses, jails, schoolhouses, and even the lands of the state, unless by appropriate words specially exempted, are liable to be assessed for local improvements.”

The public streets of the city of Buffalo in no sense can be regarded as the property of the city, like schoolhouses and the city hall and other public buildings in which the title to the land vests in the city and may be sold and conveyed by the city authorities. The municipal authorities would have no power to alienate their streets, or to devote them to uses inconsistent with the rights of the general public and the abutting land owners, unless expressly authorized by the legislature. The opening of Bailey avenue may have added to the convenience of the owners and occupants of houses and lots on the connecting streets, and may have increased their value. If it did, that fact was taken into consideration, no doubt, by the assessors who were charged with the duty of ascertaining the property benefited by the improvement. It seems to me that the assessment must be limited to the houses and lots benefited by the improvement, and that no legal assessment could be imposed upon the public streets. People ex rel. Davidson v. Gilon, 126 N. Y. 148; 37 St. Rep. 17.

It is also contended bv the appellant that there were certain strips of land owned by private individuals that were not assessed, for the reason that the assessors recognized them as public streets. This contention, in my judgment, has no real foundation to rest upon. The presumption is that public officers perform their duty. If the streets are not included in the assessment rolls, the presumption is that they were public highways, and exempt from assessment. The burden was on the plaintiffs to overcome this presumption. In re Hebrew Orphan Asylum, 70 N. Y. 476. The principal question to be considered upon this point is whether the strips of land in dispute have been dedicated by the owners to the use of the public travel, and whether they have been accepted by the city for that purpose. The learned judge before whom this case was tried found that the assessment roll showed that all the lands benefited by the improvement, as ascertained by the assessors, were included in the assessment, except public streets, or what appeared to be such upon the maps of the proper departments of the city government, to which the assessors referred to ascertain the streets of the city, and that it Qwas not established upon the trial that any lands were excluded from the assessment that should not have been.

Dill. Mun. Oorp. section 628, lays down the rule:

“ That dedications of land to the use of public streets may be divided, into two classes; first, statutory dedications; second, com mon-law dedications. Statutory dedications can be made only by pursuing substantially the course prescribed by the particular statute; and, where the statutory requirements, have been pursued, it dispenses with any assent on the part of the public, and in this respect it differs from a common-law dedication. But the rule is well settled that an incomplete or defective statutory dedication'will, when accepted by the public, or when rights a.re acquired under it by third persons, operate in favor of the public, and has as much binding force as a common-law dedication by the owner. To establish a common-law dedication, it is not essential that the legal title should pass from the owner to the municipality. All that is required is the assent of the owner of the soil that it may be used by the public as a public street, and the acceptance of such dedication by the municipality for the public.”

Flack v. Village of Green Island, 122 N. Y. 107; 33 St. Rep. 339.

It was also held in Cook v. Harris, 61 N. Y. 448-454; that no particular length of time is essential to make a dedication valid and irrevocable. • It must appear that the owner of the soil intended to dedicate it for a public highway, and that it was accepted by the public.

Upon the question of acceptance, and the sufficiency of the evidence to establish it, Judge Dillon, in his excellent work on Municipal Corporations (sections 636, 640), says that:

Where a plat is made and recorded, the requisite intention is generally undisputable, but the intention may also be established by paroi evidence of the acts or declarations which show an assent on the part of the owner of the land that the land should be used for public purposes.” “ A sale of lots with reference to such plat, or describing lots as bounded by streets, will amount to an immediate and irrevocable dedication of the latter, binding upon both vendor and vendee.”

People v. Loehfelm, 102 N. Y. 1; Pomfrey v. Village of Saratoga Springs, 104 id. 459; 5 St. Rep. 802.

Acceptance may be express and appear of record, or it may be implied from repairs made and ordered, or knowingly paid for by the municipality which has the legal anthority to adopt the street or highway, or from longer use by the public. It seems to me that the evidence clearly establishes that the so-called “streets” in' question have been dedicated by the owners of the soil to the city for highway purposes. Maps were made and certified to by the chief engineer of the department of public works, and filed in the assessors’ office, and registered in the city clerk’s office, showing the plots of land that had been subdivided and laid out into city lots, including the streets in question, and their names, width and constructions with other streets. It also appears that the city recognized them as streets by putting in water and hydrants, and constructing sidewalks, and grading some of the streets. It is plain-from these facts that the strips of land in question were duly laid out and dedicated by the owners of the soil to the municipality for public streets', and that they were accepted by the public. It would be a violation of good faith to the public, and those who have purchased lots and acquired vested interests with a view to the benefit and use of these streets, to permit the original owners or the municipality to contend that they had not been dedicated to the public use. We must therefore hold that they were exempt from taxation or assessment of any kind, and that the assessors, acting under the authority delegated to them by the city charter, had no legal right to assess them for the improvement of Bailey avenue.

The fourth point raised by the appellant is that the assessment roll was not confirmed within a year after the confirmation of the report of the commissioners awarding compensation to the owners of land taken for the improvement. I am unable to discover any provision of the city charter requiring that the assessment roll shall be confirmed within that period. The provisions of section 435 of the city charter, which authorizes the city to borrow money to pay the awards if the roll is not made and confirmed within a year, show conclusively that the duties imposed by the common council in this respect are not mandatory, but simply directory ; so that the omission to confirm the report within a year did not invalidate the subsequent proceedings..

We have now noticed all the objections raised by the learned counsel for the appellant, and we do not think any of them furnish a sufficient reason for a reversal of the judgment.

If there were any substantial irregularities in the proceedings of the common council pertaining to the extension of Bailey avenue, the legislature has legalized them. Chapter 376, Laws 1892, provides that:

“ All proceedings, matters and things which were begun or regarding which any action or preliminary steps have been taken by the city of Buffalo, or its departments, officers, agents or servants prior to the first day of January, 1892, are hereby ratified and confirmed.”

The resolution of the common council authorizing the assessment which the appellant claims is illegal was adopted ■ on the 19th of January, 1890, and comes within the provisions of the aforesaid act, which legalized the irregularities, if any, and the acts of the officers, agents and servants of the municipality pertaining to all proceedings of the common council in the Bailey avenue extension. Cromwell v. MacLean, 123 N. Y. 490; 34 St. Rep. 85; Tifft v. City of Buffalo, 82 N. Y. 204; In re Livingston, 121 id. 98; 30 St. Rep. 772. After the passage of the act, no taxpayer could successfully resist the payment of his tax on the ground of irregularities existing at the time of its passage. It was held in Terrel v. Wheeler, 123 N. Y. 76 ; 33 St. Rep. 404, that the legislature has power to legalize proceedings to collect taxes where the law has not been strictly pursued in cases where the taxes were not invalid because of a want of jurisdiction to impose them, or where no constitutional right of the taxpayer had been violated.

The judgment of the lower court, therefore, must be affirmed, with costs. All concur.  