
    People ex rel. Troy Union R. Co. v. Carter et al., Assessors, (two cases.)
    
      (Supreme Court, General Term, Third Department.
    
    May 27, 1889.)
    1. Certiorari—To Review Assessment—Procedure.
    Laws N. Y. 1880, o. 269, provide (section 9) that the assessment roll shall be delivered by the assessors to the proper officer, and notice given to the public; (section 2) that application for certiorari can be made only after the roll is so delivered, and that the writ “ shall not stay the proceedings of the assessors or other officers to whom it is directed;” (section 3) that “the assessors or other officers making a return to the writ” need not return the original assessment roll; and (section 6) that costs may he awarded against the assessors. Held, that certiorari to review an assessment is properly issued against the assessors and the officer to whom the assessment roll has been delivered.
    3. Same—Beturn.
    Under section 4, providing that if, upon the hearing, it shall appear necessary for the proper disposition of the matter, testimony may be taken, the return to the writ is not conclusive.
    Appeal from special term, Rensselaer county.
    
      Certiorari by the Troy Union Railroad Company against Edward Carter, James Maloney, Christian W. Rapp, and Michael A. Tierney, General Assessors of the City of Troy, and William J. Roche, Comptroller of the City of Troy. The relator was incorporated under the general railroad act about the year 1852. On June 20, 1851, before its incorporation, chapter 255 of the laws of that year was passed, authorizing the city of Troy, and such railroad corporations as should then or thereafter come to the city of Troy, or which had, or should have, their business terminus in, or run their trains to, and from, said city, might subscribe for and become the owners of stock in a corporation to be thereafter organized, for the construction of a railroad, with one or more tracks through the whole or a portion of said city. The city of Troy was authorized to take, not to exceed one-fourth of said stock. The said city of Troy was also authorized to issue bonds for the construction of the said railroad, upon being indemnified by the several railroads, against said bonds, and further secured by a mortgage upon the property of said Troy Union Railroad Company. The stock of the road was $30,000, which was subscribed by the city, and by four railroad corporations, then operating within the city limits, namely, the Rensselaer & Saratoga Railroad Company, the Schenectady & Troy Railroad Company, the Hudson River Railroad Company, and the Troy & Boston Railroad Company. Prior to the organization of this company,, the termini of these several railroad companies, for the discharge of passengers, were at different points on River street, the principal business street of the city, and the passenger cars were drawn by horses to these various termini from points outside the city limits. This obstruction to the streets and interference with business was the subject of frequent negotiations between the officers of the railroads and the authorities of the city, and the organization and construction of the Troy Union Railroad Company, its depot and track, were the results of such negotiations. After the corporation was organized, and on the 3d day of December, 1852, a contract was made between the city of Troy and the Troy Union Railroad Company, and the four railroad companies above mentioned, as follows: “The party of the first part agrees that the common council of the city of Troy shall join in an application to the legislature of the state of New York that the Troy Union R. R. Co. be exempt from taxation upon an amount exceeding the present amount of its capital stock; and, if such law be not passed, the common council of the city of Troy shall refund to the Troy Union R. R. Co. an amount equal to the city taxes imposed on the Troy Union R. R. Co., for any valuation exceeding its present capital stock.” In 1853 the legislature, by chapter 462 of the Session Laws of that year, enacted as follows: “Section 1. For the purposes of taxation in the city of Troy, and in the county of Rensselaer, the property of the Troy Union Railroad Company shall be estimated and assessed (as the common council of said city of Troy, by its contract with said company dated December 3, 1852, agreed that the same should be) at the amount of the capital stock of said company, and no more, and (as agreed in the said contract) the bridge of the Rensselaer and Saratoga Railroad Company over the Hudson river, at Troy, shall, for the purposes of taxation, not be estimated or assessed at any increased valuation, by reason of the addition thereto agreed for in said contract.” On the 1st day of July, 1858, an agreement in writing was made between the several parties to the said' agreement of Decernher 3, 1852, by which the last-mentioned contract was modified in various respects, and which contained the following clause: “The party of the first part agree that if the law passed by the legislature of the state of Hew York, June 24, 1853, relative to taxation of the property of the Union Bailroad Company of Troy, shall at any time be repealed, the common council of the city of Troy shall join in an application to the legislature of the state of Hew York, that the Troy Union Bailroad Company be exempt from taxation, upon an amount exceeding the present amount of the capital stock, and, if such law be not passed, the common council of the city of Troy shall refund to the Troy Union Bailroad Company an amount equal to the city taxes imposed on the Troy Union Bailroad Company for any valuation exceeding its present capital stock.” After the execution of the contract of December 3, 1853, the city issued its bonds to the amount of over $700,000, which the railroad companies agreed to pay, and did afterwards pay, and the cost of the said railroad was something over $800,000, made up by said city bonds, the stock of the company, and by assessments upon the several railroad companies, parties to the said contract. Under the statute above set forth, the Troy Union Bailroad, up to and including the year 1885, was assessed at $30,000, and no more. In the year 1886 the assessors first made the amount $1,000,000, but, on objection being made by the company, the assessment was reduced to the sum of $783,984. The relator brought this certiorari to review and correct the assessment. In the year 1887 the assessors repeated the assessment of 1886, $783,984, and, on the proper objection and remonstrance being made by the relator, refused to reduce the said assessment, whereupon the relator brought this certiorari to review and correct the same. The court below decided that the assessment was erroneous, and directed the assessors to reduce the assessment to $30,000 each year. The assessors appealed to this court.
    Laws H. Y. 1880, c. i¡69, provides (section 9) that the assessment roll is to be delivered to the proper officer, (in this case, the comptroller of the city,) and to remain with him 15 days for inspection. The assessors are then to give public notice that the roll has been so delivered. By the last clause of section 9, and by section 2, the application for the writ can only be made after such delivery, and within 15 days from the date thereof. How, although it is impossible to obtain the writ, unless the assessors have completed and delivered the roll, the whole language of the statute shows that the writ is to be directed to the assessors. The writ “shall not stay the proceedings of the assessors or other officers to whom it is directed. ” Section 2. “ The assessors or other officers making a return to said writ shall not be required to return the original assessment roll,” etc. Section 3. “The court shall have power to order a reassessment of the property of the petitioner,” and may direct testimony to be taken where it appears necessary at the hearing, in order to dispose of the matter. Section 4. Costs may be allowed in certain cases against the assessors. Section 6. This could not be done if the assessors were not a party to the proceedings.
    Argued before Learned, P. J., and Landón and Ingalls, JJ.
    
      R. A. Parmenter, for appellants. Esek Oowen, for respondent.
   Learned, P. J.

We think that under chapter 269, Laws 1880, the writ was properly issued, and that it should not have been quashed either as against the assessors or as against the comptroller. It issued against the assesors, because it was to review their action; against the comptroller, because the roll was in his possession. The case of People v. McLean, 80 N. Y. 254, cited by the defendants, was decided in February, 1880, and did not arise under this act. So of many other cases cited by defendants. The case of People v. Tompkins, 40 Hun, 228, could not have been a case under this act, as will.appear on noticing the time when the certiorari issued. Hor is the return to a certiorari under this act conclusive. The object of the act is to have a review, and that, too, on further evidence, if necessary. These objections of the defendants have been settled against them in many cases.

We think that there is nothing in the change made by chapter 201, Laws 1885, of the form of oath to be attached to the assessment roll which affects the question in this case. The assessors had always been required to assess property at its value, and that change in form of the oath did not change their obligation in this respect. Nor can that act be understood to affect a change in or to repeal the law upon which the relator relies, viz., chapter 462, Laws 1853. The only question hére is as to the validity of that law, and of the alleged contracts to carry out which it was passed. It is not contended by the relator on this argument that that part of the act which affects the Rensselaer and Saratoga bridge is valid, because the relator admits that that subject is not expressed in the title. “If a local act contains a subject which is properly expressed in the title, it is valid as to that subject, though not valid as to a subject not expressed.” In re Van Antwerp, 56 N. Y. 267; People v. Briggs, 50 N. Y. 553. As to the taxation of this Troy Union Railroad Company, that subject is expressed in the title of the act in question sufficiently so that the act is not unconstitutional in that view. It appears that this act was passed as the result of an agreement between the city of Troy and those railroads who were to form this new company for the purpose of constructing a Union depot. Whether it is wise for the legislature to pass acts exempting certain property from taxation is not for us to say. This has •often been done in respect to benevolent institutions, and in respect to the property of clergymen. If property of benevolent institutions may be excepted, so may the property of other institutions of a different character. While this act has the form of fixing the amount at which the company is to be assessed, it is practically an act that all property of the company beyond that amount shall be exempt. This may be unjust to other persons, natural and artificial, in the state; but the injustice, if any, is one that we cannot redress. The power is in the legislature. Humphrey v. Pegues, 16 Wall. 244. The order should be affirmed, with $50 costs and disbursements against the appellants.  