
    In the Matter of the Application of Jacob H. Shaffer, Appellant, to Reduce or Modify a Certain Assessment for Sewers in the Territory Known as Map T, Drainage District 40, of the Borough of Brooklyn, City of New York. The City of New York, Respondent.
    Second Department,
    April 22, 1910.
    Municipal corporations — sewer assessment —.when court without jurisdiction to modify plan of assessment — needs of general public controlling — remedy under section 959, New York city charter.
    Where an assessment apportioning the cost of a sewer among persons benefited did not need confirmation by the court but originated with the municipal authorities and was to be determined by them without judicial action, the court cannot grant relief under section 959 of the charter of the city of New York to a person assessed for benefits received upon the ground that the method of apportioning the cost was erroneous. This, because such apportionment is wholly á matter of legislative policy resting within the discretion of a legislative rather than a judicial branch of the government, so long as it is not inconsistent with the fundamental law of the State.
    
      It seems, that the court will intervene to protect citizens only where the assessment is not for a public purpose or where there is fraud or extravagance, or some essential element in the scheme of taxation is wanting.
    The validity of a sewer assessment for benefits conferred cannot be attacked upon the ground that the person, assessed was personally satisfied with the existing sewer system, for the needs of the general public within the district are paramount.
    A determination of the board of assessors, affirmed by the board of revision, that the entire sewer improvement should be taken as a whole and that lateral connecting sewers or enlarged or changed sewers along the entire line should be included in the entire cost and paid for by the whole territory benefited is conclusive, even though the court may think that another method of apportioning the cost would be more equitable.
    
      Such determination cannot be interfered with by the court under section 959 of the charter of the city of New York on the theory that the assessment has been increased by a ‘‘substantial error.”'
    On an application under section 959 of the chartér.of the city of New York for a modification of a sewer assessment, the question is not whether the petitioner has any remedy .for his alleged grievance, but whether he is entitled to the particular statutory remedy.
    Appeal by the petitioner, Jacob H. Shaffer, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 16th day of October, 1909, denying the petitioner’s motion for the reduction or modification of an assessment.
    Order affirmed, with ten dollars costs and disbursements, upon the opinion of Mr. Justice Kelly at Special Term.
    
      Alexander McKinny [Benjamin N. Cardozo with him on the brief], for the. appellant.
    
      George L. ,Sterling \ArcMbald A. Watson with him on the brief], for the respondent.
   Hirsohberg, P. J., Jenks, Burr, Rich and Carr, JJ., concurred.

The following is the opinion delivered at Special Term:

KellY, J.:

The petitioner, a property owner on Sixteenth street in the former town of Flatbush, now in the borough of Brooklyn, makes application under the provisions of section 959 of the Greater New York charter (Laws of 1901, chap. 466) for an order reducing the assessment imposed upon his property in this matter by the board of assessors and affirmed' by the board of revision of assessments. He avers that the assessment has been increased by reason of substantial error in the proceedings of the assessors, the alleged error consisting chiefly in the inclusion by the board in the cost of the sewer, of certain items of expenditure for connecting or lateral sewers at points distant from the property of the petitioner.

The sewer which is the subject of the assessment is said to be one of the largest improvements of its kind ever undertaken. It drains practically the entire territory of the old town of Flatbush, as well as parts of the former city of Brooklyn and towns of Flatlands and New Utrecht. It is approximately five or six miles in length, beginning at or near the old line dividing Brooklyn and Flatbush, near Montgomery street, and running diagonally across Flatbush and the border line between New Utrecht and Brooklyn, emptying into New York bay at Sixty-fourth street. The total cost of the improvement to the city was $3,394,108.97.

In apportioning the expense on the property benefited in proportion to the amount of the benefit, as required by'section 434 of the charter, the board of assessors laid out a benefit district comprising over five square miles of territory. Within the bounds of the benefit district were various cemeteries, Prospect Park, and the Parade Grounds, all of which were included by the board in the assessment, with the practical result that nearly five hundred thousand dollars of the assessment is paid by the city. The balance due was assessed upon the private property in the district which the board of assessors deemed benefitéd and in proportion to the amount of benefit deemed by the board to have been received. The action of the board of assessors was deliberate, after hearing the objections of property owners; the reasons actuating them are set forth in their proceedings, and their action has been confirmed by the board of revision. In apportioning the assessment, they divided the benefits • received from the improvement into two classes — direct and indirect. Where property fronted on a street in which a new sewer was constructed, whether the main trunk sewer or a lateral or connecting sewer leading into the trunk sewer, the assessors put such property in the class of property directly benefited and imposed an assessment of three dollars and thirty-eight cents per foot. In some streets where old sewers had previously been laid and new ones substituted, they made an allowance of one dollar per foot, for the old line, making the direct charge in such streets, two dollars and thirty-eight cents per foot. The balance of the cost of the improvement, not raised by assessment for direct benefit, was assessed on the remaining property to the district at the uniform rate of one dollar and ninety cents per one hundred square feet.

The" district assessed, which the assessors deemed benefited, comprised, as has been suggested, some five square miles of territory. It extended all the way down to New York bay. And in considering the cost of the improvement, the assessors included not only the expense of building the main trunk sewer, but also the cost of constructing new lateral sewers or replacing old sewers deemed by them to be inadequate, not only in Flatbush in the neighborhood of the petitioner’s property, but all the way to tidewater. They regarded the whole Construction,'trunk sewer and. lateral branches, as one vast undertaking, and all the remaining property in tile district was assessed for-this indirect benefit. Thus the cpst of constructing new lateral sewers or replacing old lateral sewers in the northeast part of Flatbush, and the cost of like construction at the westerly end of the sewer in' Bay Ridge or Flew Utrecht, was all included; the property owner in Flatbush, at the northeast end of the improvement, bore his fro rata of the cost of the lateral construction at the southwest end and, vice versa, the property owner within the improvement district in Bay Ridge, at the southwest end, bore his fro rata of the entire cost.

It is upon the last method of apportioning the cost of the improvement that the petitioner bases his most strenuous complaint of substantial error. He says that his property in Flatbush is in no way benefited by the construction of lateral sewers in Bay Ridge. He ávers that, - in many instances, the property in Flatbush was supplied with what, he says, were adequate sewer facilities before the installation of this new system.. He was satisfied with the old condition. He objects to the assessment for direct benefit at a uniform rate ; he says the old sewer in front' of his property was sufficient for him if it still remains, or if it has been • altered or enlarged he. objects to paying an assessment for, direct benefit at the same rate as a man whose property fronts on the large trunk sewer. He wants the assessment for. direct benefit proportioned to the diameter "of the sewer.' There may be other criticisms on' the detail by which the board of assessors reached their final conclusion. I have care-, fully examined the exhaustive and able brief submitted by the learned counsel for the petitioner, and the cases cited by them, but I am forced to the conclusion that, in this proceeding, the court cannot grant him relief.

The matter,of collecting the expense incurred in-making an improvement of this kind, the.determination of what property shall bear the expense, and the details of apportioning the.assessment are acts legislative iii character. This is not an assessment wliichneeds confirmation by a court, it is an improvement determined upon and originating with the municipal authorities, without. any action by the courts — a matter of legislative policy resting altogether in the discretion of a co-ordinate branch of the government, a policy which the courts cannot legitimately question where it is not inconsistent with the fundamental law of the State. ' When the purpose for which a tax is demanded is not a public purpose, where there is fraud or extravagance or where some essential element in the scheme of taxation is wanting, the court will interfere to protect the citizen ; but simply because a tax may seem unnecessary or even unjust to the judicial mind, constitutes no reason for interference by the courts. The distinction between the two branches of government must be constantly kept in mind. The courts are not a cure-all for the mistakes or bad judgment of elective officials. . The remedy is with the people to elect other officials, not by destroying the limitations between the powers of the different branches of government.

In this case the petitioner does not attempt to question the judgment of the board of assessors in laying out the assessment district. Suppose he did—suppose he honestly thought that instead of five square miles bearing the expense of this sewer a larger area should be included. And suppose a judge might think that an- enterprise of this magnitude might well be charged upon the city at large, could the judicial branch of the government interfere ? One-half of the cost of depressing the steam railroad tracks on Atlantic avenue was placed by the Legislature on the whole city of Brooklyn, and yet the citizen in lower Fulton street might well ..wonder how he was benefited. A part of the cost of the removal of grade crossings of steam railroads through the towns of Flatbush and New Utrecht is charged upon the owners of real estate in Green point; the cost of widening Livingston street was (until remedied by the Legislature ) assessed upon real estate which apparently derived no benefit from the improvement, and yet all these matters were for the legislative branch of government to decide. Localities may look at these things from too narrow a point of view. The board of assessors representing the entire city, looks at matters from the broader view point. “ They had the power to assess upon their own knowledge and judgment, after an inspection of .the property, and, in the nature of things, that knowledge and the grounds of their determination could not be reproduced before an appellate tribunal in such manner as to enable a legal review thereof.” (People ex rel. Davidson v. Gilon, 126. N. Y. 147.) Where assessments for benefit must be collected from the property benefited the tax is not always restricted to the very district concerned. There are cases, where the character of the improvement is such that there may be differences of opinion as to the propriety or justice of its being provided for by a small district or a large,one. “In no part of the law of taxation has the practice of our State governments left the discretion of the Legislature more entirely unfettered than in laying and apportioning such assessments, and the case must be most extraordinary and clearly exceptional' to warrant any court in declaring that the discretion has been abused and the legislative authority exceeded.” (Cooley Taxation [2d ed.], 145.) One of the requisites of taxation is the laying-down of a rule by which to measure the .contribution which each of. the subjects selected for taxation shall make. . This rule only the legislative power of the State is competent to prescribe and apportionment thereof is always an act of legislation. (Id. 237.) It is conceded that the legislative judgment that a certain district is, or will be, so far specially bene-'. fited by. an improvement as to justify a special assessment is conclusive, and that its determination as to what shall be the basis of the assessment is equally conclusive. To invoke the intervention of a court for relief against such conclusions is to invoke the judicial authority to give its judgment controlling effect over that of the Legislature in a matter of the apportionment of a tax which, by concession on all sides, is purely a matter of legislation. This is" inadmissible in any case where the legislative action is not manifestly colorable and arbitrary. (Id. 661.)

The argument of the learned counsel for the petitioner proceeds upon the theory that the property .owner already had. adequate sewer facilities. But what does “adequate” mean % He cannot separate himself from the community in which he lives. In this particular case the petitioner had adequate facilities because he deposited his sewage in Jamaica bay, to the damage of his'fellow-citizens upon and contiguous to that body of water. He had adequate facilities because other parts of the town of Flatbush were left undrained and impassable in time of storm ; the sewer adequate to the petitioner was not adequate to the public need or to the demands of public health laws and drainage and sanitary improvements which transform entire localities. - Every lot could not have its own private sewer to tidewater, using the public streets. It would be impracticable, and particularly because the individual lot owner could not bear the expense. A comprehensive scheme must be instituted caring for the entire territory. Who is to supervise this —■ not the individual — not the locality, but the officials elected by the community to do these things. If they do them honestly, the fact that there may be a difference of opinion as to whether they used good judgment or not does not justify the courts in interfering. One objection urged by the petitioner here emphasizes the fact that the individual does not always look at matters from the public standpoint. A considerable item of expense in the sewer was caused by the construction of the embankment by which grade crossings of steam railroads were removed in the towns of Flatbush and New Utrecht at the joint expense of: the city and the railroad companies under the supervision of the “ grade crossing commission ” appointed by act of the Legislature. The immediate benefit from tins removal of grade crossings would appear to be to the petitioner’s locality, and yet he urges in his brief that the extra expense in the sewer construction caused by this public work, should be charged “ upon the grade crossing commission.” I think the determination of the board of assessors, affirmed by the board of revision, that this entire undertaking from one end to the other should be taken as a whole and that the lateral connecting sewers, or the enlarged or changed sewers along the entire-line, should be included in the entire cost and paid for by the territory deemed benefited, was a matter committed to their judgment exclusively and that even if the court thought the method of apportionment suggested by the petitioner was more equitable, or if the court itself could devise what it considered was a better plan, still there is no warrant for interfering under the previsions of section 959 of the charter, on the ground that the assessrnent liás been increased by the'“substantial error” mentioned in the statute.

Indeed, as there is no charge of fraud and no claim that’the assessment as a whole exceeds the fair value or fair cost of the improvement, it would appear that the court is deprived of power to interfere by the express terms of the statute. The question upon an application made under section 959 of the charter, is not whether the petitioner has any remedy for his alleged grievances, but whether he has that particular affirmative remedy, and this has apparently been determined against the petitioner’s claim by several controlling adjudications. (Matter of N. Y. C. & H. R. R. R. Co., 49 App. Div. 281; affd., without opinion, 163 N. Y. 604; appeal dismissed, sub nom. New York Central R. R. Co. v. New York, 186 U. S. 269; Matter of Smith, 99 N. Y. 424; Matter of Wheelock, 21 N. Y. St. Repr. 369; affd., 121 N. Y. 664; Matter of Muhn, 165 id. 149.)

The objection to the inclusión of the expense of the lateral sewers as a part of the entire undertaking is the main objection urged by the petitioner. In addition it is claimed that interest charges included in the cost of the improvement are excessive and. illegal. But this question has also been decided against the petitioner’s contention. It is not claim'ed that the share imposed upon the petitioner’s property was exaggerated, or that, under the system of public improvement imposed by law upon the property owners in the city of New York, it could be admeasured in any better way or one more just to the petitioner or to the public. The financial machinery, the complications and the vast expense of conducting municipal undertakings have to be all considered and this subject, has been thoroughly discussed in reported cases and decided adversely to. the petitione, (Matter of Tappan, 54 Barb. 225; Matter of Pelton, 85 N. Y. 651; Matter of Lowden, 89 id. 548; Matter of Home for Incurables, 166 id. 602), and under the decision in Matter of N. Y. C. & H. R. R. R. Co. (supra) an excessive charge for interest, would not justify the court in interfering with, the assessment.

Interference with' assessments imposed by the constituted authorities, when there is no charge of fraud or extravagance, can only be Justified when the petitioner shows a clear case of illegality. That is not shown here. To reduce the petitioner’s assessment will be to increase the assessment of someone else. The petitioner says this is no concern of the court, that the court should not consider the fact that the property owners in Bay Bidge on the shores of New York bay have been assessed for lateral sewers in Flatbush, or that to relieve the petitioner’s locality of the assessment would put additional charges on these Bay Bidge citizens who are not complaining about their enforced contribution to this great public improvement. I can only say that this argument shows the wisdom of confiding' these matters of great public works to some general authority which can look at the rights of all the people interested rather than a particular locality.

The application must be denied. 
      
       See Laws of 1-897, chap. 499, asamd.; Laws of 1903, chap. 507, as amd.; Laws of 1907, chap. 91.—- [Rep.
     