
    The Lake Shore & Michigan Southern R. R. Co., App’lt, v. The City of Dunkirk, Resp’t. The New York, Lake Erie & Western Railroad Co., Appl’t, v. The City of Dunkirk, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    1. Railroads—Assessment for paving—Power of legislature.
    The provisions of the defendant’s charter to the effect that the railroad companies occupying portions of the streets in the city should bear a portion of the expense of paving such streets was within the authority of the legislature, and the share of the expense to be thus borne was within its discretion.
    .2. Statutes—Amendment—Construction.
    An amendment to a municipal charter undertook to consolidate the provisions in respect to the construction of sewers with those relative to the grading and paving of streets, but omitted to repeal certain sections relating to a preliminary notice of intention to construct a sewer, etc. Meld, that such sections, if they continue in force at all, continue so only in respect to the construction of sewers, and have no application to the subject of grading and paving streets.
    8. Municipal corporations—Assessments—Validity.
    An objection to the validity of a municipal assessment was that the resolution ordering the work to be done was not adopted “by a majority vote of the common council,” as required by its charter. It appeared that the common council consists of eight councilmen and that the mayor presides at their meetings and is entitled to a vote when there is a tie. At the meeting in question there was a tie on the resolution in question and the mayor voted in favor of the resolution and declared it adopted. Melii, that the vote thus declared was, within the meaning of the statute, “a majority vote of the common council.”
    Appeal from a judgment in favor of the defendant entered on the findings and decision of the court at the Chautauqua special term, in an action to restrain the collection of a local assessment and to set aside the assessment roll.
    
      D. II. McMillan, for app’lt in No. 1; G. F. Brownell, for app’lt in No. 2; W. D. Holt, for resp’t.
   Dwight, P. J.

The tracks of both the plaintiff’s roads run longitudinally through Third street in the defendant’s city, and together occupy about one-half the width of the street, in the middle. The assessment in question was laid to meet the expenses ■of paving that portion of the street lying south of the railroad tracks and between certain limits east and west, under a provision •of the charter of the city which, so far as it relates to this particular .subject, is in the following terms :

“ For the purpose of making assessments under this title, the property * * * adjoining that part of the street so * * * paved * * * shall be taken to be the only property benefited by such improvement; * * * and in estimating the benefit from any such paving * * * on any street along which a railroad is running or using a part thereof, the company owning such railroad shall be estimated to be benefited by such paving * * * in such proportion as its tracks and usage of said street may bear to the width of the whole street, and be assessed for such work proportionately thereto.”

The assessment of the plaintiffs is assailed on several grounds, ■one of which relates to the constitutionality of the above provision, and others tó its construction, and to the mode of applica-tian of this and other provisions of the charter of the defendant

The constitutional objection may be broadly stated to be to the effect that the provision arbitrarily discriminates against a particular class of property, and fixes an arbitrary measure of its assessment without regard to the actual benefit received. The argument of learned éounsel for the plaintiffs, respectively, in support, of this objection is elaborate and instructive, but we do not feel at liberty to follow it to the conclusion to which it points, in view of the many decisions of the courts of our own state which recognize the cofnplete and well nigh absolute authority of the legislature over the subject of taxation. Such are the cases of the People ex rel. Crowell et al. v. Lawrence et al., 41 N.Y., 137; In the Matter of Van Antwerp, 56 id., 261; Spencer v. Merchant, 100 id., 587.

Moreover, on the principle that corporations, which are creatures of the legislature, should be still subject to its control, which at the time of its revision was enacted into a statute, 1 R. S., 600, § 8, it was competent for the legislature to lay upon the plaintiffs, a burden which was additional to those prescribed by their charters. Albany Northern R. R. Co. v. Brownell, 24 N. Y., 345, overruling Miller v. N. Y. & E. R. R. Co., 21 Barb., 513; Boston & Albany R. R. Co. v. Greenbush, 52 N. Y., 510; People ex rel. Kimball v. B. & A. R. R. Co.., 70 id., 569. Under the doctrine-of these cases it seems clear that the requirement of the statute in. question, to the effect that the railroad companies occupying portions of the streets in the city of Dunkirk should bear a portion of the expense of paving such streets, was within the authority of the legislature, and that the share of the expense to be thus borne was within its discretion.

It is further objected that the assessment in question is invalid because certain provisions- of the charter of the defendant relating to the subject matter were not complied with. Those provisions are found in § 1 of title 12 of that act, being chap. 479 of the Laws of 1867, as amended by chap. 19 of the Laws of 1880. The section as amended reads in part as follows: “ Sec. 1. Whenever the common council may deem it necessary to construct a sewer in any street, to grade, pave, macadamize or plank any street or part of a street in said village (sic), it is hereby authorized to declare by resolution its intention so to do and .to take all necessary steps for doing said work as provided in §§ 2 and 3 of title 12, and in § 2 of title 13, of this act (sic), and to order said work to be done and to let the contracts therefor by a majority vote of said common council.” Several blunders occurring in this section are due to the fact that the enactment was in the form of an amendment to the charter of the village of Dunkirk (act 1867,. chap. 479), and that there was an attempt to consolidate certain sections of the act amended, relating to different subjects. Thus,, of the amended statute, title 12 was entitled “ Construction of sewers,” and related solely to that subject, while title 13 was entitled and related solely to the “ Grading and paving of streets.” Title 12, by its §§■ 1, 2 and 3, required a preliminary resolution of intention of the board of trustees,'specifying the location and dimensions of the proposed sewer, to be published for two weeks in the village paper; an opportunity to every person interested to-file written objections to the project, and a hearing of such objections, before the sewer should be ordered to be built. Title 13, in its only §§ 1 and 2, contained no provision, for the adoption or publication of any preliminary resolution, nor for the tiling or hearing of objections, but (by § 1) gave to the board of trustees the authority to order the grading or paving of streets by the vote of two-thirds of its members; and (by '§ 2) to assess the costs of such improvements according to benefits, to be determined by assessors specially appointed for that purpose.

The act of 1880, which, as we have said, was a mere amendment of the act of 1867, and accomplished the transformation of the village into a city, of the president into a mayor, of the board of trustees into a common council by the mere change of reading of the several names wherever they occurred in the statute amended, undertook to consolidate the provisions in respect to the construction of sewers with those relating to the grading and paving of streets, and the result was the amended §■ 1 of title 12, a portion of which is last above quoted. Some of the confusion which has arisen in this case results from this awkward manner of amendment and abbreviation, but it is reasonably clear that §§ 2 and 3 of title 12 of the village charter, if they continue in force at all under the general repealing clause of the act of 1880,- continue so in force only in respect to the construction of sewers, and have no application to the subject of the grading and paving of streets; and that the only provisions of the act of 1867, referred to in the amended § 1 ot title 12, which apply to the last mentioned subject, are those of § 2 of title 13 of the act amended.

Such being the case, it is apparent that for the purpose of the paving ot' Third street, in the city of Dunkirk, no publication was required to be made of the preliminary resolution of intention, nor opportunity to file objections thereto, nor hearing given to such objections; but that it was only necessary that the improvements should be ordered by a majority vote of the common council, and that the cost of the improvement should be assessed upon the property benefited according to the benefits received as determined by assessors appointed for that purpose; with the proviso, in respect, to railroad property which was quoted at the outset of this opinion, and which was added to § 1 of title 12 of the act by the amendment of 1880.

An objection to the proceedings in question, which is suggested by a request to find on the part of one of the plaintiffs, though not argued on this appeal, viz.: that the statute required the appointment of two sets of assessors, one to ascertain and determine the cost and expense of the work, and the other to determine what property was benefited thereby and to assess the cost upon such property in proportion to benefits, was based upon a manifest clerical error in engrossing § 2 of title 3, by which certain words of the section were repeated. The section, as properly read, plainly shows that the cost of the work was to be ascertained and determined by the common council.

Another objection to the validity of the assessment is to the effect that the resolution ordering the work to be done was not adopted by a majority vote of the common council,” as required by the terms of § 1 of title 13 of the act as amended. The facts upon which this objection is based are as follows: The common council of the city • of Dunkirk consists of eight councilmen (title 8, § 2); the mayor presides at their meetings and is entitled to a vote when there is a tie in the vote of the councilmen (title 5, § 1); at the -meeting of the common council at which the resolution in question was adopted all the eight councilmen were present; the mayor also was present and presided; the vote of the councilmen on the resolution was four in favor of and four against its adoption, and the mayor thereupon voted in favor of the resolution and declared it adopted. We. can have no doubt of the correctness of this declaration, nor that the vote thus declared was, within the meaning of the statute, “ a majority vote of the common council.”

It is true the mayor is not declared to be a member of the common council, but he is its presiding officer, and in the case of a tie has a vote as such, and that vote determines the vote of the common council. So, as pointed out by counsel for the respondent,, the vice-president of the United States is not a member of the senate, but he is its presiding officer and has a vote in the case of a tie. ■ U. S. Constitution, art. 1, § 8, sub. 4. That a vote of the senate of the United States, determined by the casting vote of the vice-president, is a majority vote of the senate, admits of no-question. The case is the same with the senate of this state, N. Y. Constitution ,art. 8, § 7, and both are precisely parallel with the case under consideration. Bach of the votes supposed and the vote in question is a vote of the body in which it is taken, and is determined to be the vote of a majority of that body by the casting vote of its presiding officer. The case would probably have been otherwise had the provision required the vote of a majority of the councilmen present or elected.

The language of the statute which prescribes that in the estimates of benefits the railroad company “ shall be estimated as benefited by such paving, etc., in proportion as its tracks and usage may bear to the width of the whole street,” though perhaps not altogether well chosen, -is sufficiently intelligible and seems to us to admit of but one construction. Plainly, it intends that the benefit to the railroad company shall be held to bear the same proportion to the entire benefit of the improvement, as the width of that portion of the street occupied by the railroad bears to the entire width of the street; and it was in this proportion that, as we understand,, the several assessments to the plaintiffs were made.

Upon the whole we.find none of the plaintiffs’ objections to the-statute in question, nor to the mode of its application in this case, to be well founded. It follows that the plaintiffs’ complaints were-properly dismissed.

But it is objected that the defendant was not entitled to have an affirmative judgment on its counterclaim, against the plaintiffs,, for the amount of the assessment. The contention is that an assessment for a Ideal improvement, as distinguished from a general tax, cannot by any means be made a personal charge against the taxpayer, but is only in the nature of a lien upon the specific property assessed, and that proceedings for its collection are confined to proceedings in rem, and authorities are cited to that general effect. Cooley on Taxation, 675 ; Neenan v. Smith, 50 Mo., 524, 528.

But, here, the particular statute under which this assessment was laid comes to the aid of the defendant. Section 1 of title 19 of the charter of Dunkirk, as revised, after providing that “ all: general taxes and assessments * * * and all taxes and assessments made by the common council of the city of Dunkirk: shall be alike liens upon the real estate assessed,” proceeds as-follows: “and all the taxes and assessments, whether for general or.' local or special purpose, which shall remain unpaid for the space) of ninety days after the date of the first warrant annexed to the' roll thereof, shall bear interest at the rate of seven per centum per annum from that time; and such tax, with the interest,, may be sued for and collected by the city against any person liable therefor in any of the courts of this state; and the common council of said city is hereby empowered to bring actions in the name- of the city for such collection.”

There can, we suppose, be no question but that the words “ such, tax ” in the last clause of the section, refer to and comprehend' “all the taxes and assessments” mentioned in the preceding clause; and such being the case, there would seem to be no room here for the above contention, on general principles, against the-recovery of a personal judgment for a local assessment.

The judgment appealed from seems not to be obnoxious to any of the objections taken by the appellants, and must, therefore, be affirmed.

Judgment affirmed, with costs.

Macomber and Lewis, JJ., concur.  