#### The McKee Land *&*Improvement Company of Rochester, New York, Plaintiff, *v.*George B. Swikehard et al., as Commissioners of Sewerage for the Tenth, Fifteenth and Twentieth Wards of the City of Rochester and Town of Gates, Defendants.

(Supreme Court, Monroe Special Term,

March, 1898.)

1. Assessments — Injustice in the method of laying an assessment must be attacked directly.

Injustice in the manner in which an assessment for a sewer has been laid should be attacked in the proceeding itself by means of a writ of certiorari, and cannot be attacked in an equitable- action brought to restrain the collection of the assessment- subsequently made.

*2.*Same — Property benefited by a sewer.

Property which may, by laterals, be easily connected with a trunk sewer, may properly be assessed for its cost, and the fact that legislation may be neeessáry to the construction of the laterals does not change the rule.

3. Repeal — A law inadvertently included in a repealing schedule.

A law, inadvertently included in a schedule of laws declared ta be repealed by a general act covering the subject of such laws, is not to be deemed to have been legally repealed.

Action in equity, to set aside and restrain the collection of an assessment upon plaintiff’s lands for a local improvement.

William Butler Crittenden and John Van Voorhis, for plaintiff.

William F. Cogswell and Charles J. Bissell, for defendants.

Dunwell, J.

This is an action in equity, brought to set aside and restrain the collection of tan assessment upon plaintiff’s lands situate in the town of Gates, in close proximity to the city of Rochester,. for a local improvement known as the West Bide Sewer. The course of the sewer is from a point in the town of Gates, a short distance from the western line of the city, northeasterly into the city and through a portion of the western part thereof, to the outlet of the sewer into the Genesee river. The drainage area within the route of the sewer-is computed at 6,556.49 acres.

*22The sewer commission decided that 3,625.29 acres of this drainage area was benefited by .the sewer, and consequently assessed it. Of this number of 'acres adjudged to be benefited, 1,044 are within the city of Rochester, and 2,581 in the town of Gates. The assessment placed upon lands in Gates was. $302,874, and in Rochester, $299,728, a total assessment of $602,602. Plaintiff’s tract, consisting of 224.49 acres, was assessed as follows:

Seventy-three hundredths of an acre at $385 per acre; six and . seventy-six one hundredth acres at $200 per acre,, eighty-five acres at $150 per acre, and one hundred and thirty-two acres at $.75 per acre, a 'total assessment of $24,283.05.

Plaintiff feels aggrieved at what it asserts to be an inequality in the assessment, and which, it alleges, imposes a' disproportionately greater share of the expense upon its lands than upon premises of other property owners whose lands are similarly situated or more favorably situated to receive the benefits, of the sewer. If this were the only allegation against the assessment, a consideration of defendants’ objection, that the assessment,is not subject to a collateral attack by action but only upon direct review within the proceeding itself by *certiorari,*might dispose of the case without rendering further examination necessary. But .the complaint and testimony raise -other questions attacking the acts of the commissioners as unauthorized, and their whole manner of assessment as illegal, which will require a careful examination of all the acts of the commission and the history of the whole case.

The project for the sewer is comprised within several acts of the legislature, the purpose of which is the construction of a trunk sewer for-a large district on the West side, of the Genesee river in' the city of Rochester and town of Gates.' This was to be done under the direction of -commissioners, who were also to make an assessment upon local property owners, near the route of the sewer, fór its costs. . . ¡

The first act, chapter 603, Laws of 1892, provided that the sewer should begin upon the Buffalo road at Field street. Under this act,. the commission, consisting of three members, Horace Pierce, George B. Swikehard and Frank S. Upton, organized and proceeded with the work. They appointed an engineer, William E. Crane, who surveyed and made maps and plans for the work. They let the contract and made an assessment - which was completed July 31, 1893. Considerable work upon the construction of the sewer was5,done under Crane’s supervision as engineer.

*23The second act, chapter 55, Laws of 1893, provided for an addition to the sewer further south, to take in an additional district of considerable extent. It provided for proceedings relating to the construction of the addition only, treating it as a separate work.

The third act, chapter 438, Laws of 1895, went into effect April 26, 1895, as an amendment to chapter 603, Laws of 1892. It provided for two additional commissioners from the town of Gates. It empowered the commissioners to make a inew assessment, vacated the one already made and otherwise considerably enlarged the powers of the commissioners.

The fourth act, chapter 744, Laws of 1895, went into effect May 23, 1895. It repealed chapter 55, Laws of 1893, which had provided for the extension of the sewer as a separate work, and empoAvered the .commission to extend the Isewer under construction to a point on or near, the Chili road, and to make such change in the dimensions, and limited changes in the route of the sewer, as seemed proper in their judgment.

The Liquor Tax Law, chapter 112, Laws of 1896, passed March 23, 1896, in its schedule of laws repealed, and which the act was intended to supersede, included, erroneously no doubt, chapter 744, Laws of 1895, relating solely to this sewer, probably intending chapter 774, Laws of 1895, which relates to excise.

This ¡obvious mistake was corrected by chapter 650, Laws of 1896, which took effect May 14, 1896, restoring chapter 744, aforesaid, within a period of fifty-two days after its supposed repeal by the Liquor Tax Law. This act in terms ratified and confirmed all acts of the commissioners done or attempted under said chapter 744.

By an examination of the foregoing legislation it will be seen that chapter 603, Laws of 1892, as amended by chapter 438, Laws of 1895, provided substantially the whole procedure to be followed. It empoAvered the commissioners, among other things, to determine the extent of the sewer, without fixing its. southern point by statute. There was no further occasion for chapter 55, Laws of 1893, providing for the southern addition to the sewer, .and hence its repeal, by chapter 744, Lavra of 1895, which also designated the southern point of the sewer to be fixed by the commissioners on the Chili road, or between the Chili road and Buffalo road.

The. work of the commission was commenced under the first act, chapter 603, Laws of 1892. William E. Crane was appointed engineer. ■ His plans for the sewer were adopted, the contract let, *24the work of construction, proceeded with under Crane’s supervision and an assessment was made for the cost of construction, as the sewer was then planned from the Genesee river to the junction of the Buffalo road and Field street.

It does not appear that any steps were ever, taken under chapter 55, Laws of 1893, for the extension of the sewer, with the purpose of proceeding under that act, and after the passage of chapter 438, Laws of 1895, and subsequent to the passage of chapter 744, Laws of 1895, by. which acts, chapter 60S, Laws of Í892, was amended and chapter 55, Laws of 1893, was repealed, a second assessment was made for the costs of the construction of the whole sewerj including the extension. It is of this assessment that plaintiff complains.

Although the work of construction had proceeded to a considerable extent under chapter 603, Laws of 1892, according to the plans of Mr. Crane, and an assessment had been made thereunder, when the amendatory acts, chapters 438 and 744, Laws of 1895; were passed authorizing the appointment of a hew commission and a taking up and prosecution of the work practically *de novo,*the commissioners availed themselves of the new powers conferred, reviewed the .existing plans, with the assistance of Mr. Thompson, ah engineer appointed by the commissioners in place of Mr. Grane, "resigned, adopted some changes therein suggested by Mr. Thompson, and extended and adapted the plans so as to bring the southern extension within the project of the whole sewer as a single work for all purposes, including construction and assessment.

Upon this rearrangement of the proceedings for the prosecution of the work, it was renewed and conducted to completion. The assessment that is. questioned was made wholly under these changed conditions. Upon the trial, considerable testimony was given to ■show how the first assessment was made, and that it differed in. its results from the existing assessment and was more favorable to plaintiff. The comparison cannot be of much value, as the present assessment must be considered solely upon its.own merits. The commissioners are required by the statute to “apportion the costs upon the several tracts or parcels of. land * * * as they shall deem to be benefited by such sewer in proportion to the amount of benefit which each shall be deemed by said commissioners to receive therefrom. Such apportionment shall be in the usual form of an assessment-roll.” No method of apportionment was designated.

*25•Its manner and details were entrusted to the discretion of the commissioners; consequently they were not confined to any particular method, and a departure from the manner of making the first assessment, in arriving at the second, does not of itself involve ah error. The change was within the discretion of the commissioners.

The inquiry here, confined to the validity of the present assessment, is to be determined' by an examination of the principle adopted and the manner of its application.

As has already been said, the project was for a trunk sewer, by which is understood such a one as would provide sewerage, not only for premises along its route, but for such outlying territory as might conveniently use it by connecting therewith through lateral sewers. The commissioners deemed both classes of territory benefited by the sewer, and the theory of their assessment was, as appears from the testimony, to apportion upon the territory, that had immediate need of the sewer 'and could make .use of it at once, a sum sufficient to pay for a sewer for its own use, and upon ¡the more remote territory, such sum as would pay for the enlargement of the sewer, made necessary to meet its requirements.

In applying this principle to the several classes of territory and the numerous parcels within the several classes, a variety of circumstances appeared, causing differences, in benefit, not only between the several classes of territory, but ¡differences within the same classes and in respect to the numerous parcels thereof. It would not be profitable to recount here the peculiarities of the several localities along the route of the sewer that induced the commissioners to apportion the cost as they did. It is sufficient to say that they were many and of great variety and might well have operated upon their minds to produce the results shown by the assessment.

Somebody’s judgment was required to decide the matter. The statute committed the right of decision to the judgment of the commissioners, and so long as the decision remains a matter of judgment within ¿their discretion, it must be regarded as final.

I have not been able to ‘discover that the theory upon which the commissioners proceeded was not fair and conducive to equality of apportionment.

In executing the rule which they had adopted, it is possible that they may not have succeeded in a just apportionment in all cases. It is probable that there are individual instances of error, where the *26burden.has been placed unequally. Such is the assertion of the plaintiff, strongly made and strenuously insisted upon in respect ■ to its property, the assessment -of which is- the subject of this action.

Plaintiff’s premises, known as the McKee tract, belong to- the •class of territory not contiguous to the sewer, but within the area benefited by it. Previous to the undertaking for the construction of a sewer, streets and .avenues had been surveyed and staked out through the tract, and it had been plotted into city lots, but improvement stopped at that stage, and it does, not substantially differ in appearance from ordinary farm lands. Immediately north, of plaintiff’s tract, is the Lamberton 'tract, through which streets had been laid and lots plotted in about the same manner as upon- the McKee tract. Each tract is about equally distant from the sewer.

It is to a comparison of the assessment" upon these two tracts-of land that plaintiff’s counsel - earnestly invites the attention of the court, asserting that the comparison will show such" a conspicuous inequality as to demonstrate error on the part of the commissioners.' The error, if any, thus sought to be established, if due to imperfect performance of duty, would not warrant ith'e setting aside of the assessment, but would call for a correction that, might be obtained by a writ of *certiorari.*This action would not afford'the remedy. - This doctrine has been reaffirmed in recent cases.

In County of Monroe v. City of Rochester, 154 N. Y. 570, the court in its opinion says: “That this assessment was highly unjust, the 'evidence shows; but the reasoning of that opinion is hardly sufficient to take the case -out of the rule of law, which forbids a party to dispute, by a collateral attack, the correctness of an assessment, where mere irregularities, or errors, of a formal nature, have been committed, or where the ground of complaint is in the excess of the amount.of the assessment-over his due proportion. .The remedy, in such a case, is by *certiorari*to review the proceedings objected to. . Apparently, the learned General Term justices were of the opinion that where the evidence shows such an inequality in the assessment as to make-it appear, relatively, grossly unjust, inferences are permissible .that the municipal officers had adopted some erroneous principle, which resulted in the great injustice to the complainant and which justified the intervention of the court, when appealed to, through an action to Vacate the assessment. Such inferences, however, must arise in other facts than those showing a merely grossly unequal assessment. It must appear that, in the methods pursued in making the assessment, the *27inequality was, or may have been, due to some erroneous rule or principle.”

To the same effect is Guest v. City of Brooklyn, 69 N. Y. 506; Hoffeld v. City of Buffalo, 130 id. 387.

But it is by no means clear that the assessment upon plaintiff’s property is disproportionate to the benefit received in comparison with the Lamberton tract and other adjacent tracts. The evidence tends to show that the commissioners considered the McKee tract more eligible to settlement, situated upon a mom desirable street or thoroughfare leading to the city, more marketable for city lots and consequently that it would sooner make use of. the sewer, Besides, the general slope of the surface upon the McKee tract is towards the east, while that of the Lamberton tract and others west of it, slopes northward. The commissioners concluded that it would he the better course to build the sewer to take the sewage and drainage of the McKee tract into the trunk sewer at Maple street and enlarged the sewer at that street for the purpose. They decided that the Lamberton tract could be best provided for by drainage into the Gates ditch at Burrows street. That the commissioners might have disposed of the manner of sewerage of the two tracts in practically the same way, by providing sewerage for the Lamberton tract into the trunk sewer through Jay street, in practically the same way as for the McKee tract through Maple street, is probable; but they adopted a different plan .and it cannot be said that it was únwarranted in view of differences in location, isurface conditions and natural drainage of the two tracts. The difference in plans for the two tracts willj enable the McKee tract to use the trunk sewer at a comparatively small expenditure for lateral sewers, whereas the Lamberton tract, by following the plan of the commissioners, must effect its connection by laterals extending northward to the Gates ditch and by .utilizing the ditch or by improving the same or by following the valley thereof with lateral sewers that will reach the- trunk sewer at Burrows street.

This can only be done at a vastly increased 'expenditure to the Lamberton tract, which would bring the cost of sewerage to that tract up to an equality, proximately, with the assessment upon the McKee tract. This was the theory upon which the commissioners acted, planned the sewer and made the assessment. There is evidence tending to show that the circumstances referred to account for the difference in assessment of the two. tracts. It *28cannot be said, that the ¡evidence is insufficient to support the difference of action of the commissioners in respect to the two tracts.

It is objected that, in making the assessment, chapter 55, Laws of 1893, was not followed and that the omission invalidated the assessment. As has been said, that law was an independent act providing for an extension of the sewer and the construction of laterals. The commission proceeded with the main sewer without- regard to the extension until after the passage of the amendatory acts of 1895. Chapter 744 of the laws of that year repealed said chapter 55, Laws of 189.3, and authorized the extension under the provisions of said chapter 744, instead. The extension was planned .and the assessment had been partially proceeded with, when the" Liquor Tax Law was passed, March 23, 1896, which is alleged to have effected the repeal of chapter 744, Laws of 1895, thereby "reinstating chapter 55, Laws of 1893, the provisions of which it is asserted by plaintiff should have thenceforward been respected, and did, as a matter of la,w, -govern the acts of the commission in the interval between March 23j .1896, the date of passage of the Liquor Tax Law and the restoration of chapter 744, aforesaid, by the passage of chapter 650, Laws of 1896, May 14, 1896. There was no attempt on the part of the commissioners to comply with said chapter 55. If its provisions ¡did govern the procedure for the assessment, the failure to follow its directions would be a serious ' ’ omission.

It has been recently held in this state, that such ¡an inaccuracy in the enumeration of laws repealed, does not effect a repeal of the law thus mentioned. People ex rel. Fitch v. Lord, 9 App. Div. 458.

It would seem that the doctrine of that case is eontrolling in .this, and that the Liquor Tax Law did not effect a repeal of chapter 744, Laws of 1895.

But even upon the assumption .of its -repeal, the testimony is undisputed, that, after the restoration 'of said ’chapter 744, the commissioners reviewed all- the work and questions that they had had under consideration in the interval covered by the- alleged repeal and not until such restoration did they pass Upon those questions definitely. Although- they had considered the allegations of objections to the assessment within the interval of supposed repeal, they had not let the questions considered pass from their hands, but had held them in abeyance and under advisement and did not take final action thereon until the restoration of said chapter 744.

*29Final action was thus taken upon the assessment after the passage of chapter 650, Laws of 1896, and the assessment is not affected by the supposed repeal, even admitting it to have the effect of a repeal, because the repealed act had been re-enacted and was in force when the ¡assessment was in fact made.

Nor am I prepared to adopt the view of the learned counsel for the plaintiff that chapter 650, Laws of-1896, did not legalize the acts of the commission during the interval of the alleged repeal.

Legislation was not necessary to legalize the' acts of the commission while chapter 7 44 was in existence, but only while it was. asserted to be out of existence during the period of the supposed repeal. What the legalizing enactment intended was to validate such action of the commission as would otherwise have been governed by said chapter 744, had it not been repealed. Not strictly such action as had been taken “ under and by virtue of it,” although those were the words somewhat inaptly used. The meaning and intendment, however, is quite plain in view of the circumstances and must control the verbal inaccuracy. -

Objection is made that the estimate of future improvement taken into account in making the assessment, as testified to by Mr. Thompson, the ¡engineer, was speculative. Such an ¡estimate, of course, could not be certain. The. improvement is for future wants as well as for the present. They can only be determined by estimate. Many data were at hand.

The growth of the city is a fact. The extent of its growth,and the time such growth has .taken in the. past afford some .guide for the future and indicate magnificent probabilities, clearly removed and separable from mere speculation. These probabilities, both in respect to the facilities to be afforded by the sewer and the extent of its accommodation to a particular tract of land, were the subject of estimate, and it cannot be said that the evidence does not furnish a basis for the conclusion reached.

The point is made that the plaintiff’s tract receivés no benefit and consequently cannot be assessed. Of course, the principle must be admitted, that, if premises cannot receive a benefit, they cannot be assessed, .as the assessment proceeds ¡in all cases upon the prin-ciple that the benefit is to be commensurate with the assessment. In this case the trunk sewer is brought within easy access of plaintiff’s premises. Upon mere inspection of the maps it would seem that lands destined for city lots, must have received an increased present value from the sewer improvement. But it is said the *30plaintiff has no present right, under any existing statute, to -construct connecting laterals or procure the construction of the, same. * .The statutes under which the sewer is constructed and the whole scheme of the improvement, for the safety of the public health contemplate a connection between the sewer and the benefited area..

A practical view must be taken -of what is constantly taking place in like matters.- It-is unheard of, under the circumstances of such a case as this, that the proper legislation and permits, if necessary, to effect a connection between plaintiff’s tract land the sewer, would be withheld. There is practically no obstacle, even admitting that it may be necessary, to procure further statutory authority in order to connect with the sewer. This objection does not seem substantial under the circumstances of this casé;

Testimony was introduced, and much is claimed for it, to show that one of the commissioners, Luetchford, was governed by improper considerations in his action upon the commission in the assessment of the McKee tract. His language was proved and cannot be defended. It did not,however,, occur at a time when action was being taken as'to the McKee tract. In fact, ia preliminary statement of the apportionment had already been prepared before Luetchford’s remark, which, when applied to the McKee tract, shows that the McKee , assessment had been practically arrived at by informal action of several members of the commission before Luetchford referred to it. The case does not show that the ■improper, although perhaps casual remark, of Luetchford controlled the action of the commission or that the action of any member was affected by it; in fact, the contrary appears.

There are several other objections raised by plaintiff that have-received careful consideration but are not considered sufficiently important.to warrant the setting aside of the assessment.

I must hold that'none of the reasons urged- will warrant the relief demanded and that the complaint must be dismissed, with costs to, the defendants.

Coihplaint dismissed, with costs to defendants.