#### The People *ex rel.*Troy Union R. R. Co., Resp’t, *v.*Edward Carter *et al.,*Assessors, App’lts. Same *v.*Same.

*(Supreme Court, General Term, Third Department,*

*Filed May 27, 1889.)*

1. Taxes and assessments—Certiorari to review action oe the assessors—When proper—Laws 1880, chap. 269.

Under chapter 269, Laws 1880, a *certiorari*is properly issued to review the action of assessors in assessing property for the purpose of taxation, and such writ is properly directed to the comptroller where the record alleged to be erroneous is in his possession.

2. Same—return to certiorari not conclusive.

Nor is the return to a *m'tiora/ri*under the act conclusive.

8. Same—Local act—When valid, though containing a subject not expressed in it—Laws 1858, chap. 462.

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.

4. Same—Jurisdiction—Court—To redress injustice consequent upon

LEGISLATIVE ACTS.

Whether it is wise for the legislature to pass acts exempting certain property from taxation, is not a question for this court, nor can it redress any consequent injustice; that power is in the legislature.

5. Same—Taxation oe Trot Union R. R. Co—Constitutionality oe act —Laws 1853, chap, 462.

As to the taxation of the Troy Union R. R. Co., that subject is expressed in the title of the act (Laws 1853, chap. 462) sufficiently, so that the act is not unconstitutional in that view.

*105These are two appeals from judgments of the Rensselaer county special term, rendered upon *certiorari*brought by the relator, to review the action of the assessors of the city of Troy, in assessing the property of the relator, for purposes of taxation, for the years 1886 and 1887.

The Troy Union Railroad Company was duly organized under the general railroad act, about the year 1852. Its articles of association are in evidence, though not printed. Prior to its organization, and on the 20th day of June, 1851, the legislature passed chapter 255 of the Laws of that year, authorizing the corporation of 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 B. B. Co.

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 and Saratoga Railroad Co., the Schenectady and Troy R. R„ Co., the Hudson River B. B. Co., and the Troy and Boston B. R. Co. Prior to the organization of this company, the termini of these several railroad companies, for the discharge of passengers, were at different points on Biver 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 R. B. Co., 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 R. R. Co., as parties of the first and second parts, and the four railroad companies, above mentioned, as parties of the third, fourth, fifth and sixth parts.

Among other provisions of the said contract, was one *106reading 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. Uo., be exempt from taxation, upon an amount exceedingThe 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 purpose 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 December 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 New York, June 24, 1853, relative to taxation of the property of the Union Railroad 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 New York, that the Troy Union Railroad 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 Railroad company an amount equal to the city taxes imposed on the Troy Union Railroad company for any valuation exceeding its present capital stock.”

After the execution of the contract of December 3, 1852, the city issued its bonds to the amount of over $100,000, which the railroad companies agreed to pay, and did after-wards pay, and the costs 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.

*107Under the statute above set forth, the Troy Union railroad, 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.

„Jn 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.

*B. Á. Pdrmenter,*for app’lts ; *Esek Go-wen,*for resp’t.

Learned, P. J.

We think that under chapter 26.9’ Laws of 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 assessors, because it was to review their action ; against the comptroller because the roll was in his possession. The case of *People, ex rel., Bay State*v. McLean, *et al.,*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.

Nor 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 defendant have been settled against them in many cases.

We think that there is nothing in the change made by chapter 201, Laws of 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 effect a change in, or to repeal the law upon which the testator relies, viz., chapter 462, Laws of 1853.

The only question here 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 Sara-toga bridge is valid, because the relator admits that that subject is not expressed in the title.

*108“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., at page 267. *People, ex rel.,*v. *Briggs,*50 N. Y., 553.

As to the'taxation of this Ufooy Union Kailroad Company, that subject Is expressed in the title- -of t.M xact la jju.estíor\ snfficientiy$. so that the is sot' líneonhüíu jilonnl view. ’ . . .

It appeal's that 'this act AraApaBsed as the tostilt or afi> 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 ah 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,*83 U. S., 244.

The order should be affirmed, with fifty dollars’ costs , and disbursements against the appellants.

Landón and Ingalls, JJ„, concur.