#### THE PEOPLE ex rel. CHAUNCEY KILMER and others *v.*PATRICK McDONALD, A. J. CHERRITREE and others.

*Certiorari—when not allowed*— *Power of legislature to open streets*— *Const., art.*10, §3 *— chap.*633 *of*1870; *chaps.*393, 500, *of*1873.

The writ of *certiorari*should not he granted upon the application of two or three out of a large number of persons, interested in like manner in assessments for local improvements, especially where adequate relief is afforded in proceedings at law.

The legislature has power to locate and open a highway without the instrumentality of highway commissioners, and to provide for the apportionment and collection of the expenses thereof.

Chapter 623 of 1870, as amended by chapter 293 of 1872, laying out Union *188avenue in the village of Saratoga Springs, and providing for the opening and working of the same, and for defraying the costs thereof, is constitutional and valid.

By the said act, the costs and expenses of the improvement are to be assessed against the individual owners, and not against their land.

Reargument upon a *certiorari*to the commissioners for appraisal of damages, etc,, upon opening and laying out Union avenue, in Saratoga Springs, and to the town clerk, for the purpose of reviewing such proceedings.

This case' has already been decided by this court, the decision being reported in 9 Supreme Court Reports (2 Hun), page 70. Subsequently a reargument was ordered. (Id., 601.)

*A. Pond,*for the relators.

*P. H. Cowen*and L. *B. Pike,*for the defendants.

Boardman, J.:

The relators claim that the proceedings by which they have been assessed for supposed benefits to their several pieces of property, arising from the opening of Union avenue, in the village of Sara-toga Springs, are void, and should be reversed and set aside for the following reasons:

First. The original act of 1870 * is unconstitutional, in that it appoints persons to discharge the duties of commissioners of highways for said village, in violation of section 2, article 10, of the Constitution of this State.

Second. That the acts of the defendants, commissioners of appraisal under the law of 1870, in making their assessments, are not in conformity thereto, and are consequently void; and hence the taxes imposed upon the relators are illegal, and should be set aside.

Third. That the acts of 1870, and the acts amendatory thereof, are void for vagueness and inconsistency.

Fourth. That the act of 1874 is ineffectual to render valid the prior void acts of the legislature.

Fifth. That these proceedings for review were begun before the passage of the act of 1874, and are therefore not to be affected by it.

*189And, first, it is proper to say, that if these propositions are true, if the legislative acts were unconstitutional and invalid, or if the commissioners have not followed the authority given them by these acts, so as to impose legal and valid taxes or assessments, the relators had abundant protection at law, without resort to the writ of *certiorari.*The allowance of the writ on behalf of two or three out of a large number of persons interested, in like manner, in assessments and taxes for local improvements or the public benefit, should be discountenanced, especially where adequate relief is afforded in proceedings at law. *

First. Is the law of 1870 unconstitutional ? The commissioners of highways of any town have the right to open highways in the manner prescribed by law. The legislature has the same right, but in a far more unrestricted form. The legislature is the fountain of all power, subject only to the Constitution. The legislature may, therefore, by its own • inherent power, locate a highway and provide for paying the damages and opening and working it, without the instrumentality of highway commissioners. † It may also provide for the apportionment of the expenses, and for the manner of collection, *‡***This I understand has been done, as to Union avenue in the village of Saratoga Springs, by the acts of 1870 and 1872. By section 2, Laws of 1870, page 1442, it is enacted that Union avenue shall be 100 feet wide. By the act of 1872,§ Union avenue is located, its width is established at 100 feet, the manner of widening to that extent fixed and prescribed, and how compensation shall be made and benefits assessed. The district within which real estate may be assessed for benefits, is defined by metes and bounds. So far then as Union avenue is provided for by said acts, I think it cannot be justly claimed that they •are unconstitutional. The legislature has described and laid out the street, and ordered it opened, and provided ways and means therefor. Even if those acts could have been done by the commissioners of highways of the village, they could equally have been *190done by the sovereign power of the State, as may be seen by the cases cited above. But it is not to be conceded that the commissioners of highways could have laid out this street, of the width, and in the manner provided by the legislature. In all these respects it was in excess of their power under the statutes. It is not necessary to consider whether all the powers given to the special commissioners by these acts over the streets of Saratoga Springs, were unconstitutional. It is sufficient if they have acted within constitutional and legal limits in the matters before us for review. There is nothing in the act or purpose indicating an attempt to evade a constitutional right. It was a ease where the usual authorities could not accomplish the purpose. In these respects the case is distinguished from *People ex rel. Bolton*v. *Albertson****

For the reasons stated, I think the acts of 1810 and 1812, laying out Union avenue, and providing for the opening and working of it, and for defraying the costs thereof, were good and valid laws, and did not infringe upon section 2 of article 10 of the Constitution.

Second. A much more formidable difficulty arises from the manner in which the authority conferred upon the commissioners of appraisal was exercised by them. The difficulty exists in some degree by the obscurity of the return as to the conduct of the commissioners.. Undoubtedly the statute must be substantially complied with, or the tax will be invalid.†

What is a substantial compliance, depends upon the construction to be given to the acts of 1810 and 1812. When this case was last before this court,‡ Mr. Justice Miller thought that the report of the commissioners of appraisal was fatally defective, by reason of the omission of descriptions of the particular parcels of land assessed. But as the return is made, and upon the papers presented, I am inclined to doubt his conclusion. By the thirteenth section, of act of 1810, the commissioners are to make their report, stating the quantity of land taken for such avenue and its value, with the names of the persons and the amount of damages awarded, and. also a general description of all lands and property assessed for benefits, with the names of the owners, and the amount assessed against each. It must be recollected that the first report is lost, as appears by the *191return. The commissioners, however, say that such first report showed a strict compliance with the law. By the second or final report, such assessments appear to be in accordance with the act, if the maps returned with the papers constituted a part thereof. Whether they or either of them were part of said second report is not clear from the return, though I think it should be assumed that both were. They are the result of surveys made for this specific object, and were used for the purpose of appraisal and equalization. Assuming that to be true, the report, containing schedules A and B, with the two maps, contains a remarkably full and explicit description of the property taken for the avenue; its value; the awards to each owner for compensation; the names of the owners; also, not only a “general” but a particular “description” of each lot of land or property assessed for benefits, with the names of the owners and the amounts assessed against each on account of such property. Upon such assumption there was a complete compliance with the law in the assessment and second report. I think this conclusion would be equally justified if either map accompanied the report. But if no map was filed with the reports, corresponding with those presented to the court, the assessment and report did not comply with the law. I have said that the maps will be presumed to have been integral parts of the proceedings and reports, because otherwise they have no business here, and should have been stricken out of the return. The return to a common-law *certiorari*should bring up the record of proceedings of the inferior tribunal, and nothing more. It should afiirmatively appear therefrom that such proceedings are void. If it is left doubtful or uncertain whether the tribunal has acquired and retained jurisdiction, and pursued it properly, and any fair construction will sustain the action, it will be sustained.

Third. It is urged by the relators that the commissioners of appraisal have assessed the amounts against the individuals instead of the lands, and that such error is fatal. If my previous conclusion be correct, there is no difficulty in sustaining an assessment against the land owners instead of the land. By the act of 1870,* the commissioners are to ascertain “ the *names of the*owners, and the amount assessed against *eachP*Section 16 provides that the *192town clerk shall transmit to the board of supervisors *“*the names of all persons assessed for benefits under this act, and the amount assessed to *each.** * * The board of supervisors shall also cause the names of all persons returned by the town clerk of said town as assessed for benefits, with the amount assessed against *each,*to be inserted in the assessment roll of said town; the amount so assessed to -be levied and collected as other town taxes, and paid,” etc.

By the act of 1872, * section 1 of the original act is amended, but the remainder of the act of 1870 remains the same, and is applicable to such amended first section. In the section, as amended, it is provided that compensation shall' be made for land taken, and such compensation and the resulting benefit shall be ascertained and assessed in the manner provided in said act, etc. These provisions leave no doubt in my mind that the legislature intended the tax should be personal. It follows necessarily from the fact that it is to be levied and collected as other town taxes. It becomes a tax against the person on account or by reason of the property owned by such person. '

In the view I have taken, it is unnecessary to examine whether such a tax could have been ascertained and assessed against these relators legally, without the aid and existence of these maps as a necessary part of the proceedings and report.

These considerations lead to an affirmance of the proceedings and assessments, without reference to the act of 1874, by which the proceedings of the commissioners of construction and the commissioners of appraisal are legalized. Such act is an implied expression of legislative opinion that some of those acts needed legalizing, and that they were, in fact, invalid by reason of some defect of jurisdiction, or insufficiency in the exercise thereof. In my deference to the wisdom of the legislature, I began the investigation of this case in that belief. A careful and somewhat laborious o examination has led me to a different result, and I now think such proceedings can fairly be sustained upon the merits, without a resort to the act of 1874. I should, however, do injustice to my own feelings if I did not deprecate and condemn this kind of special legislation for local purposes. It is to be hoped that such legislative interference with municipal corporations may henceforth *193cease. Laws of this character are usually urged by no public influence or interest, nor enacted by any proper intelligence or knowledge of the legislature of the wants of the community to be affected.

The proceedings and assessments brought before us by this writ should be affirmed, with costs against the relators personally.

Present — Learned, P. J., Boardman and James, JJ.

Ordered accordingly.

*

Laws of 1870, p. 1442.

*

 Matter of Mt. Morris Square, 2 Hill, 16; 25 Wend., 693; Case of Fifty-first Street, 3 Abb. Pr., 232; Matter of Eightieth Street, 17 id., 324.

†

 Const., art. 1, §§ 7, 11; Clark v. Miller, 54 N. Y., 528; People ex rel. McLean v. Flagg, 46 id., 401.

‡

**Litchfield v. Vernon, 41 N. Y., 123.

§

 Page 1166.

*

55 N. Y., 50.

†

 Westfall v. Preston, 49 N. Y., 349.

‡

**4 N. Y. S. C., 290.

*

 Page 1446, §18.

*

Page 1166.