#### The New York Central and Hudson River Railroad Company, Appellant, *v.*The City of Rochester and Others, Respondents.

Fourth Department,

January 6, 1909.

Constitutional law — power of Legislature to authorize public improvements and assess persons benefited — notice — due process of law — statute assessing the cost of bridge over railroad tracks in city against persons benefited.

The Legislature has power to determine that a public improvement shall be made, the amount to be raised to pay the expenses thereof, the territory benefited thereby, and the amount to be assessed against the various classes of persons in that locality.

The Legislature may determine the above matters itself without submitting them to commissioners or assessors, and in such case its action is not re viewable by the courts.

It is only where the determination of said matters is committed to commissioners or assessors that notice to and a hearing of the parties affected is essential. Where said matters are determined by the Legislature, the persons affected are not entitled to a notice or hearing unless the Legislature sees fit to allow it.

Hence, where a statute directs the construction of a bridge over railroad tracks in a city and assesses specified sums upon various classes of owners affected thereby, including a specific assessment upon steam railroads within the territory, and directs assessors to prepare a roll apportioning the amounts assessed to each class among the individuals and corporations composing such class, the assessors may, having given notice, assess the whole amount imposed by the statute upon steam railroads against the single steam railroad operating in the locality. By so doing the property of the railroad is not taken without due process of law contrary to the Constitutions.

Appeal by the plaintiff, The Hew York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 18th day of September, 1908, upon the decision of the court, rendered after a trial at the Monroe Special Term, dismissing the complaint upon the merits.

*Harris, Havens, Beach & Harris*and *Edwin A. Nash,*for the appellant.

*William W. Webb*and *B. B. Cunningham,*for the respondents.

*806Williams, J.:

The judgment should be affirmed, with costs.

The action was brought to set aside an assessment, a warrant for the collection thereof and a levy thereunder, and to restrain the city of Rochester from taking any proceedings to enforce the assessment on the ground that it was illegal and void.

The assessment was made by an act of the Legislature (Laws of 1905, chap. 676) to raise money for the construction of a bridge over the railroad tracks on Main Street, East, in the city of Rochester, and in brief:

Section 1 assessed $33,496.46 on all lots in a designated territory, except those assessed in the subsequent sections.

Section 2 assessed $66,992.92 u¡ion property situate within the territory designated in section 1, of steam railroads.

Section 3 assessed $4,572.99 upon street railroads.

Section 4 assessed $28,923.46 upon the city of Rochester.

Section 5 directed the assessors to prepare an assessment roll apportioning the amount assessed to each class by sections 1, 2 and 3 among the individuals or corporations of such class, according to the benefits received by each from the erection of the bridge, and insert the amount specified in section 4 as assessed against the city of Rochester.

' The assessors were required by the act to give notice before preparing the assessment roll, and they did so and then made the assessment roll as directed. There was but one steam railroad liable to assessment under section 2, and but one street railroad liable to assessment under section 3. The assessors had no power under the act to make any change in the classes to be assessed, or in the amount assessed to each class. In these respects the Legislature had determined the matter, and the assessors had only the right to apportion the amounts assessed to each class among the individuals of such class when there was more than one included therein. In fact, there was only one individual in each of the classes in sections 2, 3 and 4. There were many individuals in class 1. The plaintiff was the only steam railroad, and was entered in the assessment for the full amount assessed to that class. It contends that the assessment to it was illegal and void, because the act of the Legislature was unconstitutional, in that it determined the classes and the *807amount to be assessed to each class Without giving the railroad company any opportunity to be heard as to apportionment of benefits between the different classes, and, therefore, as depriving the company of its property without due process of law. This expression is in the same language in the Constitution of the State of New York and of the United States. (See State Const. [1894] art. 1, § 6; U. S. Const. 14th Amendt. § 1. See also U. S. Const. 5th Amendt.)

The question is, briefly stated, whether the Legislature had power itself to determine the classes of property to be assessed and the amount to be assessed to each class. Whether doing so without notice to the persons to be assessed was a violation of this provision of these Constitutions.

It seems to be settled by the courts of this State and the United States that the Legislature has the power to determine that a public improvement should be made, and the amount to be raised to pay the expenses of making the same, and the territory to be benefited thereby and the classes of persons and property to be assessed therefor, and the amount to be assessed to each class. It may be committed to commissioners or assessors to determine any or all of these things in any given case, but the Legislature is not bound to so commit them. It may determine them itself, and having done so its action is not open to review by the courts. It cannot be shown to be even mistakenly unjust. When the determination of these things is committed to commissioners or assessors, notice is required to be given to the parties interested and a hearing had before them before the determination is made. When, however, the Legislature determines them itself, it may do so without any notice or hearing at all, unless it sees fit to allow such hearing.

I am unable to see how these rules are varied in a case like this, where in each of three classes there is but a single individual, and only in the fourth are there many individuals. The language of the act, except as to the city of Eochester, was general as to each class, and it may be that the Legislature was not bound to know that, as a matter of fact, the two railroad classes had but a single individual each. However this may be, I do not see why, if the Legislature had a right to determine two steam or street railroads should be assessed a certain fixed amount, as one class, it might not *808just as well determine tlie amount to be paid by a single railroad, it being the only one in the class and the territory which the Legislature determined was benefited by the improvement.

It may be well to analyze some of the cases relied upon by the respective counsel here. The leading cases and the ones referred to, distinguished and approved in all the later cases, are *Stuart*v. *Palmer*(74 N. Y. *183); Spencer*v. *Merchant*(100 id. 585; affd., 125 U. S. 345).

These cases relate to the same improvement, though under different titles.

The Legislature, by chapter 217 of the Laws of 1869, as amended by chapter 619 of the Laws of 1870, provided for the laying out, opening and grading of Atlantic avenue in the town of Hew Lots, Kings county. The act provided for the appointment of three commissioners to lay out the avenue and improve the same. Two assessments were to be made. *One,*for the expense of acquiring the land, and this- expense was to be apportioned upon lands in proportion to the benefits, and a notice and hearing were provided for before the commissioners made their determination as to such apportionment. The *other*assessment was for the opening and grading of the avenue, and as to this no notice or hearing was provided for by the act.

The Court of Appeals, in *Stuart*v. *Palmer*(supra), held the act unconstitutional, because, having committed the determination of the questions of benefits to commissioners, it permitted them to determine this question and apportion the same without notice to, or an opportunity to be heard by, the persons interested; the failure to provide for such notice and hearing constituted the want of “ due process of law,” referred to in the Constitution. (See State Const. [1846] art. 1, § 6.) That decision was made in June, 1878. In view of the decision, and inasmuch as some persons and property that should share in the expense of the improvement had thus far escaped assessment, the Legislature passed another act with reference thereto. (Laws of 1881, chap. 689.) The amount assessed under the former acts and canceled by reason of the decision was $40,664.96, and this amount, with interest until the new assessment could be made and a proportionate amount of the expense of the prior assessment, the Legislature, by the act of 1881, directed to be levied upon the lands against which assessments had been so can*809celed, to be equitably apportioned among the several parcels composing said lands, after notice to, and an opportunity to be heard by, persons interested in such apportionment.

The constitutionality of this act was attacked in *Spencer*v. *Merchant (supra)*on the ground that it provided for no notice to, or hearing of, the landowners as to the amount to be collected, and that the assessments were levied irrespective of the benefits to the lots assessed.

The Court of Appeals held the act constitutional, stating that some of the assessments under the former acts were paid by the landowners, and this act imposed the amount to be raised to supply the loss occasioned by the former decision upon those landowners only who had thus far escaped taxation for the improvement. The court, among other things, said in its opinion: *“*The act of 1881 determines absolutely and conclusively the amount of tax to be raised and the property to be assessed, and upon which it is to be apportioned. Each of these things was within the power of the Legislature, whose action cannot be reviewed in the courts, upon the ground that it acted unjustly or without appropriate and adequate reason. * * * The Legislature may commit the ascertainment of the sum to be raised and of the benefited district to commissioners, but is not bound to do so, and may settle both questions for itself; and when it does so its action is necessarily conclusive and beyond review. * * * The question of special benefit and the property to which it extends is of necessity a question of fact, and when the Legislature determines it, in a case within its general power, its decision must of course be final. * * * Certainly if the acts of 1869 and 1870 had never been passed, but the improvement of Atlantic avenue liad been ordered, the Legislature might have imposed one part or proportion of the cost upon one designated district, and the balance upon another. Practically just that was done in this case. * * * The precise wrong of which complaint is made appears to be that the landowners now assessed, never had opportunity to be heard, as to the original apportionment, and find themselves now practically bound by it, as between their lots and those of the owners who paid. But that objection becomes a criticism upon the action of the Legislature, and the process by which it determined the amount to be raised and the property to be assessed. Unless by special *810permission, that is a hearing never granted in the process of taxation. The Legislature determines expenditures and amounts to be raised for their payment, the whole discussion and all questions of prudence and propriety and justice being confined to its jurisdiction. It may err, but the courts cannot review its discretion. In this case it kept within its power when it fixed *first*the amount to be raised to discharge the improvement debt, incurred by its direction, and *second*when it .designated the lots and property which, in its- judgment, by reason of special benefits, should bear the burden, and having the power, we cannot criticise the reasons or manner of its action.”

The Supreme Court of the United States, on appeal, in that case, affirmed the decision of the Court of Appeals of this State. From the statement of facts in the United States court it appears that the lots assessed by the act of 1881 were isolated parcels, not contiguous, and many of them not fronting on the avenue. Most of the territory benefited as fixed under the statutes of 1869 and 1810, and a great portion of the original assessment, were not included in the statute of 1881, nor directed to be taken into consideration in making the new assessment. And the latter assessment included a proportionate part of the expenses of the former assessment which had been declared void by the Court of Appeals. The United States court quoted *in extenso,*and with approval, the opinion of the Court of Appeals, and further discussed the questions involved itself. Among other things it said: “ When the determination of the lands to be benefited is entrusted to commissioners, the owners may be entitled to notice and hearing upon the question whether their lands are benefited and how much. But the Legislature has the power to determine, by the statute imposing the tax, what lands, which might be benefited by the improvement, are in fact benefited ; and if it does so, its determination is conclusive upon the owners and the courts, and the owners have no right to be heard upon the question whether their lands are benefited or not, but only upon the validity of the assessment, and its apportionment among the different parcels of the class which the Legislature has conclusively determined to be benefited. * * * In the statute of 1881, the Legislature itself determined what lands were benefited and should be assessed. By this statute the Legislature, in *811substance and effect, assumed that all the lands within the district, defined in the statute of 1869, were benefited in a sum equal to the amount of the original assessment, the expense of levying it and in terest thereon; and determined that the lots upon which no part of that assessment had been paid, and which had therefore as yet borne no share of the burden, were benefited to the extent of a certain portion of this sum. That these lots as a whole had been benefited to this extent was conclusively settled by the Legislature. The statute of 1881 afforded to the owners notice and hearing upon the question of the equitable apportionment among them of the sum directed to be levied upon all of them, * * * and that was all the notice and hearing to which they were entitled.”

The appellant relies largely upon the case of *Stuart*v. *Palmer*in support of its contention here, and cites in support and approval thereof the remarks of the judges in *Nehasane Park Assn.*v. *Lloyd*(167 N. Y. 439); *People ex rel. Moller*v. *O’Donnel*(183 id. 12); *People ex rel. Bridgeport Sav. Bank*v. *Feitner*(191 id. 97), where the case of *Stuart*v. *Palmer*was cited with approval. The questions we are here considering were not involved in those cases and they afford us no help in deciding this case.

In *Genet*v. *City of Brooklyn*(99 N. Y. 296) it was said: *“*The power of taxation * * * is vested in the Legislature and is practically absolute, except as restrained by constitutional limitar tions. The power of taxation being legislative, all the incidents are within the control of the Legislature. The purposes for which a tax shall be levied, the extent of taxation, the apportionment of the tax, upon what property or class of persons the tax shall operate, whether the tax shall be general or limited to a particular locality? and in the latter case, the fixing of a district of assessment * * * are matters within the discretion of the Legislature and in respect to which its determination is final.”

In *People ex rel. Scott*v. *Pitt*(169 N. Y. 521) it was held that a provision of the charter of New Rochelle (Laws of 1899, chap. 128, § 208), which fixed the amount of sewerage assessments upon abutting property at a definite sum per front foot, three dollars and forty cents, was not unconstitutional and void, as involving a “ taking of property without due process of law,” .because it failed to provide for a hearing as to benefits or the justice and equity of the prim *812ciple upon which the burden was to be imposed, and was a valid exercise of legislative power. While a notice and hearing was provided for by section 210 of that act, still the local authorities could not under the act change the basis of assessment. They had no power to make the amount more or less than the three dollars and forty cents per front foot, one dollar and seventy cents on each side, and yet it was held the Legislature had power to prescribe the amount of the assessment, which no notice or hearing would be able to change. The opinion there was written by Judge O'Brien, who had recently written in *JVehasáne Parle Assn.*v. Lloyd, hereinbefore "referred to.

In *Parsons*v. *District of Columbia*(170 U. S. 45) it was held that a provision of an act of Congress (28 U. S. Stat. at Large, 275, chap. 253) that assessments levied for laying of water mains in the District of Columbia should be at the rate of one dollar and twenty-five cents per linear front foot against all lots or land abutting on the street where the main should be laid was not unconstitutional. In the opinion the cases of *Stuart*v. *Palmer*and *Spencer*v. *Merchant (supra)*were cited, the former distinguished and the latter approved. (See, also, *Tonawanda*v. Lyon, 181 U. S. 391, where *Spencer*v. Merchant, supra, was cited as showing the settled law of the State of New York.)

In these cases where a fixed sum per front foot was provided as the system or rule of assessment and tax, the hearing gave the property owners no opportunity to procure any change of the system any more than in the case we are considering they could procure any change in the classes to be assessed or the amount to be assessed to each class.

They could not be heard, as they could not be here, upon the question as to whether the amounts fixed by the statutes were in accordance with the real benefits conferred. That question was conclusively determined by the Legislature itself and by Congress itself. The property owners could be heard as to any error of a clerical nature, could show they were not the owners of the whole or some part of the property assessed, and could raise the" question as to the validity or constitutionality of the acts.

All these cases involve the same question as that here raised, and hold that the Legislature or Congress have the power under their *813Constitutions to determine absolutely and without any notice or hearing of the property owners interested what property is benefited by an improvement and to what extent and to direct the amount accordingly, and when that is done the courts cannot review their action.

It does not seem necessary to discuss the other questions raised by the respondents in this opinion.

For the reasons hereinbefore stated the judgment should be affirmed.

All concurred.

Judgment affirmed, with costs.