The New York herald., 1870-01-29
THE WESlCHESTER TAX WAR.
The Opening Of Madison and Berrian
Avenues - Highly Important Legal
Opinion-The Law in Reference to
the Opening of Highways
Rights OF Citizens and III.
reMediable Corrupt
Legislation

On December 81. 1859. writ OF injunction was
ISSUED by Judge Tappan, OF the Supreme Court re-
ssraining the commissioners OF the Madison avenue
Improvement, in the town OF West Farms, West
cnester county, from proceeding with the improve
ment, ana at the same time an injunction was
served upon the Receiver OF Taxes restraining nam
from collecting the moneys due as taxes aud as
easements for the improvement on Madison and
Berrian avenues.
Tne matter subsequently came before Justice Jo-
seph r. Barnard or the Second Judicial district, on
motion to aside the injunction, and the following
+ n his opinion and decision thereon:--
Supreme Court.-7he People er rel. John B. Has.
ftn rs. The Board or Supervisors or Wesfchester
County ana Others-herc is force in the prelimi-
nary objections made by ihe eator to this motion.
4he court grant refuse the writ OF certiorari
and when it is granted by the court without notice
20 the defendants as was done IN this case the court
may upon nonce, supersede the writ for good
cause. IL Is not necessary that the court which
asked to supersede be held by the same Justice who
presided at tue granting OF the writ ex parte.
There are two fatal objections To this writ, IRE
spective or the errors alleged 10 be reviewed and
corrected by the writ. First, the rclator has no
standing In court TO prosecute this writ; he Is
simply resident and taxpayer OF the town or West
Farms, and has no concern with the questions pre-
sented except as citizen and person liable to be
taxed lie cannot compel the authorities TO It'll
gate with hlm the questions he presents In the
court5 with respect co his rights which are com.
mon TO the whole community. (Doottlo vs. Supervi-
sors OF Broome, Is N. Y. 1856: Roosevelt Va Draper
% N. u. 3lS.) The second objection the writ Is,
that It removes the record OF more tnan one road
opened by the Legislature under diiYerent laws ID
Dy Inherent commissioners and passed at different
times. The parties are Different the subject ls
different. The errors assigned are different The
Judgment may be different.
Upon the merits am unable to discover any error
IN the proceedings The reat0r assigns twelve dis
tinct causes for error which he seeks 10 review,
eleven Of which apply to Berran avenue, in behalf
appointed by the Legislature to open and
widen the same. The first is tnat tue
act was corrupty procured TO be passed for private
purposes and IN the interest Of few conspirators."
NO Judgment upon this proceeding, no Judgment
upon any action 10 be brought ny the reator, can
remedy this II true. Il New York Legal Observer.
1867 No evidence is given in support OF tins charge
but the "lnformation and belief' or reator, and
return which defendants can make Will be permit
ted. They can only return the record, OF which such
an allegation forms no part. The next SIX ob)ec-
TONS tue tenth ana twelfth are objections TO the
law itself ana the proceedings under IT, which are
briefly tnat The act Is not sufficiently precise; that
u taxes private property without compensation;
that the avenue III question was not opened by
twothird vote or the Legislature, nor was the same
lad out nor were the damages assessed. nor were the
papers flied as required by the general highway laws.
The ayenne was iaid out o the act ITSELF The lands
were condemnea for q public use The necessity
was determined by the Will OF the legislators. All
proceedings under general laws were dispensed
with. No land was taken without compensation or
designed TO be. The act provides for fun compen-
sation to all persons where lands are taken. II re-
iator has lands which are to be taken and have not
yet been appraised the commissioners must agree
with him or have COMMISSIONS appointed accord
Ing to law to assess their value. What has been
done is only The subject OF review uader these pro-
ceeolngs What has not been done which should
be can be compelled by proper process. Inc
eighth objection, that thes commissioners appointed
py tue Legislature TO open and work the avenue
were not sworn cannot be raised by relator; he
cannot assume to be the champion OF the COM
munity, and IN its behalf challenge the commis-
sioners 10 defend their Official acts.
The ninth objection is that the act IS "uncopstitu-
t0nal and v0id.o think this is not well taken.
The eleventh objection has no reference to Berrian
avenue. This writ should be superseded. The tax
u very burdensome but II has been imposed by tue
Legislature under It's UNREASONABLE powers. The
courts can give no relief. The determination OF the
Legislature as TO the necessity OF the avenues as
pubic roads cannot be questioned. Vigilance may
prevent future oppressive legislation. After laws
are enacted clearly within the powers OF the Legs-
lature to enact, there no rcmedy Writ superseded
with ten dollars costs.
J. Warren Tompkins and Herring Hall for CON-
missloners; Abel Crook attorney FOR relator.