The New York herald., 1879-09-19
THE COURTS.
The Constitutionality Of the Board
Of Apportionment.
IMPORTANT OPINION BY JUDGE EARL.
Objections to the Department of Public
Works Water Meter.

An important decision has just been rendered by
the Court of Appeals in the suit brought by John
J. Townsend trustee against the city. the object
OF which. will be remembered. was as TO the con-
stitutionality of the Board of Estimate and Appor-
tionmont. The action originally brought in the
Supreme Court, Special Term. and was thence ap-
pealed to the General Term. which tribunal having
decided adversely to Mr.. Townsend. the case was
carried to the of last resort. The opinion of
Judge Earl is given in full below. and as will be
seen afirms the Judgment given below in favor of
the cty:-
We have carefully examined this and entertain
no doubt that the tax in question was legally i'm.
posed and that for that reason the Judgment ought
to be affirmed. but the afirmanco of the Judgment
does not depend upon the validity OF tho tax. and
hence elaborate statement OF our reasons for
holding the validity would be waste of time the
Judgment will have to be affirmed II every TACT al
pisintiir be conceded The action is to aside and
cancel the tax upon the ground that II Is illegal ana
cloud upon Raints title 70 .ha MS sronnd lands that
the law. in pursuance of which 1t was imposed, Is
Unconstitutional. and therefore void. No other
reason is alleged claimed for the maintenance OF
the action It is general rule that the owner OF
real estate must wait until his title is assaied or
possession Is disturbed or his rights actually
nterfered WITH before he invoke the protection
OF the courts. The law generally concerns itself
merely potential But there arc some exceptions to
this rule. Courts WILL under certain circumstances,
entertain actions to remove cloud upon title
land to prevent future harm. 1t is not sufficient
that there is formal title lien creating the cloud.
Where the cloud is claimed to be created by lien
the lien must be apparently valid, and must exist
under such circumstances that It may in the future
smparrass injure the owner or endanger his
title But it has been decided many times
in this State that where the lien Is in
valid upon its face, or where the inval1dity
will necessarily appear in any proceeding taken to
enforce title under 1t, then the jurisdiction OF
court of equity cannot be invoked to set it aside.
Then the owner wait until his title is actually
nssaed under the lien, and mis- defence will always
be ut hand. II this tax be valid upon tho ground
claimed. its lnvaidity will always appear.
The recorded proceedings and the stat
law claimed to be unconstitutonal No valid
tax be imposed under IN unconstitutional law;
that such tax could not constitute such cloud
upon the title to call for the interference OF
court OF equity the precise question decided in
Stuart vs. Palmer "a N. Y, 1873. Therefore, whether
this is legal Illegal for the reason stated tho
Judgment must be affirmed. ALL the members of the
Court concur in the opinion excepting Judge
Andrews, who was absent.
WORTHINGTON WATER METER.
Conrad Stem, west side brewer, through his
counsel. Messrs. Ambrose H. Purdy and John Tod
hunter applied to tho Supreme Court for an in
junction against the Department OF Public Works.
restraining it from compelling Stein to place in his
brewery the Worthington water meter which the
department. has notified him he must put in and pay
for. It appears from the moving papers that Stein
had paid $GS8 so III full for the year ending May ],
1880. On this statement OF fact Judge Donohue
granted order to show cause returnable Monday
next, with an injunction restraining any action
the part OF the Commissioner. This Is to be a test
and attracts the attention OF all manufacturers
hotel keepers and other persons notified to put in