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PUBLISHED BY THE ANTI-ASSESSMENT COMMITTEE AND DISTRIBUTED GRATUITOUSLY.
debt towards the repayment of the same, unless such THURSDAY, July 30.
debt be necessary to provide against pestilence or casMUNICIPAL CORPORATIONS.
ualty. After the creation of any debt there shall be
levied and collected in said annual tax annually thereMr. Murphy, from the fourteenth standing com after one-twentieth part, or as near one twentieth part mitteee, made the following report:
as may be, of such debt, towards its repayment. ARTICLE –
5. Money shall not be borrowed by any city or vil1. Private property shall not be taken for improve
lage corporation in anticipation of its annual tax, exments in cities and villages, unless the compensation
cept for the purpose of paying interest about to betherefor shall be first determined before a judicial
come due on any debt now existing, or to be created
under the limitations of this article, nor unless the tribunal, by a jury of twelve freeholders of the city or
amount shall have been previously levied in such an. village where the same shall be situated, who shall
nnal tax. be chosen and qualified as jurors in civil cases. 2. No local assessment for any improvement in any
6. No liability shall be contracted by any city or vil. city or village, shall be laid, unless a majority of all lage corporation, unless provision have previously the owners of the lands to be assessed shall apply for been made in its annual tax, for discharging the same, such improvement, nor unless such improvement
or unless the same be incurred under the limitations of shall be ordered by a vote of two-thirds of the com
this article. mon council or board of trustees of such city or vil
HENRY C. MURPHY.
Mr. Murphy moved that these reports be printed, o debt shall be created by any city or village and referred to the committee on the whole. corporation, except to suppress insurrection, or to pro.
The motion was agreed to. vide against an existing pestilence or casualty, unless the same shall be authorized by act of the legislature,
REMARKS. for some single object or work to be distinctly speci.
The reports which we have given above, are highly fied therein, which shall provide the ways and means exclusively of loans to pay the interest of such debt
important. We had intended to have reviewed the as it shall fall due, and also to pay and discharge the various propositions contained in the two reports principal thereon within twenty years, by tax to be in this paper, but have concluded to defer it and issue assessed and collected upon the taxable property of
an Extra ; in which we will discuss the principles, set such city or village, in equal amount as near as may be, annually, and such law shall be irrepealable until
forth the existing mischiefs, to be remedied, and sach debt, and the interest thereon, shall be fully paid examine the remedies proposed by committee No. 14. and discharged. And no such law shall take effect
At the same time we will review the remaining secuntil it shall have been approved by a majority of the electors of such city or village; and no money so rais
tions of Mr. Allen's bill, which bill was given in Munied shall be applied otherwise than to the object spe. cipal Gazette, No. 43, with a review of the first 20 seccified in such law.
Monday July 13. Mr. M. said that, regarding the first section, the
TAXATION OF PERSONAL PROPERTY. committee was unanimous; but with regard to the Mr. Murphr offered the following: others, it was not so. Differing himself from the com Resolved, That the Comptroller be requested to mittee on this, that the provisions which they had sub cause to be prepared and furnished to this Convention, mitted did not go into the defects of our system of mu a statement showing the amount of the capital stock nicipal corporatians, he had prepared a minority re actually paid in, and secured to be paid in of the port, which he asked permission to submit at this monied or stock corporations deriving an income or time.
profit from their capital or otherwise, including free The Secretary read the minority report, as fol- | banking associations, and having their principal office lows:
or place for transacting their financial concerns in the ARTICLE —
city and county of New-York; and also showing what 1. No charter or special act for the incorporation of
portions of such capital stock are held by persons re
portions of any city or village shall be granted, but general and |
siding respectively in the city and county, or else. uniform laws shall be passed for the incorporation of
where in the state of New York, elsewhere in the cities; and like laws for the incorporation of villages, il
United States, and by persons residing out of the limits subject to such alterations as the legislature sball from
of the United States, and also the amount of such time to time deem proper to make. The boundaries
stock, if any belonging to the state, and to incorporaand limits of the territory included within any city or
ted literary and charitable institutions; and that such village corporation shall be determined in such manner
statement distinguish the amount so held in each of as the legislature shall prescribe.
said corporations and associations. 2. No assessment for any improvement in any city Mr. Taggart said he should like to hear some reason or village shall be laid otherwise than by general tax for calling upon the Comptroller for all the informaupon the taxable property of such city or village, lev tion contemplated by that resolution. ied and collected with an annual tax for other ex
Mr. Murphy said there were various reasons. penses.
They were approaching a discussion when it would 3. Private property shall not be taken for any im
be well to know how much of the stock of incorpo. provement in any city or village other than for state
rated companies of this state are held elsewhere than purposes, unless the compensation shall be first fixed
in this state. His particular object in offering this by a jury in a court proceeding according to the course
resolution was in regard to the duties of the special of the common law.
committee, which was raised on the motion of the gentle4. No debt shall be contracted by any city or village man from New-York (Mr. Morris) who proposed, corporation on a longer credit than twenty years, nor | for the consideration of this convention, a proposition unless there shall be levied and collected in its annu. 1 to be inserted in the constitution to tax personal al tax of the preceding year one-twentieth part of such property where it was used and not at the domicil of
| the owner. There are in the city of New-York many
incorporated companies and associations, the capital of which is not all held by the people of the city of New-York, but by persons residing elsewhere, in the state and out of the United States. The capital of those companies and associations exceeds thirty mil. lions of dollars, which is assessed in the city of NewYork. That city has drawn together that capital, and she enjoys the benefit of it, and he was willing she should ; but some nevertheless might object that after having drawn in all this capital from all other parts of the state, she should have the right to tax other property which is now exempt from her taxation. Mr. TAGGART was satisfied with the explanation. The resolution was adopted. Mr. RUGGLES presented the following which had been presented to him from a highly respectable gentleman. It was on the subject of taxation, which is already before a committee of the Convention, but there were some suggestions which were not referred and therefore he desired this resolution to go to that committee. The resolution was referred to the 2d standing committee, as follows:
Resolved, That it be referred to the standing com. mittee nu : ber two, to inquire into the expediency of adopting a permanent and uniform system of taxation, which shall operate equally upon all classes of citizens ; which shall regard actual property, whether real or personal, including all debts due from solvent debtors, as the only legitimate object of taxationwhich shall define what is real and what is personal property, and shall take from the legislature the pow. er of converting the one into the other, and thereby interfering with private and vested rights—which shall protect the citizen from double taxation in any form or under any pretence whatever-which shall secure to resident citizens the right to be assessed for their personal estate in the city, town and county, where they reside, and not elsewhere-and which shall assert and perpetuate the principle of assessing all property at is full value, subject however to a deduction on account of any debts which the owner may in good faith have contracted, and be liable to pay; so that each one may bear his due proportionate share of the public burthens according to the value of what he really possesses.
REMARKS. The question of equal aud equitable taxation presents the same difficulty as that of the National Tariff in fixing a proper rate of duty on imports. The member from Kings—Mr. Murphy-will be unable to obtain the information he seeks from the Comptroller, or even from the Banks, for their stock is every day changing hands, and in many instances the Banks do not know the residence of the stockholder.
Equality of valuation is a matter of great consideration, and then equal apportionment follows as a necessary consequence. Who shall be taxed ? What shall be taxed? Where taxed, and how taxed, are importantquestions, but a further enquiry is made, where shall the tax be imposed ?
Men possessing large estates in personal property will reside where the taxes are the least--they have the ability to choose their place of residence. The rate of taxation is, in cities, becoming so much increased, that the portion required by the tax gatherer, will soon exceed that collected by King Pharoah.
LEGISLATIVE DEPARTMENT OF THE STATE OF NEW-YORK. Common Severs, Drains, or Vaults; Pitching and Paving Streets, cutting into any drain, or Sewer, altering, amending, cleansing, and scouring of any Street, rault
or sink, or common Sewer, the raising, reducing, levelling or fencing in any vacant, or adjoining lot. “And be il further enacted, That it shall be lawful for the said mayor, aldermen and commonalty, to cause common sewers, drains and vaults, to be made in any part of the said city, and to order and direct the pitching and paving the streets thereof, and the cutting into any drain or sewer, and the altering, amending, cleansing and scouring of any street, vault, sink or common sewer, within the said city ; and the raising, reducing, levelling or fencing in, any vacant or adjoining lots in the said city; and to cause estiinates of the expense of conformning to such regulations to be made, and a just and equitable assessment thereof among the owners or occupants of all the houses and lots intended to be benefitted thereby, in proportion, as nearly as may be, to the advantage which each shall be deemed to acquire ; and the said mayor, aldermen and commonalty shall appoint such skillful and competent disinterested persons as they shall or may think proper to make every such estimate and assessment, who before they enter upon the execution of their trust, shall severally take an oath before the mayor or recorder of the said city, to make the said estimate and assessment fairly and impartially, according to the best of their skill and judgment; and the said persons, after having made such estimate and assessment. shall certify the saine in writing to the said mayor, aldormen and commonalty, in common council convened, and being ratified by the said council, shall be binding and conclusive upon the owners or occupants of such lots so to be assessed respectively, and shall be a lien or charge on such lots as aforesaid ; and such owners or occupants shall also respectively be liable upon demand, to pay the sum at which such houses or lots respectively shall be so assessed, to such person as the common council'shall appoint to receive the same; and in default of such payment or any part thereof, it shall be lawful for the mayor, recorder and aldermen of the said city, or any five of them, of whom the mayor or recorder shall be one, by warrant under their hands and seals to levy the same by distress and sale of the goods and chattels of such owner or occupant refusing or neglecting to pay the same, rendering the overplus, (if any) after deducting the charges of such distress and sale to such owner or occupant, and the money, when paid or recovered, shall be applied towards making, altering, amending, pitching, paving, cleansing and scouring such streets, and making and repairing such vaults, drains and sewers as aforesaid, and raising, reducing, levelling or fencing in, such lots as aforesaid. Provided however, That nothing herein contained shall atlect any agreement between any landlord and tenant, respecting the payment of any such charges, but they shall be answerable to each other in the same manner as if this act had never been made ; and if any money so to be assessed, be paid by any person, when by agreement or law the same ought to have been borne and paid by some other person, it shall then be lawful for the person paying, to sue for, and recover the money so paid, with interest and costs, as so much money paid for the use of the person who ought to have paid the same; and the assessment aforesaid, with proof of payment, shall be conclusive evidence in such suit.
"And be it further enacted, That if upon completing any such regulation, it shall appear to the said mayor, aldermen and commonalty, that a greater sum of money had been bona fide expended in making such regulation than the sum estimated and collected as aforesaid, it shall then be lawful for the said mayor, aldermen and commonalty, to cause a further assessment equal to such excess, to be made and collected in manner aforesaid ; and in case the sum actually expended shall be less than the sum expressed in such estimate, and collected as aforesaid, the surplus shall forthwith be returned to the persons from whom the same were collected, or their legal representatives."'-[Passed April 9th, 1813. 2 R. L., p. 407, ý 175 and 176.
"And all the resolutions and reports of committees, which shall recommend any specific improvement involving the appropriation of public moneys, or taxing or assessing the citizens of said city, shall be published immediately after the adjournment of the board, under the authority of the common council, in all the newspapers employed by the corporation ; and whenever a vote is taken in relation thereto, the ayes and noes shall be called and published in the same manner.—[Session Laws of 1830, ch. 122, 07.
SUPREME COURT—Circuit—First Judicial District.
S. S. Doughty, )
EDMONDS, Circuit JUDGE.
EjecTMENT.— The plaintiff seeks in this suit to obtain possession of a lot in the 12th The judge was right in holding that the estimate and assessment in such cases should be made before
Ward, which he bought for eight hundred years at a corporation assessment sale, and the the work is done, It is difficult to give any other whole question is, whether that sale and the proceedings out of which it grew, have been construction to the statute. [2 R. L. 407, $175, 1761
| regular and valid ? A suggestion was thrown out by the late Chief Justice, in Elmendorf vs. The Mayor of New York, [25 Wend.
A corporation must show a grant either in terms or by necessary implication for all the 696,] that the assessment inight be made after the
powers it attempts to exercise, especially when it claims the right to divest individuals of work had been done. But the point was not decided; their property without their consent. The exercise of this franchise being restrictive of and I do not see how a distinction can well be made
individual rights cannot be extended beyond the letter and spirit of the grant, and being as to time, between the estimate and the assessment. As I read the statute both should precede the making
a high prerogative, should not be exercised, where the right is doubtful. (Beatty vs. of the improvement.
Knowler, 4 Peters 152. Vanhorne's lessee vs. Dorrance, 2 Dall. 316. Sharp vs. Spier, But the question remains whether this objection is 4 Hill. 83.) fatal to the proceedings. The charter of the city of Every statute authority in derogation of the Common Law to divest the title of one, and New-York provides that when a vote is taken in the common council upon a resolution involving a tax or
transfer it to another, must be strictly pursued, or the title will not pass. The power under assessment upon the citizens, the ayes and noes shall which the plaintiff claims, is a mere naked power in the corporation, and its due execution be calleu. In Striker vs. Kelly (7 Hill 9,) the Court cannot be made out by intendment-it must be proved. He must show step by step that held against my opinion, (p. 29) that this provision
every thing has been done, which the statute makes essential to the due execution of the was merely directory, and that the ordinances under which the plaintiff's land had been assessed and sold
power, and he must therefore be careful to collect and preserve all the facts and muniwas well passed, although the ayes and noes were not ments on which the validity of his title depends. (Willams vs. Peyton, 4 Wheat. 77.called. That is a stronger case than the one at bar. Rorkindorf, vs. Taylor, 4 Pet. 349. Jackson vs. Shepard, 7 Cowen, 88. Atkins vs. KinThere the mode in which the common council should
nan, 20 Wend. 241, &c. have acted was pointed out in express terms: while here it can only be made out by construction. And
Testing this case by these rules, it is objected to the legality of the sale, the calling of the ayes and noes was likely to be much
1. That the resolution authorising the improvement out of which the assessment grew, more important to land owners than was the time
was not published, nor were the ayes and noes taken or published. It is insisted that this is not a when an estimate and assessment should be made,
mere idle ceremony; a mere direction to the Common Council, which they may disregard although the judgment in Striker vs. Kelly has been reversed, the reversal as we understand went upon at pleasure, but was designed by the statute for a wise and benificent purpose, namely, that another ground, and left this question untouched. of giving to the parties interested, notice of the threatened invasion upon their individual That case is therefore an authority for holding that property. That it was devised as the mode of putting all upon their guard, and giving to as to time the statutes under consideration is only di
all the opportunity of defending themselves. rectory, and need not be strictly followed. We have before followed the decision in Striker vs.
No principle is more familiar to the Common Law than that which secures to every one Kelly, upon another point notwithstanding the reversal. due notice and a full opportunity of defence against all invasions of life, liberty or property; In that case a majority of the members of this court
and it would seem that publication of the resolution and the votes, being the only notice rejected the doctrine which had long prevailed that in the New York Street cases we did not act as a court,
which the statute requires, should be indispensably necessary to the validity of the probut as commissioners. And as the Court of Errors ceedings under it. But that question is not now open for discussion, at least before me, had left that branch of the decision untouched, we because the Supreme Court have held that the part of the statute which requires this pubheld at the last February special term that when a party
lication is merely directory—that the Common Council may disregard it at their pleasure, wishes to bring error in a street case, it is no longereither
and that therefore a compliance with its requirements is not essential to the validity of a necessary or proper to pursue the former practice of issuing a certioruri to the Justices of this Court as title acquired under it. Commissioners. (See. 7 Hill 27) but that a writ of II. It is objected that the estimate of the expense of the improvement, and the assessment error, if error will lie, should be sued out without a
of the amount thereof were not made out before the improvement was made, but afterwards. certiorari as is in other cases. The next question arises upon the fact that only
It is evidently, the whole scope and object of the statute, that an estimate of the expense shall two of the assessors signed the estimate and assess. | be made out before the work is done, and, that that estimated amount shall be collected prior ment: and the statute contains no provision that a to the same event. The corporation, who are the actors, being possessed of a mere naked majority may act. The rule in such cases is that where
| power, and having no interest in the matter, the object of the statute was to protect the parties
nower and having neintoroot ; all meet and consult, a majority may decide unless
really interested: those, for instance, whose lands are to be burdened, and whose money is to the statute otherwise directs. (Exparte Rogers 7 Cow. 526. Babcock vs. Lamb, 1 ib. 238: Crocker make the improvement, against an improvident expenditure of that money, and to insure vs. Crane, 21 Wend. 211. Woolsey vs. Tompkins them that due economy shall be regarded in making it. The whole machinery devised by 23 ib. 324.) This rule of the common law has now
the statute of estimates, assessments, and collections, can have no other object in view passed into a statute. (2. R. S. 555 $ 27.) When
than to insure to those at whose expense the improvement is to be made, that it shall be done nothing appears to the contrary; it may be presumed that the person or officer who did not sign the pro in the cheapest manner, and that is, to have the money collected beforehand, and the ceedings met and consulted with those who did
work done for cash. If this is not the sole object of that machinery, all its parts are exsig. (Yates vs. Russell, 17 John. 461, 468. Mc
ceedingly cumbersome and clumsy ; but if it is the object, they are well calculated, if Cay vs. Curtice, 9 Wend. 17. Downing vs. Rugan, 21
fairly carried out, to answer the end in view. ib. 178.) In addition to this presumption it was proved that all of the assessors took the oath of office: and. This object was entirely disregarded in this case. The form of the law was attempted as I understand the case, all were together and settled to be followed. but its spirit neglected. The work was done by contract before the money the principle, on which the assessment should be
was collected, and for a price necessarily enhanced by the credit which the contractor was made. The witness adds that all of the assessors were in the Street Commissioner's office at the time
obliged to give for his labor. This augmentation is not at the expense of the corporation, the assessment was made. If there was any room through whose acts the plaintiff claims title, but of the owners, whose property is to be for doubt upon the point that all met and consulted, taken away from them to pay it, and is not rendered a matter of necessity, growing out of there was clearly evidence enough to carry the cause
a strict compliance with the law, but flows solely from a violation of its provisions, to the jury, and this without the aid of any presumption on the subject.
The owners of property have a right to demand the protection of every provision of the The only remaining question is upon the warrant. law, and it cannot be that one so essential as this can be disregarded, and have the conseThe sale of the land was not made under the warrant. quences fall only on those for whose benefit it was established. That process issues for the purpose of collecting the
III. Another objection to the plaintiff's title is, that the statute requires that there should assessment from goods and chattels, without resorting to the land. (0175, and Statutes of 1816, p. 113, 8 be assessors appointed, and that they should make the assessment-thatthe poweris nowhere 1, 2.) The assessment in this case was against the given for a majority to act, yet that this assessment was made by only two of the three owner by name; and the warrant directed the officer
assessors appointed. This is a fatal objection, and renders the whole proceeding for to collect the money from him. Thus far all was
collecting the assessment void. right. But the warrant went further, and directed the officer to levy the money by distress and sale of It is a well established principle, that where a statute creates a board of officers to decide the goods of the owner or occupant. Now if it be any matter, but makes no provision that a majority may act, all must be present to hear conceded that the process was void, so far as related
and consult. (Crocker vs. Crane. 21 Wend. 218. Ex parte Rogers, 7 Cowen 526. to the occupant, i seo no reason why it was not
In this case the assessment is signed by only two of the assessors, and it does not appear good as against the owner of the land. It may well be that a levy upon the goods of a third person would that the third one ever took any part in the matter, except to agree upon the principle of the have been a trespass, and yet the warrant may be assessment in form; wbile in fact the whole process seems to have been an idle ceremony perfectly good as against the person who was assessed
performed by the subordinates in the Street Commissioner's office. and against whom by name the process was issued.
IV. The statute authorises the assessinent to be imposed upon the owner or occupant of the We think the verdict must be set aside. New trial granted.
land benefitted by the improvement. It is, as I read the statute, for the assesors to select (A Copy,)
the one, either owner or occupant, against whom is to be rendered, their judgment for the H. DENNIO,
amount of the assessment, and when the warrant shall be issued for the collection of the Fees $1.
amount, it must be against the person thus designated. Whereas, in the proceedings, the Q "To guard against these evils, and protect the citizens against
warrant is against the owner, naming him, “or those who may occupy the premises and the imposition of unnnecessary berthens, it was provided by the seventh section of the amended charter, that the ayes and noes
neglecting or refusing to pay.” If this proceeding is correct, then it is in the power of the shall be called and published, whenever a vote of the common
assessors to collect of one who is occupant to-day an assessment imposed upon one who council should be taken on any proposed improvement involving
was occupant some years past, and collect it, not merely by selling or leasing the land, but particular mode in which the corporation is to act is thus specially of the individual property of the present occupant. There is no proceeding known to declared by its charter, I think it can act only in the prescribed form. The contrary doctrine wants the sanction of legal authori.
the law where one can thus be made to be answerable for the debt of another without ty, and is fraught with the most dangerous consequences. It
his consent, without notice to him or opportunity for defence, The assessment ought to fear that they would soon become an intolerable nuisance."-Stri have been against some one who was either owner or occupant, and the warrant ought to ker vs. Kelly. Mr. Justice Bronson.
" These assessinent sales for real or fictitious improvements, some. have issued against him thus selected,, but being general against " an owner or occupant," times fall very heavily upon the owners of city and village property. The lots wbich are sold are usually vacant, and consequently whoever he might chance to be, and authorizing a levy of his individual property, is clearly produce no revenue. If there were an occupant, there would of
void, and plaintiff can make no title under it. from a sale most commonly falls upon absent owners, who have These considerations satisfying me that I ought to render judgment for the defendant, I 10 watcb the movements of a corporation and its officers; and upon abstain from noticing the other points in the case. children, who want discretion to defend and protect their rights." Sbarp vs. Spier. Mr. Justice Bronson.
THOMPSON & Carter, for Plaintiff......R. Mort & E. SANFORD, for Defendant.
a tax or assessment upon the citizens. (Stat. 1830, p. 126.) The language is imperative-the ayes and noes shall be called. When the
would place corporations above the laws, and there is reason to
course be a person to discharge the burden.
The loss resulting
no notice until it is too late; upon women, who are not accustomed
REMARKS. We here present to the State Convention a copy of the Opinion of the Supreme Court (in an assessment case) delivered by Chief Justice Bronson, at Utica, on the
of July, ult. It is a very important opinion. We have also placed before the Convention the Opinion of the same tribunal delivered by the saine learned Judge in the assessment case of Sharp vs. Spier, which is to be found in the Municipal Gazette, p. 249 and 250, and in 4 Hill. 83. We also place before the Convention the Opinion of the Supreme Court delivered by Mr. Justice Bronson in the matter of opening 39th, and other Streets, in the city of New York. See Municipal Gazette p. 191. And also the opinion of Mr. Justice Bronson in the case of Striker vs. Kelly, delivered in the Supreme Court. We likewise present the opinion of Mr. Justice Bronson in the case of Agnew vs. The Mayor, Aldermen and Commonally of the city of New-York. See Municipal Gazette, p. 181. Also extracts from Mr. Justice Bronson's opinion in the case of the People vs. Purdy, delivered in the court for the correction of errors. We accompany the opinion of the Supreme Court delivered at Utica, at the July term of 1846, with the opinion of Judge Edmonds, Circuit Judge of the first Judicial Circuit, and place the two opinions in parallel columns for easy comparison, preceding both with a copy of the law under which the decisions were made, and giving extracts from the opinions in the case of Sharp os. Spier; Striker vs. Kelly; Matter of 39th Street, fc., and People vs. Purdy. We intend to republish these opinions all on the same sheet, in order that they may be presented at one and the same view to the public.
As this cause is sent back to the Circuit Judge to be tried over again, it is to be hoped that the learned counsel will introduce all the testimony and raise all the questions involved, that it may be taken to the Court for the Correction of Errors for final and conclusive adjudication.
By the act of April 9, 1813, the Supreme Court of Judicature of this State, or one of the Justices thereof are vested with the power of appointing commissioners to levy assessments for opening streets and confirming their reports, and they appoint their own clerka commissioner, and by the same act the mayor, aldermen and commonalty of the city of N. York are authorised to make order for regulating and improving Streets, and to appoint assessors, and they appoint their own street commissioner and clerk. If a citizen feels aggrieved by the acts of the commissioners, or assessors, he complains to the very tribunals for redress, of which the Commissioner or assessor indirectly, form a part. This cannot be right. Provision should be made for adjudication of assessment questions by an independent tribunal.---And if the doctrine that a public officer who acts in violation of the constitution, is liable in damages to the injured party, is correct, then surely the Supreme Court is not the proper tribunal to adjudicate questions involving the pecuniary liability of their own members. For further remarks see next page.
body. Mr. Hallet holds the office of Clerk of the that the costs, &c., in the three proceedings would On the Opinion of Chief Justice Bronson in the
Supreine Court by appointinent from the Justices of be taxed on a certain day, and on a certain hour
that Court, and he also holds the office of Chairinan of that day, by Wm. Paxson Hallet, Esq., Clerk Assessment Case of Doughty vs. Hope.
of Commissioners in the matter of the widening the of the Supreme Court at his office in the City Hall, The act of April 9, 1313, authorizing assessments
Bloomingdale Road, and the office of Chairman of and two of these notices were also signed by said upon the property of owners and occupants of houses
Commissioners, in the matter of extending Leroy St., 1 Hallet. or lots, is a very special law. The particular kind of
appointments he also received from the same judicial The following is a copy of one of the notices. improvements authorized, are particularly stated. officers.
NOTICE NO. 1.
66 SUPREME COURT.-In the matter of the application
of the Mayor. Aldennen and Commonality of the city improvements are required to be made by the auand extending Wooster Street ; in the matter of widen
of New York, relative to opening a certain new street laid
of New York, relative to: thority of the Mayor, Aldermen and Commonalty of
ing and extending Beaver Street; in the matter of out under and by virtue of an act of the Legislature of the the City of New York. The power is thus specially widening New St. ; in the matter of opening Mount
people of the State of New York entitled * An act to lay out vested in two distinct classes of public officers.
1 a new street in the twelfth and sixteenth waris of the city Morris Square; in the matter of opening 32d Street;
of New York, ud to keep open a part of the Bloomingdale That portion of the act of April 9, 1813, which
in the matter of opening the 10th Avenue, in the Ronin said city,' passed April 16, 1817_Public notice is makes it lawful for the Mayor, Alderinen and Com
matter of widening Williain Street, and in the matter hereby given, tha: the costs and charges incurred by reason monalty to cause improvements to be made, as set
of the proceedings in the above entitled matter will be taxed of widening Anthony Street, in which proceedings forth in full on page 600, enuinerates the making of
by WILLIAM P. TALLET, Esq., one of the clerks of this the fees and charges were enormous. In 1839, Burtis
Court, at his office in the City Hall of the city of New York, common sewers, drains and vaults, " the pitching and
Skidmore, Esq., as one of the executors of a large it on the twenty-second day of June instant, at ten o'clock in paving of streets--the culting into any drain or sewer esta
the forenoon of that day. Dated New York, June 4, 1846. -the altering, amending, or scouring, of any Strect,
WM. P, HÅLLET. widening of William Street and also by the widening vault, sink, or common sewer, within the said City
J. W. C. LEVERIDGE, Co ommissioners. of Anthony Street, proceeded to Albany and appeared
CHAS. A. WHITNEY, the raising, reducing, lerelling, or fencing in of any
in person before the Street Department of the Suvacant or adjoining lots in said City''--these are the
J. Leveridge, Attorney. preme Court and opposed the confirmation of the only improvements named in this class which it shall reports made by Mr. Hallet and his associates in the
On the day and hour named, John Leveridge, be lawful for the Mayor, &c. to cause to be made. premises. Mr. Skidmore also appeared before a
Esq., Attorney in the matter, and his son John They are to cause estimates of the expense of concommittee of the house of Assembly, consisting
W. C. Leveridge, Esq., Commissioner in all three forming to such regulation to be made, and a just and of the New-York Delegation, and urged the passage
of the proceedings, and Charles A. Whitney, Esq., equitable assessment thereof, among the owners and of a law requiring the fees, costs and charges in assess.
also a Commissioner in all three of the proceedings, occupants intended to be benefitted in proportion as ment proceedings to be taxed. The Committee con
and William Paxson Hallet, Esq., a Commissioner nearly as may be to the advantage which each shall vened and Mr. Skidmore appeared before them-one
in two of the proceedings, appeared before the said be deemed to acquire. of the members objected to the passage of such a law,
Wm. l'axson Hullet, Esq., at the office of Wm. Paxson The said Mayor, &c. shall appoint skilful, compeon the ground that the corporation of New-York had
Hallet, Esq., Clerk of the Supreme Court. Mr. Skidtent, disinterested persons to make the estimate and not asked for it. Mr. Skidmore enquired of the
more and his counsel, Air. Molt, also appeared and assessment; who, before they enter upon the execumember if he represented the corporation of the city
placed in the hands of Wm. Paxson Hallet, Esq., tion of their trust, shall severally take an oath beof New-York, or the citizens of the city, in the Legis
written objections in the premises, and in these infore one of two officers, viz: the Mayor or Recorder lature-for if he represented the former, he would
sisted that Mr. Hallet was incompetent to tax the of said city. put on his hat aud withdraw, but if he represented
costs, and also objected to other matters, and then The estimate and assessment when made, shall be the latter, he would proceed. The member replied
withdrew.-On the first Monday in July, John Levercertified in writing to the said Mayor, Aldermen that he was elected by the citizens. Mr. S. then pro
idge, Esq., presented their report to the Supreme and Commonalty ; and when ratified by them, ceeded in his statement. This meinber was father of
Court, at ['tica, for confirmation, and Mr. Mott in beshall be conclusive, &c.; and the owner or occupant one of the Commissioners appointed by the Supreme
half of Mr. Skidmore, also made a journey to Utica, shall be liable to pay the amount to such person as the Court. The legislature passed the bill requiring the costs
and presented himself before the court and objected Common Council shall appoint to receive the same. to be taxed. The Supreme Court made a rule that the
to the confirmation of their Report, and called upon In default of payment, it is made lawful for the Clerk of the Supreme Court, the Circuit Judge, or the
Mr. Leveridge to read the objections made before Mr. Mayor, Recorder and Aldermen, or any five of them, Recorder of the City of New-York, should tax the bills.
Hallet by Mr. Skidmore. The objections were read of whom the Mayor or Recorder shall be one, by Mr. Hallet then held the office of Commissioner, and
and the Judges took the papers, and next mornwarrant under their hands and seals, to levy the same also the office of Clerk of the Supreme Court.
ing when they came into Court decided that the taxby distress and sale of the goods and chattels of such In the month of February, 1846, three several notices
ation by Mr. Hallet was no taxation at all. Mr. Skidowner or occupant refusing or neglecting to pay, &c. appeared in the New-York Express, two of which were
more had previous to this prepared his communication That if, upon completing such regulation, that a great signed by Mr. Hallet, and the other by two of his
to the Convention, and forwarded it to the President er sum of money has been lawfully expended in ma associates and all of them also signed by John Leveridge
of that body, before he heard from the Supreme king such regulation, than the sum assessed and col attorney, stating among other things that the said
Court, believing it to be a public matter, and a grave lected, it shall be lawful to cause a further assessment, signers, W.P.Hallet, John W.C. Leveridge, and Chas.
subject also. He had no unkind feeling toward Mr. equal to such excess, to be made and collected in A. Whitney, had, by a rule of the Supreme Court en
Hallet in the matter, and his communication to the manner aforesaid; and in case the money expended | tered on the 4th day of September, 1845, been ap
Convention was kindly but plainly expressed. It is shall be less than the sum expressed in such estimate, pointed Commissioners, &c.; the said Wm. Paxson
well known that the citizens of New York have long and collected as aforesaid, the surplus shall be forth- || Hallet, Commissioner in two of the said matters and
complained of abuses in assessment matters, and one with returned. the said J. W. C. Leveridge and the said C. A. Whitney
great and very serious difficulty has been that the tribunal If this act is not clear and explicit in reference | Commissioner in three of the said matters, and stating
to which the complaints were addressed were the trito the assessments being made and collected before also that they had completed their estimates and assess
bunals of whose acts they complained it was therethe work is begun,--then we say, iu the language of ments, and requiring any person interested, to make ob- ||
fore they found that the various offices and trusts were Mr. Justice Bronson, in the Court for the Correction jections in writing within a certain time named in said
incompatible, and hence the necessity of the applicaof Errors, in the Purdy case, “ the English language notice. Mr. Skidmore made written objections in one of
tion to the State Convention that a provision migh: be is too poor for the framing" of any law for the pro-|| the proceedings and delivered the same in person to W.
made to guard against such a state of things in future. tection of property. Paxson Hallet, Esq., and in these he insisted that it
The duty was an unpleasant one for Mr. Skidmore, Judge Bronson has overlooked one great and im was not competent for the justices of the Supreme
but it was nevertheless, a duty, he would not shrink portant bearing of the provisions requiring the assess Court to appoint Commissioners, that it was the dis
from. Mr. Skidmore is one of our best citizens, exment to be collected before the work is begun, in this charge of the duties of another office, and belonged to
tensively engaged in business, knows his own rights -the collection of the assessment either by voluntary | the Executive, and not the judiciary department.
and has independence enough to insist upon thempayment, or by distress, is an actual notice to owner || Mr. Skidmore also made an objection in these words
he represents a large amount of real estate, and the or occupant, and therefore more important to those || viz: “that the said William Paxson Hallet is a clerk
collector's of assessments have had a beaten path to interested than the calling of the ayes and noes and of the Supreme Court, and by a rule of the said Court
his office for years to present assessment bills for a publishing the saine. Surely the learned Chief Jus is authorised to tax the cost or charges of the said
large amount of worthless improvements, that he has tice in this opinion is changing ground, and at once Commissioners, their attorney, counsel or others, as
been under the necessity of paying, because he could abandons his old rules of strict construction. The by section 12 of the Act of April 20, 1839 is provided,
get no redress in the premises. When application opinion of the learned Chief Justice in the Hope case and also on the ground that he has awarded to him.
was made to the Justices of the Supreme Court, the which is to be found on the next preceding page, is at self fees in this matter for services, notwithstanding 1
reply was, that the Court acted as Commissioners, and variance with many of his recent opinionsand seem to he is a salary ofhcer and already paid for all services
could not review their proceedings—then objections partake of those which he once abandoned as unten rendered for all the time he discharges the duties of
were made to the judges holding and exercising the Clerk."
office of Commissioners as being repugnant to the conMr. Skidmore made ten other objections in writing
stitution—the court entertained this objection and deINCOMPATIBLE OFFICES. all of which he delivered to Mr. Hallet.
cided that the office of Street Commissioner was inThe communication made by Burtis Skidmore, The Commissioners disregarded these objections
compatible with that of Judge, and was not permitted Esq. of the city of New-York, in reference to the and made application to the Supreme Court for con
by the Constitution to be held by a justice of the Suofficial acts of the Clerk of the Supreme Court, (Mr. || firmation of their Reports—the Court confirmed the
preme Court, but what had already been done by them Hallet,) in relation to his holding and exercising two | Reports in the matter of Leroy Street and Houston
in the usurped office, was valid. One of the Justices distinct offices at the same time, and offices wholly in. || Street, and sent back the report in the matter of the
I who held this opinion departed this life a few days compatible, was presented to the Convention on Fri- || Bloomingdale Road for taxation. Mr. Hallet and
| after this opinion was delivered-a new judge was day the 10th day of July, by the President of that I his associates gave public notice in the newspapers " appointed and the court ordered a re-argument of the
question, and then decided that they did not act as found the same principle of enormous expenses to ex Thirteenth day of August next, at ten o'clock in the Cominissioner but as a court of limited jurisdiction. tend throughout the whole system of street openings | forenoon of that day, and in case the said Circuit Judge Bronson dissented from this decision. The in that city, and that to such an amount that the surprise Judge shall be unable to attend, or be absent from cause was carried up to the Court for the Correction should be not that the inhabitants now complain of it, the city of New-York, the same will be taxed by his of errors where it was held by Senator Porter that but that they had not done so at a much earlier Honor the Recorder of the City of New-York, at his the judges acted as Commissioner, and by Lieut. period.”
office No. 27 Beekman Street, in said city, on the above Gov. Gardiner, that the Street law was an enlargement There is an incompatibility of office arising from mentioned day and at the above mentioned hour. of the general jurisdiction of the Court, notwith the fact that the ('ourt and their officers form one party New-York, July 27, 1846. standing the exercise of the power was confined to while the opponents of the proceedings form another
WM. P. HALLET, the bonndaries of a local district, and limited within -an impartial hearing, under such circumstances,
J. W. C. LEVERIDGE, ŞCommissioners. the boundaries of a single county. Thus the question would be open to suspicions, and even if the sus
CHAS. A. WHITNEY. S stood in the Court for the Correction of errors, when picions were not well founded, would, notwithstand J. LEVERIDGE, Attorney. a resolution was offered by Senator Lottto sustain the ing cause unpleasant feelings. The Court were wrong At ten o'clock on the morning of the 13th, Mr. opinion of Lieut. Gov. Gardiner-but sixjinembers of in appointing Mr. Hallet commissioner-Mr. Hallet
Skidmore, with his counsel, Richard Mott, Esq., atthe court voted in favor of Mr. Lott's resolution-and was wrong in accepting the appointment, and wrong
tended at the office of the Circuit Judge, in pursuance it was lost- The Court for the Correction of Errors in persisting in the attempt to tax his own charges.
of the above notice, and was informed by a clerk in however reversed the opinion of the Supreme Court This communication, addressed by Mr. SKIDMORE,
the office, that the Circuit Judge had left town that by a vote of 16 to 1. to the President of the State Convention, with a re
morning; they then proceeded to the office of the Hundreds of citizens have been deprived of their quest that he would present it to the body over which
Recorder, where they found Mr. Commissioner Hallands and involved in litigation by these extraordinary he presides, caused a very extensive discussion-the
lett and Mr Commissioner Whitney, with their atlorproceedings. The subject was brought before the report of the debates occupies near four columns of
ney, John Leveridge, Esq., in attendance; and also legislature, a committee was appointed to investigate the Albany Atlas. Mr. Mann, of New York, took
Edward Ewen, Esq., the brother of the Corporation the abuses, and they devoted a long time to that duty, very deciled ground in the matter, and persevered
Comptroller, who acted as surveyor. The Recorder and marle a report, in which, they say: successfully to the end.
was not in attendance. Mr. Skidmore and his coun** It is well known that the Judges of the Supreme Messrs. Nicoll, Shepard, Stow, Brown, Town
sel waited till past 11 o'clock, and then withdrew. Court in contirming these Reports in Street openings send, Richmond, Morris, Cambreleng, Chatfield, Rug.
In the afternoon, Edward Ewen, Esq., gave notice do not act as a Court but as Commissioners under the gles, Ward, Stetson, Tilden, Harrison, Crooker, For
to Mr. Moit, counsel of Mr. Skidmore, that the Restatute, it may be well therefore to authorise the syth, Simmons, Bascom, Kirkland, and Taggart, also
corder would tax the costs at 5 P. M. Mr. Mott Court to examine their proceedings as Commission took part in the debate. The communication was attended and made objections to the jurisdiction of referred to the Judiciary Committee,-a very proper
the Recorder in the premises. The Recorder said he Again the Committee say: reference, and by a very large vote. It is the duty
would take the papers and decide the following " That there has been great and serious abuses in of the Convention to provide against such abuses. 1
morning, whether it was his duty to ofliciate in the the mode of opening streets and avenues in the city There was no dispute about the facts. Mr. Hallet
matter. Mr. Commissioner Whitney and the atof New York, and in the expenses attending the same had given public notice in several newspapers that i torney of the Commissioners. John Leveridge. Esa.. cannot be doubted by any person who has examined he had been appointed a Commissioner by the Su
Edward Ewen, Esq., the surveyor and brother of the subject, and these evils have mainly arisen from preme Court. He gave the same publicity that the
John Ewen, Esq., Corporation Comptroller, and Rothe loose and unguarded manner in which this import cost and charges of himself as Commissioner, with
bert Emmett. Esq., former Corporation Counsel, and ant branch of authority has been exercised." others, would be taxed by himself as Clerk of the
recently appointed Assistant Register of the Court of Again the Committee say: Supreme Court, and as to the charges of the Commis
Chancery, -were also in attendance on the side of the “ This appraisement is now made by three com sioners, these were a matter of public record, for a
applicants for the fees and charges. missioners appointed by the Supreme Court, who are copy of the bill of charges was filed in the Street
On the following morning, the same parties again generally nominated at the instance of the Counsel of Commissioner's Office, and these amounted io the
attended before the Recorder, and argued the ques. the Corporation, although there has been instances | very large sum of $6,182 50. The appointment by
tion. The recorder decided that the Supreme Court where one of these commissioners has been selected the Court of their own Clerk, a Commissioner, was
could not impose upon him duties not required by the by the Court from names proposed by the Corporation | improper, from the incompatibility of the two offices.
Statutes. The Recorder, was, in 1841, one of the counsel and by the opponents of the application, and Complaints had been made repeatedly of their ap
Select Committee appointed by the Senate of this another has been named by these opponents." pointments, and frequent complaints had been made
State to investigate assessment abuses in the City of And again the Commiliee say: of the extraordinary charges, and these charges of
New-York, and was several months engaged in that “ It is difficult now to comprehend how the expen commissioners have been the subject of legislative
duty, a report of which will be found in Senate Doc. ses in opening streets and avenues in that city could investigation, and a report has been made, which is
No. 100, of 1842. In that report, the Committee have been so great as they are represented to have Senate Doc.No. 100, for 1842,(extracts from which we
disscuss the acts and doings of the Supreme Court in been, but of the fact of their being so very great, there have here given.) It is the Supreme Court which
street matters, and made report thereon can be no doubt, it is established by the receipts of the requires to be restrained in the exercise of princely
Judge Edmonds is under a constitutional disacominissioners for the same, exhibited before the Com patronage in the bestowing of these appointments.
bility, in the premises. A Circuit Judge can, (under mittee." The present Constitution, we say, not only does not
the present Constitution,) hold no other office, and the The Committee in their report, further state : anthorise the court, or the justices thereof, to exercise
notice here to audit Surveyors' fees, is another office “ In the opening of the 7th avenue, from 21st to | this office; but on the contrary prohibit it. But the
than that of Circuit Judge 129th Street, which was confirmed in Feb., 1839, the Court sitting in judgment in their own case, adjudicate
NOTICE NO. 3. amount awarded to the owners for land taken for the their own case, and decide in their own favor. Surely
BLOOMINGDALE ROAD. || this is inconsistent. This is not “a government of avenue, was $28,141.41, while the fees and expenses
666UPREME COURT.-In the matter of the application of that opening amounted to the large sum of $12,- laws but a government of men."
D of the Mayor, Aldermen and Commonalty of the city 436.70, and it to that is added the collector's fees for The following is a copy of a letter addressed by Mr.Hallet, l of New York, relative to the opening a certain new street collecting the assessments, $1,115.00, it will show a to the President of the State Convention.
laid out under and by virtue of an act of the Legislature of total of expenses paid by the owners of land on that
the people of the State of New York, entitled “an act to lay
New York, July 13, 1846. } out a new street in the twelfth and sixteenth wards of the portion of the seventh avenue for its formal opening, “ Hon. John Tracy, President, &c.
city of New York, and to keep open a part of the Bloomins. amounting to 13,550.70.
Sir-I have this morning observed in the public papers dale Road in said city," passed April 16, 1838. The Circuit "The amount paid to the commissioners on that that a memorial has been presented to the Convention from Judge of the First circuit having been absent from the city
Mr. Burtis Skidmore, reflecting on my official conduct in avenue for their services, at the rate of four dollars
of New York at the time when the bill of the costs anii tu xing the costs and charges in the opening of a street in charges in the above entitled matter was noticed tor taxation per day, which is the highest sum allowed by the which I had acted as one of the Commissioners.
before him, and the said bill of costs and charges having been statute, is pay for sixteen month's services for each || " Permit me to say that if the Convention should think pursuant to snid notice, presented to the Recorder of the commissioner, in making the estiinateofthe land (taken N
proper, I am not only willing, but desirous that the same city of New York for taxation, and he having declined to for opening that avenue, and assessing that value
should be thoroughly investigated. Your ob't. serv't, tax the same, on the ground that he had no power to do so
"W. P. HALLET." back again upon the land) on each side of the avenue.
Referred to Committee on the Judiciary, July 20, 1816.
- Notice is hereby given that a motion will be made to the Suand in opening this one street, of one hundred and
NOTICE NO. 2.
preme Court at the next special term thereof...to be held at the eight blocks of about 270 feet each, the commissioners
Capitol, in the city of Albany, on the first Tuesday of September were each engaged three times the whole period that
nert, at the opening of the Court on that day, or as soon there. the Legislature is employed in legislating for the State, CUPREME COURT-In the matter of the appli after as counsel can be heard, that the said court review their de and each of them "received about three times the location of the Mayor, Aldermen and Commonalty cision made at the last July term thereof, as to the laration of compensation that is paid to a legislator for passing the of the city of New York, relative to opening a certain
said costs and charges by the clerk thereof in the city of Nero. whole winter from his home in attending to the public | New Street, laid out under and by virtue of an act
York, and that the taxation thereof by said clerk do stand and business. And in addition to that it was shown to of the Legislature of the People of the State of New
be confirmed, or that said costs and charges be taxed by the the committee that commissioners were frequently || York, entitled “ An Act I lay out a New Street in engaged on several streets or avenues at the same the Twelfth and Sixteenth Wards of the City of New
court, or one of the Judges thereof at that time and place,
or by the clerk of the said court at the office of the said clerk time, taking their four dollars per day on each York, and to keep open a part of the Bloomingdale in the city of Albany, at the time or for such other or further of those improvements ; and that they received and Road in said city," passed April 16, 1838.
order in the premises as the said court shall think proper to were paid that compensation in some instances where Notice is hereby given, that the costs and charges
grant.-New York, August 15, 1846.
WM. P. HALLET, they did not attend to the duties of their appointment, | incurred by reason of the proceedings in the above
J. W. C. LEVERIDGE, ŞCommissionery. and in others where they attended but once or twice. entitled matter, will be taxed by the Honorable John
CHAS. A. WHITNEY. If the case of the seventh avenue had been a solitary W. Edmonds, Circuit Judge of the First Circuit of J. Leveridge, Attorney. instance, the committee might have supposed that it the State of New York, at the office of the said Judge N. B. This is a notice of a motion for one Judge to set aside had taken place through some mistake ; but they " in the City Hall in the City of New-York, on the "the decision of the full bench !!!