New York Central R. Co. v. New York, 186 U.S. 269 (1902)
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Scribd Government DocsNew York Central R. Co. v. New York, 186 U.S. 269 (1902)
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Scribd Government Docs186 U.S.
269
22 S.Ct. 916
46 L.Ed. 1158
NEW YORK CENTRAL & HUDSON RIVER RAIDROAD
COMPANY et al., Plffs. in Err.,
v.
CITY OF NEW YORK.
No. 234.
Argued April 23, 24, 1902.
Decided June 2, 1902.
This was a petition of the New York Central & Hudson River Railroad
Company, as lessee, and the New York & Harlem Railroad Company, as
owner, to vacate certain assessments for regulating and grading, setting
curbstones, paving, and other improvements to Vanderbilt avenue East, in
the city of New York, upon the ground that the property in question had
not been, would not be, and could not be, benefited in any manner by the
improvements.
The successive steps towards the proposed improvements were the
adoption of resolutions by the local municipal legislature, directing the
improvements; the ascertainment of their cost; the making of a contract
for their construction; and, finally, the assessment of the benefits upon the
property, which in one case amounted to $4,687.82 and in the other to
$12,626.72. Petitioners filed before the board of assessors objections to
both assessments upon the ground that they were unfair, unequal,
inequitable, and unjust, and greater than the amounts assessed upon
surrounding property. The two proposed assessments with these
objections were transmitted by the assessors to the board of revision,
which confirmed them.
Thereupon the two railway companies filed this petition, setting up the
facts above stated, and alleging that their lands assessed are held and
occupied only and exclusively as a roadway upon which their tracks are
laid, and over which their trains are run, and that there are no buildings or
other improvements upon the land except such railway tracks; that the
grade of Vanderbilt avenue is from 10 to 18 feet above the level of
petitioners' tracks; that there is no possible access from the land of
petitioners to Vanderbilt avenue, but, on the contrary, that the roadway
was constructed under a contract between petitioners and the board of
public parks, and was depressed to its present grade, and solid stone
retaining walls built upon and along the easterly and westerly sides of said
land, in order that access to and from public streets and avenues, including
that part of Park avenue or Vanderbilt avenue East, should be cut off and
rendered impossible, and that no benefit could accrue to petitioners' lands
by such improvements.
Petitioners prayed that the assessments might be vacated and the liens
upon their lands discharged; but there is nowhere in the petition any claim
of a Federal right, or a violation of the Constitution of the United States in
any particular.
The case coming on to be heard before a special term of the supreme
court, held on July 21, 1899, upon the petition, and testimony taken by
consent, it was ordered that the prayer of the petition be denied. The
railroad companies thereupon appealed to the appellate division of the
supreme court, which affirmed the order of the special term. An appeal
was taken to the court of appeals, where the order of the appellate division
was affirmed, and the case remitted to the supreme court, which ordered
the judgment of the court of appeals to be made the order and judgment of
that court. No written opinion was filed by the court of appeals.
Whereupon the railway companies applied for, and were allowed, a writ
of error from this court.
Messrs. Ira A. Place and Thomas Emery for plaintiffs in error.
Messrs. George L. Sterling and George L. Rives for defendant in error.
Mr. Justice Brown delivered the opinion of the court:
Petitioners rely in this case upon the fact that the property assessed consists
solely of a roadway through Park avenue or Vanderbilt avenue East, depressed
from 10 to 18 feet below the grade of the street, the sides of which depression
are held in place, and faced by a retaining wall, surmounted by an iron fence,
whereby all access to and from the roadway to the street is rendered impossible,
except at the intersection of side streets, where bridges are built for the
accommodation of traffic. Their claim is that no possible benefit had, would, or
could inure to the benefit of the railway companies by the construction of the
proposed improvements; and all the oral testimony terded to show that fact.
The roadway was in fact nothing more than a tunnel through the avenue, open
at the top, and differed only in that particular from an ordinary railway tunnel or
subway wholly beneath the surface. The only evidence to the contrary was the
order of the board of assessors and the board of revision making the
assessment, presumably founded upon the opinion that some benefit must have
accrued to the roads.
2
The only opinion delivered was that of the appellate division, which held that,
under the city charter, there was no power in the court in any event to vacate an
assessment for local improvements; that while the court was given power to
reduce an assessment, it was deprived of the power to vacate it. 'It may correct
an error, but it cannot entirely wipe out the assessment itself,' although it was
intimated that the property owner might still 'challenge the validity of the
assessment, whenever his property is assessed under it, or it is made the
foundation of proceedings against him.' The difficulty with the position of the
railway companies in this court is that no Federal question was raised in their
petition,the only pleading filed by them,and they are forced to rely upon a
copy of their printed brief submitted in the court of appeals, and certified by the
chief judge of that court as containing certain matters. The only allusion,
however, in this brief to a possible Federal question is that contained in the
following extracts:
'Legislative enactment is to be interpreted and construed upon the hypothesis
that the legislature has, in its enactments, had due regard for these limitations
upon its power, and that interpretation to be given to the language promulgated
by it which will render it conformable to, rather than violative of, the rule of
state and Federal Constitution.
'If, by prohibiting judicial review, the result of 962 is to enable the assessors
to assess property for local improvements without reference to the benefits
conferred upon the property by such improvements, that section is
unconstitutional. A statute which authorizes assessments for local
improvements, other than in accordance with the benefits conferred, is
unconstitutional and void. Norwood v. Baker, 172 U. S. 269, 43 L. ed. 443, 19
Sup. Ct. Rep. 187. That case holds that the only principle justifying the levying
of assessments for local improvements is 'that the property upon which they are
imposed is peculiarly benefited, and, therefore, the owners do not, in fact, pay
anything in excess of what they receive by reason of such improvements."
Manifestly, this is not such a case of setting up and claiming a Federal right as
is required by Rev. Stat. 709, to invest this court with jurisdiction of a writ of
error. In the case of Zadig v. Baldwin, 166 U. S. 485, 41 L. ed. 1087, 17 Sup.
Ct. Rep. 639, the contention that there was a Federal question raised below was
contained only in an extract from the closing brief of counsel, presented to the
supreme court of the state, in which such Federal question was discussed, and
an oral assertion in the argument made to the supreme court of California that a
claim under the Federal Constitution was presented. 'But manifestly,' said the
court, 'the matters referred to form no part of the record, and are not adequate to
create a Federal question, when no such question was necessarily decided
below, and the record does not disclose that such issues were set up or claimed
in any proper manner in the courts of the state.'
6
But assuming without intimating an opinion to that effect, that the raising of a
Federal question in the brief might be sufficient, it is well settled in this court
that it must be made to appear that some provision of the Federal, as
distinguished from the state, Constitution was relied upon, and that such
provision must be set forth. Porter v. Foley, 24 How. 415, 16 L. ed. 740; Miller
v. Cornwall R. Co. 168 U. S. 131, 42 L. ed. 409, 18 Sup. Ct. Rep. 34; Dewey v.
Des Moines, 173 U. S. 193, 43 L. ed. 665, 19 Sup. Ct. Rep. 379; Keokuk & H.
Bridge Co. v. Illinois, 175 U. S. 626, 44 L. ed. 299, 20 Sup. Ct. Rep. 205;
Chapin v. Fye, 179 U. S. 127, 45 L. ed. 119, 21 Sup. Ct. Rep. 71.
It is hardly necessary to say that the raising of such a question in the
assignments of error in this court is insufficient. Not only was there no Federal
question raised in the record, but the appellate division made no allusion to
such a question, and dismissed the petition upon the ground that the charter of
New York did not permit a question of benefit or no benefit to be raised in such
a proceeding,a ground wholly independent of a Federal question.
