There are two questions: First, can the Legislature, under the Constitution, áuthorize the rendition of a personal judgment for the recovery of a street assessment; and, second, if it has the power, then has it so exercised it in the Act of 1862 -that the personal judgment for which the Act provides can be carried into execution.
As to the first question, it is admitted that if the power exists, it exists subject to the limitation that the lot holder cannot be made liable in personam for a sum exceeding the value of the lot upon which the assessment is made.
It is conceded in the prevailing opinion that a personal judgment, restricted to the value of the lot, may be authorized by the Legislature in the absence of express inhibition or inhibition by necessary implication. Such inhibition is found by my brethren in the word “ assessment,” as it is used in the thirty-seventh section of the Fourth Article of the Constitution. I admit that the word, considered ex vi termini, involves a negation upon the disputed power. But the question does not stand upon the force of the word, for while it is made the duty of the Legislature to provide for the organization of cities and incorporated villages, it is also made its duty, in the same section, “ to restrict their power of taxation, assessment, borrowing money, contracting debts and loaning their credit, so as to prevent abuses in assessments and in contracting debts by such municipal corporations.” It therefore will not do to say that the legislative power is to be tested by the general meaning of a word whose general meaning the Legislature not only has power to “ restrict,” but is bound to restrict by express constitutional direction. The word does not dominate the Legislature, but to the intent of reasonable restriction, the Legislature dominates the word. It is unnecessary to argue *259concerning the exact limits of the legislative power to control the meaning of the word “ assessment.” It is enough that it cannot destroy the municipal power locked up in the word by any arbitrary change of its meaning, nor by any merely capricious innovation upon it. The legislative power to restrict the municipal power to assess terminates at the point where the legislative power to restrict the municipal power to contract debts and to borrow money terminates, namely: on the verge where “ abuses ” arise or threaten. In view of the evils with reference to which the legislative right of interference in municipal affairs is recognized, but more particularly in view of the fact that all intendments go to the enlargement of the right and not to its restrictions, I conclude that it is, at least, competent for the Legislature to dictate concerning the remedies to be used in enforcing a payment of assessments—it being always understood that the Legislature cannot extend the personal liability which it may enact beyond the value of the lot. If the Legislature has not the power over the means to be used in enforcing a claim, the extent of which is guarded by constitutional provision, that “abuses” would result from its impotency is quite obvious. For instance: It is obvious that it would be oppressive upon the contractor under the Act of 1862, if he could not collect assessments except by foreclosure of the lien upon the lot assessed. The expenses of collecting a medley of small assessments in that way would not only be burdensome to the contractor but still more so to the lot holder—these evils of personal consequence leading on to another of general consequence, namely: Enhanced expense in the making of street improvements, coming of the fact that bids are graduated, to some extent, with reference to the facility with which dues may be collected. For these reasons I consider that it was competent for the Legislature to regulate the municipal power to assess by making payment of the amount assessed upon each lot a personal duty on the part of its owner. The question was fully considered in Litchfield v. McComber, 42 Barb. 289, and it was held that the Legislature could add to the *260remedy for the collection of street assessments, by lien and foreclosure, a personal action at law.
As to the question whether the Act of 1862 affords the requisite machinery for enforcing payment of assessments by judgments in personam, I think that it does. By the seventeenth section of the Act “ personal liability for a payment of the assessment ” is expressly provided for, and the enforcement of the liability by a personal action is provided for also in section fifteen, which is as follows: “ If the expenses of the work and material for such improvements, after the completion thereof be not paid to the contractor so employed, or his agent, or assignee, on demand, the said contractor or his assigns shall have the right to sue the owner, tenant, or occupant, under the provisions of this Act, for the amount contracted to be paid, and the certificate of the Superintendent that the work has been properly done, and that the charges for the same are reasonable and just, shall be prima facie evidence of the amount claimed for said work and materials, and of the right of the contractor to recover for the same in such action.” By section thirteen proceedings in foreclosure are also authorized “ to be governed by this Act, and also by the Civil Practice Act when not in conflict therewith.” In this case the plaintiff proceeds against the property assessed and claims a personal judgment for any balance which the lot may fail to pay. In cases where a personal judgment for the whole amount of the tax is the sole purpose of the action, as well as in suits like the present where a personal judgment is claimed for any balance which the sale of the property may fail to pay, there can be no occasion for judicial inquiry as to whether the assessment is in excess of the constitutional limit, viz; the value of the lot; for if in excess then the assessment is unlawful pro tanto, and the party will have lost his right by failure to appeal to the Board of Supervisors, or if an appeal has been taken, then by an adverse decision upon it. On these grounds I consider that the judgment should be affirmed.