People ex rel. Kerber v. City of Utica — 7 Abb. N. Cas. 414

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PEOPLE ex rel. KERBER v. CITY OF UTICA.

N. Y. Supreme Court, Fourth Department, Fifth District;

Special Term, November, 1879.

Headnote

Municipal Corporations.—Assessment.—Evidence.

The provisions of statutes in relation to the levy and collection of local assessments must be strictly construed and followed.

Where the charter of a municipal corporation provided a certain method of levying an assessment for a local improvement, but' the official record did not show that all the necessary steps for appointing the assessors had been taken, although it appeared, outside such record, that the.proceedings were complete,—Held, that the record must govern, and the assessment should be set aside and annulled.

Return to writ of certiorari.

This was a return made by the city of Utica, &c., to a common law writ of certiorari issued to review the proceedings of said city and its officers in levying a local assessment to pay the expense of repairing a sewer.

Upon the complaint of Charles Kerber and others, presented to a special term of the supreme-court, held at Utica, Oneida county, December 31, 1877, a writ of certiorari was issued, directed to the city of Utica and the common council thereof. The writ commanded the parties to whom it was directed to certify a copy of the proceedings of said council in relation to a sewer in Whitesboro street, in said city, the expense of repairing and re-laying the same,, and the. assessment levied for

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the expense thereof. The complainants claimed that the proceedings of the council in relation to the assessment prior to its levy, and in making the assessment, were erroneous, irregular and illegal, and in disregard of the city charter.

A return and amended return to the writ were thereafter made in obedience to the commands contained in the writ, and an order of special term requiring an amendment thereto.

The argument upon the questions raised upon the return of the writ was made before the court at special term.

Lindsley & Dunmore, for relators.

j. Thomas Spriggs, for respondents.

[After stating the facts.]—It appears from the return that at a meeting of the common council of the city, held on April 27, 1877, a resolution was adopted authorizing and directing the street commissioner to repair and re-lay such portion of the sewer in question, as might be necessary to put it in good order; the judgment of the council being that the work could not be judiciously let on contract. The expense of doing the work to be assessed upon the property benefited in accordance with the provisions of the city charter. Thereafter and on August 3, the council certified that the re-laying and repairing had been finished, and adopted a resolution appointing three freeholders to assess the costs of repairing and re-laying the sewer.

On August 17, the following resolution was offered, as appears by a copy of the proceedings of the common council of that date, printed in the official paper of the city, signed by the city clerk, and made a part of the return, to wit, “ Resolved, that the assessment for the construction of sewers„in State and Whitesboro streets be annulled, apd that George Ralph, John Bennett

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and Michael Bannigan be appointed assessors to assess the same.”

This resolution does not appear by the record of the council to have been passed or adopted, although in the return outside the record it is stated that said assessors were appointed, and that they were ‘ ‘ known to us to be three disinterested freeholders of the city of Utica, to assess, and that a resolution to that effect was duly adopted.” The statement in the return as to what took place at that meeting outside the regular proceedings of the council, which were had and taken at the meeting and incorporated into the minutes by the clerk, cannot be taken into account. The record must govern. The resolution, as offered, does not appear to have been voted upon or adopted ; nor does it appear by the resolution, or from anything else in the minutes of the proceedings of the council, that the three men whom the return, outside of the record, states to have been appointed, were freeholders. It is certified that the persons named in the resolution made the assessment; that the roll was signed and filed5 by the proper officers ; and that a duplicate was signed and delivered to the collector for collection.

The proceedings were taken under section 108 of the Utica city charter as revised in 1862 (L. 1862, c. 18), which provides for the repairing of sewers : and the expense arising under that section is to be assessed and collected in the same manner as the expense of constructing a sewer is assessed and collected. The assessment and collection of the expense for the construction of sewers is provided for by subdivision 2 of section 99 of the charter, which directs that three disinterested freeholders of the city shall be appointed by the common council to assess the expense of constructing sewers.

The rule is too well settled to require citation of authorities, that the provisions of the statute in rela

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tion to the levy and collection of local assessments must be strictly construed and followed. In .this case the assessment was made by three individuals who do not appear to have been appointed assessors, nor do they appear to have been freeholders, as required by sections 99 and 108 of the statute.

The assessment should be set aside and annulled, with costs.