Majority
p. 161MATTER OF DOUGLASS. Court of Appeals, 1871.
Headnote
Assessments foe Local Impbovement. — Publication of Notice.The provision of section 7 of the New York city charter {Laws of 1857, 875, ch. 446, § 7), in relation to the proceedings of the common council, which provides that, “ all resolutions and reports of committees which shall recommend any specific improvement involving the appropriation of public moneys, or the taxing or assessing the citizens of the city, shall be published .... in all the newspapers employed by the corporation, and shall not be passed or adopted until after such notice has been published at least two days,”" requires the two days notice to be published in all the corporation papers; and if the resolution be passed without such publication, an assessment founded thereon will be vacated.
Appeal from an order.
George W. Douglass applied under tlie act of 1858 to vacate an assessment imposed for regulating and grading Sixty-fourth-street from Third-avenue to Fifth-
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avenue, in Hew York city, on the ground that the resolution and report of the committee recommending the improvement, or notice thereof, had not been published as required by section 7 of the charter of 1857, which provides as follows: “All resolutions and reports of committees which shall recommend any specific improvement involving the appropriation of public moneys, or the taxing or assessing the citizens of the city, shall be published immediately after the adjournment of the board, under the authority of the board, in all the newspapers employed by the corporation, and shall not be passed or adopted until after such notice has been published at least two days.”
It appeared by the proofs that the corporation papers (appointed according to Laws of 1863, 410, ch. 227, § 2), were, at. the time of the adoption of the resolution authorizing the work, the New York Herald and Tribune (daily), and the Leader and Dispatch (weekly) papers.
The resolution authorizing the work was introduced in the board of aldermen July 2, 1863, and .was referred to the committee on roads. On July 7, 1863, a notice of the resolution was published in the Herald and Tribune, but no such notice was ever published in the • Leader' or Dispatch. On August 25, 1863, the committee on roads, in the board of aldermen, reported favorably, and notice of this report was, on August 27, 1863, published in the Herald and Tribune, but no notice of the report ever appeared in the Leader or Dispatch. On September 15, 1863, the report and resolution authorizing the work were adopted, and directed to be sent to the board of councilmen for concurrence. On September 17, 1863, the resolution was received by the board of councilmen, and referred to the committee on roads. On September 19, 1863, notice of the receipt of the resolution, and its reference to the committee on roads, in the board of councilmen, was published in
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the Herald and Tribune, but no such notice ever appeared in the:Leader or Dispatch. The committee reported favorably September 21, 1863, and notice of their report was published in the Herald' and Tribune, September 22, 1863, but no notice thereof ever appeared in the Leader or Dispatch. The resolution and report were adopted by the board of councilmen, September 24, 1863.
No other publications of the resolution previous to its passage, other than those mentioned, were ever made. It appeared that it had been usual to publish, in the weekly papers employed by the corporation, the ordinances, only after their final adoption and approval by the mayor, and that the weekly papers were not employed to make any of the publications required by section 7 of the charter of 1857.
The petition to vacate the assessment was denied, the court holding that the direction of the statute to publish the proceedings in all the papers employed by the corporation was merely directory, and that the prohibitory portion of the section, which forbids the passage of any resolution until “ such notice has been published for at least two days,” was satisfied by the publication of the notice in some of the corporation papers for at least two days before the resolution was adopted. The court was also of opinion that publication “for two days” was not to be construed to mean two publications, but that one publication was sufficient, provided two days elapsed between the publication and the passage of the resolution[1] (reported in 9 Abb. Pr., 84 ; S. C., 58 Barb., 174 ; 40 How. Pr., 241 ). The or
p. 164I. The statute is directory, and a failure in strict compliance therewith does not avoid the resolution. (l.) 'The statute contains no provision that an omission to make the publication directed will render the resolution void. In the absence of such a provision, the statute will usually be held to be directory (Sedgw. on Stat. & Const. L., 370, 371, 378 ; Regina v. Fordham, 11 Ad. & E., 88 ; Cole v. Green, 6 Man. & G., 872, 890 ; Rex v. Inhabitants of Birmingham, 8 Barn. & C., 29, 35; Rex v. Inhabitants of St. Gregory, 2 Ad. &.E., 99; Savage v. Walshe, 26 Ala., 619 ; Rex v. Justices of Leicester, 7 Barn. & C., 6). When statutes direct proceedings■to be done at a certain time, or in a certain way, and no essential rights are prejudiced by disregard of such provisions, the proceedings will be held good, although the statute .may have been disobeyed or disregarded (Sedgw. oh Stat. & Const. L., 368, et seq.). In Striker v. Kelley ( 7 Hill, 9 ), it was held that the statute directing the vote of the New York common council to be taken and recorded by ayes and nays was merely directory. The same adjudication has been made with respect to a similar provision of the State -constitution (People v. Supervisors of Chenango, 8 N. Y. [4 Seld.], 317). A tax was voted at a town meeting, of which notice had not been given by posting hand-bills, as required by statute. The act was held directory, merely, amd the tax well laid, in Marchant v. Langworthy ( 6 Hill, 646 ; affirmed in 3 Den., 526 ; see, also, Pond v. Negus, 3 Mass., 230 ; Williams v. School Dist., 21 Pickc., 75; Gale v. Mead, 2 Den., 160 ; Thomas v. Crapp, 20 Barb., 165 ; City of Lowell v. Hadley, 8 Metc., 180 ;
der denying the application was affirmed by the general term, and the petitioner appealed to the' Court of appeals.
Richard O ’ Gorman, counsel to the corporation of New York, for the appellant.
p. 165People v. Holley, 12 Wend., 481 ; Matter of Mohawk & Hudson River R. R. Co., 19 Id., 143; People v. Cook, 14 Barb., 559 ; affirming 8 N. Y. [4 Seld.], 67, 88, 89, 93; People v. Supervisors of Ulster County, 34 N. Y., 268 ; Barnes v. Badger, 41 Barb., 98 ). (2.) If the legislature had intended to make it imperative that the notice should be published in all the newspapers employed by the corporation, that intent would have been made clear by adding at the end of the prohibitory sentence, the words, “in all of said papers.” The statute is, therefore, mandatory only so far as it prohibits the passage of the ordinances specified, without publication of notice for two days. But the provision of the statute in respect to the.number of papers in which such' publication shall be made, not embraced in the prohibitory clause, is merely directory.
II. (1.) The assessment is attempted to be vacated on the ground of a mere technicality. Ho fraud or bad faith is alleged on the part of the corporation. The sum assessed has'been expended for the benefit of the petitioner’s property, which has been benefited to the extent of the assessment. In such a case, the court will construe the statute liberally, and if its requirements are substantially fulfilled, and the legislative intent essentially observed, the proceedings of the corporation will be upheld. Statutes which confer and regulate powers of municipal corporations to make improvements for the public benefit are of a remedial nature, and are to be construed liberally, with a view to the beneficial end proposed (Hudler v. Golden, 36 N. Y., 446 ). (2.) Public policy and a proper regard for the public weal, forbid the court to declare the resolution invalid and the assessment void. Since the year 1857, the provision requiring publication of such notices in all the newspapers employed by the corporation, has been in existence, and during that entire period weekly newspapers have been employed
p. 166by the corporation, as well as daily newspapers, and during all that period the publication has been made as described in the the proof herein, viz: in the daily papers have been published the full minutes of the proceedings at the stated sessions of the common council; in the weekly papers only the completed proceedings, consisting of the resolutions, &c., finally adopted and approved by the mayor. To grant the judgment asked by these petitioners, is to overturn every assessment laid within the period named, and to adjudge that when weekly newspapers are employed by the corporation, the entire corporate business must be delayed until such papers can publish in their weekly issue the resolutions proposed and the reports made to the respective boards of the common council. Such needless inconvenience and expensive obstructions of the public business, could not have been within the contemplation of the legislature when the law was enacted, and if it be within the letter of the law, the court should allow the petitioner to suffer a wrong which has inflicted no injury upon him, rather than subject the corporation to remediless disaster (2 Kent Com., marg. p. 339). (3.) The mischief consequent upon such an interpretation of the statute, would be enormous. A statute should not be so construed as to work a public mischief (People v. Laimbeer, 5 Den., 9 ). Chief Justice Tilghman put his decision in favor of the validity of a deed upon the ground that, “so extensive and deep rooted is the practice, that numerous titles depend on it, and it would be unpardonable to disturb it now by a critical .examination of the words of the act ( 1 Serg. & R., 106 ; and see McKeen v. Delaney, 5 Cranch, 32 ; Bank of Utica v. Mersereau, 3 Barb. Ch., 577 ). I. The resolutions and reports of committees are clearly within
Charles E. Miller, for the respondent.
p. 167the provisions of the statute requiring publication, since both the resolution and the reports recommend a specific improvement, viz: “regulating and paving Sixty-fourth-street. ’ ’. II. An omission to publish the resolution, and each report of each committee in each and every paper employed by the corporation, is a fatal irregularity, which invalidates the assessment, (a.) In construing section 7 of the charter of 1857, the following rules of construction are to be borne in mind: 1. That the intent of the legislature is the first object to be attained in the construction of a statute (Sedgw. on Stat. & Cons. L., 229, 231, and cases cited). 2. This intent is first to be sought in the language of the statute itself (Newell v. People, 7 N. Y. [3 Seld.], 97; McClusky v. Cromwell, 11 N. Y. [1 Kern.], 601, 602). 3. In construing the language of the Act, the object of the legislature in passing the act should be considered. 4. The court should so read the statute as to endeavor to give effect- to the whole of it (Blackw. on Tax Titles, 610, §§ 36, 37, and cases cited). 5. The entire ..section should be read and construed together. III. (a.) By the words “such notice,” in section 7, is meant the publication previously referred to in all the newpsapers, and the word “ such” describes.the manner of the publication. It is precisely the same as if the legislature had used the words ‘ ‘ such publication.” (5.) The object of the provision requiring publication, was to give notice to parties liable to assessment for any improvements, of the pendency in the common council of proceedings which might result in such assessment. Any property owner purchasing or subscribing for any one of the corporation papers, had a right to assume that such paper would contain the publication required by statute, and conclude, in the absence of such publication, that no proceeding affecting or liable to affect his property by assessment,
p. 168was pending before the common council. This construction is sustained by reference to previous statutes in relation to the same subject. The charter of 1830 contained a similar provision requiring publication to that required by the charter of. 1857, except that the former did not specify how long or frequent the publication should be made, nor prohibit the passage or exclusion of the resolutions and reports until after publication. The courts held, that this provision in the char: ter of 1830, as to publication, was directory (Striker v. Kelly, 7 Hill, 9 , and cases cited). It was'to remedy the very difficulty that arose from this construction of the provision of the charter of 1830, that the legislature in 1857 enacted that the resolutions and reports should not be passed or adopted until the publication in all the newspapers had been made, for at least two days. IV. The court below erred in holding that the statute was directory so far as it required publication in all the corporation papers, and that its provisions were satisfied by the publication in some “ or one” of them. Such a construction can only be sustained by the introduction of words not employed by the legislature, or by qualifying and limiting the meaning of the words used. This is not permissible where, as in this case, the language of the statute is clear and explicit, and its provisions unambiguous (King v. Inhabitants of Ramsgate, 8 B. & C., 712, 715; Lamord v. Eiffe, 3 Q. B., 910; King v. Burnell, 12 A. & E., 468; Bidwell v. Whittaker, 1 Mich.; Sedgw. on Stat. & Cons. L., 344, 347).
Section 7 of the act to amend the charter of the city of New York, passed in 1857 (Laws of 1857, ch. 446), after providing for the organization of the two boards of the common council, proceeds as follows :
“All resolutions and reports of committees which
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shall recommend any specific improvement involving the appropriation of public moneys, or the taxing or assessing the citizens of the city, shall be published immediately after the adjournment of. the board, under the authority of the board, in all the newspapers employed by the corporation, and shall not be passed ór adopted until after such notice has been published at least two days.”
The manifest design of this provision was to apprise the tax-payers of the city, in the manner pointed out by the statute, of any contemplated improvement involving expenditure and taxation, before it should be directed by the common council, that by a remonstrance or suggestion the proposed action might -be prevented or modified.
. The prohibition against passing an ordinance involving expenditure, until the required publication should be made, was a limitation upon the power of the common council. There is no room for the suggestion that this clause of the section was directory. It was plainly mandatory, and a compliance with it was essential to the legal exercise by the corporate authorities of the power to authorize and direct local improvements, or to subject the property of citizens to assessment therefor. Municipal, like private corporations, must act within the limitation prescribed by the sovereign power, and they cannot impose a charge upon the person or property of individuals, unless they proceed in the manner prescribed by law (Stepson v. Kempton, 13 Mass., 272 ; Smith on Stat, 789; Sharp v. Spear, 4 Hill, 76 ). The publication referred to in the last clause of the section is the publication first spoken of,—viz: a publication in all the newspapers employed by the corporation. This is the natural construction, and it meets the design of the law, which was, not only to provide that notice should be given by publication, but to define, by a uniform rule, the na
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ture and extent of the publication to be made. If, therefore, the resolution recommending the improvement for regulating and grading Sifffcy-fourth-street was not published, before it was passed by the respective boards of the common council, in all the newspapers employed at that time by the corporation, the ordinance directing it was void, and the assessment of the plaintiff on account of it was unauthorized.
By chapter 227 of the Laws of 1863, the corporate authorities of the city are prohibited from paying from money raised by tax or assessment, any sum for advertising, except for advertisements in 'newspapers authorized by the mayor and comptroller, and it is made th'eir duty to designate not less than four papers in which advertisements may be inserted. When the proceedings for regulating Sixty-fourth-street were taken, there were four papers which had been designated under the statute for the purpose therein stated. The designation was general in • terms, but under it the practice had been to publish the separate proceedings of each board of the council in two only of such papers, and the final complete proceedings of the joint boards in the others.
The resolution for regulating and grading Sixty-fourth-street was published before its passage in but two of the designated papers. This was, we think, a plain violation of the statute. The papers designated' by the mayor and comptroller became, by such designation, and by actual employment of them by the council for advertising purposes, official papers of the corporation. The statute required publication of the resolution referred to in all papers employed by the corporation. The extent to which these papers, or any of them, should be employed by the council is, in the absence of any statutory rule, in the discretion of the corporation; but in respect to notice of proceedings mentioned in section 7 of the charter of 1857, the stat-
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lite prescribed what publication should be made. It was not intended to leave the matter to the determination of the common council in each particular case. The council can determine how many of the papers designated by the mayor and comptroller shall be employed to do the public advertising, but the statute requires that in ah of these thus employed, resolutions proposing specific improvements involving taxation should be published before final action upon them.
The conclusion is that the grading of Sixty-fourth-street was passed in violation of law, and that the assessment based upon it was void.
The order of the general term should be reversed.