City of Elmira v. Johnson — 151 A.D. 728

Majority

p. 728

The City of Elmira, Appellant, v. James Johnson, Respondent.

Third Department,

June 27, 1912.

Headnote

Municipal corporations—permit to build sidewalk—provision of city charter and rules of board of public works construed—liability of contractor for not securing permit — construction of penal statutes —joint tort feasors.

A city charter provided that its board of public works should have exclusive power and authority to construct sidewalks; that the owners of property along or in front of which a sidewalk was to be built should upon request to the superintendent of public works be given permission to build such sidewalk, and that any person neglecting to comply with, or violating any order or rule of said board, or any provisions of the city charter relating to sidewalks, should be subject to a penalty of twenty-five dollars for each offense. One of the x rules adopted by the board

p. 729

provided that permits he refused for the construction of sidewalks to those who refused to comply with the city specifications.

Provisions of the city charter and rule construed, and held, that a contractor who constructs a sidewalk according to city specifications but without receiving a permit is not liable for the penalty.

Statutes prescribing penalties are strictly construed.

The rule applicable to joint tort feasors does not subject an employee to the same penalties for which his employer is liable.

Kellogg and Betts, JJ., dissented, with opinion.

Appeal by the plaintiff, The City of Elmira, from a judgment of the County Court of Chemung county in favor of the defen'dant, entered in the office of the clerk of said county on the 28th day of March, 1912, affirming a judgment of the City Court of the city of Elmira dismissing the complaint.

Michael Danaher, for the appellant.

Charles B. Swartwood, for the respondent.

The defendant as contractor constructed a cement walk in front of certain property in the city of Elmira owned by Ered M. Jones without having obtained a permit so to do. The action seeks to charge him therefor with a penalty of twenty-five dollars under section 166 of the city charter (Laws of 1906, chap. 177). Section 154 of the city charter reads- as follows:

“§154. Said board of public works shall have exclusive power and authority to * * *

“h. Construct or build any sidewalk or any part or portion of any sidewalk in such manner and with such material as in the judgment of said board may be deemed best; repair any sidewalk upon any street or any part or any portion of any street in such manner and with such material as in the judgment of said board may be deemed best; regulate or change the width of space between a sidewalk and the curb line in the street. Provided, however, that the owner or owners of property along or in front of which a sidewalk is to be built or rebuilt, shall, upon request in writing to the superintendent of public works, be given permission to build or rebuild such sidewalk without expense to the city in conformity, however, with all requirements as to time of building or rebuilding, material

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therefor, grade thereof, and manner and method of construction, of the board of public works. If such requirements are not complied with, the board of public works shall make said sidewalk conform therewith.”

Section 166, as far as it is applicable, provides:

“§ 166. Any person neglecting to comply with or violating any order, rule or regulation the said board is authorized by this act to make, or any of the provisions of the city charter relating to the streets, sidewalks or sewers in said city, shall be subject to a penalty not to exceed twenty-five' dollars for each offense.”

Among the rules adopted by the board of public works was the following: “That, in the construction of cement sidewalks, a strict compliance with the provisions of the city specifications, current edition, be. required,' and that permits- be refused, for a period within the discretion of the board of public works, to those who neglect or refuse to comply therewith. ” It is contended by the corporation counsel that under this rule no contractor is authorized to build a cement sidewalk who has not the permit of the board of public works.' The proper construction of the rule is not clear. It may refer simply to permits granted to owners and not to contractors. A penalty can only be imposed for the violation of a duty clearly pointed out, and the necessity of obtaining a permit by a contractor is not specified in this rule with sufficient clearness to subject him to. a penalty for the construction of the walk without, obtaming such a permit. If the rule were made clear, however, and required specifically that a contractor must obtain a permit from the board of public works in order to construct a walk, this is not a condition with which the owner is required to comply before he may employ a contractor to build his walk. By section 154 it will be seen that the owner has the right to a permit from the superintendent of public works to build a sidewalk in frontof his premises upon conf ormingwith certain requirements. One is as to the time of building; another as to the material;, another as to the grade, and another as to the manner and method of construction. If such requirements are not complied with the board of public works may, at his expense, make such sidewalk conform thereto. Among the requirements under which the

Dissent

p. 731

owner is allowed to build there is none that requires him to employ any special contractor who shall have a permit from the board of public works. Such power has not been given to the board of public works. Having obtained the permit from the superintendent of public works he may employ whom he will, provided only he conforms to the requirements as to the time, material, grade and method of construction prescribed by the board of public works. The owner alone is authorized to apply for this permit, not a contractor. The rule construed as claimed by plaintiff is not a rule or requirement which by the charter the board is authorized to make. Not being required, then to obtain a permit from the board of public works, and not being authorized under section 154 of the charter to obtain a permit from the superintendent of public works, it is difficult to see how the defendant has neglected to comply with or violated any rule or order that the board is authorized to make, from the simple fact that the walk was constructed without his having obtained a permit therefor. There is no claim made that the walk was not at proper grade or was not constructed in • accordance with all the requirements specified by the board of public works. The defendant’s sole offense is the building of the walk without a permit. The owner under whose authority the defendant constructed the work is probably hable for the penalty for having proceeded without a permit. The rule applicable to joint tort feasors, however, cannot apply to subject his employee to the same penalties. Statutes prescribing penalties must be strictly construed. The judgment of the County Court must, therefore, be affirmed, with costs.

All concurred, except Kellogg, J., dissenting in opinion, in which Betts, J., concurred.

I cannot think that the prevailing opinion correctly interprets the charter provision. It is in error in assuming that the prohibitions of section 154 relate alone to the owner of the property. The section, by giving to the city the exclusive right to build walks, denies that right to all others, and, therefore, if any person builds a walk, it is in violation of the section and brings upon him the penalty. The owner may apply for

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a permit to "build his walk, but if he does not obtain it, or the walk is not built under his permit, it is a violation of the ordinance for any person to build it.

I favor a reversal.

Betts, J., concurred.

Judgment affirmed, with costs.