In re Douglass — 58 Barb. 174

Majority

p. 174

Matter of the Application of George W. Douglass to vacate an assessment.

Headnote

The provision of the act of 1857, to amend the charter of the city of New York, {laws of 1857, eh. 446, $ 7,) requiring all resolutions and reports of committees which shall recommend any specific improvement involving the appropriation of public moneys, or the taxing or assessing of the citizens, to be published in all the newspapers employed by the corporation, is to be considered directm-y ; and a departure therefrom through mistake, or even negligence, and not intentionally, will not vitiate the proceedings.

But the subsequent clause of the same section, which directs that such resolutions and reports “ shall not be passed or adopted until after such notice has been published at least two days,” is prohibitory; and the passage of a

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resolution or report without a compliance with the condition of such clause, is illegal.

The statute does not require two publications. It is sufficient if two days shall elapse between the publication of the notice and the passage of the resolution.

The adoption of the resolution means its passage by both boards; and it is ■ only necessary that two days, after publication of the notice, shall intervene between the introduction of the resolution and its final passage in both boards of the common council.

GEORGE W. Douglass presented his petition, asking the court, under the act of 1854,' to vacate an assessment which had been imposed by the municipal authorities upon property belonging to him, for the expense of grading and paving 64th street, between Third and Fifth avenues, in the city of Eew York. The facts are stated in the opinion of the court.

The objection to the validity of the assessment is, that the resolution and report of the committee were not published in all the newspapers employed by the corporation, immediately after the adjournment of the board. The statute contains the provision that the same shall not be passed or adopted until after such notice has been published at least two days. (Laws of 1857, ch. 446.) The proceedings were not published in all the papers, and the notice was only published in the daily papers prior to the passage of the resolution. So far as the direction of the statute is to publish the proceedings in all the papers employed by the corporation, I have no doubt that the same is to be considered directory, and that a departure therefrom through mistake, or. even negligence, and not intentionally, would not vitiate the proceedings.

The difficulty arises from the subsequent clause of the act, which says: “All resolutions and reports of committees, which shall recommend any specific improvements, taxing or assessing the citizens of the city,” &c., “shall not be passed or adopted until after such notice has been pub

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lished at least two days.” The prohibition against the passage of the resolution or report takes it out of the mere directory character of the proceedings, and makes the passage illegal, within the meaning of the act of 1858, (as therein designated a legal irregularity,) if the provisions of the statute are not complied with. It becomes necessary, therefore, to inquire what is meant by “ such notice has been published at least two days.” I think it is clear that the statute does not require two publications. It is sufficient if two days shall elapse between the publication of the notice and the passage of the resolution. The act does not anywhere require more than one publication in one paper; and the use of the word “notice” shows that the object was to give the parties to be assessed two days’ notice, after its publication, before the adoption of the resolution.

This is not confined to each board. The adoption of the resolution means its passage by both boards, and it is only necessary that two days, after publication of the notice, shall intervene between the introduction of the resolution and its final passage in both boards of the common council.

The resolution was introduced in the board of aldermen July 20, 1863. The committee reported August 25, 1863. The resolution was finally adopted by the board of councilmen, September 24, 1863. The resolution was published in the Tribune and in the Herald July 7, and notice of the report of the committee on August 27; notice of its reference to the board of councilmen September 19, and of the report on September 23. More than two days elapsed after the publication of the notice, and the necessary publication, therefore, took place, unless it was necessary that publication should have been made in all the papers employed by the corporation, to give validity to the proceeding. I do not feel willing to give such a construction to this statute, which is not called for by the literal

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interpretation of it, so as to render these assessments illegal. The words of the act only require the publication of the notice to be for two days. It does not forbid the passage of the resolution until published in all the papers, but only until notice has been published for two days; and the provisions of the statute can be upheld by construing the number of papers to be merely directory, and the prohibitory portion of the act as satisfied by the publication of the notice in some of them, for at least two days before the resolution was adopted. It is not reasonable to suppose that the common council should be required to examine every newspaper employed by the corporation, to see if its resolutions, proposed to be passed, have been published in every paper so employed, before their passage. This I do not think was intended by the legislature.

[New York Special Term,

September 5, 1870.

My conclusion is, that there is nothing shown on the part of the petitioner, sufficient to invalidate this assessment.

Application denied.

Ingraham, Justice.]