In re Burmeister — 56 How. Pr. 416

Majority

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COURT OF APPEALS.

In the Matter of the Petition of George H. Burmeister to vacate an assessment for regulating, &c., Forty-sixth street, between Eleventh avenue and Hudson river, in the city of New York.

Headnote

Assessments in New York—vacation of—Paring and repenting — as used in chapter 580 of 1872, and chapter 313 of 1874—No distinction between sidewalk and carriageway— Commissioners' cen'Uflcate.

Under the provisions of chapter 137 and 383 of the Laws of 1870, a resolution passed by the common council authorizing'a specific improvement, which was passed without a three days’ prior publication, as required by section 20 of chapter 137, is illegal and an assessment founded thereon void; and the fact that the mayor and comptroller failed to designate papers in which the city advertising should be done, as they were required to do by section 1, chapter 383 of such laws, and in consequence there was no paper in which the advertising could legally be done, does not excuse a non-compliance with section 20 of chapter 137, or make such resolution and assessment valid. • '

The object of requiring publication is to give notice to tax-payers of proceedings which may affect their interests. It is a substantial requirement, and the statute is prohibitory. If there are no corporation papers the common council cannot act or take the first step.

The certificate of the commissioners under the’ act chapter 580, laws of 1872, has no effect upon the rights of parties to vacate assessments under the exception contained in the seventh section of that act. These provisions relate to the validity of the contracts and bind those, and those only, who were parties to the contracts and to the proceedings. They affect the city and the contractors and no one else.

The words “paving” and “repaving,” as employed in the acts of 1872 and 1874, include the sidewalks, the crosswalks, the curb and gutter stones and the carriageway. The work of setting curb and gutter stones and flagging the sidewalk which,, in this case, had once been done and paid for, was a repavement of the street within the meaning of the exception contained in the seventh section of the act of 1872.

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A street includes sidewalks and gutters, and when the legislature used this general term in the act of 1872 they intended to embrace the whole street and every hind of paving.-

February, 1879.

Oír or about the 1st day of May, 1875, the petitioner, George H. Burmeister, served his petition herein on the corporation counsel. Proofs were taken of the various facts alleged in the petition.

It was shown by the proofs that an assessment for regulating, curb, gutter and flagging Forty-sixth street, between Eleventh avenue and Hudson river, in the city of Hew York, was imposed on lots ward numbers 16 and 29, in block 227; that said ássessment was confirmed on the 19th day of December, 1872, and that at that time the petitioner was, and still is, the owner of said lots.

That the work for which the assessment was imposed on said lots was solely for flagging, curbing and guttering in front of said lots.

That said lots had, prior to the assessment in question, by an assessment confirmed on the 7th day of February, 1865, been assessed for flagging, curbing and guttering, and that such prior assessment had been paid.

That the resolutions and ordinances authorizing the assessment sought to .be vacated were introduced in the board of aldermen on the 10th day of October, 1870, and adopted on the 17th day of October, 1870; introduced in the board of assistant aldermen on the 24th day of October, 1870, and adopted on the 10th day of Hovember, 1870.

That, Under section 1, chapter 853, Laws of 1868, no papers were designated as corporation' papers in which the proceedings of the common council, or of either branch thereof, should be published, except by a designation of December 1, 1868, whereby the Democrat (daily), Citizen, Leader, Atlas (weeklies) were designated as corporation papers.

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That said designation was never communicated to the common council, or to either branch thereof.

That no designations were made under the Laws of 1870 {chap. 137), or under any subsequent laws, until after the passage of the resolution in question.

That the resolutions were not published as required in any of the papers designated under the designation of December 1, 1868.

On this state of facts the motion to vacate the assessment was argued before Mr. justice Donohue on the 17th day of August, 1876, and an order made that day vacating that assessment.

From this order an appeal was taken. The appeal having been heard at the general term a rehearing was ordered. Flo decision on the merits of the question was made {See opinion of Davis, P. J., 9 Hun, 613 ). The rehearing was had before Mr. justice Lawbenoe, who, on such rehearing, made an order vacating the assessment and writing the following opinion:

I do not appreciate the distinction which is sought to be drawn between the words “flagging” and “paving;” and, notwithstanding the additional testimony taken since this case was sent back by the general term for further proofs, I adhere to the view long entertained by me that the words “ paving ” and “ repaving,” as employed in the acts of 1872 and 1874, include the sidewalks, the crosswalks, the curb and gutter stones and the carriageway. I can discover nothing in those acts which indicates an intention on the part of the legislature to restrict those terms to the covering of the carriageway. The remarks of Mr. justice Allen, in the case of the Matter of Phillips ( 60 N. Y., 22 and 23), leave no room for doubt in my mind upon this point (See, also, Matter of Burke, 62 N. Y., 224 ). The general term did not decide this point when this case was last before them, and 1 am, therefore, at liberty to pass upon the question as if it were before this court for the first time, and also to follow the decisions made by the court of appeals in other cases.

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The statutes of 1872 and 1874 should, in my opinion, be liberally and not narrowly construed, being remedial as to the property owner. It appears from the evidence that the work for which this assessment was laid was completed before the act of 1872 was passed. The petitioner is, therefore, entitled to avail himself of the exception contained in the seventh section of that act (see opinion of the count of appeals on the motion for a reargument in Peugnetfs case); and this, notwithstanding the certificate of the contract commissioners, if the proofs show that the ordinances and resolutions were not advertised as required by law in the official newspaper. If I am correct in the position that this is a case of repaving, this objection is fatal to the validity of the assessment.

P. A. Hargous, for petitioner.

This assessment is for a repavement and is within the exception of section 7, chapter 586, Laws of 1872, and chapter 313, Laws of 1874; Re Phillips ( 60 N. Y., 16 ); Re Burke (62 id., 224); Re Keteltas id., 624); Re Astor (53 id., 617). This assessment was unauthorized by any ordinance and, therefore, void (Matter of Second Ave. Meth. Epis. Ch., court of appeals, MS., not yet reported; Matter of Cram, id . Matter of Welch, Barrett, J., MS.). The ordinance and resolutions authorizing this improvement were not published as required by the charter of 1870 and by law (Laws of 1870, chap. 137, sec. 20; Matter of Douglass, 46 N. Y., 42 ; Re Smith, 52 id., 524; Re Dickel, court of appeals affirming, Ingraham, J., not reported ; Re Folsom, 56 N. Y., 60 ; Re Levy, 4 Hun, 501 ; Matter of Menzies, Barrett, J., MS. ; and see opinion, Lawrence, J., in this case). The certificate of the commissioners

Assessment vacated.

From such order an appeal was taken again to the general term which resulted in a reversal of the order (See opinion of Brady, J., 12 Hun, 478 ).

From such order this appeal is taken.

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appointed under chapter 580, Laws of 1872, did not validate the assessment (Re Astor, 53 N. Y., 617 ; Re Anderson, 60 id., 457; Re Phillips, 60 id., 16 ; Re Mayer, 50 id., 504).

Wm. C. Whitney, counsel to the corporation, and J. A. Beal, of counsel,

argued, I. That as the assessment was laid for “ setting curb and gutter stones and flagging” and not for “ paving,” it could not be vacated for an omission to publish the resolution and ordinance of the common council, citing chapter 580, Laws of 1872, section 7 ; chapter 313, Laws of 1874; Revised Ordinance, 1838 and 1839 ; section 2 of chapter 14, Revised Ordinances of 1866, page 227). II. There is no proof that the proceedings of the common council authorizing the work for which the assessment was laid were not published as required by law. The burden of proof to establish the alleged error was upon the petitioner (Re Bassford, 50 N. Y., 509 ), and publication three days before the final passage of the ordinance was sufficient (Re Conway, 62 N. Y., 504 ).

The ordinance authorizing the work was adopted by. the board of aldermen October seventeen, and by the board of assistant aldermen November ten, and approved by the mayor November 15, 1870.

The petitioner claims the benefit of the exception contained in the seventh section of chapter 580, of the Laws'of 1872, upon the ground that the work was a repavement of the street which had once been done and paid for, and rests the motion to vacate principally upon the ground of a failure to publish the ordinances as required by law.

The right of the petitioner to the benefit of the exception, is denied, and also that any irregularity occurred in advertising. The question of irregularity will be first considered. I have examined the statutes, and all the decisions bearing upon the subject and find some difficulty in reconciling the decisions both in the supreme court and this court, but the

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apparent conflict in some of them arises from a difference in the facts and points presented, rather than from a difference of opinion as to the law. The statutes in force at the time this work was authorized, were contained in chapter 137 an'd 383 of the Laws of 1870. By section 20 of the former act it was made the duty of the clerks of the respective boards to publish all resolutions and ordinances of the common council, and prohibited any vote to be taken in either board upon the passage of a resolution or any ordinance which contemplated a specific improvement, or the levying any tax or assessment until after the same should have been published three days, and also required that su,ch resolution or ordinance should, after its passage by each board, be published with the ayes and nays thereon. As this section does not specify, the question occurs how and when the publication was to be made. This question is answered by section 1, chapter 383, which declares that “ all advertising for the city government hereafter, including the legislative and executive departments, and in street and assessment proceedings, shall be published in not more than seven daily and six weekly newspapers, printed and published in said city, to be designated from time to time by the mayor and comptroller of said city,” and prohibited any payment for such advertising to any other paper than those designated.

It appears now that at this time, there had been no designation of papers under this act and that no selection was in fact made until during the year 1871. It is suggested, and I infer that this was the view taken by the learned judge who delivered the opinion, at the general term, that in the event of no designation of papers the clerk might publish the proceedings in any paper." I am unable to concur in this view. The two statutes should be read 'together. In effect they require the clerk to publish the proceedings in the papers to be designated, and all action of the common council is prohibited until such publication. The clerk has no discretion to exercise and no authority to publish in any other than the desig

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nated papers. Such a discretion.has never been vested in the clerk or any other officer of the city, and such a power would destroy the protection which a publication was designed to secure. It would enable the clerk to insert the proceedings in any obscure sheet in the city. The object of requiring publication is to give notice to tax-payers of proceedings which may affect their interests. It is a substantial requirement and should not be frittered away. If papers are designated by some officer or body, the citizen knows where to look for these proceedings, but if it is left to the discretion of some subordinate all the beneficial purposes of publication might be defeated, and it would be as well to say, that if no designations were made, no publication need be made. This court held In re Smith ( 56 N. Y., 526 ) that if there were no corporation papers, no proceedings could be instituted, and that the publication.according to the statute was a condition precedent to any right of the common council to act. The same decision was made In re Levy ( 63 N. Y., 637 ) in which this court adopted the opinion of Brady J.,. reported in 4 Hun 501 . These decisions are authoritative that if there are no corporation papers the common council cannot act. The statute is prohibitory. In re Folsom ( 56 N. Y., 60 ) this court held, from the facts appearing in that case, that certain designations made under the act of 1868 might continue as official papers until designations should be made under the act of 1870, and that by not changing such designations the officers, which were the same in the act of 1870 as in the act of 1868, acquiesced in the designation of such papers, and, a publication therein was good. In re Anderson ( 60 N. Y., 457 ) the question was, whether the New York Leader was a corporation paper. It had been designated in 1867 but that selection was limited to that year and it was held that as it did not appear that the designation under the act of 1868 had been communicated to the common council as required by that act, no legal employment or selection for 1868, of that paper, had been made, and hence proof of a failure to publish in that

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paper did not invalidate the proceedings. These decisions are not in conflict, but were made upon the facts appearing in each case. The doctrine in the two cases before cited, of Smith and Levy, that in the absence of corporation papers the common council has no authority to pass an ordinance for a local improvement, or to lay an assessment, has not been denied, or its soundness questioned. In re Folsom it was not disputed that papers had been duly selected in 1868, and it was held that they continued by adoption as corporation papers until a new selection was made under the act of 1870. In this case the evidence tended to show, and without explanation was sufficient to establish, that no legal designation of papers was made under the act of 1868, because, upon authority of Anderson case (supra), such designation was not communicated to the common council nor was any evidence produced which would obviate the force of that requirement in that act, or from which an inference could be drawn, that it had been complied with. We cannot go back of 1868 because the selections in 1867 were limited to one year (In re Burke 62 N. Y., 224 ).

As the case stands we must assume, that at the time this ordinance was passed, there were no papers designated, .either according to the act of 1870 or 1868, in which these proceedings could have been published, and this being so, the common council were expressly prohibited from passing the ordinance in question. We feel bound to adhere to the previous decisions of this court upon this point, and we entertain no doubt of their correctness.

It is insisted, however, that the contract for this work was validated, and the alleged irregularities cured by the certificate of the commissioners under the act chapter 580, of the Laws of 1872, and that the exception in the seventh section of that act, applies only to cases in which the commissioners failed to certify, that the contracts were free from fraud. The only countenance for this position, from any decision of this court, is found In re Pugnet ( 67 N. Y., 441 ), and in that

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case it was held that the exception did apply to cases where the work had been completed before the passage of the act of 1872, which is proved to have been the fact in this case. But I am of the opinion that the certificate of the commissioners under that act, has no effect upon the rights of parties to vacate assessments under the exception. contained in the seventh section.

The purpose of the act so far as the certificate of the commissioners is concerned, was to validate all contracts which they should certify were not tainted with fraud. If • so certified the contracts were, by the first section, declared to be ratified and confirmed, and to be valid and binding, otherwise they could not be held regular, unless every technical requirement had been strictly complied with. The effect of the certificate as to parties is declared in the second section, that it shall be “ binding upon the mayor, &e., of the city of Hew York, and upon all parties to the contract, agreement or award, who signed such requirement, or who was heard before said commissioners in regard thereto.” These provisions affected the city, and the contractors, and no one else. It was not contemplated that any one but the parties to the contract should institute a hearing, nor be heard before the commissioners, and in this case it appears that the contractors and the comptroller only appeared, and were bound. These provisions relate to the validity of the contracts, and bind those, and those only, who were parties to the contracts and to the proceedings.

The property holders who were to be assessed, had no opportunity to be heard, and could not upon established principles be affected by the adjudication of the commissioners. The seventh seetiqn treats of vacating assessments, and provide that they shall not be vacated for certain specified irregularities, but excepts cases of fraud, and cases of assessments for repavement of a street, which has once been done and paid for. . By the construction claimed this exception would be of no value. If this is a repavement which has once been

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done and paid for, the petitioner is within the terms of the statute, and his right is not impaired by the adjudication that the contract under which the work was done, was free from fraud. I concur with the views of Davis, P. J., adopted by this court In re Astor ( 53 N. Y. 617 ).

The question remains whether this work was a repavement of the street, within the meaning of the exception contained in the seventh section of the act of 1872. The work was setting, curb and gutter stones, and flagging the sidewalk which had once been done and paid for. This point has been expressly decided by this court against the city, In re Phillips ( 60 N. Y., 16 ). The incidental remark in the opinion, that it did not distinctly appear where the work was done, does not impair the force or effect of the decision, that laying flagstones on the sidewalk is paving the street.

The decision has been since recognized and acted upon, In re Burke ( 62 N. Y. 224 ). In this case certain ordinances and other evidence were introduced, 'which it is claimed sheds such light upon the question as ought to induce the court to re-examine it. We have re-examined it and we do not feel justified in changing the conclusion at which we before arrived.

The ordinances speak of paving and repaving sidewalks, and also carriageways, and create a distinction by requiring that paving the former shall he done at the expense of the property owners, while the latter shall be done at the expense of the city. The evidence tends to show that, ordinarily, flagging is understood to apply to sidewalks, for the reason, doubtless, that flag-stones are generally used in paving sidewalks, and are not used in paving the carriageway. But these distinctions are not controlling. Pavement is a more comprehensive word than flagging, it includes flagging as well as other modes of making a smooth surface for streets; including side-tracks. The question is, in what sense the legislature used the term in this statute. The expert called by the city stated, that in a general sense paving included flagging; the language is “repav-.

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ing any street ” and. not as in some of the ordinances, paving the carriageways. A street includes sidewalks and gutters, and when the legislature used this general term, they intended to embrace the whole street and every kind of paving, and no reason is perceived why they should not. The object of the statute was to give property owners the right to vacate assessments for this kind of work, which had once been done and paid for, for certain irregularities not allowed in other. cases, and I am unable to perceive any reason why this privilege should not be avilable in the case of repaving a sidewalk as well as a carriageway. It was suggested on the argument that the reason for the distinction was that the repavement of the carriageway was for the benefit of the public, and that of the side-track for the property owner. If such a distinction exists it is only in degree. The public use both, but in different modes, while the property owner receives an incidental benefit from the paving of the carriageway, as well as the side-track. Besides, according to the ordinances introduced in evidence, the expense of repaving carriageways is borne by the city at large, and not by the property owners, so that the exception would have no practical effect unless it applied to sidewalks, gutters, &c. We cannot suppose that the legislature intended to confer a right upon the tax-payers which could never be used for any beneficial purpose. We think the exception should be liberally construed in the interests of those whom it was intended to benefit, and that the terms should be construed in their general and enlarged sense rather than in the restricted and conventional, sense which may have prevailed among those who are engaged in performing the details of the work; especially should we do so,, rather than put such a construction upon it as will deprive it of any practical benefit or operation.

It follows that the order of the general term must be reversed, and that of the special term affirmed.

All concur.

Cases cited

In re Burke 62 N. Y. 224 N.Y. 1875-06-02 p. 425