People ex rel. Drake v. Board of Sewer Commissioners

Majority

p. 264

(69 Hun, 95.)

PEOPLE ex rel. DRAKE v. BOARD OF SEWER COMMISSIONERS.

(Supreme Court, General Term, Second Department.

May 8, 1893.)

Headnote

1. Sewers—Petition for—Power to Construct.

Laws 1889, c. 375, as amended by Laws 1891, c. 316, specifies two methods in which authority may be obtained by a board of village commissioners to construct sewers,—one, by special election, to determine whether sewers shall be constructed according to a general system proposed by the board; and the other as contained in section 8, which provides that whenever a petition for the construction of a sewer, to be paid for by the land specially benefited, is presented, signed by the owners of at least 500 lineal feet of land on any street through which a sewer is projected in the system, the board shall give notice of a time and place when they will hear persons interested for and against the construction of such portion of the system, and if, after hearing, the board shall determine to construct such portion, it shall proceed to enter into contracts therefor. Eelá, that the board cannot, on being asked to construct a sewer in a certain street, go beyond the prayer of the petition, and extend the sewer into other streets.

2. Same—Payment of Expenses.

Section 10 declaring that the board, in order to provide funds for the expenses authorized by the act, and the construction of such system, may issue certificates of indebtedness, applies only to the construction of the general system, and not to a sewer constructed under section 8, and which, according thereto, must be assessed to the property benefited.

'Application by John Sterling Drake for certiorari to the board of sewer commissioners of the village of Port Richmond to review certain proceedings.

Reversed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.

George Tiffany, for relator.

John Croak, for respondents.

This is a certiorari to the board of sewer commissioners of the village of Port Richmond, on Staten Island, to review their action in relation to the construction of certain sewers in that village. Boards of sewer commissioners in the incorporated

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villages of this state are organized, and their powers and duties are defined, by chapter 375 of the Laws of 1889 and chapter 316 of the Laws of 1891, amendatory thereof. Under those statutes the boards of sewer commissioners derive authority to construct sewers in two modes, or, in other words, those statutes specify two methods by which the boards of commissioners of sewers obtain authority for the construction of sewers:. One, by a special election for the purpose of- determining, by a vote of the electors, whether sewers shall be constructed according to a plan proposed by the board, and the other, by a petition. As the proceedings under review were instituted by the latter method, it will be unnecessary to examine or discuss the former, further than to say that a general plan of sewerage was submitted to the people at such an election, and rejected. Subsequent to such rejection a petition signed by the owners of more than one half of the lands fronting on more than 500 lineal feet of South avenue, one of the public streets of the village, through which a sewer was projected on the plan of the sewerage system of the village which was rejected, was presented to the board of sewer commissioners, requesting the board to construct a sewer through South avenue from the rapid-transit railroad running north to Newark bay. Thereupon the board proceeded in the manner specified in section 8 of the statute, in respect to notices and hearing persons in favor of and against the construction of that portion of the sewer system, and "• thereafter determined to construct a sewer, not only through South avenue, but also through Arlington place and Arlington avenue. To provide funds for the payment of the sewers the board issued certificates of indebtedness. It is now insisted by the relator that the board has exceeded its jurisdiction, and that it had no authority to construct a sewer, except in South avenue.

After the rejection of the general plan by the people the board was destitute of authority to construct a sewer, until it was set in motion by a petition under section 8. That section, as amended, provided that whenever a petition should be presented to the board, signed by the owners of at least 500' lineal feet of any of the lands fronting on any street, lane, or alley through which a sewer was projected on the plan of the sewerage system of such village, for the construction thereof, to be paid for wholly by the owners of the lands specially benefited, then the board should give notice, in a certain manner specified, of a time and place when the board would meet and hear persons interested for and against the construction of such portion of the sewer system. At such meeting the board was required to take proof as to the persons signing the petition being the owners of a sufficient quantity of lands fronting on" said street as therein required, and their conclusion upon that question was made final. If, after such hearing, the board determined to construct such portion of the system of sewerage, they were to proceed and do so. The question is whether the board could do more under the petition than construct a sewer in South avenue, and that is to be determined by a construction of section 8 as amended. The section itself is not free from obscurity, but a gen

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eral view of its object, and the office it was designed to perform, renders its meaning and intention reasonably certain. Its purpose was to provide a method by which the property owners upon a street could procure the construction of a sewer therein, disconnected from the general plan. Two contingencies might have been in the contemplation of the lawmakers,—either that the general plan might be rejected, as it was, or the growth of the village might build up new streets in which sewers would be necessary. In either case the petitioners would ask for what they wanted, and the board, in its action thereon, would be confined to the prayer of the petition,—either to grant or refuse it,—and would be without power or jurisdiction to do more than the petition requested. Upon general principles, the petition lies at the foundation of the proceedings, and is the basis of the jurisdiction of the board. Moreover, the language of the section plainly contemplates such restriction. The notice required is to be given to the owners of land fronting on such portion of the street as the petition describes, and the hearing is confined to persons interested in such portion of the sewer system; meaning, evidently, that portion described in the petition.Then, again, if the board determines to construct such portion of the system of sewerage, it shall do so; meaning, always, by the word “such,” the portion described in the petition. Again, the statute requires a petition from the owners of land fronting upon the street through which a sewer has been projected, and the fair inference is that their ownership must be upon the street through which they desire the sewer to run. Upon any other construction the owners of 500 feet upon any street might defeat the intention of the voters, and the board might construct sewers in any other street contrary to the wishes of the people, of their own volition, without request from any quarter. In short, the board has no-power or discretion to construct sewers, of its own volition, and when it is set in motion it can proceed no further than its authority extends. The last clause of section 8 applies only to the case of a petition for the construction of a sewer through different streets, and has no application to this case.

The question respecting the issuance of certificates to pay for this sewer is by no means free from difficulty. The first part of section 10 of the original act reads as follows:

“For the providing of funds for the payment of the expenses authorized by this act, and for the construction and completion of such system of sewerage in any village, the board of sewer commissioners thereof is hereby authorized and empowered to issue its certificates of indebtedness or bonds from time to time, and to pledge the faith and credit of said village, for the payment of work, materials furnished, lands taken, and other expenses of said work. * * *”

We think that provision was intended to apply only to the execution and completion of the general system of sewerage, which was rejected by this village, and that the expenses of constructing a sewer under a petition are to be collected under the following provision of section 8 of the amendatory act:

“If, after hearing had in accordance with such notice, the said board shall determine to construct such portion of said system of sewerage, the said

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board shall proceed to enter into contracts therefor in the manner prescribed by the sixth section of this act, and to apportion and assess the expenses thereof upon the property specially benefited thereby, in like manner and ‘with like effect as herein provided in the seventh section of this act.”

This view seems to harmonize with, and give effect to, the following language in the fore part of section 8:

“To be paid for wholly by the owners of the lands specially benefited.”

The language refers to the construction of the sewer prayed for in the petition, and the section plainly contemplates its incorporation into the petition for such construction, but it was not so incorporated in the petition in this case. In this view, the issuance of certificates was unauthorized, and the proceedings of the board were irregular and unauthorized, and should be reversed. All concur.