In re Wheelock

For the reasons set forth in the opinion delivered upon the decision in the Matter of Brainard herewith announced (ante p. 364), it is clear that this court has not jurisdiction to entertain this application. It is true that the petitioner seeks to avoid the effect of that decision by not claiming that the assessment should be set-aside, but that it should be reduced. But it is apparent that if the sewer in question was constructed by the proper authorities there is no basis for such reduction.

It is only because the sewer has been constructed without due authority that the petitioner could have under any circumstances any standing in court.

The ground urged upon this appeal is that this sewer could not legally be constructed by the Department of Public Works; but that that duty was imposed upon the Department of Parks, and if the sewer had been constructed by the Department of Parks, only one-half of the cost of the improvement could have been assessed upon the appellant’s property. If the sewer was constructed by the Department of Public Works, the appellant cannot claim the benefit of rules applying to work done under the authority of the commissioners of parks. The commissioners of parks have in no way ratified or confirmed the action of the department of public works or accepted the work as done by it; and the assessment which it is sought to reduce is levied solely upon the certificate of the depart

But in our opinion the work was properly done by the -department of public works. By chapter 381 of the Laws of 186'5, a general .system of sewerage was intended to be adopted; and it was apparent to the legislature that in order that such a system should be successful, that the work ;should be done under a general plan, under a single supervisory head; and therefore they provided in this act that .such general plan should be adopted, and that no sewer should be constructed in the city of New York unless in accordance with this plan. ,

This act was passed, on the 12th ofApril, 1865. On the 24th of April, 1865, an act was adopted by which, the appellant claims, the commissioners of Central park. were .given the right to construct sewers within the very district which, twelve days before, the legislature had enacted should be under the control -of a particular board having general charge of the construction of sewers, and that none .should be constructed except in accordance with' the plan adopted by such board. An intention upon the part of the législature to repeal that which they had enacted only twelve days before cannot be presumed, and can only be .sustained if the acts are inconsistent one with the other.

It is urged that because the commissioners of public parks had the right within this district to regulate, grade' and improve,' as streets or as country roads, such streets as they might lay out upon' a plan to be adopted by them, that, therefore, they had the right to construct the sewers therein, such having been held to be an improvement which might be constructed in a street.

. It is clear from a consideration of these acts that they are not necessarily in conflict, and that it was not the intention of.the legislature to throw aside the system which they had adopted by the act of the 12th of April; and that the power which had been vested in the Croton board by the act of April 12, still subsisted in them, and that there was no intention to deprive them of that which was necessary in order that' the sewerage of the city should be constructed upon a well defined and settled plan.

In 1870 the powers and duties of the Croton board were given to the department of public works, and bureaus were established in ,that department to. take charge of the various works. In the charter of 1873 it is provided that in

_ Section 327 of the consolidation act gives the commissioner the power to devise and frame a plan of sewers, for the whole city, except in the twenty-third and twenty-fourth wards; and section 331 provides that it shall not be lawful to construct any sewer except on this plan. If there is any repeal of powers by implication, these provisions of the consolidation act would necessarily repeal the power, if any had been conferred by the act of April 24, 1865, upon the commissioners of Central park to construct sewers.

But it would seem that prior to the adoption of the consol-? idation act the act of April 24, .1865 had been repealed by implication. Chapter 604 of the act of 1874 dealt with the same subject-matter to which the act of April 24, 1865, applied. It is true that there are some provisions contained in the act of 1865, which are not contained in the act of 1874. But the legislature having legislated. upon the identical subject, it is presumed that they were intentionally omitted, and that it was not intended to engraft them upon the act of 1874.

The case In re Leake and Watts Orphan Asylum ( 92 N. Y., 116 ), in no way conflicts with the views above expressed.. The attention of the court deciding that case was in no way called apparently to the condition of the law. But assuming that the sewer in that case was constructed by the department of ■ public works, it had the authority to con- . struct that sewer, and although such authority was ascribed: perhaps to legislation which did not originally confer1 the same, yet still it would have done so in the absence of any other legislation upon the subject. There had been legislative action upon the subject . confiding the power- in respect to the whole subject to - the department of public? works, and such department in exercising this power-only carried out the legislative plan. Had it not been for this condition of the statutes showing the intention of the legislature to confer upon a certain department the exclusivo right in reference to the construction of sewers, we might, very well have held that the commissioners of Central Park under the act of April 24, 1865, would have had the power to construct the sewer, unless the same had been repealed,. And this was all that was decided in In re Leake & Watts Orphan Asylum. But in the presence of the positive enact-; ments of the legislature vesting this authority in another department, it cannot be held that Under the general word,’ ‘‘ improvement,” that department is to be deprived of the; authority and power which is expressly conferred upon: it

The order should be affirmed, with costs.

Macomber and Brady, jj., concur.