Opinion
October, 1905.
John F. Bradner, for the appellant.
Russell Wiggins, for the respondent.
This action was brought to vacate and set aside an assessment made by the defendant against the lands of the plaintiff for the construction of a sewer, and from the judgment of the Special Term dismissing the complaint on the merits this appeal is taken.
On May 27, 1901, a petition signed by twenty-four taxpayers and property owners, in the following language, was presented to defendant's common council:
" To the Honorable Common Council, City of Middletown, New York. We, the undersigned taxpayers and property owners on Olive Street, Knapp Avenue, Lake Avenue, Liberty Street, Wallkill Avenue, Watkins Avenue, Commonwealth Avenue, Columbia Park and other streets located in what is known as the Black Dirt Water Shed, do hereby petition your Honorable body to construct a sewer in or along the edge of the black dirt for the relief of the sanitary matters in this district, or construct a series of sewers to accomplish the same result, if that is found more expedient."
This petition was referred to the sewer committee to investigate and report at the next meeting. The minutes of the common council show that at the next meeting (July 8, 1901) the sewer committee reported favorably on the black dirt sewer system, the report was accepted and the city engineer directed to make a map and profile and submit the same to the sewer commissioners for their approval. At their next meeting (August 26, 1901) the common council adopted the following resolutions: " Resolved, that the specifications for the sanitary sewer to be constructed as prepared by the city engineer Smith, be approved by this council. * * * Resolved that a trunk sanitary sewer to be known as the Black Dirt Trunk Sewer be constructed to connect Monhagen avenue sewer, according to the map and profile, approved by the sewer commissioners and adopted by the council at this meeting. Said sewer to be 3,860 feet in length." Under this resolution the sewer in question was constructed.
The rights of way and easements required and necessary for the construction and maintenance of this sewer across and over twelve different pieces of real property were acquired under written agreements, the consideration therefor being expressed as follows: "The consideration for this conveyance is an agreement which said party of the second part hereby makes, by which the party of the second part covenants and agrees to pay, discharge and save harmless the parties of the first part from any and all assessments and liens which may be levied, made or laid against the parties of the first part, their heirs and assigns forever, or against the whole or any part of the lands and premises of the parties of the first part for, by reason of or on account of the present construction of what is known as the `Black Dirt Sewer,' as shown on the map above referred to, of, by reason of or on account of the construction of an extension of the Prospect Street sewer herein mentioned, of, by reason of or on account of the construction of any outlets for above sewers to and into the sewer system of the City of Middletown, N.Y."
The amounts subsequently assessed against the property represented by said agreements and paid by the city were $2,081.38. The cost of the sewer was $9,555.83.
The first question presented by the appellant is that the defendant's common council was without jurisdiction or power to order or construct this sewer, at the expense of the owners of property benefited, and that the requirements of defendant's charter were not complied with in its ordering, acquiring the rights of way and construction. Title 14 of the charter (Laws of 1888, chap. 535) consists of nine sections, and is entitled: "Of sewerage and drainage." Section 2 of said title provides: "To the end that the said city of Middletown may be provided with and have sufficient and proper drainage and sewerage, the said common council is hereby authorized and empowered to agree for and to purchase and take conveyances for, in the name of said city, any real estate and right of way over any real estate, * * * for the purposes of such drainage and sewerage to any suitable and proper place; and in case said common council does not agree for the purchase of such real estate, or rights of way, * * * for the purposes aforesaid, from any of the owners of such real estate, * * * the said common council may acquire the title and right to the same or any part thereof, for the purposes aforesaid, provided the owners of such lands are compensated for the damages which they may sustain by reason thereof, as hereinafter provided." Sections 3, 4, 5 and 6 specify the manner of acquiring such rights of way as the city is unable to purchase for a reasonable compensation. Section 7 provides that the money needed to pay for the "lands, rights or awards, and the cost of said improvement, including the necessary expenses incurred by said common council in connection therewith, shall be raised by tax, to be assessed upon all the real and personal property in said city," etc. Section 9 provides: "All real estate and rights acquired by said common council, pursuant to the foregoing provisions for the purposes aforesaid, shall be deemed to be acquired for public use." Title 6 of said charter consists of fourteen sections, and is entitled: "Of streets and bridges and the improvement thereof, and of nuisances, and the abatement thereof." Section 1 of said title gives to the common council the power and makes it its duty: "1. Upon their own motion, or upon application as hereinafter provided to lay out, open, make, amend, repair, alter, widen, straighten, extend, contract or discontinue * * * drains, culverts and sewers in said city. * * * 2. To cause * * * sewers to be built or constructed, * * *. And in the order directing the construction of a sewer or sewers, * * * they may, in their discretion, provide that a portion of the expense of such improvement, not exceeding one-third thereof, shall be paid out of the city treasury." Section 5 provides: "Whenever an application shall be made by three or more freeholders to the common council to * * * construct or rebuild any sewer, aqueduct or bridge, they shall, before ordering such improvement cause a notice of the pendency of such application to be published twice a week, for two weeks, in two public newspapers printed and published in said city, stating the time when they meet to hear all persons interested in said improvement, * * *. At said meeting, or at such adjourned or subsequent meeting at which the common council shall order such hearing to be had, they shall hear such reasons as shall be given by or on behalf of persons interested for or against the making of such improvement. * * * And the common council shall have power to enter upon any lands in said city, for the purpose of making surveys, and to construct upon the same any sewer or sewers deemed by them necessary and proper to be constructed, and to acquire the title to any lands or easements therein, for the purposes of such sewer or sewers, and the same proceedings shall be had and taken to acquire such lands or easements therein, and to assess the expenses, damages and benefits resulting therefrom, in the matter of the construction of any such sewer as is provided by this act, for the laying out and opening of streets in said city," etc. The manner in which easements required for opening and laying out streets were authorized to be acquired is specified in section 7 of said title (as amd. by Laws of 1889, chap. 392), and, except as therein specified, is limited to condemnation proceedings.
By section 6 of said title it is provided as follows: "No application to * * * construct or rebuild any sewer (except in the cases hereinafter mentioned) in any part of the city shall be entertained or in any manner acted upon by the common council of said city unless the person or persons making such applications shall own at least one-third of the number of feet fronting on the line of the proposed improvement. But whenever the board of health of said city, by resolution duly passed by said board, shall request the common council to order the construction or rebuilding of a sewer through or in any part of any street, lane or highway of said city to be designated in said resolution, on the ground that the same is necessary as a sanitary measure, then the common council is hereby authorized to order and direct the same to be done without requiring the application therefor, as in this section first above provided." Section 13 of said title (as amd. by Laws of 1889, chap. 392) provides the manner of collection of the cost of construction by assessment upon the real property benefited by the improvement.
Reading the different section of this charter together, and giving effect to all, the legislative intent, which must always control and be given weight in the construction of a statute, is plainly apparent. Two widely differing methods for the construction of sewers in the city of Middletown are provided, one applying to the construction of sewers to be paid for by a general tax benefiting all property owners of the city; the other applicable to the construction of sewers, benefiting only property in the immediate vicinity of the improvement and to be paid for wholly or in part by the property benefited by their construction. In the former class the procedure is governed by the provisions of title 14, and the city proceeds on its own motion without request of, or notice to, its taxpayers. The attention of its common council may undoubtedly be directed to the necessity of such a sewer by a petition under the provisions of title 6, but its subsequent proceedings must not be based on such petition. It must proceed on its own motion, and the cost of a sewer so constructed must be paid by general tax. In the latter class the procedure is regulated by the provisions of title 6; the owners of the property benefited are required to pay the whole or part of the cost of construction, and the city has no power to order or build until it has first, and as a condition precedent, complied with those provisions of the title designed to give notice and an opportunity to be heard to those of its citizens whose property will be affected by the improvement, and in no case is an improvement under this title authorized until such notice has been given and opportunity afforded. The provisions referred to required, first, an application to the common council for the construction of the sewer, united in by the owners of at least one-third of the number of feet fronting on the line of the improvement; and, second, publication for two weeks of notice of the pendency of the application and the time when the common council would consider the same and hear all persons interested, which notice could not be dispensed with. Until such requirements had been complied with, the common council was without power or jurisdiction to proceed with the improvement. The "Black Dirt Trunk Sewer" was within the latter class, and its construction governed by the provisions of title 6 of the charter. It was not proposed to construct it at the expense of the city at large, to be paid for by a general tax, but as a local improvement, benefiting property within a small district, and to be paid for by such property. It is, therefore, immaterial whether the city proceeded in its construction upon its own motion (as claimed by counsel for the respondent), or upon the application made to its common council by twenty-four of its taxpayers and property owners, on May twenty-seventh, asking for its construction. In either case, whether acting upon its own motion or upon the petition referred to (assuming it to have been signed by the requisite number of property owners), it was necessary, before jurisdiction could be acquired which would justify an assessment to pay the expense of its construction, that the requirement of the charter as to the publication of notice of an intention to consider the project, with an opportunity to be heard, should be given to all persons whose property and legal rights would or might be affected by the assessment later to be made; and until such notice and opportunity to be heard had been given, the common council was without power or jurisdiction to order the sewer constructed, or build it at the expense of the property benefited. I understand it to be conceded that the required notice was not published, and that no opportunity to be heard was given. This omission was of itself fatal to the validity of the assessment.
The record discloses that the common council in its proceedings, in several instances, notably the manner in which the rights of way required were obtained, disregarded the charter provisions applicable to the construction of the sewer in question; but in view of our disposition of the appeal it is unnecessary for us to consider the departure from the charter provisions further than has already been done.
The judgment appealed from must be reversed and a new trial granted, costs to abide the final award of costs.
HIRSCHBERG, P.J., BARTLETT, WOODWARD and JENKS, JJ., concurred.
Judgment reversed and new trial granted, costs to abide the final award of costs.