Ireland v. City of Rochester , 51 Barb. 414 ( 1868 )

By the Court, Jambs C. Smith, J.

There is no foundation for the objection taken by the plaintiffs, to the validity of the ordinance adopted by the common council on the 22d of August, that no opportunity was given to those about to be assessed for the proposed improvement, to make allegations against the ordinance as the city charter requires.

Before the common council determined to make the improvement, they caused a notice to be published, as required by the charter, specifying the improvement, the estimated expense thereof, and the portion of the city to be assessed for such expense, and appointing a time for all persons interested in the improvement, to attend the common council, and make their allegations. At the time appointed, to wit, on the 11th July; 1865, the common council met, and without taking final action respecting the proposed improvement, they adjourned from time to time till the 22d of August, when, as appears by the minutes of their proceedings, the board proceeded to hear allegations in relation to the proposed improvement, and after hearing such allegations -from all the persons appearing, they adopted an ordinance for such improvement. All these proceedings were duly published.

The original notice being regular, and the board having met at the time therein appointed, they had jurisdiction of the proceeding, and could then hear allegations, if any were to be made, or could adjourn in their discretion, to any other specified time, in which latter case, the proceedings would be carried over to the adjourned day, to be then taken up at the stage at which they were left at the preceding meeting. In fact, the proceedings at the first meeting were adjourned, before allegations were heard, and they were continued in that stage to the 22d of August. At that time, the hearing of allegations was in order, and as is shown by the minutes, an opportunity to make them was then given. It does not appear that any person who attended the first or any subsequent meeting to make allegations, was denied an opportunity of making them, or was not heard. The proceedings were therefore regular in all the respects involved in the objection above stated.

It is also claimed by the counsel for the plaintiffs, that the resolution for the assessment of the deficiency of $3319.92, upon the lots on Mount Hope avenue and South avenue, and the assessment in pursuance of it, were void. Several grounds are assigned for this position.

It is insisted that the common council were prohibited by the charter, from expending upon the improvement any sum beyond the original estimate of $25,980. The provision of the charter relied upon for this position, is a clause which was adopted in 1865, as an amendment to section 164, and which provides that no contract shall be let for making any public improvement at a price greater than the estimate thereof. The amendment means, simply, that in contracting for making a public improvement, the work included in the estimate shall not be let at a higher price than that specified in the estimate. It does not prohibit the common council from causing other work to be done in addition to that included in the estimate, if they find it necessary in order to complete the improvement, and the amendment is not inconsistent with section 207 of the charter, which provides that if a greater sum of money is expended in the improvement than was estimated, the common council may direct an assessment to collect the same.

If it he assumed, therefore, as is done by the plaintiffs’ counsel, in his argument, that the excess of expenditure was not for work included in the estimate, but was for work not embraced in the ordinance, the board had authority, under section 207, to direct an assessment of money to meet such excess.

It is also objected that there is no evidence that the expense of the improvement exceeded the estimate. But the common council having authority to make such expenditure in their discretion, and to levy an assessment to meet it, and having passed a resolution for that purpose which recites the fact that an expenditure had been made, in such improvement, of the sum of $3319.92 in excess of the estimate, the resolution itself if valid, is at least prima facie evidence of such expenditure.

But another objection is taken to the resolution assessing the deficiency upon lots on South avenue, which is of a more serious character; to wit, that the owners and occupants of those lots, (among whom are the plaintiffs,) are assessed without hearing, and without notice.

Section 207, already referred to, provides that “if it shall appear that a greater sum of money has been expended in the completion of such improvements than was-estimated as aforesaid, the common council may direct the assessment of the same on the owners and occupants of houses and lands benefited by such improvements, in the same manner as herein directed, and the same proceedings in all respects shall be had thereon, and the common council may enlarge the territory to he assessed for such improvements.” The action of the common council, by which, as the defendants’ counsel contends, the territory was enlarged, and the plaintiffs were made liable to the assessment imposed on them by virtue of the provision above transcribed was as follows: On the 22d of January, 1867, a resolution was duly presented to the common council, reciting that on the 22d of August, 1865, the common council ordained that Mount Hope avenue should be improved, &c. and that the whole expense thereof should be assessed upon the owners and occupants of houses and lands to be benefited thereby; and did estimate such expense at $25,980, and that a greater sum had been expended in making such improvement, amounting to $3319.92, and directing that said sum of $3319.92 be assessed upon the owners and occupants of one tier of lots on each side of Mount Hope avenue, from the Erie canal to the entrance to Mount Hope cemetery, “ and one tier of lots on each side of South avenue, from Mount Hope avenue to the city line.” Action upon the resolution was postponed until the 5th of February, 1867, when it was adopted at a regular meeting of the board. There was no express declaration by the board, that the lots on South avenue were deemed to be benefited by the improvement, but the enlargement of the territory was effected, if at all, by directing in the language above transcribed, that said lots be assessed in connection with those on Mount Hope avenue, the latter lots being the portion of the city which alone was expressly declared by the ordinance of August 22, to be benefited by the improvement, and on which the expense of it was ordered to be assessed. The printed case laid before us states that all the proceedings of the common council in relation to such improvement, were published with all other proceedings of the board, as required by section 59 of the charter, as compiled in 1865, and as required by section 4, chapter 699 of the Laws of 1866. Section 59, provides that all ordinances for the violation of which any penalty may be imposed, shall be published for at least one week, and that all votes, ordinances and resolutions directing the payment of money, shall be published at least once within eight days after their passage, and section 4 directs that the common council may designate not more than two daily newspapers of the etiy in which the proceedings, resolutions and ordinances of the common council, and their committees, - and of the city officers, may be published. All that can he assumed from the fact stated in the case, is that the resolution of February, 1867, was published in the proper newspapers, at least once within eight days after its passage. It is also stated in the case, that no time or place was appointed for hearing allegations in regard to assessing the owners and occupants of houses and lots on South avenue, or any enlarged territory, for said improvement ór deficiency, and no notice requiring persons to attend the common council was published in connection with, or prior to, the passage of the resolution of February, 1867.

It is apparent from these facts that the action of the common council in respect to the owners of lots on South avenue was without notice to them, and without giving them an opportunity to he heard upon the question whether they were benefited by the improvement and should be taxed to defray the expense of it. For that reason, the resolution of February, 1867, is a nullity as to the plaintiffs. It is in the nature of a judicial proceeding against them, and its effect is to take their property for public use. It is a plain principle of j ustice, applicable to all judicial proceedings, that no person shall be condemned, or shall suffer judgment against him, without an opportunity to be heard. (15 John. 537. 15 Wend. 374. 23 id. 628. 3 Barb. 282.) The common council did not acquire jurisdiction as to the owners' and occupants of lots on South avenue, by virtue of the original proceeding to which they were not parties. The proceeding was commenced, as to them, by the attempt to enlarge the territory. It is no answer, to say that by the original proceeding, the question whether the improvement should be made was conclusively decided. The question whether it benefited the plaintiffs, and they should consequently be taxed for it, was open, and on that question they had the same right to notice, and to an opportunity to be heard, as had the occupants of the original territory. Boris it an answer to say, as does the counsel for the defendants, that the plaintiffs had an opportunity to be heard before the assessors. There, the only matter open to them, was the amount of their assessment. The defendants’ counsel argued that the statute in question, conferring upon the common council this extended authority over local assessments, is a legitimate exercise of the taxing power. Undoubtedly so, if the statute provides for notice to those assessed, but not otherwise. In the case of The People v. The Mayor of Brooklyn, (4 N. Y. Rep. 419,) a leading authority upon this subject, the statute under which the proceedings were had, provided for a notice which in the language of Judge Buggies, “ gave to any person assessed an opportunity to be heard.” (P. 441. See also 15 Wend. 374, 5.) The want of notice is not cured by the provisions of sections 207 and 208, declaring the proceedings valid, notwithstanding any “irregularity, omission or error.”. Those provisions do not extend to jurisdictional defects. As no notice, or opportunity to be heard was given, in fact, to the owners of lots on South avenue, the resolution of February, 1867, is for that reason, as has been said, a nullity as to them, and the defense must fail. This is so, without regard to the question whether the charter requires notice to be given. If it does, the requirement has not been complied with; if it does not, the provision authorizing an enlargement of the territory and the taxing of new parties thus brought in, without notice, transcends the power of the legislature, and is itself void. In either view of the case, the proceedings of the common council were unauthorized, and the plaintiffs are entitled to relief.

As, however, the question whether the charter requires notice, is of importance, not only with respect to further proceedings in reference to the very improvement out of which this controversy has arisen, but also to all persons liable to assessment in similar proceedings, it seems proper to consider it, before dismissing the case. The only provision of the charter, to which our attention has been called, expressly relating to the power of the common council to enlarge the territory, is that above transcribed from section 207. The clause giving the power does not, in express terms, require notiee. But it is connected in the same sentence with another clause which provides that in case of deficiency, the common council may direct the assessment of the same on the owners and occupants of lands benefited by the improvement. The statute undoubtedly contemplates that whenever the territory is to be enlarged, such enlargement shall be effected in the same proceeding in which the assessment for the deficiency is directed; and that was the course pursued in the present case. The question therefore arises whether the common council can direct an assessment for a deficiency, without notice to those on whom such assessment will fall, even although they are occupants of -the original territory, and as such had notice of the original proceeding ? The statute provides that in case of a deficiency, “ the common council may direct the assessment of the same," on the owners and occupants of houses and lands benefited by such improvements, in the same manner as herein directed, and the same proceedings in all respects shall be had thereon.” This language is not altogether perspicuous, but the better construction seems to be that the words “in the same manner,” relate to the preceding word “ direct,” and not to the word “ assessment.” In other words, that they relate to the action of the common council, and not to that of the assessors merely. This construction is sustained by the context. The next sentence provides that “ if it shall appear that any greater sum of money than was originally assessed has been expended for the benefit of the same property originally assessed, although not embraced within the improvement as ordered by the common council, the common council may, in like manner, direct the assessment of the same upon the owners and occupants of houses and lands benefited thereby.” Here, the words “in like manner” refer explicitly to the action of the common council, and they strengthen the position that the corresponding words in the preceding sentence were intended to have the like effect. So, also, the last sentence in the same section, which declares valid all assessments or re-assessments ordered by the common council for local public improvements, “notwithstanding any irregularity, omission or error in the proceedings relating to the same,” must be deemed to refer to the proceedings before the common council, as well as to those before the assessors. This construction of the words “in the same manner as herein directed,” derives force, too, from the accompanying expression, “ and the same proceedings in all respects shall be had therein,” the word “ therein” referring, not merely to the assessment, but to the whole proceeding.

What provisions of the charter, then, are adopted by the words in question ? Clearly those relating to proceedings in cases of local assessments for public improvements, among which are sections 163 and 164. Section 162 declares that the common council shall not proceed, &e. except upon, (1.) The petition of at least a majority of the owners of property to be assessed; or (2.) The vote of at least three fourths of all the aldermen in favor of the improvement, after allegations have been heard. Section 164 requires the publication of a notice, and its provisions in that respect have" been -already referred to. Can there be a doubt that the provision of section 163, requiring a three fourths vote, unless upon a petition of a majority of the owners to be assessed, is necessary to a resolution directing an assessment for a deficiency ? Such a vote was had in the case before us, but we have not been referred to any provision of the charter requiring it, unless it be the one in question. It is not necessary, nor would it be appropriate, that the precise form of notice prescribed by section 164, be adopted in proceedings for a re-assessment. It is enough that the notice specify the action proposed to be taken, and conform to the requisites of section 164, so far as they are applicable to the case. Of course, in the proceedings for a re-assessment, no person can be heard upon any question which was finally decided in the original proceeding. The question whether the improvement should be made, is of that nature. So, the owners and occupants of houses and lots in the original territory, who were duly notified, and were decided to be benefited by the improvement, and ordered to be assessed for it, cannot raise again the question as to their liability to be assessed. But the question whether the work has cost more than the estimate, is open to them, as well as to the occupants of the new territory proposed to be brought in, and the latter may also be heard in respect to the allegation that they are benefited by the improvement and ought to be assessed.

The whole policy of the statute, so far as it can be gathered from the language employed, is opposed to the idea that the owners of lands may be assessed for local improvements without notice, whether the assessment is for the purpose of raising the original estimate, or meeting a deficiency, and whether the lands are within the original or the enlarged territory. In short, the legislature have not expressed themselves in language which indicates an intention to exceed their constitutional powers, and such an intention is not to "be implied, if a different construction can be fairly adopted.

[Monroe General Term, March 2, 1868.

E. D. Smith, Johnson and J. C. Smith, Justices.]

It follows, from these views, that the resolution of the fifth February, 1867, should have been preceded by a notice, published as the charter provides, specifying the amount of the deficiency, describing the territory as enlarged on which it was proposed to assess the deficiency, and appointing a time when the common council would hear the allegations of all persons interested. And at the time appointed, an opportunity should have been given to the owners and occupants of lots in the enlarged territory to show cause why they should not be assessed. For the want of these prerequisites the resolution last referred to is void, so far at least, as it affects the owners and occupants of lots on South avenue.

The assessment being void as to the plaintiffs, their right to maintain this action is clear, not only to avoid a multiplicity of suits, but also to remove a cloud upon their respective titles, created by the lien of the assessment. (Charter, §208. 14 N. Y. Rep. 534.) The objection taken dn the argument, that all the persons united in interest are not made plaintiffs, is to be deemed waived, it not having been set up in the pleadings.

The judgment should be reversed, and a new trial ordered.

Ordered accordingly.