Ashton v. City of Rochester

• Decision Date: 19 April 1892
• Citation: 133 N.Y. 187,30 N.E. 965
• Parties: ASHTON et al. v. CITY OF ROCHESTER et al.
• Court: New York Court of Appeals Court of Appeals

133 N.Y. 187

30 N.E. 965

ASHTON et al.

v.CITY OF ROCHESTER et al.

Court of Appeals of New York.

April 19, 1892.

Appeal from supreme court, general term, fifth department.

Action by John H. Ashton and others against the city of Rochester and Samuel B. Williams, as treasurer of said city, to enjoin the collection of assessments for a public improvement. From a judgment of the general term affirming a judgment for defendants at special term, plaintiffs appeal. Affirmed.

Parker & Drake, (John & Q. Van Voorhis, of counsel,) for appellants.

Charles B. Ernst, (Henry J. Sullivan, of counsel,) for respondents.

O'BRIEN, J.

The plaintiffs sought to enjoin the collection of a local assessment, alleged to be apparently valid but in fact void, imposed by the municipal authorities of the city of Rochester to defray the cost of a local improvement. The record shows that the plaintiffs are, respectively, the owners of parcels of real estate situate on Lake avenue, between Vincent place and Lyel avenue and Driving Park avenue, which have been assessed for the improvement. They brought this action in their own behalf and in behalf of all other persons having property fronting on the street, and assessed for the improvement, for the purpose of obtaining a judgment declaring the assessment null and void, and enjoining the city treasurer, who is also made a defendant, from issuing his warrant for the collection thereof. The courts below have determined the controversy against the plaintiffs' contention, and the only question here is whether there is any legal error in that determination. The question is really one of jurisdiction in the authorities to make the assessment. Under the charter of that city (Laws 1880, c. 14) the common council has power to order the paving and improvement of any street, and to pass the necessary ordinances, requiring the same to be done, and to determine the manner and cost of such paving, and to designate the portion of the city which should bear the expense thereof. The work, when authorized and determined upon, is to be performed by contract; but the power of contracting for the execution of the work is, by the charter, devolved upon another, separate, and independent body, called the ‘Executive Board.’ The power of this board to let and supervise the execution of the contract commenes only after the common council has authorized the work, and designated the district upon which the assessment is to be laid. When the common council has authorized the particular improvement, and described the district upon which the assessment is to be imposed, and ascertained the expense thereof, then the assessors of the city are to levy the amount upon the several lots or parcels of real estate in the designated territory in proportion, as near as may be, to the benefit which such lot or parcel shall be deemed by them to have received by reason of the improvement, subject to the correction and confirmation of the common council. The assessment, when completed and confirmed, becomes a lien upon the several lots designated in the roil, and the same is delivered to the city treasurer, whose duty it is to collect the same.

On the 11th of December, 1888, the common council duly adopted a resolution providing for paving the streets and avenues above mentioned with asphalt pavement, and therein directed the clerk to publish notice in accordance with the provisions of the charter for all persons directed to be assessed to appear at a meeting of the council December 26, 1888, at which time all persons interested could be heard. At this meeting, after hearing all parties interested, the common council adopted the final resolution for the improvement, in which the work is particularly specified, and the whole expense thereof directed to be assessed upon the property therein described. There is no criticism made upon the form or sufficiency of the resolution, or the regularity of any of the proceedings up to this point. The resolution, however, did not become operative, for the reason that it was vetoed by the mayor, till January 8, 1889, when it was again unanimously adopted, notwithstanding such veto. By reference to title 7 of the charter, it will be seen that the executive board is clothed with very extensive powers, and intrusted with very important duties. The members are elected by the people, are required to devote their entire time to the business of the city, and are compensated by a fixed salary. They have the control of the expenditure of the funds for street purposes, and they are expressly made commissioners of highways of the city. The board can appoint and remove at pleasure the superintendent of streets, and fix his compensation. It is plain, from reading the enumeration of the various powers conferred upon the board by the charter, that the legislature intended to strip the common council of Rochester of most of the ordinary functions and powers that such a body exercises in other cities, and trans them to the executive board. The common council has very little to do with respect to the care, improvement, and superintendence of the streets. The most important exception to this is the provision that whenever the expenses of any work or improvement shall be required to be paid for by a local assessment the common council alone shall have power to pass the ordinance therefor. But, when the common council has passed such an ordinance, then the judgment and discretion with respect to such an improvement, which the charter has confided to the board for the public good, is at once called into action. The question as to the necessity and propriety of improving a street by local assessment must be passed upon by the common council in the first instance, but, when that body makes its decision, another body, intrusted by law with the general subject of street expenditures tures and improvements, must carry it out; and the latter body is thereby vested with jurisdiction on the subject. On the 19th of March, 1889, and more than a month after the resolution was passed and sent to the executive board, a motion was made and adopted in the common council ‘that action on the final ordinance for Lake avenue * * * be reconsidered;’ and at a subsequent meeting on March 28, 1889, another resolution was passed, ‘that further action on the pending final ordinance for Lake avenue asphalt improvement be indefinitely postponed,’ and that the surveyor be ordered to prepare a new first ordinance for the improvement. The plaintiffs claim that this motion and resolution had the effect to withdraw from the board all authority conferred by the original resolution. The executive board, after receiving the copy of the first resolution, proceeded to act, and advertised for bids and received the same, and on March 12, 1889, postponed action thereon from time to time until March 29, 1889, when it laid the matter on the table. On the 25th of April, 1889, the board was served with a peremptory writ of mandamus from the supreme court, granted after a full hearing, requiring them to award the contract, and to show to the court, on a day subsequently, in what manner the writ was obeyed. On the 29th of April the board entered into a written contract for the work, in accordance with the first ordinance. The contract was performed, and on the 18th of October, 1889, the board certified the cost to the common council, in conformity with the charter; and that body then directed the assessor to assess the amount upon the parcels of land described in the original resolution. The assessors made the assessment, and published notice of a hearing for all persons aggrieved, and after such hearing certified the roll, and delivered it to the common council. That body also published notice for a hearing before them, and after such hearing confirmed the assessment, and caused the roll to be delivered to the city treasurer for collection. The resolution of the common council,...