City of Buffalo v. Stevenson

• Decision Date: 21 January 1913
• Parties: CITY OF BUFFALO v. STEVENSON.
• Court: New York Court of Appeals Court of Appeals

207 N.Y. 258

100 N.E. 798

CITY OF BUFFALO

v.STEVENSON.

Court of Appeals of New York.

Jan. 21, 1913.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by the City of Buffalo against Arthur E. Stevenson. A Special Term judgment reversing a judgment of the Municipal Court of Buffalo in favor of defendant, and granting a new trial, was affirmed by the Appellate Division, Fourth Department (145 App. Div. 117,129 N. Y. Supp. 125), and defendant appeals. Appeal dismissed.

See, also, 146 App. Div. 886, 130 N. Y. Supp. 1107.

Henry W. Willis, of Buffalo, for appellant.

Frank C. Westphal, of Buffalo, for respondent.

GRAY, J.

The city brought this action to recover a penalty of $10 for the violation by the defendant of an ordinance which forbade the opening of a street or alley without the permission of the board of public works. In the Municipal Court of Buffalo, where the action was commenced, judgment was ordered for the defendant; but, on appeal, the Supreme Court, at Special Term and at the Appellate Division, reversed the judgment and ordered a new trial. Leave was given to appeal to this court, and the question of importance for our consideration relates to the validity of subdivision 2 of section 30 of chapter 4 of the city's ordinances. It reads as follows: ‘Before any permit for the opening of a pavement shall be granted by the bureau of engineering of the department of public works, the applicant shall pay to the city treasurer a fee of five dollars for each and every such opening between the intersecting street lines in any block. The amount of such fees to be credited to the fund-Repairs of Streets-Bureau of Engineering, Department of Public Works, by the comptroller, June 30th, each year.’ Section 30, also, provides that: ‘Any person who shall open any street or alley, for the purposes mentioned in this section, without the permission of the board of public works, or who shall fail to comply with any of the provisions of this section, shall forfeit and pay a penalty of $10 for each and every offense.’ The defendant pleaded the unconstitutionality of the ordinance, and that defense was held to be good in the opinion of the Municipal Court. The argument is that the charter of the city does not confer power to enact such an ordinance, either expressly or impliedly, and that the exaction of a fee for a permit is, in fact, a tax for revenue, not authorized by law.

[1] It was, of course, necessary to a valid exercise of the municipal power, in the enactment of this ordinance, that authority for it should be found in the charter; the organic act by which the municipality was brought into being as a corporation and endowed with corporate powers. What powers were not expressly conferred therein are only to be implied when necessarily, incidental, or essential to the exercise of those granted and to the due accomplishment of those objects of the municipal corporation, which are declared in its charter.

[2] By that instrument (see Charter L. 1891, c. 105, tit. 2, § 17, sub. 9), authority was granted to the common council to enact ordinances ‘to regulate the use of the streets and to declare in what manner and for what purposes they shall not be used.’ Section 30 was enacted under such authority and granted ‘permission to the owner, or occupant, of any lot to open a street, or alley, in front of said lot for the purpose of laying gas, sewer, or water pipes from the main pipe, or sewer, in said street, or alley, to the line of said lot or for the purpose of repairing such pipe, or sewer.’ It was further therein provided that such work was to be completed within such time as the chief engineer should direct, and that the opening in the street should be restored in as good condition as it was before made; also, the board of public works might cause such work to be done under its direction and at the expense of the owner or occupant. In connection with these provisions, subdivision 2 was enacted, and the defendant was proceeded against for having disregarded its command. He had opened the pavement of an alleyway to reach the sewer, and, though the title to the street was not in the city, there can be no question as to its being a public way and one of the streets, the use of which was to be regulated under the provisions of the charter.

I think that the grant of power to regulate the use of the streets implied the power to do all such things, or to impose all such reasonable...