Gilmore v. City of Utica

CourtNew York Court of Appeals
Citation24 N.E. 1009,121 N.Y. 561
PartiesGILMORE v. CITY OF UTICA et al.
Decision Date17 June 1890

OPINION TEXT STARTS HERE

Appeal from supreme court, general term, fourth department.

The Utica City Railroad Company was organized under the general railroad act in 1862, and it applied to the common council of the city for permission to lay its tracks in the streets; and permission was given ‘upon condition, nevertheless, that the said railroad company shall and doth construct the said railroad upon the most approved plan, and in a secure and substantial manner, and replace, and keep in good repair, the pavement between, and at least two feet in width on each outer side of, the tracks, the whole to be done subject and according to the directions of the city surveyor.’ The railroad was built through Genessee street, and has been maintained there ever since. The Utica Belt Line Street Railroad Company, on the 1st day of December, 1886, became the lessee of the road for 99 years, and has since been in possession of and operated the same. On the 28th day of May, 1888, the city duly made a contract with the Warren-Scharf Asphalt Paving Company for paving Genesee street, and that company fully performed its contract, and paved the street; and the expense thereof was upwards of $100,000. After deducting one-third of the entire expense, the remainder was assessed upon the property fronting on the street. The plaintiff's property was thus assessed, and he complains that the assessment is illegal, because the railway company should have paid or borne the expense of paving between its tracks, and for two feet on each side thereof, and the expense of that portion of the pavement should not have been included in the assessment; and he brought this action to restrain the enforcement of the assessment, and to have it declared illegal and void; and, the supreme court having decided in his favor, the city has appealed to this court.

A. M. Beardsley, for appellant.

W. A. Matteson and P. C. J. De Angelis, for respondent.

EARL, J., ( after stating the facts as above.)

It was found by the trial judge that at the time the city entered into the contract with the Warren-Scharf Asphalt Paving Company, the pavement in Genesee street ‘was worn out, in very bad and dangerous condition, and was all cut up and rough, and a new pavement was necessary.’ Under such circumstances, it was the duty of the city to cause the street to be repaved. Under its charter the general duty is imposed upon it to repair, pave, and repave its streets; and ample provisions are contained in its charter to enable it to discharge this duty. Chapter 18, Laws 1862, as amended by chapter 28, Laws 1870, chapter 426, Laws 1887, and by other acts. In the act of 1862, § 99, the entire expense of paving and repaving streets was required to be assessed upon the lots fronting upon the streets, in proportion to their number of feet frontage. By the amendments to the charter passed in 1887, where any street has been paved or repaved, the common council is required to ascertain the whole expense thereof, and, after deducting therefrom one-third, to be borne and paid by the city, it is required to assess the remaining two-thirds upon the property fronting upon the street, and the assessment complained of was made in this way. If there were no other statutes bearing upon the case, there would be no doubt that this assessment was properly made, and legal. It was the duty of the city, and it had authority, to cause the paving to be done; and it caused the assessment to be made in precise accordance with the law.

In section 79 of the charter of 1862, it was provided that the common council should have the power to perform the duties, and be subject to the liabilities, of commissioners of highways in towns, with the exceptions and modifications contained in that act; and it was provided that it should have power (1) to lay out, open, make, amend, repair, alter, extend, widen, contract, and discontinue streets,’ etc.; (2) to clean the same, and to pass ordinances requiring the same to be kept clean and in proper order,’ etc.; (3) to require, direct, and regulate the planting, rearing, and preserving of ornamental trees in the streets and public grounds of the city; (4) to lay out, improve, and ornament public parks and pleasure grounds, and to pass ordinances and regulations concerning their regulation and use.’ And, by the amendment of section 79 in 1870, subdivision 5 was added, as follows: (5) To regulate the operating and running of street-cars through any of the streets of the city; to cause the company or companies owning said railroads or tracks to keep the parts of the street occupied by them in good condition, and, whenever in the opinion of the common council it shall be necessary or proper, to cause any company or companies having two or more tracks laid through any street to remove such track or tracks in excess of one track; and, whenever the common council shall determine to pave any unpaved street in which said railroad track shall be laid, the common council shall have authority to cause said company or companies to move said track or tracks, and place the same on such portion of said street as the common council may direct. The common council is hereby authorized to require all railroad companies operating street railroads in any of the streets of the city to repave between their tracks, and at least two feet in width on each side thereof, whenever the common council shall deem such repavement necessary. But nothing contained in this section shall be so construed as to impair any rights which have heretofore been granted to, or acquired by, the Utica City Railroad Company.’ The plaintiff claims that, by virtue of the italicised portion of this section, the railroad company was absolutely bound to pave, or bear the expense of paving, the street between its tracks, and for two feet in width on the sides thereof, and that the city, therefore, had no authority to impose the expense of such paving upon the property fronting upon the street.

We do not think that the provision quoted is mandatory, so as absolutely to bind the city to impose the expense of the paving therein specified upon the railroad company. Whether the common council should require the railroad company to do this paving was discretionary with it, and its discretion was to be exercised in view of all the circumstances; and if it determined, for any reason, that it would not be just, legal, or proper to impose the burden upon the railroad company, it could omit to do so. It will be observed that the powers conferred upon the common council in section 79 are generaly discretionary. Certainly, everything else contained in sudivision 5 is discretionary. We know of no rule of law which requires or authorizes the courts to hold that such language, used under such circumstances, is mandatory, and imposes an imperative duty upon the common council, leaving it with no discretion whatever. There is no arbitrary rule for the construction of such language. The purpose of construction and interpretation is to ascertain the legislative intent, and to that end it is the general rule that words must receive their ordinary signification, unless it can be seen that the law-makers meant that they should have a more limited or more enlarged signification. Generally, permissive words used in statutes conferring power and authority upon public officers or bodies will be held to be mandatory when the act authorized to be done concerns the public interest, or the rights of individuals. Minor v. Bank, 1 Pet. 46;Thompson v. Carroll, 22 How. 422;Newburgh & C. Turnpike Road v. Miller, 5 Johns. Ch. 101;Malcom v. Rogers, 5 Cow. 188; Mayor v. Furze, 3 Hill, 612;People v. Board, 51 N. Y. 401;People v. Board, 68 N. Y. 114. The language is held to be mandatory in such cases, not arbitrarily, but because such is supposed to have been the legislative intention. There must be a definite, plain, public interest, or a vested, well-defined, private right; and then it will very justly be supposed that the legislature meant to subserve or protect the public interest, or to give or secure the private right. In Thompson v. Carroll, Mr. Justice GRIER, speaking of the cases where the word ‘may’ may be construed to mean ‘must,’ said: ‘It is only where it is necessary to give effect to the clear policy and intention of the legislature that such a liberty can be taken with the plain words of a statute.’ In Minor v. Bank, Mr. Justice STORY, speaking of the cases where permissive words in a statute may be held to be mandatory, said: ‘Without question, such a construction is proper in all cases where the legislature mean to impose a positive and absolute duty, and...

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    ...In matter of Garvey, 77 N.Y. 523; In matter of Grube, 81 N.Y. 139; Jex v. Mayor, 103 N.Y. 536; In matter of Smith, 99 N.Y. 424; Gilmore v. City, 121 N.Y. 561; City Palmer, 67 Iowa 681; Boyd v. City, supra; Adams v. City, 105 Wis. 363; Dickinson v. City, 111 Mich. 480; Burckhardt v. City, 10......
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