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Holland v. People ex rel. Miller, County Collector

frontage. This certified bill of cost is the basis for a special tax list to be prepared by the clerk. The ordinance did not designate any officer or board to take charge of the construction, but directed the bill of cost to be certified by the chairman of the streets and alleys committee or the president of the village. The statute and ordinance were not complied with, and no certified bill of the cost of the sidewalk was ever filed. There was a notice to appellant filed with the village clerk, signed by three persons designating themselves "Committee of Streets and Alleys," which notified appellant that the 40-acre tract, the N. W. of the S. E. of section 18, was taxed by special tax levied by an ordinance for the cost of a sidewalk abutting on the same; that the total amount of the special tax was $166.64, as per items thereto annexed; and that the tax was due, and, if not paid to the village collector, would be proceeded with according to the ordinance and the statute of Illinois. Attached to this notice was a column of figures footing up $166.64, but not showing what the items were, and it was not certified in any manner. This notice or a bill was presented to appellant by the village marshal, and payment was refused. This paper did not fulfill any of the conditions of a certified bill of cost, and such a certified bill is the foundation of the special tax list to be made by the clerk. If the notice to appellant was of any consequence, it notified him of a tax on the whole 40 acres,-not only that which abutted on the sidewalk, but other land across a railway track and south of the street, which did not abut upon it, and could not be taxed to pay for it. The provision for a certified bill of costs is for the protection of the property owner, and is a necessary step in the levy of the tax. The proofs sustained the objection that this step was wanting, and it was error to overrule it.

Appellee relies upon the final order and judgment of the court to supply the want of a certified bill and other defects in the proceedings. In the final judgment the court orders that the return of the committee on streets and alleys to the village clerk, and the certificate of the village clerk to the county collector, are thereby corrected, supplied, and made to conform to the law, and that "any and every irregularity or informality in the assessment roll or tax list, or in any of the proceedings connected with the assessment or levy of such special tax, or any omission or defective act of any officer or officers connected with the assessment or levy of such special tax, be, and the same are hereby, corrected, supplied. and made to conform to law as by statute in such cases made and provided." Nothing was amended, corrected, or supplied; but the court merely ordered that everything should be all right and in accordance with the law, although it was not so in fact, or made so by amendment or correction. The revenue law is very liberal in allowing irregularities, informalities, or omissions not affecting the substantial justice of the tax to be corrected or supplied upon application for judg

Farrington v. City of Mt. Vernon

ment, but it does not authorize the court to levy a tax where none has been levied by the proper officers. The order in this case was beyond the power of the court, and not within the meaning of the statute. It is apparent that the judgment was also erroneous in including the entire 40-acre tract as described in the ordinance. The judgment is reversed, and the cause remanded. Reversed and remanded.

FARRINGTON v. CITY OF MT. VERNON.

(Court of Appeals of New York, March 12, 1901.)

[59 N. E. Rep. 826.]

Street Improvement-Assessment District-Construction of Ordinance.-N. avenue extended north and south, and P. avenue commenced at the east line of N. avenue, and extended eastward. Resolutions for the improvement of N. avenue described the assessment district as on N. avenue from the north side of P. avenue to the northerly city line. Held, that the contention that the property on the west side of N. avenue was not in the assessment district because it was not north of P. avenue cannot be sustained, since the reference to P. avenue was merely to indicate the south boundary of the district, and did not limit it to the property on the east side of N. avenue.

Street Improvement Grading Construction of Charter.-Mt. Vernon City Charter, § 186, conferred on the city the power to establish and construct grades and repair streets. Section 182 authorized the common council to determine the expense of grading or paving streets, and to assess the same on lots which front on the street; and section 187 declares that the city shall have power, on the written petition of any interested party, to alter the grade of any street. Held that, where the grade of a street had not been previously established, the leveling of it so that it could be improved was not a sufficient alteration to constitute a change of grade, within section 187, as it was not an alteration of an established grade.

Appeal from supreme court, appellate division, Second department.

Action by Charles H. Farrington against the city of Mt. Vernon. From a judgment of the appellate division (64 N. Y. Supp. 863), reversing a judgment entered on the report of a referee in favor of plaintiff, plaintiff appeals. Affirmed.

This controversy concerns North Fourth avenue in the city of Mt. Vernon, which extends north and south, and Primrose avenue, which commences at the east line of North Fourth avenue, and extends east.

Milo J. White, for appellant.

William J. Marshall, for respondent.

MARTIN, J. The purpose of this action was to vacate an assessment for the improvement of North Fourth avenue in the city of Mt. Vernon. It was based upon the theory: (1) That the plaintiff's assessment was upon property not within the assessment district prescribed and established by a resolution of the defendant's common council; and (2) that the

Farrington v. City of Mt. Vernon

proceeding which resulted in the plaintiff's assessment was a proceeding to change the grade of a street, and the provisions of the defendant's charter relating to such a proceeding were not complied with.

The validity of the first claim depends upon the meaning and effect of certain resolutions defining the extent of the proposed improvement and the district of assessment beyond which no assessment could extend. In those resolutions the improvement and assessment districts were described as on "North Fourth avenue, from the north side of Primrose avenue to the northerly city line." The learned referee before whom this action was tried was of the opinion that, as Primrose avenue did not extend across North Fourth avenue, the assessment district thus described did not include the abutting property on the west side of North Fourth avenue, but only such as abutted that street on the easterly side. He accordingly held that the plaintiff's property was not within the assessment district as thus described, and that the assessment was consequently void. That question was fully discussed by the learned appellate division, which reached the conclusion that the plain intent and purpose of the resolutions was to indicate the points where the improvement and assessment district should commence and end, that the reference to Primrose avenue was simply to fix the southern limit, and that it was not the purpose or effect of the resolutions to confine the assessment district to property on the easterly side of the street. We fully concur in that conclusion. To attribute to the city any other purpose, or to give to the language employed any other interpretation, would be too narrow and technical, if not too absurd, to be sustained. When these resolutions and the proceedings of the common council are considered, they plainly indicate that the southern boundary of the improvement on North Fourth avenue and of the assessment district was intended to commence at a point on that street where Primrose avenue intersected it, and end at the northerly city line, and were intended to include all the lots upon that street on the westerly as well as the easterly side. If there was any ambiguity or uncertainty as to the meaning of the language, it should be so interpreted as to carry into effect the purpose of the resolutions, to be determined upon a consideration of all the words employed, in the light of the facts and circumstances surrounding or accompanying their adoption. When thus considered, it is obvious that the intent and effect of the resolutions were to include in the assessment district the property on both sides of North Fourth avenue between the north side of Primrose avenue and the northerly city line.

This leads to the consideration of the question whether the proceedings which resulted in the assessment complained of were to change the grade of North Fourth avenue, within the meaning and intent of section 187 of the defendant's charter.

Farrington v. City of Mt. Vernon

We think they were not. The provisions of the defendant's charter relating to the construction, regulation, and grading of its streets, and in relation to the change or alteration of street grades, so far as applicable, may be thus summarized: Section 180 confers upon the city the power to establish the grade, construct, make, grade, regulate, and repair the streets, highways, sidewalks, bridges, sewers, and aqueducts within its limits, or to cause them to be constructed, graded, or repaired. Section 181 relates only to sewers. Section 182 provides that the city may contract for the regulating, grading, paving, or graveling of its streets or highways, and assess upon the several lots of land benefited thereby two-thirds of the expense thereof, in proportion to the benefit that shall arise from such improvement. Then follows the procedure to be adopted in contracting for the work and in making and reviewing the assessment therefor. It further provides that, whenever the common council shali determine to regulate, grade, regrade, or pave any street or highway, or any part thereof, it may direct a curb to be set, and gutters to be made, and that the expense therefor shall be assessed with the expenses of regulating, grading, or paving in the same assessment upon the lots which shall front upon such street or highway. Section 186. These sections confer upon the city express power to establish the grade, construct, make, grade, regulate, and repair its streets, or to cause it to be done. When we refer to section 187, upon which the appellant relies to support this second contention, we find that it provides for the alteration of street grades, and declares that the city shall have power, on the written petition of any party interested, to alter in the manner pointed out the grade of any street or highway, or any part thereof. Then it provides the practice to be adopted, and declares that, if the owner of any building or other structure shall file a claim for damages to such building or structure arising from such alteration, the damages may be estimated by commissioners to be appointed as therein stated, and that they may be awarded, provided the building or structure shall have been built with reference or to conform to a previously established grade. Manifestly, that section has no application to this case, where the defendant has constructed or repaired one of its streets in pursuance of the power conferred by sections 180 and 182 of that act. The change that was made in the grade of North Fourth avenue was to level its surface only so far as was necessary to enable the city to properly construct the street. There was no proof that any grade had been previously established. On the contrary, the evidence was that North Fourth avenue was a mere public highway, and that, to properly construct or repair it, it was necessary to level and grade it to the extent and in the manner it was proved to have been done. That was the only change as to the grade which was made, and falls far short of such an alteration or change as was intended by sec

Haughawout v. Hubbard

tion 187. The obvious purpose of that section was to permit the alteration or change of the general grade of a street which had been previously established, where buildings or other structures had been erected with reference to such grade. In other words, the chief object of that section was to authorize the change of an established grade, and to provide a method of indemnity to persons whose buildings or structures were injured by such general alteration or change. But it has no application where, as a mere incident of an improvement or construction of a street, the leveling of its surface or bringing it to a proper grade is required. We are of the opinion that the proceedings in this case were regular, that there was no such change or alteration of the grade of North Fourth avenue as to bring it within the provisions of section 187, and that the improvement under the previous sections of the defendant's charter was fully authorized. The order should be affirmed, and judgment absolute ordered for defendant, on the stipulation, with costs.

PARKER, C. J., and GRAY, O'BRIEN, BARTLETT, VANN, and CULLEN, JJ., concur. Ordered accordingly.

HAUGHAWOUT v. HUBBARD et al. (L. A. 799.)

(Supreme Court of California, Feb. 25, 1901.)

[63 Pac. Rep. 1078.]

Sewer Improvements-Control by Council-Delegation of PowersInvalid Assessments.-Finlayson, St. Laws, p. 9, § 3, requires the city council, before contracting for sewer improvements, to pass and publish a resolution of intention "describing the work" proposed, and provides that the city engineer shall make plans and specifications and estimates of the cost thereof, which, by Id. p. 42, § 5, become part of the contract, to be awarded when approved by the council. Id. p. 61, § 6, provides that the work must be done under the direction and to the satisfaction of the superintendent of streets. The ordinance of intention for the work required it to be done in accordance with plans and specifications on file in the city clerk's office, one of which provided that, "when the ground does not afford a sufficiently solid foundation, the contractor shall excavate the trench to such increased depth as the street superintendent may decide to be necessary, and shall then bring it up to the required level and form with such material and in such manner as the street superintendent may direct." Held, that an assessment levied for work done under a contract based on such plans and specifications was not invalid on the ground that such specifications delegated to the street superintendent powers of the council.

Department 2. Appeal from superior court, Los Angeles county; Lucien Shaw, Judge.

Suit by W. J. Haughawout against Laura A. Hubbard and others to foreclose an assessment lien on a certain lot for sewer work. From a judgment in favor of the defendants, plaintiff appeals. Reversed.

H. J. Stevens and A. B. McCutchen, for appellant.
Mulford & Pollard, for respondents.

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