
    Orville Balch, Appellant, v. The City of Utica, John A. Cantwell, as Clerk of the City of Utica, and Henry Stappenbeck, Respondents, Impleaded with Thomas E. Kinney, as Mayor of the City of Utica.
    (No. 1.)
    
      Oity of Utica — its common council Jias power to contract for the removal and reduc-. tion of the city garbage.
    
    Under the charter oí the city of Utica, (Laws of 1862, chap. 18) and the acts amendatory thereof, authorizing the common council of that city to make such ■ ordinances as it may deem expedient for the health of the inhabitants and to abate nuisances, and chapter 667 of the Laws of 1894, giving the local authorities of cities power to enter into contracts with the owners of any process or apparatus for the purification of water and sewerage, and tó contract fertile use of the apparatus and process for a term of years or for the purchase of the same, the common council of that city has ample power to enter into a contract for the removal and reduction of the city garbage for a term of years.
    The power of the common council in this-respect is not limited by a provision of the charter imposing upon the owner or occupant of premises within the city the duty to remove therefrom and cleanse or abate any nuisance upon the premises, and to remove or destroy any unwholesome or offensive substance, and requiring the common council to provide by resolution that the owner or occupant of premises perform such duty.
    Appeal by the plaintiff, Orville Balen, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Oneida on the 6th day of March, 1899, upon the decision of the court, rendered after a trial at the Oneida Special Term, dissolving an injunction theretofore granted in the action and dismissing the complaint upon the merits.
    . Edwin H. JRisley, for the appellant.
    
      G. C. Morehouse, for the respondents City of Utica and Cantwell, clerk.
    
      S. M. Lindsley, for the respondent Stappenbeok.
   Nash, J.:

This is a taxpayer’s action to set aside the proceedings of the common council of the city of Utica, and to restrain the mayor and clerk of the city from signing and delivering a contract directed by the common council to be made by and on behalf of the city with the defendant Stappenbeck.

There is no case before us; the appeal not having brought up anything but the judgment roll, the only question here is, whether or not the findings of fact sustain the conclusions of law.

There is nothing in the findings to support the allegations of the complaint that the act of the common council in accepting the bid of Stappenbeck.was fraudulent, corrupt and illegal, or beyond the powei-s of the council as granted by the charter of, the city and the laws of the State, or that the alleged proposed acts of the mayor and clerk are illegal and in violation of the rights of the plaintiff and other taxpayers of the city.

The court found that the city of Utica is a municipal corporation duly organized and incorporated, under and pursuant to the statutes of the State of New York; that it has a common council, composed of a mayor and fifteen aldermen, one alderman for each of the fifteen wards of the city, but that the mayor has no vote as such member of the common council, except in the case of a tie vote in the election or appointment "of an officer or committee by the-common council.

That under and by virtue of said statutes said city of Utica has power to sue and be sued, complain and defend, use a common seal and receive by 'gift, grant, devise, bequest or purchase, and hold and convey such real and personal estate as it may require.

The court made a further finding of fact numbered V:

“ Y. That under and by virtue of said statutes the said common council was authorized and empowered among other things as follows:

“ 1. To have the care, management and control of the property of the city and its finances. .

“ 2. To ordain and make ordinance's such as it shall - deem expedient for the good government of the city, for the benefit of trade, commerce and .health of the inhabitants thereof, and to prevent, abate and remove nuisances, and to take such means as it shall deem necessary to prevent the introduction in the city or the spreading therein of any pestilential or infectious disease, and to lay out and repair streets, drains and sewers with all necessary wells, grates and other things requisite and proper therefor and to clean the same.

“ 3. To audit all claims and accounts against the city, and raise, levy and collect taxes upon the property within said city for defraying the expenses of public improvements therein and the contingent and other expenses thereof so audited, not exceeding forty thousand dollars per annum, exclusive of the expense of collecting the same.

4. To enter into contracts for and on behalf of said city for the purposes and powers mentioned in this fifth finding.”

The court further found that 'prior to the commencement of this action the common council had leased from one William Hatfield certain lands located within said city and upon the banks of the Mohawk river to be used, and which for several years last past were used,, as a dumping ground for the offal, garbage and night soil collected in said city from the houses and ¡premises of the inhabitants thereof, which said offal, garbage; and night soil were deposited upon the surface of said lands; that in the spring and fall of the year the waters of the said Mohawk river were accustomed to rise and overflow said dumping grounds of said Hatfield and transport and carry away therefrom large quantities of said offal, garbage and night soil into and with said overflowing vyaters as they flowed past and over said dumping grounds,

That said Mohawk river is a public, navigable stream of water; that the said .deposit of said offal, garbage and night soil upon said grounds was a damage and a menace to the health of the inhabitants of said city, and was a public nuisance, and numerous complaints concerning such use of said grounds had been made to the health officers of said city by the inhabitants thereof, and the same had been communicated by said health officers to the aldermen of said city prior to the making of the cpntract hereinafter mentioned.

That on or about June 17,1898;, said common council duly directed: that specifications be prepared for disposing of said offal, garbage and night soil in a sanitary manner and filed with the city clerk, and when so filed .the city clerk;was directed to publish notices for proposals for such disposition thereof^ and that said specifications were duly prepared and filed, and said notices were thereafter duly published by the city clerk in the official newspapers for at least three times.

That on or prior to July 1,1898, four sealed proposals under such specifications and notice were received by the common council, duly opened by the mayor in the presence of and at a regular meeting of said common council held on July 1, 1898, and were canvassed thereat by the city surveyor ; that three of said proposals complied with the requirements of said specifications, to wit:

McKeough Bros., for a term of five years, at $18,000 per year, and for ten years at $12,000 per year.

One by Dirk, Briscoll & Co., for five years, $11,000 per year, and for ten years at $10,000 per year.

•One by defendant Stappenbeck, for five years, at $8,000 per year, and for ten years for $6,500 per year.

The fourth proposal was by said Hatfield to dispose of the same by means of trenches at $2,000 per year, which said Hatfield’s proposal was not in compliance with said specifications.

That on or about July 15, 1898, at a regular and public meeting of said common council, said common council duly accepted said proposal of said Stappenbeck, upon a yea and nay vote, upon a roll call, by vote of thirteen in favor and none against, and upon like vote and roll call said common council duly passed an ordinance for the disposal of said offal, garbage and night soil for the term of ten years, and duly directed upon like vote and roll call the mayor and clerk to. enter into said contract with said Stappenbeck, according to said ordinance and acceptance.

That on or about July 29, 1898, .said mayor vetoed said action of said common council, and. at said July 29, 1898, at a regular and public meeting of said common council, said common council, upon a yea and nay vote, upon a roll call, by a vote of eleven in favor and two against, duly passed the following resolution :

Resolved, That the resolution of the council stand, notwithstanding the objections of the mayor.”

Which said resolution and proceedings were thereupon duly entered in the proceedings of the common council and duly signed by its clerk.

That thereafter the contract set forth in the complaint was prepared and duly signed by said Stappenbeck.

That thereafter an injunction was procured by the plaintiff restraining the mayor' and clerk from signing said contract.

We think the conclusions of law that the contract was and' is a valid contract binding upon the city, and that the injunction 'which had been obtained in the action should he dissolved and the complaint dismissed lawfully follow as a matter of course, from the findings of fact, and that the judgment dismissing the Complaint, with costs, should, therefore, be affirmed.

We are also of the opinion .that, under the charter of the city (Chap. 18, Laws of 1862), and acts amendatory thereof, referring to the provisions thereof which are disclosed by the pleadings and referred to in briefs of counsel,, reading into the charter chapter 667, Laws of 1894, giving to The local authorities of the several cities of the State power to enter into contracts with the owners of any process or apparatus for the purification of water and sewerage, and either contract for the use of the apparatus and process for a term of years, or for the purchase of the same, as to them shall seem advisable, the common council has ample power to enter into a contract for the removal and reduction of the garbage of the city for a term of years. We do not think that the provision of the charter imposing the duty upon the owner or occupant of premises within the city to remove therefrom and cleanse or abate any nuisance on the premises, and to remove or destroy any unwholesome or offensive substance or substances likely, to become unwholesome from any street, lot or building, and the duty imposed upon the common council to provide by resolution that the owner or occupants of premises perform these duties, limited the common council to that method of removing or preventing nuisances, or prevented the local authorities from taking, such measures and adopting such means for the removal and reduction of garbage at the expense of the city as might be deemed necessary for the protection of the public health. This method of taking care of and removing the garbage of the city has of late yeafrs been discontinued and the method of removal by the city adopted. The practice of dumping it on land within the city limits and on the banks of the Mohawk river has not only created a nuisance as the garbage lay upon the land awaiting the coming of freshets to carry it away, but it is a. practice which, as the stream is navigable, would undoubtedly, upon proper complaint, be interfered with by the State. The people of Utica should have the benefit of the best modern sanitary means adopted for the preservation of health and the prevention of pestilence ; and we think that, under the fair and liberal interpretation of the statutes which should prevail, it may be given to them.

We regard the numerous suggestions of illegality in the proceedings of the common council in making the contract under consideration untenable.

All concurred.

Judgment affirmed, with costs.  