
    Thompson v. Schermerhorn.
    
      Municipal corporation.
    
    A municipal corporation, in an ordinance for the grading and paving of its streets, must conform strictly to the power conferred, or its proceedings will be void.
    If the statute conferring the power provide that the work shall be done in such manner as the common council may prescribe, an, ordinance directing a street to be graded and paved, in such manner as the city superintendent, under the directions of the committee on roads of the common council, shall prescribe, is void ; it does not follow the power conferred.
    Thompson v. Schermerhorn, 9 Barb. 152, affirmed.
    Appeal from the general term of the Supreme Court, in the fourth district, where a judgment for the defendant, entered upon the report of a referee, had been affirmed. (Reported below, 9 Barb. 152.)
    This was an action of assumpsit, by the Treasurer of the city of Schenectady, to recover the cost of pitching, grading, paving and flagging a street in that city, in front of lots owned by the defendant, amounting to about $820.
    The declaration set forth an act of the legislature, entitled “ an act relative, to the. city of Schenectady,” passed the 29th April 1833, c. 293, the 34th section of which provided that “ the common council of the said city may, from time to time, make and establish by-laws and ordinances, ordering and directing any of the streets or lanes in the said city, or any parts of them, to be pitched, levelled, paved, flagged, macadamized, or covered with broken stone, gravel or sand, or for the altering or repairing the same, within such time, and in such manner, as they may prescribe, under the superintendence and direction of the city superintendent; and in case the owners or occupants *of any houses or lots in any such streets or lanes, shall neglect *- or refuse to comply with the requisitions of any such by-laws or ordinances, it shall and may be lawful for the said common council, to cause so much of the said streets or lanes in front of the houses or lots of the person or persons so neglecting or refusing, to be conformed to such by-laws or ordinances, under the direction of the said superintendent; and upon the production by the said superintendent to the said common council, of an account, certified under his oath of office, of the expenses incurred in conforming the same to such by-laws or ordinances, and the allowance and payment thereof by the said common council, it shall and may be lawful for them to sue for and recover from such owners or occupants, or their legal representatives, in the name of the treasurer of the said city, the amount of such expenses, with interests and costs, in any court having cognisance thereof, in an action on the case, for so much money paid, laid out and expended for such owners or occupants,” &c.
    That in pursuance of the authority thus conferred, the common council of the said city, on the 30th October 1833, passed an ordinance in these words :
    “ § 1. The owners or occupants of any house, building, or lot or lots of ground, fronting that part of State street lying between the western termination of the Albany turnpike and a straight line across State street, from the west side of a lane leading from State street to J. M. Schermerhorn’s plaster-mill, are required, by the twentieth day of June next, to cause that part of the said street above designated, in front of their respective buildings and lots, to be pitched, levelled and paved to the centre of the said street, at their own expense, in such manner as the city superintendent, under the direction of the committee of roads of the common council, shall direct and require.
    “ § 2. The owner's or occupants of any such house, building; lot or lots of ground, fronting that part of State street specified in the first section of this act, are required, by the said twentieth day of June next, to ^ ^ cause the side-walks' opposite their *respéctive -* buildings or lots, to be pitched, levelled and flagged, at their own expense, in such manner as the city superintendent, under the direction of the committee on roads of the common council, shall direct and require.
    “ § 3. Any and every of the said owners or occupants, who shall neglect or refuse to conform the street or sidewalk in front of their houses or lots, to the requisitions of this ordinance, within the time above limited for the purpose, shall forfeit and pay the sum of ten dollars; arid in case of such neglect or refusal on the part of' such owner or occupant, it shall be the duty of the said superintendent, without delay, to cause the street or sidewalk opposite to the house, building or lot of any-such owner or occupant, so neglecting or refusing as aforesaid, to be conformed to the requisitions of this ordinance, and the expense to be incurred thereby shall be borne by such owner or occupant, and shall be certified by the said superintendent to the common council, and recovered from such owner or occupant, in the name of the treasurer of said city, for the use and benefit of said city.
    “ § 4. It shall be the duty of the treasurer of this board, to sue for and collect, in his own name, the above penalty, whenever incurred.”
    That on the 8th May 1846, the common council of the said city passed another ordinance or by-law, in the following words:
    “ Resolved, that unless the owners or occupants of any house, building, lot or lots of ground, fronting that part of State street lying between the western termination of the Albany turnpike and a straight line across State street, from the west side of a lane leading from State street to J. M. Schermerhorn’s plaster-mill, comply with the law ór ordinance passed the 3d of October 1843, directing the paving of the east end of State street and curbing and flagging the side-walks, by the 20th of May inst., that the superintendent of streets, under the direction of the committee on roads, be directed forthwith to do such paving, curbing and flagging.”
    The declaration then averred that the defendant had notice of these ordinances; and that at the time when they were passed, he owned and occupied property on State street. It then set forth the several proceedings which' were had in making the improvement in question, under and by virtue of the act of the legislature and the above ordinances; and the payment by the city of the expense incurred in improving the street opposite the defendant’s land; and averred notice to ‘ him of the amount, and a promise to pay. The declaration also contained the common money counts.
    *The defendant demurred to the declaration, f ^ and the plaintiff joined in demurrer; the cause L was referred, and the referee reported in favor of the defendant; the plaintiff moved at general term, to set aside the report, on a case made; the motion was there denied, and judgment perfected in favor of the defendant ; whereupon, the plaintiff took this appeal. i
    
      Reynolds, for the appellant.
    
      Hill, for the respondent.
   Foot, J.

— The decision of this cause turns on the true construction of the 34th section of an act relative to the city of Schenectady.’” (Laws of 1833, p. 457.) By that section, the common council of- the city are authorized to make “by-laws and ordinances, ordering and # gg directing any of the streets * * *to be pitched, -* levelled, paved, flagged, * * * or for the altering or repairing the same, within such time, and in such manner, as they may prescribe, under the superintendence and direction of the city superintendent.” The common council passed an ordinance, in October 1843, by which they directed State street, between certain points, “ to be pitched, levelled and flagged * * * in such manner as the city superintendent, under the direction of the committee on roads of the common council, shall direct and require.”

The question is, whether this. ordinance is in pursuance of the authority given by the statute; and the answer is ascertained, by inquiring whether the common council must, by their ordinance, specify the manner in which the improvement is to be made, or may leave such specification to the city superintendent and a committee of their body. I am satisfied, that the legislature "intended to place the responsibility of determining the mode and manner, or in other words, the plan of the improvement, upon the common council. The trust is an important and delicate one, as the expenses of the improvement are, by the statute, to be paid by the owners of the property in front of which it is made. In effect, it is a power of taxation, which is the exercise of sovereign authority; and nothing short of the most positive and explicit language can justify the court in holding, that the legislature intended to confer such a power on a city officer or committee. The statute not only contains no such language, but on the contrary, clearly, to my mind, expresses the intention of confining - the ‘ exercise of this power to the common council, the members of which are elected by and responsible to those whose property they are thus allowed to tax.

I concur mainly in the views of the supreme court, expressed by Mr. Justice Cady in delivering the opinion of that court.

Judgment affirmed. 
      
       See to the same effect, Birdsall v. Clark, 73 N. Y. 73.
     