
    Wrilson S. Tifft, App’lt, v. The City of Buffalo, Resp’t.
    
      (Superior Court of Buffalo, General Term,
    
    
      Filed November 19, 1889.)
    
    1. Municipal Coepobations—Buffalo—Assessments.
    Under the charter of the city of Buffalo, the common council cannot order the sprinkling of a street at an expense exceeding $500, or make a valid assessment therefor, unless notice of intention to do so was published prior to ordering the work.
    3. Same—Action to vacate.
    An action to vacate such an assessment may be brought before the assessment roll is delivered to the city treasurer.
    
      3. Same.
    As proof of the publication is not required to be attached to the roll, its invalidity can only appear by evidence aliunde the record, and therefore an action to vacate the assessment will lie.
    Appeal from judgment in favor of defendant.
    
      Stilwell & Hill, for app’lt; W. T. Worthington, for resp’t.
   Titus, J.

This action was brought to vacate and set aside an assessment exceeding $500 for sprinkling Allen street, on which the plaintiff owns land assessed for the work.

No resolution of intention was adopted by the common council before ordering the work, and no notice of intention was published in the official paper.

It is claimed by the plaintiff that such work cannot be ordered by the common council without such preliminary proceedings being had. It thus becomes necessary to examine the provisions of the charter applicable to such work to determine the question.

Sections 18 and 19 of title 9, as originally passed by the legislature, read as follows:

Section 18. Ho work or improvements specified in this act, except those mentioned in § 7 of this title, the expense of which shall be estimated by the common council to exceed $500, shall he 07'dered, unless by the two-thirds vote of all the members of the common council, after publication in six successive numbers of the official paper of the intention to order such work or improvement.
“ Section 19. The city shall not enter into a contract with any person for the doing or making a work or improvement at a price exceeding $500 until they shall have published a notice in five successive numbers of the official paper inviting sealed proposals to do the work or make the improvement, pursuant to the plans, specifications or other proper description of the work or improvement on deposit in the office to be specified in the notice, nor until the assessment therefor shall have been confirmed.”

As the charter then stood, before the contract could be let by the city, or the work done, the expense of which exceeded $500, it was necessary, first, to publish for six successive times in the official paper notice of the intention to,order the work; second, to order the work by a vote of two-thirds of all the members of the common council; third, before entering into a contract for such work, to publish notice inviting sealed proposals, and, fourth, to make and confirm the assessment for such work.

By chap. 395 of the Laws of 1878, § 19 was amended so as to read as follows: The city shall not enter into any contract with any person for the doing of any work or improvement, at a price exceeding $200, until it shall have published in five successive numbers of the official paper inviting sealed proposals to do the work or improvement, except upon a petition of a majority of the owners of-property fronting that portion of the street, or alley, along which such improvement is to be made, when the city may grant the prayer of the petitioners, omitting the publication above specitied, and shall not enter into a contract for doing or making any such work or improvement for a price exceeding the sum of $500 until the assessment therefor has been confirmed, except upon a majority petition of property owners, as provided by § 8 of this title, when the city may contract for such work upon ordering the improvement petitioned for.”

It is clear to my mind that this section, as amended, did not dispense with the ordering of the work in the manner specified in § 18, nor was it at all inconsistent with the provisions of that section. I am not aware that any case ever arose under the section as amended in 1878, or that any construction was ever given to it by a judicial tribunal; but it must have been considered as not authorizing the city to enter into a contract for such work without first complying with the provisions of § 18, as the legislature in the following year again amended this'section, giving the city the power now contended for. By chapter 486 of the Laws of 1879 a radical change was made in this § 19, by excepting from its requirements, as to publishing for sealed proposals and confirming the assessment before entering into a contract, the work of sprinkling and watering streets, in the following explicit language: “ The common council may order any street sprinkled or watered, and the city may enter into a contract therefor, upon the petition of a majority of the resident owners upon said street, before the assessment therefor shall have been confirmed.”

It is claimed that the work of sprinkling and watering streets could be done without publishing notice of intention by virtue of the amendment, and a compliance with the provisions of § 18 dispensed with, which seems to me doubtful; then it would follow that the amendment which was passed in 1885, chap. 181, took away the power therein conferred upon the common council, and restored the section. The amendment of 1885 struck from the section the language. last above quoted, and left it so far as the power of the city to contract, without previous publication of the notice of intention to order the work is concerned, substantially as it was after the amendment of 1878. The reference in § 18 to § 7 does not relieve the difficulty, for' clearly the provisions of that section were not intended to apply to the work of sprinkling and watering streets, because it was in the charter, as originally enacted, before the question of sprinkling the streets had been introduced. Besides it particularly specifies what work may be done on petition; if the legislature had intended to include the sprinkling of streets it would have manifested such intent either in general or particular language, but no general words or phrases are used; the things which may be done on petition are mentioned, and nothing is left to inference or speculation. If the intention of the legislature is to be gathered from the course of legislation upon this subject, it seems clear that by repealing the clause which gave authority to the city by the amendment of 1879 it intended to restrict the common council in the exercise of such power, and to require a" compliance with the provisions of § 18 before making the assessment. If I am right in the construction given to these two sections, then the omission to publish notice of intention is not a mere irregularity, but a failure of the-common council to pursue the method prescribed by the charter in making the assessment, by the omission of a very important step in ordering the work done. The city can only exercise such power in assessing and collecting taxes as the statute confers, and in the exercise of such power it must follow the requirements of the statutes in all things essential. Mushlitt v. Silverman, 50 N. Y., 360 ; Merritt v. The Village of Portchester, 71 id., 309.

It will not, I think, be claimed, if the construction here given is correct, that the city had any power to order the work or make a valid assessment without first complying with the provisions of '§ 18. Stuart v. Palmer, 74 N. Y., 183; In re The City of Buffalo to take lands, 78 id., 362.

. It is no answer to the requirement of the statute that a compliance with it would cause delay in doing necessary work; the publication only requires one week’s time, and certainly an unimportant work like sprinkling streets would not suffer by such a delay; besides the desire for haste should not lead us to overlook or omit an important requirement of the statute in levying taxes and assessments upon the property of the citizen. While the statute as I conceive it to be may be an unnecessary hindrance, so long as it is a part of the charter a compliance with it is the only safe and proper course, nor should the fact that the amount of the plaintiff’s tax is small influence the disposition of the case, when the results which follow are of so much importance to every tax payer; if the common council has acted without authority the error cannot be corrected too soon.

The defendant claims that the assessment is' not a lien on the plaintiff’s property until the assessment roll is delivered to the city treasurer, and consequently the action was prematurely brought § 1, title VII, charter. I do not think the objection is well taken. A court of equity may entertain a suit not only to remove a cloud upon title, but also to prevent it. Sanders v. Village of Yonkers, 63 N. Y., 489.

The counsel for the defendant insists, that if the notice of intention to order the work should have been published, then the invalidity appears upon the face of the assessment, and a suit in equity will not lie to to remove what is not an apparent lien. Wells v. The City of Buffalo, 80 N. Y., 253; Buffalo Cemetery Association v. The City of Buffalo, 43 Hun, 127; 5 N. Y., State Rep., 394.

. This statement of the law is undoubtedly correct, but the difficulty lies in its application to the facts of this case. It is not clear how the invalidity could appear on the face of the assessment.

Proof of publication is not required to be attached to the roll, and nothing to indicate that the statute has not been complied with appears. The common council had authority to order the work and make a valid assessment, and the only way its invalidity could be made to appear would be by proof aliunde the record.

The case does not purport to contain all the evidence given on the trial, but it seems to be assumed that evidence was given to establish, the invalidity of the assessment, and the trial judge so finds in his report of the findings. It follows from what has been said, the judgment should be reversed, and as to the plaintiff, the assessment vacated and set aside with costs.

Beckwith, Ch. J., concurs; Hatch, J., not sitting.  