
    The People of the State of New York ex rel. Robert Govers, Relator, v. The Village of New Rochelle, William H. Matthews and Others, Constituting the Board of Health of the Village of New Rochelle, Respondents.
    
      The proceedings preliminary to the levying of a village tax are jurisdictional — audit of accounts entering into it, hy the trustees—review of, hy certiorari—right of a hom'd of health to construct a sewer.
    
    The several requirements of a. village charter, that, before the levy of the annual tax shall be made, the tax shall be apportioned among the taxable inhabitants and their property ; that a prescribed notice shall be given of the completion of the assessment rolls ; that a copy of the assessment shall be left with the village clerk for public inspection during a definite period, and that notice shall be given of the time and place at which the assessors will meet to review the assessment upon the application of any person aggrieved, are jurisdictional in their nature and a compliance therewith is necessary to make the levy of the tax lawful.
    The auditing by the trustees of a village of bills incurred for the cost of a drain, and included in an annual tax levy, is a judicial function, and the audit may be reviewed by a taxpayer by a- writ of certiorari.
    It is doubtful whether the board of health of a village has a right under sections 21 and 25 of the Public Health Law (Chap. 66Í of the Laws of 1893) to contract for the construction of a drain which is, in fact, a part of the public sewerage system of the village.
    Certiorari issued out of the Supreme Court and attested on the 11th day of February, 1897, directed to The Village of New Rochelle and William H. Matthews and others, constituting the board of health of New Rochelle, commanding them to certify and return to the office of the clerk of the county of Westchester all and singular their proceedings in relation to ■ the construction of a drain by the board of health and the auditing of the expense thereof and the levying of an assessment upon the taxable property of the village for the purpose of raising money, to pay for the drain.
    
      J. A. Young, for the relator.
    
      Michael J. Tierney, for the respondent, The Village of New Rochelle.
    
      JR. McKinlay Power, for the respondent, the Board of Health.
   Goodrich, P.J.:

The village of New Rochelle is a municipal corporation organized by a special act of the Legislature, and the other defendants constitute the board of health of the village, pursuant to chapter 661, Laws of 1893, known as the Public Health Law.

In June, 1896, a complaint was .made, to the board of health that a nuisance existed upon the lands of one O’Connor and of one Kendall, resulting from the . emptyings of an old drain. After ■ investigation the- board of health ordered thé suppression and removal of the nuisance, and directed Mehrer, one of its members, . to abate it, and in pursuance of this order a drain was constructed under the direction of Mehrer a quarter or half mile in length at a cost of $2,192.34, the board of health buying the material for and constructing the drain by day’s work. The bills for the work.were presented to the board of trustees of the village, which audited and allowed the same, and on January 14, -1897,. levied' the annual assessment for 1891 upon the taxable property of the village, including the cost of the drain.

The relator, a taxpayer in the village,, on -February eleventh, and before the delivery of the warrants for the collection of the assessment, which was on March nineteenth, commenced this, proceeding - to have the actions of the board of health and the village declared ■illegal on the ground that the cost of the drain was not a legal charge upon his. property.

Sections 21 and 25 of. the Public Health Law confer upon the' board of health power without, publication to make such orders and regulations for the suppression of nuisances, and concerning all other matters in its judgment detrimental to the- public health. in special or individual cases, not of general application, and to serve copies thereof upon the owner or occupant of any premises "whereon such nuisances or other matters may exist, or to post the same in some conspicuous place thereon. In each case' the board of . health is to furnish the owners,, agents and occupants with a. written states ment of the results and conclusions- at which they have arrived. It does not appear that any such notice was posted or served.

. The- village charter provides that when any tax is to be levied, the same shall be appportioned among the taxable inhabitants and. their property; that notice shall be given of the completion of -the assessment rolls, to be advertised in not more than two of the village newspapers for two consecutive weeks; that a copy of -the - assessment shall be left with the village, clerk for public inspection during twenty, days from the first publication of such notice, and notice given of the time and jolace where the assessors will meet to review the said assessment upon the application of any person aggrieved, after which the levy of the annual taxes shall be made.

The assessment roll, which included the expense of the drain, was made up.on January 14, 1897, and the warrant was issued on February first, which was prior to the expiration of twenty days from January fourteenth.

In the case of Stuart v. Palmer (74 N. Y. 183) it was held that “the Constitution sanctions ho law imposing such an assessment, without a notice to, and a hearing or an opportunity of a hearing by, the owners of the property to be assessed. It is not enough that the owners may by chance have notice, or that they may, as a matter of favor, have a hearing. The law must require notice to them, and give them the right to a hearing and an opportunity to be heard. It matters not, upon the question of the constitutionality of' such a law, that the assessment has, in fact, been fairly apportioned. The constitutional validity of law is to be tested, not by what has been done under it, but by what may, by its authority, be done. The Legislature may prescribe the kind of notice and the mode in which it shall be given, but it cannot dispense with all notice.”

The record shows that the drain in question was connected with the public sewerage system of the village, and it is, at least, oj)en to question whether the construction of the drain, which is in reality a sewer, should not have been undertaken by the village authorities instead of by the board of health. Section 21, before referred to, and as amended (Laws of 1895, chap. 928, § 1), confers upon the board of health power to certify to the village trustees the insufficiency of the sewers, upon which the trustees are required to make the necessary additions and alterations, and section 31 of the Pxiblic Health Law confers upon the board of health the power to compel the village authorities to comply with its orders in this respect.

The giving of the notice of the completion of the tax roll, the deposit of it-with the village clerk and the advertisement of these facts, with notice of opportunity to review, were not complied with by the assessors, and each of these incidents is a jurisdictional fact necessary to make the levy of taxes lawful.

The learned counsel for the respondent claims that on certiorari the court will not review any matter, order or proceeding that is not judicial in its naturethat in, the auditing of these hills the authorities of the village exercised no judicial functions at all. We; cannot agree with this contention. In the case of Osterhoudt v. Rigney et al. (98 N. Y. 222). a similar question was under, consideration, and the court held that an action by a taxpayer to-vacate an audit might be maintained, but also held that certiorari would lie, and that powJ ■ers exercised by boards of audit are judicial in their nature. (See, also, United States Trust Co. v. Mayor, etc., of New York, 144 N. Y. 492.)

In the case of People ex rel. Myers v. Barnes et al. (114 N. Y. 317) the court held a. similar doctrine,, and these and other authorities are conclusive on the right, to maintain this proceeding.

. The determination of. the hoard of trustees of the village, in levying the.annual assessment for taxes of the year 1897, is annulled,, with ten dollars costs- and disbursements.

All concurred.

Determination annulled, with ten dollars costs and disbursements..  