
    The People, ex rel. Philo S. Curtis, vs. The Common Council of the City of Utica, and the City of Utica.
    The common law writ of certiorari is allowed, and the remedy sought by it granted, in the discretion of the court; and where, after a return is made to such writ, the court is satisfied, upon a hearing, that the writ improvidently issued, or that justice and equity, or a regard to considerations of public policy or public inconvenience, require such a decision in respect to it, it will dismiss the writ, without passing upon the merits, upon the particular questions raised, or designed to be raised, by it, for review.
    The common council of a city passed the initiatory resolutions required by the charter of the city, directing the clerk to publish notice that they intended to pave a street specified therein, which notice wras duly published. Subsequently, a resolution was passed, directing the clerk to publish the requisite notice to pave such street with wood pavement; which notice was duly published, and stated that on a specified day final action would be had upon the applications, and that sealed proposals for the work would then be received, and opened and considered. A plan for said work, with specifications, therefor, was filed in the city clerk's office. On the day named in the notice, various proposals were received and opened, and the common council by resolution determined that the proposal of a company therein named was reasonable and favorable; and the proceedings were further continued until a subsequent day, when an ordinance was passed, accepting and approving of said proposal, and directing the work to be done, according to the plans and specifications. Held that this was such a final adjudication as would warrant the allowance and retention of a writ of certiorari to review the same.
    Where upwards of two years had elapsed since the first proceedings required by a city charter, to authorize the paving of a street were initiated, and nearly two years since the final ordinance for the construction of said work and the acceptance of the proposals therefor; and a superintendent of the work had been appointed, on the petition of the relator and others; and the work had been completed, and an assessment for the expense thereof duly made and confirmed, and the assessment roll delivered to the city treasurer, for collection, and more than one-half the amount of the assessments paid; it was held that a writ of certiorari to review the proceedings of the common council, in respect to such improvement, ought not to be entertained.
    
      Held, also, that if any irregularities, or any informalities, had occurred in the proceedings of the common council in directing said work, or in letting the contract for its construction, after the lapse of time that had intervened since the work was authorized, it woidd be unjust and unreasonable to review said proceedings, with a view to reverse them for any such error.
    
      Held, further, that the relator and others in whose behalf the writ was sued out having lain by and seen the work constructed, for the benefit of their property, should be estopped from questioning the right of the city to make such improvement.
    The common council of a city are, in principle and in fact, nothing more than agents of the property owners, in malting improvements in the streets; and when the property owners benefited thereby suffer the improvements to proceed, and be completed, without remonstrance, they should be held to have affirmed the acts of their agents, in constructing such work..
    As in other cases between principal and agent, where the trustees of public or private corporations act for the benefit of particular individuals, such individuals, if they seek to disaffirm and avoid such acts, should take prompt steps to do so, or they will be held to have affirmed the same.
    THIS case comes before the court upon a writ of certiorari returnable at the present term of this court. The return to said writ having been duly made and filed, the case was brought on for argument, upon such return, the particulars of which appear in the opinion of the court.
    
      
      Oharles Mason, for the relator.
    I. It is claimed and insisted in this case, that the common council cannot, under the city charter, lay a Nicholson pavement, as it requires the use of a patent, and such a pavement cannot be laid by any one except the patentee, or some one who has purchased the right. The power conferred upon the common council to grade and pave streets by the 99th section of the city charter, .has restrictions placed upon its exercise, which must be observed, or these proceedings will be held illegal, and the assessment made to meet the expense, also held illegal. This 99th section requires that prior to the passage-of any ordinance for such purpose,,, it shall cause a plan and accurate specifications of the work proposed to be constructed, to be prepared and filed with the city clerk, and that it shall then cause to be published in the official newspapers, the said specifications, with a notice that on a certain day, at least eight days from the first publication thereof, the common council will act in relation to its construction; and in the meantime sealed proposals for constructing the work, with bonds for the faithful performance thereof, will be received by the mayor. Upon the day mentioned in the notice, the mayor shall, in the presence of the common council, open the sealed proposals for constructing the work. The common council shall then determine whose is the most favorable proposal. It may then, by a vote of a majority of its members, authorize and direct the construction of the proposed work, accept the most favorable proposal, and direct the expense thereof to be assessed in the manner hereinafter stated, unless, at the next meeting of the common council, one or more of the persons liable to be assessed for said work, shall propose, and tender bonds therefor, as aforesaid, to do the work at an expense of at least fifteen per cent less than the proposal deemed most favorable, in which case the work shall be let to the person or persons last proposing; provided, however, that all of said propositions are not deemed unreasonable. These requirements cannot be construed as directory merely; they are imposed as a restriction upon the exercise of the power conferred, and for the benefit and security of the tax-payer ; and all the steps required by the charter must be strictly complied with. (Hammelman v. Daws, 35 Cal. 441. Daughty v. Hitchcock, Id. 512. Nicholson Pavem. Co. v. Painter, Id. 699. Hammelman v. Oliver, 34 id. 246. Lexington v. Headley, 5 Bush. [Ky. R.] 508. Walker v. Potter, 18 Ohio, 85. Dillon on Mun. Corp. p. 580, § 610. Dolan v. The Mayor &c. of New York, 4 Abb., N. S., 397. Matter of Eager, 46 N. Y. 100. The rule of law is that when the mode Of contracting is specially and plainly prescribed by the charter, that mode is exclusive and must be pursued, or the contract will not bind the corporation. (Dillon on Mun. Corp. p. 368, § 373, note 2, and case. Head v. Ins. Co., 2 Cranch U. S. 127.) In the latter case Chief Justice Marshall says: “The act of incorporation is to them an enabling act. It gives them all the power they possess. It enables them to contract, and when it prescribes to them a mode of contracting, they must observe that mode, or the instrument no more creates a contract than if they had never been incorporated.”
    II. The common council, in their proceedings to let the contract, have disregarded the city charter and deprived the tax-payers unlawfully of their clear rights, and the tax to pay the expense was illegally imposed. (Dean v. Charlton, 23 Wis. 590. Burges v. Jefferson, 7 Am. Law Reg. 574. Wells v. Burnham, 21 La. An. 143. Nicholson Pavement Co. v. Painter, 35 Cal. 699. Zaltman's case, 20 id. 102. Dillon on Mun. Corp. p. 384, note 2. Dolan v. The Mayor &c. of N. Y., 4 Abb., N. S., 397.)
    III. It was clearly illegal to embrace both the cobblestone and the Nicholson pavement in one proposal, and to let, in one contract, both, kinds of pavement, as it prevented all competition in laying the cobblestone pavement as well as the Nicholson. (Matter of Eager, 46 N. Y. 100. The People v. Board of Imp. of Union St. 43 id. 227.)
    IY. It is a principle of universal acceptance that municipal corporations can levy no taxes, general or special, upon the inhabitants or their property, unless the power be plainly and unmistakably conferred, and the burden is upon the corporation to show the grant, either by express words or necessary implication. (Dillon on Mun. Corp. p. 576, § 605, note 4, and cases cited.) The rule is well settled, that the statute conferring the power of taxation upon municipal corporations must be strictly construed, and that as to local assessments, the statute must be strictly followed in all its requirements. (Scammon v. Chicago, 40 Ill. 146. Dillon on Mun. Corp. p. 576, § 605; note 4, on p. 577.)
    Y. It is the duty of the board first to make and file the plans and specifications of the work required to be done, so that those desiring to contract therefor can understandingly make offers for its performance. This plan and specifications must be adopted and filed before they publish for the proposals, and they must let the contract for the pavement according to the plan and specifications thus adopted. (The People v. Board of Imp. of Union St., 43 N. Y. 227.)
    YI. It was not lawful for the common council to leave the kind of pavement open, whether it should be Nicholson, Miller, Ballard or other wood pavement. (The People v. Board of Imp. of Union St., 43 N. Y. 227.) And the board clearly had no power to award any contract upon offers received under such a notice as was published in the official papers.
    YII. The point raised and taken by the defendants, that the relator should not have the benefit of this writ, because he did interpose and file his bill in equity, and enjoin the defendants from laying this pavement, is not entitled to any consideration before this court. It is an argument which these defendants cannot be permitted to urge here. It is nothing less than saying, you should have enjoined -and prevented us by the strong arm of a court of equity from doing these illegal acts; as you did not, our illegalities should be approved.
    VIII. We could not obtain this writ, and were not entitled to it, until the common council had gone through with their proceedings and actually levied the tax. ( The People v. Sups. of Livingston, 43 Barb. 242, 238. 20 How. Pr. 167. 4 Wend. 213. 26 Barb. 437. 30 John. 80.)
    
      P. Hernán, for the respondents.
    1. Upon the facts of this case, the court should not review or reverse the ordinance and assessment of the common council, but should quash the writ and dismiss the proceeding. 1. A common law certiorari to review proceedings like those in question is not a matter of right; and it is well settled that the ■ court may and should, after a return and upon a hearing on the merits, under certain circumstances, decline to review the acts of the inferior tribunal and quash the writ. (The People v. Sup. of Allegany, 15 Wend. 198, 203, 206, 210, 211. Elmenderf v. The Mayor &c., 25 id. 693, 695. The People v. The Mayor, 2 Hill, 9, 12, 14. The People v. The Mayor, 5 Barb. 44, 49. The People v. Stilwell, 19 N. Y. 531.) 2. The facts disclosed by the return to the writ bring the case at bar fully within the adjudged cases wherein the court refused to review the proceedings below, and quashed the writ. (See 1 Hill, 9, 11-14; 15 Wend. 198, 203, 206, &c.; 25 id. 693, 695, 696; 5 Barb. 44, 49, 50.) In making improvements of this character, the common council acts on behalf of the' property owners, as well as the public. The work is to be done at the expense of the owners of property fronting on the portion of the street paved, and the work is done at their expense solely. (Charter of Utica, Laws 
      1862, p. 28; p. 68, § 99; Laws of 1870, p. 90; p. 96, § 14. Hunt v. The City of Utica, 18 N. Y. 442.) The council contracted for the doing of the work, and the contractors, during 1871 and 1872, till about the first of October, proceeded with and completed the work. During all this time there was no objection to, or effort to prevent, the work. On the contrary, the relators selected, and had the council appoint, a person named by them to superintend the work. During October, 1872, the expense of the improvement was adjusted and assessed, and on the 15th of November the assessment was confirmed and delivered to the treasurer for collection. The treasurer gave the notice required by the charter, (§§ 50, 97,) arid during thirty days he received all sums paid, which amounted to over one-half of the assessment. He then delivered the warrant to the collector. (Charter, §§51, 97.) It was not till after all this had been done and suffered that the relators asked the court to interfere. 3. Within the principles governing proceedings of this character, the relators are not entitled to any relief by certiorari. (See authorities on point I, supra.) “Even if the party has no remedy, except by certiorari, it does not follow that the court must allow it, for there may be considerations of public interest outweighing the importance of correcting the error complained of.” (2 Hill, 10, 11.) In this case the court say, if,Hill, p. 12:) “There are, I think, few if any cases where an ordinance or assessment for constructing a common sewer, or making any other city improvement, should be moved into this court by certiorari. * * * Great public inconvenience must necessarily ensue if we attempt in this way to review assessments for city improvements, which are not nnfrequently as extensive in their influence as assessments for county taxes.” If the writ has been improperly allowed, it is not too late to correct the error after a return and hearing on the merits.” (2 Hill, 12, 14. 15 Wend. 198. 1 Hill, 195, 200.) A certiorari should not be granted to review an assessment after delay in applying for it till after the work has been completed and the tax partially collected. (25 Wend. 693, 695, 696.) 4. The relators should have sought the relief afforded by this writ before the work was entered upon by the contractor. There was ample time and opportunity for them to have done so. The improvement has been completed at a large expense, and the property of those assessed has been thereby enhanced in value. A large number of the property owners have paid their assessments. A few, comparatively, now ask the court to annul the ordinance and assessment for the work. Unless the balance of the assessment is collected, the city has no authority to raise the money and pay the contractors. Even had the city authority to raise the money by a general tax, it would be unjust to the other tax payers. The relators could have- invoked the aid of the court before the work was commenced. They lie by until their property is benefited by the expenditure, and until after a large proportion of their neighbors have paid their assessments, and now ask the court by certiorari to relieve them from paying their fair proportion of that expenditure. The court should not now entertain this proceeding. There is no question but that the pavement constructed was suitable, or that it was not well constructed and at a reasonable price. 5. There can be no question but that the council had jurisdiction over the street, and to cause it to be paved. (Laws of 1862, p. 68, § 99. Original Charter, Laws of 1832, pp. 17, 30, § 48. Amended Charter, Laws of 1849, pp. 249, 266, § 66.)
    II. The only question before the court, on the merits, is, did the common council keep within the limits of the jurisdiction conferred upon it. (2 Hill, 9, 11. 15 Wend. 203, per Bronson, J.)
    
    III. The council had authority to cause the street in question to be paved. 1. The charter declares that “the common council shall have power to cause any street, highway, lane or alley, in said city, to be graded, leveled, paved, or repaved.” (Laws of 1862, p. 68, § 99. See Original Charter, Laws of 1832, pp. 17, 30, § 48; Amended Charter, Laws of 1849, pp. 249, 266, § 66.)
    2. The return shows that the portion of the street paved was and is a highway or street in and of the city, and subject to the control and jurisdiction of the common council. The legislature has granted to the common council express power to cause “any street or highway in said city” to be paved. Surely it has power to pave the locus in guo, which has been a highway since 1794, and has been one of the main streets or highways of the city ever since it was incorporated, in 1832. (Act of March 22, 1794, 3 Greenl. Laws, p. 123, §§ 1, 2, 6.) 3. Conceding (which we do not) that this part of the street is claimed by a plank or turnpike road company as part of its road, for the purpose of exacting tolls of those who travel beyond the city limits, this does not invalidate the assessment.
    IV. The council did- not decide or contract for the construction of a pavement as to which or any part of which there could not be competition. The council asked proposals for the construction of a- pavement partly of wood and partly of cobblestone. Five proposals were received, two of which were for “improved Nicholson pavement” and cobblestone. The council accepted the one of these two made by the American Nicholson Pavement Company.
    V. Conceding that the right to construct the improved Nicholson pavement was patented, and the exclusive property of the Nicholson Pavement Company, the ordinance and assessment are not void or illegal. It is not true that under charters requiring necessary articles to be procured from the lowest bidder, that the city authorities cannot accept a bid or proposal for a patented article. (May
      
      nard v. The Mayor of Utica, decided in 1869, MS. op. of Morgan, J. Astor v. The Mayor &c. of New York, and Dolan v. The same, General Term decision, op. per Ingraham, J., MS. Hobart v. The City of Detroit, 7 Am. Law Register, N. S., p. 741.) 2. All that a reasonable construction of such charters requires is, that the city authorities shall give notice for bids or proposals for the article or work needed, and accept the lowest reasonable proposal or bid for the proper- article, whether it be patented or not. Otherwise, cities cannot procure' a patented mower for parks, or a patented hydrant, or a fire engine, or pavement, or sidewalk, however advantageous the Same would be to the city. As a rule, there are numbers of patented articles of each kind, and there will be abundant competition. There should not be a construction of such provisions which will prevent cities from having the benefits of inventions and improvements.
    VI. But the charter of Utica does not prescribe that the paving shall be let to the lowest bidder, or that the lowest proposal shall be acccepted. The council is to determine whose is the most favorable proposal; and “it may then direct the construction of the proposed work,” &c. (Charter, § 99.) The council is not prohibited from causing a patented pavement to be constructed. It may do so. The charter is to have a reasonable construction; and under any fair, reasonable construction of the charter, and the proceedings of the council, the assessment is valid.
   By the Court, E. Darwin Smith, J.

It appears from the return of the respondents in this proceeding, that on the 14th day of April, 1871, the common council of the city of Utica passed the initiatory resolutions required by the charter of said city, directing their clerk to publish notice that they intended to cause the paving of Gfenesee street from the termination of the pavement near Oneida square, to the southerly line of the city, and that action would be had thereon April 28, 1871. That the notice therein directed was subsequently published in the official papers of said city, from April 26 to May 5, 1871, once in each week, in which the day for action on such improvement was fixed at May 12th; and such proceedings were continued till the 9th day of June, 1871,' when a resolution was duly passed directing the clerk to publish the requisite notice to pave such street with Mcholson, Miller, or other wood pavement, and with cobblestones on the outer side, as subsequently done. That, pursuant to such resolution, notice was duly published in the official papers of the city, stating that applications were pending before the common council for the. construction of such work, specifying the kind and character of the pavement, and that final action thereon would be had by said council on the 23d day of June, 1871, and that sealed proposals for the said work would then be received, and up to that time, and be then opened and considered. That on the 14th day of June a plan for said work, with specifications therefor, was filed in the city clerk’s office. On the 23d day of June various proposals were received and opened, and the common council, by resolution, determin ed that the proposal of the American Mcholson Pavement Company was reasonable and favorable; and the proceedings were further continued till the 30th day of June, 1871, when an ordinance accepting and approving of said proposal, and for the construction of such pavement in accordance therewith, was duly passed. Said ordinance accepts the proposal aforesaid, and provides that said work be- commenced on or before the 20th day of July, 1871, and be completed on or before August 10, 1872. And it appears from exhibits annexed to the return of the respondents that said work was inspected, accepted and approved by the superintendent of such work, appointed by the city, on the 27th of September, 1872, and by the city surveyor at the same date. From these facts it appears that the definitive and final ordinance of the common council for the construction of such work was passed on the 30th day of June, 1871. This ordinance accepted the proposition of the American Mcholson Pavement Company for the construction of such work, and directed such work to be done according to the plans and specification, then on file in the city clerk’s office, and those filed by said • company. This was, and is, such a final adjudication as will warrant the allowance and retention of a writ of certiorari to review the same within the cases of The People v. Sups, of Livingston, (26 Barb. 118;) Lynde v. Noble, (20 John. 80,) and The People v. Peabody, (26 Barb. 437.) At the close of the present term of this court, upwards of two years will have elapsed since the first proceedings required by the charter to authorize the making of the said improvement were initiated by the common council, and two years—within sixty days— since the final ordinance for the cqnstruction of said work and the acceptance of the proposals therefor were passed, as above stated. These proceedings must have been well known to the relator, and to the other property owners on Genesee street, in whose behalf the writ of certiorari issued in this cause) as well as his own, was sued out and prosecuted. The return further states and" shows that a petition was presented to said common council, at its meeting on the 14th of July, 1871, signed by said relator, and most of the persons so named in said writ, asking for the appointment of a person therein named as “ superintendent of the Genesee street paving,” .who, in accordance with such petition, was duly appointed for that purpose, at the next meeting of the common council, held on the 21st of July. The certiorari, in this proceeding, was allowed upon, the return of an order to show cause, which the papers before us show was granted on the 9th day of January, 1873. In the meantime, the work of said improvement had been constructed and completed, and an assessment for the expense thereof duly made and confirmed, and the assessment roll delivered to the treasurer of the city, for collection, and more than one-half of the amount thereof duly paid to him thereupon. In view of these facts, it seems to us quite clear, that the writ of certiorari issued in this cause ought not to be entertained for the review of the proceedings of the common council in respect to this improvement. If any irregularities, or any informalities, occurred in the proceedings of the common council in directing said work, or letting the contract for its construction, we are of the opinion that after the lapse of the time that has intervened since the said work was authorized, it would be unjust and unreasonable to review said proceedings with the view to reverse them for any such error. The relator, and those in whose behalf, as well as his, the writ was sued out, have lain by and seen the work constructed upon their street, for the benefit of their property, and should be estopped from questioning the right of the city to make such improvement, in analogy to the rule in equity, that when a party lies by and sees another make valuable erections and improvements on his land, supposing he is making them upon his own land, he shall be estopped "from afterwards setting up Ms title to the land so improved. The common council are, in principle and in fact, nothing more than agents of the property owners in cities, in making such improvements ; and when the property owners benefited thereby suffer the improvements to proceed and be completed, they should be held to have affirmed the acts of their agents in constructing such work.’ As in other cases between principal and agent, where the trustees of public or private corporations act for the benefit of particular individuals, such individuals, if they seek to disaffirm and avoid such acts, should take prompt steps to do so, or they will be held to have affirmed the same. (Story v. Furman, 25 N. Y. 230.) The common law writ of certiorari is allowed, and the remedy sought by it granted, in the discretion of the court. (2 Hill, 28. 21 Barb. 656.) And where, after a vetara is made to such writ, the court is satisfied, upon a hearing, that the writ improvidently issued, or that justice and equity, or a regard to considerations of public policy, or public inconvenience, require, such a decision in respect to it, they will dismiss the writ without passing upon the merits, upon the particular questions raised or designed to be raised by it, for review. (The People v. Stilwell, 19 N. Y. 531.) In The People v. Sups. of Allegany, (15 Wend. 198,) and in The People v. The Mayor of New York, (2 Hill, 9,) and in many other cases, the courts have quashed the writ, in like cases.

[Fourth Department, General Term, at Rochester,

April 1, 1SÍ3.

Mullin, Tdlcolt and M D. Smith, Justices.]

In accordance with these views, the writ of certiorari in this case should be quashed, with costs to the respondents.  