
    Morris Morey and Loran L. Lewis, Jr., Plaintiffs, v. The City of Buffalo, Defendant.
    (Supreme Court, Erie Equity Term,
    June, 1908.)
    Municipal corporations: Powers and exercise of governmental functions — Control of streets and waters and improvement of streets — Power to require abutting owners to lay sidewalks: Enactment of ordinances, resolutions and by-laws and repeal or revival thereof— Statute invalidating ordinance.
    Where a municipal charter imposes upon the owner or occupant of premises the duty of laying and relaying sidewalks in front of such premises whenever ordered by a resolution of the common council, a municipal ordinance, enacted previously to such provision of the charter, imposing such duty upon owners or occupants without such resolution, ceases to be valid; and an assessment against the premises for a sidewalk laid by the municipality upon the neglect of the owner or occupant, where no such resolution ordering it was passed, is null and void.
    Actioh to adjudge and declare an assessment levied upon premises of plaintiffs null and void.
    Joseph H. Morey, for plaintiffs.
    Louis E. Desbecker and John W. Ryan, for defendant.
   Marcus, J.

This action is brought to adjudge and declare an assessment roll and assessments levied upon the premises of the plaintiffs null and void, and to vacate, cancel and set the same aside, and to restrain the defendant, its officers and agents from taking any steps in the collection of the same.

It appears that, in the month of April, 1906, the commissioner of public works of the city of Buffalo caused sidewalks in front of plaintiffs’ premises to be laid, and that, in the month of June of the same year, the commissioner caused an assessment roll to be made whereby the plaintiffs were assessed for constructing such sidewalks.

It is urged that the commissioner had no right or authority to cause the sidewalks in front of plaintiffs’ premises to be laid, or to make any assessment therefor, until the common council of the city of Buffalo had by resolution duly ordered such work to be done.

• In 1895, section 288 of the charter, which prior to that time related solely to the laying of service pipes, was amended to read: “ It shall he the duty of the owner or occupant of any premises in the city, whenever such worlc shall he ordered by a resolution of the common council, to lay water, sewer and gas service pipes * * *. It shall also be the duty of such owner or occupant to lay and relay sidewalks in front of such premises whenever the same shall, as aforesaid, be ordered,” etc. The section then provides that the commissioner shall notify the owner or occupant of any of the premises in front of which any such work shall be required to be done, and that, if the same is not done within ten days, the city will do the work and the expense thereof will be assessed against the property. The section further provides for the making of a monthly assessment roll, etc., all of which seems to have been added in 1895.

Section 10 of chapter 4 of the ordinances provides, in substance, that, on notice from the board of public works or the common council, it shall be the duty of a person notified to lay a sidewalk, etc. This ordinance was enacted in 1892. It becomes very apparent that the section of the charter must, therefore, control, inasmuch as the same contradicts and is in conflict with the terms of the ordinance.

It, therefore, follows that inasmuch as the ordinance is in conflict with the charter it must fall, and that irrespective of the time when such ordinance may have been passed. In order to make the roll valid, it is essential that all steps he taken strictly in accordance with the charter; but whether or not it is wise to require a resolution of the common council before any sidewalk is laid in each and every particular instance is not for the court to determine, though it must be apparent that this will necessarily produce delay and annoyance.

Since the charter requires the common council by resolution to determine the question of sidewalks, making the same dependent upon their judgment, t-hey cannot delegate or invest that power in the commissioner of public works, since it is a well settled principle “ that public powers or trusts devolved by law or charter upon the council or governing body, to be exercised by it when and in such manner as it shall judge best, cannot be delegated to others.” Bird-sail v. Clark, 73 N. Y. 76.

From the foregoing it must be clear that the charter contemplates that the common council shall order a new walk by resolution, and, it being admitted that no resolution to that effect exists, that the commissioner of public works and the city of Buffalo have no fight or authority to cause the sidewalks in question in front of plaintiffs’ premises to be laid, or to make or levy any assessment thereon for the same, and that the said assessments must, therefore, be declared and adjudged null and void.

Ordered accordingly.  