Rathbun v. Acker

By the Court, Marvin, P. J. By’the act incorporating 'the village of Medina, passed May 9, 1837, the trustees are 'authorized to make by-laws for a variety of thingsj and to provide for, 'and open, streets, and regulate the grading, paving, répáiririg and improving the-same; to compel the owners, of lots'-and grounds to construct side-walks in front thereof, and to cover such side-walks with gravel, or to flag them with bricks or stones, and keep them in repair. The trustees are authorized’ to- prescribe penalties for a violation of the by-laws. The by-laws are to be published before they take effect. (Laws of 1837, p. 393, § 14.) The charter was amended in 1839. It declares that whenever any non-resident owner of lots or grounds lying in the village shall havé been required to construct side-walks in front or along the side of his lots, &c., and shall neglect or refuse to construct the same in the manner required, “for ninety days after notice thereof, to be served hn such owner, or his or' her agent, or if no such agent shall reside in said village, and such • notice shall not be served - on such owner; such notice shall be published for ninety days, once in each week, in some newspaper in said village. It is also declared that the trustees- aró author- ’ ized to' construct and flag such side-walk, and the expense thereof shall be a tax upon such owner or owners, and a lien upon such lots, and may be collected by a sale of the land, in the‘same man- ’ net' as other-taxes are authorized to be collected, &c. On the 15th of April, 1851, the trustees ordained that the owners of certain lots, specifying them, and among Ahich were three lots belonging to Horatio N. Hewes, a non-resident of the village, should construct and grade a side-walk!in front of'the lots, - arid specifying the mariner of construction. : This ordiri’aric'e was " published for three months, once in each- week, in a newspaper published in the village. On the 20th of April, 1851, a notice was 'mailed at'Medina;'directed tb Hewes at Shelby, in the1 same county. The notice was reeeived-by Hewes, from the pb^t'office, [395] on the 22d of April. The notice informed him. that an ordinance. was made by the trustees, and that it was published in the Medina Citizen; and that he would see that he was thereby required to construct a side-walk across and in front of his lots 24, 25 and 111, on Shelby street, grade to be 14 feet wide, and 7 feet of the center of the same flagged with round stone, in ninety days from that date. The notice was dated April 15. Was this notice served, in contemplation of the statute; and if so, was it sufficient ? The statute is, if the owner neglects or refuses to construct the side-walk “ for ninety days after notice thereof to be served on such owner or his or her agent,” &c. The service here intended is personal service. When a statute, requires service on a person, it means personal service, unless some other service is specified or indicated. There was no personal service, in this case, on Hewes or his agent. I also think, the notice was insufficient; but it is not necessary to consider this. If the owner has no agent residing in the village, and such notice shall not be served on the owner, s.uch. notice shall, be published for ninety days, &c. Has any notice, been published? The ordinance has been published, but was this. the. notice contemplated by the statute? It was necessary to publish the ordinance, as a by-law, by the original charter, § 14 ; and by the amendatory acts, whenever any non-resident owner shall, have been required to construct side-walks, in the manner, &c., and in pursuance of the act aforesaid, and shall neglect, &c,, for ninety days after notice, &c., such notice shall be published. The ordinance required that, the owner or owners of lots 24, 25 and 111, on Shelby street, should construct the.side-walk. By, the statute “ notice thereof” must be served on the owner, or be. published. Notice of what? Was the simple publication of the, ordinance the publication of notice of it and its.requirements.?_ The publication of the ordinance was not preceded, or, followed, or accompanied by any notice to any body, that it. was. an ordinance passed by the trustees. Again ; neither Hewes nor his tenant is named in the. qrdi-, nance. The trustees ordain that the owner or owners of the. lots shall construct_ side-walks. I do not find any thing in the.char ter. [396] or amendments touching unknown owners. Then was the ordinance sufficient 1 But I will not express any opinion of this. Had the trustees' authority to proceed at once to collect the amount expended for constructing "the side-walks, by a sale of the lots ? Ho warrant to collect the tax was issued, but the trustees passed a resolution to sell the lots to raise the money to pay the cost of constructing the side-walk, and thereupon they published a notice of the sale, and sold the lots, &c. Where did they find authority to do this 1 The original charter provides for raising money for various purposes, and for imposing and collecting taxes. But I can find no authority for selling real estate until a warrant to collect the tax shall have been issued to the collector, and he shall have made a return of certain facts, &c. (See § 35 and §§ 27, 28, 32, 34.) By § 35, if any person upon whose estate or property a tax shall be assessed, shall neglect to pay, and there shall be no personal property found whereon the same can be levied, or out of which such tax can be collected, the collector! shall make return thereof to the trustees, who are authorized to cause the estate, on which such tax was assessed, to be sold at public auction for a term of time, &c. Here is the only authority I find, in the original act, for selling real estate; But I suppose the trustees claim the authority for their proceedings" under the act of 1839, § 4. Let us examine it. The trustees' may construct the side-walk, and all the expense thereof shall be a tax upon such owner or owners,■ and a lien upon such lots or grounds, and may be collected by a sale of the same or any part thereof, in the same manner as other taxes are authorized and directed to be collected in the 35th, 36th and 37th sections of the act hereby amended. We have seen by section 35 that when there shall be no personal property found, whereon to levy and collect the tax, the collector is to make return thereof to the trustees, and they are then authorized to cause the estate on which such tax was assessed, to be sold.- The collection, by the act of 1839, may be in the same manner. It may be by a sale of the lots or grounds upon which the tax was a lien. The expense of the work is a tax upon the owner, and a lien upon the land. The section is somewhat ambiguous, but in’ my opinion it was [397] never intended to authorize the trustees to sell the land before a tax warrant was issued, and an attempt made to collect the tax of the owner of the land. [Genesee General Term, September 4, 1854. I shall not remark upon other questions raised, but conclude by repeating what has been so often decided, and so often disregarded ; that statutes in derogation of the common law, and by which authority is delegated to corporations, &c., to sell the real estate of the citizen, or acquire the title thereto, are to be strictly construed; and the authority is to be clearly shown, and strictly pursued. It will not do to adopt a course not authorized by the statute, upon the principle that it is equivalent to the requirement of the statute. For instance, if the statute requires personal notice, a notice by mail, though it reaches the party, is no compliance with the statute. I am satisfied with the conclusions of law of the referee, and the judgment should be affirmed. Marvin, Bowen and Green, Justices.]