People ex rel. Knox v. Village of Yonkers

By the Court, Brown, J. This is a common law certiorari, brought to review the proceedings of the trustees of the village of Yonkers, in respect to the grading the extension of Warburton avenue, and building a bridge thereon over the N eperhan river in said village. Riverdale avenue runs from the south bounds of the village north to the south bank of the river. Warburton avenue commences at the north bounds of the village and runs in a southerly direction to the Neper — 269 — han, and across the same to its south bank. This river runs westerly to the Hudson, dividing the village, and the intended effect of the contemplated bridge was to connect the two parts of the village by a line of communication from the southern to the northern bounds thereof. The trustees proceeded to establish the districts of assessment, procured plans and specifications for the work, and advertised in due form for proposals from contractors. They opened the several proposals and awarded the contract. The commissioners of assessment were appointed, who proceeded to make the assessment upon the lands charged with the payment thereof. Various objections were taken upon the argument to the proceedings of the trustees and the commissioners, some of which I will proceed briefly to notice. At a meeting of the board of trustees, held on the 8th of November, 1860, the proposals were opened and the contract awarded at that time. But before this conclusion was reached the specifications were amended, upon the motion of Mr. Wheeler, so as to extend the time for the completion of the work to the 1st of November, 1861. This is thought by the counsel for the relator to have been an error, because no notice referring to such amended specifications had been or could have been published as required by the charter. We have no means of determining what effect this limitation may have had upon the contract. It may or may not have been beneficial to the contractor and in a corresponding degree prejudicial to the landowner. As the trustees would necessarily have had, power to extend the time for the completion of the work after the contract was executed, we do not think such an extension at the time of opening the proposals had the effect to vitiate all the proceedings. The enlargement of the time was not unreasonable in its length, and could not be considered as affecting materially either the interests of the contractors or the landowners. In this respect there was no sensible or material departure from the directions of the act under which the proceedings were had. — 270 — Another exception, taken by the counsel for the relator, refers to the time for opening the proposals of the contractors. This was fixed for the 29th October, 1860. It was postponed to the 5th of November by regular adjournment of the board of trustees. This meeting failed to take effect. On the 8th of November the board assembled and the proposals were opened. The direction that the proposals shaE be opened on the day named'in the'notice “ or upon such other day as the trustees may adjourn to for that purpose,” is-directory merely. It cannot be deemed essential that the time of opening and looking at the proposals shall be continued by regular adjournment from time to time like the continuances upon' the judgment roll of a court of record. The trustees do not expect to hear an argument upon the policy or propriety of' awarding the contract to the author of this or that proposal. They are to open the proposals and accept that which is the most favorable. That is aE. This they may do at the day mentioned in the notice, or at the adjourned day, or at a day to which they had not adjourned (if the adjourned meeting fail to take place) and no one be prejudiced. . The provision is therefore merely directory, because the trust is as well executed in the one form as in' the other. The next objection of the relators which I propose to consider is that against uniting the improvement for the street and the bridge with that for the sewer. The latter class of urban improvements being made for the purpose of drainage alone, are needed for the benefit of some lands and not for others, while the construction and grading of a street would be beneficial to all, whether they were wet or dry lands. Usually the combination in one proceeding of improvements and assessments therefor so dissimilar in their nature would be vicious in principle.' In the present case, however, the sewer is a part of the bridge, having no other purpose to serve but to relieve the south abutment thereof from the effect of the water which collects upon the surface of the street. The work is the improvement of Warburton avenue so as to con — 271 — nect it with Dock and Main street. This includes the bridge over the Heperhan, and the south abutment thereof, in which is the sewer. It is therefore a part of the bridge and not open to the relator’s objection. The aggregate amount of the expenses of the improvement to be distributed and assessed upon the property charged is $12,116.74, made up of eleven different items which are set out in the return to the writ. To seven of these items or specific charges the relators take exception as illegal and unjust. I shall notice but one of them—the charge of $460.05 for contingencies. It is to be remembered that assessments for urban improvements are proceedings which take the property of individual citizens and appropriate it to the public uses. It is a proceeding in derogation of the common law, and the power to be exercised must be strictly pursued. The trustees of the village of Yonkers may take the property of its citizens to make and to grade and improve a street, but the authority given by the charter to effect this object must be followed to the letter, or the proceedings will fail. They cannot take private property for any other purpose. The uses to which the money or the property taken is applied must be legitimate uses, such as the constitution and the law upholds and authorizes, and no other. These uses in the present case are indicated in items of expenses or specific charges to which I have referred. They are the compensation to the contractor, the surveyor or engineer, the printer, the clerk, the treasurer, inspector, and the commissioners and counsel. These are known expenses, payable to the persons named in the estimate. The equivalent therefor is also known, and the citizen whose money is taken sees and knows to whom and for what it is appropriated. But what shall be said of the charge of $460.05, for contingencies ? For what purposes, and to whom, is that sum payable ? What equivalent benefit will the tax or assessment-payers obtain for that ? How came this sum to be exactly $460.05 ? Why may it not have been ten times more or ten times less ? If the commis — 272 — sioners have power to fix it at one sum, in their discretion, they may also fix it at another. And what security will there be for property, in the village of Yonkers, if the commissioners of assessment may fix at their pleasure the sum which the landowners are to pay for a given improvement ? Surely a moment’s reflection will suggest that the rights of property do not rest upon so infirm a basis. What is meant by contingencies ? As the charge is found in an estimate of the expenses of improving Warburton avenue, I infer that thereby is intended contingent expenses—expenses which the commissioners could not áscertan—expenses which were unknown, which were uncertain, and which might or might not be incurred thereafter. A contingency is a fortuitous event which comes without design, foresight or expectation. In law a contingent remainder is a remainder depending upon an uncertainty. And so a contingent expense must be deemed to be an expense depending upon some future uncertain event. The power of commissioners in a street assessment extends only to known, ascertained and fixed expenses, and all others are illegal and void. Before the commissioners enter upon their duties, the surveys and examinations are completed and the contracts for the work are made. All the costs and expenses of the improvement can and should be ascertained. If the statute has effect and its directions are executed, no part of the expense is left to depend upon future events. In legislative or municipal bodies, having a treasury and money of their own at their disposal, they may safely make appropriations for contingencies, because if the sums thus appropriated are not used they necessarily return again to the source from which they were taken. But if this sum of-$460.05 is not needed for the improvement; if the contingencies referred to in the estimate never happen, there is no process by which it can be returned to the landowners from whom it has been taken. It is not needed for the uses of the street, and therefore its insertion in the estimate of expenses is illegal and void. I have said nothing of the abuses — 273 — to which such a system of assessment in a large and growing village must inevitably lead, but have chosen rather to rest my objections to it upon reason and principle. [Kings General Term, February 9, 1863. Emott, Brown and Lott, Justices.] The proceedings must be reversed, with costs.