Down to 1865, the power to authorize the construction of sewers in the city of New York was vested in the common council. (Laws of 1787, chap. 8, § 4; Laws of 1813, chap. 86; Laws of 1849, chap. 383.)
In 1857 (Laws of that year, chap. 446, § 24), an executive department was created, denominated the "Croton Aqueduct Board," and it was provided that it should have charge, among other things, "of the public sewers of the city," and that there should be a bureau in that department for "the construction and repair of sewers," and for other things. As the law then stood, the common council, as the legislative department of the city, was authorized to direct the construction of sewers, and the Croton aqueduct board, as an executive department, was authorized to construct the sewers when thus directed, and to take charge of them when constructed.
In 1865, by the act in relation to sewerage and drainage in the city of New York (chap. 381), the power to authorize the construction of sewers was vested in the Croton aqueduct board, consisting of the three persons named in prior acts, and thereafter they had the power both to authorize the construction of *Page 99 sewers and to construct them; and they continued to possess this power until 1870. In the latter year, by the act (chap. 137) "to reorganize the local government of the city of New York," the power to authorize the construction of sewers was again vested in the common council. By section 21, it was provided that the common council should have power to make all such ordinances and regulations as were necessary to carry into effect all the powers conferred upon the corporation by that act. Many matters are in the same section specified, in reference to which ordinances can thus be made, and among them, in subdivision 5, is "to regulate the opening of street surfaces, the laying of gas or water mains, the building and repairing of sewers and erecting gas-lights;" and in subdivision 20, "in relation to the construction, repairs, care and use of vaults, cisterns, areas, hydrants, pumps and sewers." The power thus vested in the common council over sewers, is as ample as that vested in the same body over streets, and all the other subjects mentioned in the same section. That is the section in the main, conferring and defining the legislative power to be exercised by the common council. By section 77 of the same act, the Croton aqueduct board was abolished, and a department of public works was created, the chief officer of which was to be called "commissioner of public works." By section 79 it was provided that there should be several bureaus in the department, and among them one "for laying water pipes and the construction and repair of sewers, wells and hydrants, paving and repaving and repairing streets." Section 78 provides that the department shall have "cognizance and control," among other things "of opening, altering, regulating, grading, flagging, curbing, guttering and lighting streets, roads, places and avenues," and also "of public sewers and drainage." All the provisions of this act must be construed together and harmonized, if they can be, and it is clear that by section 21 it was intended to vest in the common council the power by ordinances to provide for opening streets and constructing sewers, and by sections 77, 78 and 79, to vest in the department of public works the power to open the streets *Page 100 and construct the sewers when thus authorized. If the latter department had the power both to authorize and direct the construction of sewers, and to construct them, and then take charge of them when constructed, it would be difficult to give any force to the language used, or any proper scope to the provisions contained in section 21 in reference to sewers. If that department had such ample power, both legislative and executive, over sewers, they had the same power over streets, and all the other matters mentioned in section 78, and the common council, in reference to matters of great public moment and expense, would be deprived, practically, of all control. After the power to authorize the construction of sewers had, down to 1865, been vested in the common council, and then in a board consisting of three officers, it cannot be believed that the legislature, by the act of 1870, intended to vest in a single officer, the commissioner of public works, such unlimited legislative, as well as executive power. The language in the act of 1870, conferring power over sewers on the department of public works, is no broader or more comprehensive than the language used in the act of 1857, which conferred power over sewers on the Croton aqueduct board, and yet it is undisputed that the latter act did not interfere with the legislative powers over the subject vested in the common council.
The provision that the street department should have "cognizance and control" of sewers, does not confer legislative power. The amendment to the city charter of 1849 (chapter 187, section 12), and the amendment of 1857 (chapter 446, section 23), each provided that the street department should have "cognizance" of opening, altering and grading streets; and yet it was never claimed that such language gave any but executive authority, after the proper ordinances had been passed by the legislative department. Section 21 expressly confers power upon the common council "to provide for and regulate the opening, widening and extending streets below Fourteenth street," and "to provide for and regulate street pavements, crosswalks, curb-stones, gutter-stones and sidewalks;" and, in section 78, to the street department *Page 101 is given cognizance and control of "opening, altering, regulating, grading, flagging, curbing and guttering streets," without any limitation. The first provision clearly confers legislative authority, to be exercised by passing ordinances, and the latter executive authority only, with no right or duty to pass ordinances; and by no other construction can the two provisions be harmonized. The provision in reference to sewers, contained in section 21, which is claimed to confer legislative power upon the common council, is found where the legislative power of the common council is defined; and the provision giving "cognizance and control," over sewers, to the street department, is found in a section defining the powers and duties of an executive department.
Legislative power is exercised by the passage of ordinances, and hence it is provided, that the power of the common council over sewers is to be exercised by the passage of ordinances; and the language conferring the power — to pass ordinances in relation to the construction of sewers — is ample, according to its ordinary meaning, to give all the power here claimed for it. The words "cognizance and control," which confer power over sewers, in the street department, are not such as are commonly used to confer legislative authority; they are appropriate words to confer administrative, executive or judicial authority; they imply the existence, actually or potentially, of the sewers over which cognizance and control are to be taken; and it is believed that no case can be found in any statute relating to the city of New York, where these words, or either of them, have conferred other than administrative, executive or judicial authority.
In the construction of the language used, some force should be given to the consideration that the power to authorize and direct the construction of sewers is strictly a legislative one, which is usually vested in the legislative department of a city, and also to the consideration that it is most fit that the power should be vested in the common council, and that it would be a most unusual, if not dangerous power, to be vested unchecked in a single person. *Page 102
By section 120 all acts or parts of acts inconsistent with the provisions of that act are repealed, and thus the act of 1865, so far as it took power to authorize the construction of sewers from the common council and conferred it upon the Croton aqueduct board, was repealed. This is, however, denied by the counsel for respondents, who relies to support his contention very much upon the following provisions contained in section 77, to wit: "Whenever the words `chief engineer of the Croton aqueduct board,' or `president of the Croton aqueduct board,' or `street commissioner,' shall occur in any existing law, ordinance, resolution, contract or document, it shall be deemed to mean the aforesaid commissioner of public works. And whenever in any law, or in any ordinance, or obligation of the corporation, the words `street department,' or `Croton aqueduct board' shall occur, it shall be deemed and construed hereafter to mean the `department of public works' and the `commissioner thereof.'" The claim is that the statute of 1865 is kept in force by this clause, and that the powers there vested in the Croton aqueduct board are here vested in the department of public works. The words "existing law" in that clause must be construed to mean any law existing and left in force after the passage of the act of 1870. It could not mean that the department of public works should have the power conferred upon the Croton aqueduct board by any law which was inconsistent with the act of 1870 and repealed thereby.
If the act of 1865 was kept in full force, and power, both legislative and executive, over sewers, was thereby conferred upon the department of public works, why was it provided in section 78 that that department should have cognizance and control over sewers? The plain answer is that general authority over sewers having been, by section 21, conferred upon the common council, and the act of 1865 thus far interfered with, the object of that provision was to qualify the general language used in section 21, and to confer upon the street department executive and administrative authority.
It is an undisputed fact in this case that the sewer in question *Page 103 was not authorized by the common council, and that no ordinance was passed in reference to it. It remains to be inquired whether the petitioner can, for that reason, assail the assessment complained of. This form of proceeding to vacate an assessment was authorized by chapter 338, of the Laws of 1858. Section one of that act authorizes the proceeding, if in the proceeding relative to any assessment for local improvements in the city of New York, "any fraud or legal irregularity" shall be alleged. By chapter 312, of the Laws of 1874, an act passed May second, of that year, section 1 of the act of 1858, was amended so as to authorize the proceeding in case "any fraud or substantial error shall be alleged." And by section 2 of the act it is provided, that if upon the hearing it should appear that "the alleged fraud or substantial error," had been committed, the assessment complained of should be vacated. And parties aggrieved in such cases were confined to the remedy furnished by the act of 1858, as amended. On the same second day of May, an act (chap. 313) was passed, amending section 7 of chapter 580, of the Laws of 1872, so as to make the section read, that no assessment "shall be vacated or set aside for or by reason of any omission to advertise, or irregularity in advertising any ordinance, resolution, notice, or other proceeding relative to or authorizing the improvement or work for which such assessment shall have been made or imposed, or for proposals to do the work, or for or by reason of the omission of any officer to perform any duty imposed upon him, or for or by reason of any defect in theauthority of any department or officer upon whose action theassessment shall be in any manner, or to any extent dependent; or by reason of any omission to comply with or carry out any detail of any law or ordinance; or for or by reason of any irregularity or technicality, except only in cases in whichfraud shall be shown, and in cases of assessment for repaving any street, etc."
These two provisions of law contained in chapters 312 and 313, passed at the same time, and having reference to the same subject-matter, must be read and construed together. *Page 104 They should be so construed as that both can be operative.
Here, there was certainly a "substantial error" within the meaning of chapter 312. A sewer was constructed which was wholly unauthorized by any law or ordinance. It is not a case of a defective execution of any power or of an irregular proceeding under any ordinance. It is the case of an assessment wholly unauthorized, not of one irregularly, or defectively imposed. It is difficult to conceive of an error more substantial.
This is not a case within chapter 313, merely of a "defect in the authority of any department or officer upon whose action the assessment" depended. It is not a case of defective authority, but the absence of all authority. It is a case where no action whatever was taken by the common council, the source and foundation of all authority in the proceeding. It is not a case of mere "irregularity or technicality," but one of most substantial defect.
Under chapter 312 assessments can be vacated for substantial error. Chapter 313 provides that certain errors and irregularities shall not be deemed substantial. Taking the two sections together, it is clear that an assessment for any improvement, wholly unauthorized by law or by competent authority, may be set aside, but that when an improvement has been authorized, and there is a mere defect or irregularity in the subsequent proceedings in carrying into effect the authorized improvement, generally, the assessment may not be vacated in the absence of fraud. (In the Matter of the Second Avenue MethodistEpiscopal Church, recently decided in this court.)
Without, therefore, considering the other ground upon which the petitioner based his claim for relief, I conclude, differing from my learned brethren, that the assessment complained of must be vacated.
ALLEN, RAPALLO and MILLER, JJ., concur with FOLGER, J. CHURCH, Ch. J., and ANDREWS, J., concur in result on the *Page 105 ground that under the act, chapter 380, Laws of 1872, this remedy was not authorized.
EARL, J., dissents.
Order affirmed.