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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 71 The charter of the city of Kingston provides that "the common council may cause any street * * * or any part thereof not previously graded, * * * to be graded * * * and determine what part, if any, not exceeding twenty-five per centum of the expense thereof shall *Page 72 be paid by general tax upon the city and what part of such expense, * * * shall be paid by special assessment on the property fronting on such improvement. The common council may also make and construct * * * sewers, and in like manner determine the proportions to be paid by general tax and by special assessment against the property immediately benefitedthereby. If the ordinance for any of said improvements shall provide for assessing the whole or any part of such expense by special assessment, the assessor, upon notice from the common council so to do, shall forthwith proceed to determine the district within which the property benefited by said improvement is located; cause the city engineer to make the necessary map therefor; make a certificate of such special assessment * * * and make a just and equitable assessment of the costs and expenses of such improvement as audited by the common council against the owners or occupants of the lands deemed to be benefited, assessing each parcel in proportion to the benefit which, in his judgment, has been derived from the said improvement, and shall enter in such certificate a brief description of the parcel assessed and the sum assessed against it. * * *" (L. 1896, ch. 747, § 147.) "All improvements to be paid for by special assessment shall be by contract let to the lowest responsible bidder and shall be paid for only from the funds raised, levied and collected for such improvements," but bonds or notes may be issued in anticipation of the collection of the special assessment. (L. 1900, ch. 168, § 151.)
While the assessment for grading is to be made "on the property fronting on such improvement," the assessment for constructing a sewer is to be made "against the property immediately benefited thereby," which may include "other property than such as fronts on the improvement." The common council had the power, and in this case they exercised it, to determine that twenty-five per centum "of the expense" of the several improvements should be paid by general tax and the remainder by special assessment. The assessor is required to assess "the costs and expenses of such improvement" *Page 73 against the owners of the land deemed benefited, and "all improvements to be paid for by special assessment shall be by contact, let to the lowest responsible bidder."
As we read the charter the cost of each improvement can be ascertained in but one way, and that is by the amount of the contract as awarded after competitive bidding. The contract price is the exact measure of the cost, and resort to any other method of getting at it would be attended with more or less uncertainty. In this instance the common council arbitrarily divided the cost of the four improvements and directed the assessor to make the assessment for each accordingly. The relator had no interest in grading Lavan street, for she owned no property thereon. As the cost of grading is to be assessed against the property fronting on the street graded, she was concerned only with the cost of grading Andrew and Mary's streets. The common council, instead of ascertaining the cost of grading those streets through the method provided by the charter, resorted to an unauthorized method, which may have cast a part of the expense of grading Lavan street upon the property of the relator. They did not resort wholly to official sources for their information when they divided the lump sum which the four improvements cost into four items, one for each improvement. They acted on and adopted the estimate of the contractor who made it without official responsibility. While we have no reason to believe that he acted unfairly, the principle upon which they proceeded is wrong and cannot be overlooked, for in another case it might result in injustice, and, indeed, we cannot say that it has not in the case before us.
By separate ordinances four independent improvements were ordered, and subsequently they were consolidated into one, so that the expense of each could not be determined by its actual cost in the method provided by the charter. What should be definite and certain has been merely estimated and the estimate was made by a private citizen, acting without the sanction of an oath. The cost of constructing a sewer, which is assessed upon one principle, has been commingled with the *Page 74 cost of grading, which is assessed upon a different principle. The cost of grading a street upon which the relator had no property has been commingled with the cost of grading two streets upon which she had property. The provisions of the charter have been disregarded notwithstanding the timely notice of the relator and the assessment made upon an erroneous principle, which gives rise to a conclusive presumption of injury. "The power to levy assessments exists only where it is distinctly conferred by legislative authority. Where the mode is prescribed in which the power is to be exercised, it must be followed. The mode in such cases constitutes an essential element in the proceeding. * * * It is not for the courts to say that the same protection may be obtained by other means. `That which the legislature has directed, courts cannot declare immaterial.' No presumption will take the place of the act required." (Stebbins v. Kay,123 N.Y. 31, 35; Merritt v. Village of Port Chester, 71 N.Y. 309,312.)
We agree with the learned justice who dissented below in saying that the method adopted "was an entire departure from the scheme of the statute, which requires the cost of the improvement to be fixed by competitive bidding and then that the portion of such cost as thus determined which is to be paid by special assessment, shall in the case of grading be assessed against one class of property and in case of a sewer be assessed against another class of property."
We are, therefore, constrained to reverse the order of the Appellate Division and set aside the assessment. While the law requires this adjudication, the result will be unjust if the relator should escape taxation altogether, for her property upon Andrew street and Mary's avenue is apparently benefited more than all the other property upon those streets taken together. The city, however, may have a remedy, for if the legislature in the first place could have authorized every thing to be done as in fact it has been done, a curative act may be passed which will prevent the injustice of throwing the entire expense of these useful improvements upon the city at large. (Smith v. City ofBuffalo, 159 N.Y. 427, 432; *Page 75 Van Deventer v. Long Island City, 139 N.Y. 133, 136;Spencer v. Merchant, 125 U.S. 345; 100 N.Y. 585, 587.)
The order of the Appellate Division should be reversed and the assessment against the property of the relator annulled, with costs in both courts.
CULLEN, Ch. J., O'BRIEN, EDWARD T. BARTLETT, HAIGHT, HISCOCK and CHASE, JJ., concur.
Ordered accordingly.