(dissenting):
' The sole question presented by this appeal is, was the tax imposed upon the relators on Account of the cost incurred in the construction of the sewer in question levied “ upon the lands benefited by the .local improvement in proportion to such benefit?” If not, the tax was erroneous and its collection should be restrained.
The facts are not in dispute. The relators are owners of real property situate upon the westerly side of South Hamilton street in the city of Utica, ÍL Y., which street extends along the side of a hill in such manner that the lots of the relators and others similarly situated are considerably higher than the property abutting upon the easterly side of the street. About the year 1871 the city of Utica caused a twelve-inch sewer to be constructed upon the westerly side of said street, in front of relators’property, connected it with its general sewer system, and the relators immediately connected therewith and ever since have continued to use the same, which is in perfect repair and at all times has been adequate and sufficient for their purposes and fully accommodates their property and all other similarly situated and abutting upon the westerly side of said street. The entire cost of the sewer so constructed was assessed upon the property of and paid for by the relators or their grantors, for the reason that the property upon the opposite side of the street, it being so much lower, could not be drained into it. Thereafter and in the year 1904 the city of Utica duly authorized the construction of a sewer upon the easterly side of South Hamilton street, to be laid at such depth as to. furnish sewer facilities to those residing upon that side of the street, and also in such manner that it could be used by the relators if they desired to incur the expense of connecting therewith and were willing to abandon the sewer which they had fully paid for and which was in every way as suitable for their purposes as the new s'ewer, and even more convenient, because connections with it could be made at much less expense.
The new sewer so authorized was constructed in the manner indicated, but the connections of the relators with the old sewer were left intact and their sewage and drainage was in all respects properly cared for as before. To raise the money with which to pay for the new sewer the defendants' ascertained the entire cost of the same, the number of feet front of property abutting upon both *762sides of the street where the new sewer was-laid,’divided the entire cost by such number of front feet, found the quotient to be $0.9670309, and then by multiplying the.number of feet front owned by- each of the relators by such quotient, determined that the result of such mathematical calculation represented the' benefit which each received by the construction of the sewer in question, a sewer which the. relators did not require because they already had, and had paid for, another which was perfect in all respects: and afforded them ample sewer facilities. ■ •
The method adopted by the defendants to ascertain the amount of the tax which should be levied against the relators’ property-respectively, most conclusively shows that such tax was not levied “ in proportion to such benefit,” but upon the front-foot principle, and without considering the benefit to ■ any particular owner of property. The statement in the return “ that said sewer as laid’ is a benefit to the' property owners equally upon both sides of the street,” which is simply a conclusion of law'or an expression of an opinion, ought not to be regarded as in any manner, establishing the proposition, in view of the conceded facts. Any claim that the tax which is complained of xvas levied “ upon the lands benefited by the local-improvement (the new sewer) in proportion to-such " benefit ” it seems to me is absurd in the extreme. As we have seen, the relators had a perfect sewer, which they had paid for, which was -suitable and adequate for their- use, as good and evén more convenient for them than the new sewer. And yet it is said that the construction of such new sewer Was of precisely the same benefit to their property as to the property, a'cross the street,- which had no sewer facilities and which was, in urgérít need, of same.
We will assume that the Legislature has the power to authorize the perpetration of even such a palpable-in justice. Practically it has been thus held in the pavement cases, so called, where the front-'foot method of assessment has been upheld. We,-however, venture to suggest that no such injustice has ever been sanctioned by the courts, except in obedience to legislative mandate. In the case at" bar the Legislature, as we think; instead of authorizing, has precluded, the adoption of the frontifoot principle, in fixing the amount óf ah assessment like the one in question.
The act creating the board of assessors of the city of Utica (the *763defendants) provides (Laws of 1897, chap. 738, § 11, subd. 2) that it shall assess the cost of local improvements, so far as the same is not payable by the city, “ upon the lands benefited by the local improvement in proportion to such' benefit, except in those cases in which by the charter of said city or by this act the assessment is to be made upon a different principle.” Concededly no provision is contained in the act, except as above, providing how an assessment for a sewer improvement shall be made. That such assessment can only be made “ in proportion to such benefit ” is emphasized by subdivision 2 of section 99 of the charter of the city of Utica (Laws of 1862, chap. 18, as amd. by Laws of 1894, chap. 437), which provides: “In case the work (a local improvement) shall be the constructing in a street of any * * * drain or sewer, separate from any other work,” the expense thereof shall be assessed-“upon such real estate as they shall deem benefited thereby, in proportion to the amount of its benefits.” It is not claimed that the construction of the sewer in question was not entirely “ separate from any other work.” Subdivision 1 of section-99 of the charter (as amd. by Laws of 1903, chap. 288) provides: “ In case the work shall be the grading, leveling or paving, repaving, macadamizing or telfordizing a street, * * * the city surveyor shall ascertain the aggregate front length of lots upon both sides thereof,. and the front length of each lot or parcel, * *. The common council shall then * * * cause the average expense upon each foot of the lots or parcels of land on both sides of said street * *' *, excluding cross streets from the computation, to be ascertained, and each lot or parcel of real estate to be assessed with its portion of the expense, by multiplying its number of feet front into the average expense per foot.” The same method is prescribed for" sidewalks. (Charter, § 99, subd. 3, as amd. by Laws of 1894, chap. 437.)
The provisions of the statutes referred to clearly indicate, as it seems to me, that the defendants in the case of the construction of a sewer, were required to exercise their judgment, and in the other cases, only their mathemati.cal skill.
In tlie case at bar it is evident, is established beyond controversy, that the defendants failed to exercise the first function, but relied upon their ability to properly solve the mathematical problem which they were directed to solve by the Legislature in case the local *764improvement was the construction of a pavement or a sidewalk, instead of a sewer.
There ought not to be given undue significance to the statement in the return of the defendants that said sewer “ as laid is a benefit to the property owners equally upon both sides of the street,” when, as it appears, such proposition is wholly and entirely refuted by the conceded facts. After all has been said, we come back to the proposition, was the construction of the new sewer, which, we must assume, was required and needed by the property owners abutting upon the east side of South Hamilton street, only worth to them the same price per front foot as such sewer was worth to the property owners abutting upon the westerly side of said street, who already had a sewer of practically the same character, which was. adequate ■ and suitable for their purposes, and which was connected with the general sewer system of the city ? If not, then the tax complained of was illegal, because, as pointed out, there was in existence no legislative mandate which authorized the same or such injustice. If the contention of the defendants is correct, may they not insist that even a third sewer may be constructed in South Hamilton street for the sole accommodation of the owner of some particular piece of property which is at a much lower grade than any of the rest, and then declare that the cost of such sewer, if constructed so as to accommodate all, should be levied equally, upon the owners of property abutting upon each side of'said street, according to the number of front feet owned by them respectively ? As before suggested, we think the proposition is absurd, has no support in reason or in law, except where the Legislature has seen fit to authorize such iniquity, which it has not done in this case.
We conclude that the assessment or reassessment made by the defendants was made upon a wrong principle and 'contrary to the uncontradicted facts, and, therefore, should be annulled and declared void as to the relators, with costs.
Hash, J., concurred.
Writ of certiorari dismissed and assessment confirmed, with fifty dollars costs and disbursements. . . ■ . .