Section 147 of the charter (Laws of 1896, chap. 747) requires that the special assessment for the grading must be “ on the property fronting on such improvement; ” that the special assessment for the sewer must be “ against the property immediately benefited thereby,” and that in either case the assessor “shall 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 or the lands deemed to be benefited, assessing each parcel in proportion to the benefit which in his judgment has been derived from said improvement.”
By section 151 of the charter it is required that “ 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.”
It thus appears that the special assessments for the grading and for the sewer fall on different classes of projierty. In the case of grading such assessment is limited to “ the property fronting on such improvement.” In the case of a sewer the assessment is “ against the property immediately benefited thereby,” which may include other property than such as fronts on the improvement. The cost of the grading and of the sewer was included b'y the common *333council in one contract. Separate bids were not asked for or received. How, then, could the assessor apportion the cost of the grading and the cost of the sewer on the separate classes of property as required by the statute ? My notion is that there can be no compliance with this statute unless separate bids are received for the grading and for the sewer. Appreciating the difficulty, the ■common council directed the contractor to divide his bid after it had been accepted, and undertook to apportion the contract price so as to make a part thereof the price of the sewer and the remainder the price of the grading. But, of course, this was no compliance with the statute. Such a method was an entire departure from the scheme of the statute, which requires the cost of the improvements 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 the case of a sewer be assessed against another class of property. Probably it is not necessary for a person to raise this objection before the contract is made, for the reason that he cannot be supposed to know beforehand that the common council will ignore the statute. But it is worthy of note that the relator, in her objections presented to the common council at the same meeting when the bids were received and before the contract was let, specified as one of her objections “ that there can be no equality in the assessment if said Lavan, Andrew Streets and Mary’s Avenue are graded and sewered if the contract is let under one contract.”
Moreover, the common council divided the contract price of the improvements into four amounts, and'arbitrarily directed that one specified amount be assessed for the construction of the sewer; that another specified amount be assessed for the grading of Andrew street; that another specified amount be assessed for the grading of Lavan street; and that another specified amount be assessed for the grading of Mary’s avenue; and by resolution directed the assessor to make the assessments accordingly, and in this manner the special assessments against the individual property owners were made. It seems to me that this was a clear usurpation of the functions of the assessor, who by statute is charged with the duty of making the assessment “ against the owners or occupants or the lands deemed to be benefited, assessing each parcel in proportion to the benefit *334which in his judgment has been derived from said improvement.” I do not think the assessor can be deprived or relieved of this duty or of any part thereof by the common council, or that an assessment made in this way, partly by the common council and partly by the assessor, is a compliance with the statute.
“ The statute must be strictly pursued, and any departure in substance from the formula prescribed by law vitiates the proceedings. The party wfiose property is to be reached may insist upon the observance of every form prescribed by statute which will in the least tend to his protection. In other words, the form must be strictly followed.” (Merritt v. Village of Portchester, 71 N. Y. 309 ; Stebbins v. Kay, 123 id. 35 ; Newell v. Wheeler, 48 id. 486.)
Writ of certiorari vacated and proceedings dismissed, with fifty dollars costs and disbursements to the respondents.