Opinion
May Term, 1897.
J.A. Young, for the relator.
Michael J. Tierney, for the respondent, The Village of New Rochelle.
R. McKinlay Power, for the respondent, the Board of Health.
The village of New Rochelle is a municipal corporation organized by a special act of the Legislature, and the other defendants constitute the board of health of the village, pursuant to chapter 661, Laws of 1893, known as the Public Health Law.
In June, 1896, a complaint was made to the board of health that a nuisance existed upon the lands of one O'Connor and of one Kendall, resulting from the emptyings of an old drain. After investigation the board of health ordered the suppression and removal of the nuisance and directed Mehrer, one of its members, to abate it, and in pursuance of this order a drain was constructed under the direction of Mehrer a quarter or half mile in length at a cost of $2,192.34, the board of health buying the material for and constructing the drain by day's work. The bills for the work were presented to the board of trustees of the village, which audited and allowed the same, and on January 14, 1897, levied the annual assessment for 1897 upon the taxable property of the village, including the cost of the drain.
The relator, a taxpayer in the village, on February eleventh, and before the delivery of the warrants for the collection of the assessment, which was on March nineteenth, commenced this proceeding to have the actions of the board of health and the village declared illegal on the ground that the cost of the drain was not a legal charge upon his property.
Sections 21 and 25 of the Public Health Law confer upon the board of health power without publication to make such orders and regulations for the suppression of nuisances and concerning all other matters in its judgment detrimental to the public health in special or individual cases, not of general application, and to serve copies thereof upon the owner or occupant of any premises whereon such nuisances or other matters may exist, or to post the same in some conspicuous place thereon. In each case the board of health is to furnish the owners, agents and occupants with a written statement of the results and conclusions at which they have arrived. It does not appear that any such notice was posted or served.
The village charter provides that when any tax is to be levied, the same shall be appportioned among the taxable inhabitants and their property; that notice shall be given of the completion of the assessment rolls, to be advertised in not more than two of the village newspapers for two consecutive weeks; that a copy of the assessment shall be left with the village clerk for public inspection during twenty days from the first publication of such notice, and notice given of the time and place where the assessors will meet to review the said assessment upon the application of any person aggrieved, after which the levy of the annual taxes shall be made.
The assessment roll, which included the expense of the drain, was made up on January 14, 1897, and the warrant was issued on February first, which was prior to the expiration of twenty days from January fourteenth.
In the case of Stuart v. Palmer ( 74 N.Y. 183) it was held that "the Constitution sanctions no law imposing such an assessment, without a notice to, and a hearing or an opportunity of a hearing by, the owners of the property to be assessed. It is not enough that the owners may by chance have notice, or that they may, as a matter of favor, have a hearing. The law must require notice to them, and give them the right to a hearing and an opportunity to be heard. It matters not, upon the question of the constitutionality of such a law, that the assessment has, in fact, been fairly apportioned. The constitutional validity of law is to be tested, not by what has been done under it, but by what may, by its authority, be done. The Legislature may prescribe the kind of notice and the mode in which it shall be given, but it cannot dispense with all notice."
The record shows that the drain in question was connected with the public sewerage system of the village, and it is, at least, open to question whether the construction of the drain, which is in reality a sewer, should not have been undertaken by the village authorities instead of by the board of health. Section 21, before referred to, and as amended (Laws of 1895, chap. 928, § 1), confers upon the board of health power to certify to the village trustees the insufficiency of the sewers, upon which the trustees are required to make the necessary additions and alterations, and section 31 of the Public Health Law confers upon the board of health the power to compel the village authorities to comply with its orders in this respect.
The giving of the notice of the completion of the tax roll, the deposit of it with the village clerk and the advertisement of these facts, with notice of opportunity to review, were not complied with by the assessors, and each of these incidents is a jurisdictional fact necessary to make the levy of taxes lawful.
The learned counsel for the respondent claims that on certiorari the court will not review any matter, order or proceeding that is not judicial in its nature; that in the auditing of these bills the authorities of the village exercised no judicial functions at all. We cannot agree with this contention. In the case of Osterhoudt v. Rigney et al. ( 98 N.Y. 222) a similar question was under consideration, and the court held that an action by a taxpayer to vacate an audit might be maintained, but also held that certiorari would lie, and that powers exercised by boards of audit are judicial in their nature. (See, also, United States Trust Co. v. Mayor, etc., of New York, 144 N.Y. 492.)
In the case of People ex rel. Myers v. Barnes et al. ( 114 N.Y. 317) the court held a similar doctrine, and these and other authorities are conclusive on the right to maintain this proceeding.
The determination of the board of trustees of the village, in levying the annual assessment for taxes of the year 1897, is annulled, with ten dollars costs and disbursements.
All concurred.
Determination annulled, with ten dollars costs and disbursements.