40 How. Pr. 201 | N.Y. Sup. Ct. | 1870
The objection to the validity of this assessment is that the resolution and report of the committee were not published in all the newspapers employed by the corporation, immediately after the adjournment of the board. The statute contains the provision that the same shall not be passed or adopted until after such notice has been published at least two days (Laws of 1857, ch. 446). The proceedings were not. published in all the papers, and the notice was only published in the daily papers prior to the passage of the resolution. So far as the direction of the statute is' to publish the proceedings in all the papers employed by the corporation, I have no doubt that the same is to be considered directory, and that a departure therefrom through mistake, or even negligence and not intentionally, would not vitiate the proceedings.
The difficulty arises from the subsequent clause of the act, which says : “All resolutions and reports of committees which shall recommend any specific improvement, taxing or assessing the citizens of the city,” &c., “ shall not be passed or adopted until after such notice has been published at least two days.” The prohibition against the passage of the resolution or report takes it out of the mere directory character of the proceedings, and makes the passage illegal within the meaning of the act of 1858 (as therein designated a legal irregularity), if the provisions of the statute are not complied with. It becomes necessary, therefore, to inquire what is meant by “ such notice has been published at least two days.” I think it clear that the statute does not require two publications. It is sufficient if two days shall elapse between the publication of the notice and the passage of the resolution. The act does not anywhere require more than one publica
This is not confined to each board. The adoption of the resolution means its passage by both boards, and it is only necessary that two days after publication of the notice shall intervene between the introduction of the resolution and its final passage in both boards of the common council. The resolution was introduced in the board of aldermen, July 30, 1863. The committee reported; August 35,. 1863. The resolution was finally adopted by the board of councilmen, September 34, 1863. The resolution was published in the Tribune and in the Herald, July 7, and notice of the report of the committee on August 37; notice of its reference to the board of councilmen, September 19, and of the report on September 33. More than two days elapsed after the publication of the notice, and the necessary publication, therefore, took place, unless it was necessary that such publication should have been made in all the papers employed by the corporation, to give validity to the proceeding. I do not feel willing to give such a construction to this statute, which is not called for by the literal interpretation of it, so as to render these assessments illegal. The words of the act only require the publication of the notice to be for two days. It does not forbid the passage of the resolution until published in all the papers, but only until the notice has been published for two days, and the provisions of the statute can be upheld by construing the number of papers to be merely directory, and the prohibitory portion of the act as satisfied by the publication of the notice in some of them, for at least two days before the resolution was adopted. It is not reasonable to suppose that the common council should be required to examine every newspaper employed by the corpor- =
Application denied.
