65 N.Y.S. 163 | N.Y. App. Div. | 1900
This is a proceeding by certiorari, which is authorized by the charter of the city of Buffalo, to determine the validity of a local assessment for repaving or resurfacing Summer street with asphalt". The street was originally paved with genuine Trinidad asphalt in the year 1885 at a cost of $3 per square yard", aggregating $36,219.16, which was defrayed" by local "Assessment. Since that tifne' the pavement has been kept in repair by the original contractor under a five-year guaranty clause, and subsequently by the city at the expense of
The ordinary method of repairing an asphalt pavement is to cut out the asphalt down to the concrete base and insert new asphalt, heating the edges of the old pavement where cut, so that the new asphalt will adhere thereto. In the spring of 1899 the asphalt surface _ in this street, to the extent of about one-half thereof, was entirely worn out and the street was apparently in á dangerous condition for public travel. The pavement had: been repaired to such an extent that it was deemed impracticable on account of its condition to maintain it in a suitable condition for public travel longer by the repair system. ■ Accordingly., on the 20th day of March, 1899, the board of aldermen of the city of Buffalo' adopted a resolution of intention “ to resurface Summer street,”- and directed the board of public works to prepare plans and specifications and advertise for proposals for doing the work. Pursuant to this resolution, plans and specifications.for “ surfacing Summer street ” Were prepared in two parts, the one containing specifications applicable in case the street should be repaved with any kind of asphalt or smooth pavement, in the construction of which the existing concrete base could be utilized,. and the other containing provisions applicable in the event that the '■ street should be repaved with stone, brick or any other material in the construction of which said concrete base could not be utilized. In the different provisions of the charter conferring power upon the municipal authorities to improve the public streets, the words “ surfacing” and “ resurfacing ” are not employed. The charter terms are “ graded,” “ regraded,” “ graveled,” “ regraveled,” “ macadamized,” “ remacadainized,” “ paved,” “ repaved,” “ repair ” and “repaired.” On account of this irregularity, the board of aider-men, on the 17th day of April, 1899, rescinded the former resolu-' tian and adopted a new notice of intention “ to repave Summer street,” and directed the board of public works to prepare plans and specifications and advertise for proposals for doing the work with each kind of pavement, for the laying of which specifications liad been filed with the board of public works, and to report its action there-'
The determination of the municipal authorities that this work: was necessary was fairly justified by the facts and circumstances.. The cost of the work was $1.72 a square yard, making the entire-cost $22,071, for which a local assessment roll has been made and. confirmed, in and by which the relators, who own lands fronting-upon the street so improved, are assessed that part of said entire-cost of the improvement which is in proportion to the benefits-accruing to their premises therefrom, as determined by the board of'• assessors pursuant to the provisions of the charter and approved by the common council. - •
. The first question arises on the contention of the appellants that the work is “ repairing,” not “ repaving,” and that the expense- ■ thereof should be borne by the general fund, Section 279 of the revised charter of the city of Buffalo (Chap. 105, Laws 1891), which became* of force on the first Monday of January, 1892, provides as-follows : “ All streets or parts of streets paved at the time this act takes effect, or which shall subsequently be paved, shall be deemed. accepted streets within the meaning of this title, and shall be repaired when necessary if the chief engineer certifies that less than one-third of the carriageway is in condition requiring repairs.”
By section 275 of said charter it was provided that “ all repairs-of accepted streets ” should be paid for from the general fund, and; section 276 required the board of public works to estimate annually, with its other estimates to the comptroller, the amount neces
Section 397 of the charter, as amended by Laws of 1895pchapter 805, section 26, provides as follows: “ It (meaning, the city) may cause any street or alley to be graded or regraded, gravelled or regravelled, macadamized or remacadamized, or paved or repaved. "When it is proposed to pave or repave any street or alley, plans and quantities shall be prepared for doing the sanie with each kind of pavement for the laying of which specifications have been filed by the board of public works. The latter body shall advertise for bids for doing the same in accordance with such plans, specifications and quantities, and report the same to the common ■council. After one, and within four calendar months from such report, the common council shall determine • which kind of pavement shall be used, and in case a majority petition shall not have been presented, for the kind so determined upon, shall pass a 2’esolution of intention to order the street paved with any kind of pavement it may select. The specifications may provide that the persons submitting bids or proposals shall agree to enter into contract to do the woi'k, and to keep and maintain the same in good repair for a certain definite period, and a contract may be entered into in accordance therewith, and a local assessment made to ■defray the expense thereof, anything in this act to the contrary notwithstanding.” . '
Section 396 provides that “it (meaningthe city) may cause streets and alleys to be opened, leveled, repaired, cleaned and watered.”
Section 400 of the charter provides that “ the expense of all the work or improvements mentioned in sections three hundred and ninety-six and three hundred and ninety-seven of this act, except "the cleaning of streets and alleys, the cleaning and repairing of sewers arid receivers, and' the'repairing of the accepted streets- and the construction and repair of crosswalks, shall be defrayed by local assessments.”
One of the conditions of the specifications is to the effect that the •contractor shall, at his own cost and expense, keep and maintain the pavement in good condition for ten years. It is conceded that, under the last sentence of section 397 of the charter, this provision of the specifications was authorized; but it is contended that the charter provision authorizing it is unconstitutional, in that it imposes
Lastly, it is contended by the appellants that a repavement is not a local benefit, and that it. was not competent for the Legislature tO‘ authorize a local assessment therefor. Unlike the Constitution of' some of the other States, there is no provision in our Constitution guaranteeing that taxation, general or local, shall be equal and uniform. . We regard the law as too well settled, in this State at least, in favor of the right of the Legislature to authorize the expense of paving and repaving streets to-be defrayed by local assessments, to require extended consideration. The abutting property owner, it is-true, is not the only one benefited. Other residents and non-residents of the city who have occasion to use the pavement arid those owning real property in the vicinity receive some benefit therefrom.. But when the condition of the street renders a new pavement necessary, the. abutting property is directly benefited by such new pavement and the market value thereof is increased in the same manner, if not to the same extent, as by the original pavement. (Matter of Phillips, 60 N. Y. 21; Matter of Burke, 62 id. 224; People v. Mayor of Brooklyn, 4 id. 419, 440 ; Genet v. City of Brooklyn, 99 id. 306 ; Spencer v. Merchant, 100 id. 585; Moran v. City of Troy, 9 Hun, 540; Voght v. City of Buffalo, 133 N. Y. 463 ; People ex rel. Markey v. City of Brooklyn, 65 id. 349 ; Matter of Sharp,, 56 id. 257; Jones v. Town of Tonawanda, 158 id. 438.) .
It follows that the decision and order appealed from should b& affirmed, with costs.
All concurred.
Judgment affirmed, with costs.