In Re New York Protestant Episcopal Public School

46 N.Y. 178

• Court: New York Court of Appeals
• Decided: September 5, 1871
• Status: Published

Opinion

Raparlo, J.

By the act of April 12, 1865, the construction of any. sewer or drain in the city of New York is absolutely prohibited, unless such sewer or drain shall be in accordance with a general plan, devised by the Croton board, for the sewerage of the particular district in which such sewer or drain is proposed to be constructed. And in The Matter of Blodgett (decided October 24,1870), this court decided, that an assessment for a sewer contracted for, before such a general plan had been devised was void. That decision must control this case, unless the respondents can maintain the position, that the act of April 12, 1865, does not apply where proposals for the work had been advertised for, and bids opened, before the passage of the act. But we do not think that position tenable. There is no such reservation in the act itself, nor do we think that such a reservation can be. intended. The manifest design of the act, was to secure a harmonious .system of sewerage for the entire district; and the reservation sought to be introduced, might have the effect of interfering with the general plan, so as to. defeat the very object which the act was designed to secure.

It is not material to pass, upon the question e>f the constitutionality of the act of 1861 (chap. 308), or whether, on the opening of the bids, the lowest bidder acquired a vested right to a contract for the construction of the sewer. Assuming that he did, or even that the city had entered into a formal contract with him before the passage of the act of 1865, such contract would not deprive the legislature of the power to prohibit the construction of the sewer.

Whether the city would be discharged by the act, from liability to the contractor for damages for the breach of the contract, is a different question. But the power of the legislature to regulate the manner in which public works of this description shall be constructed, cannot be foreclosed by any contract of a municipal corporation for the doing of the work.

The act of 1865, by its terms, applies to all sewers thereafter to be constructed.

It is claimed, that in order to prevent its interfering with vested rights of contractors, it should be restricted, by construction, to sewers thereafter to be contracted for. In view of the special object sought to be attained by the act, we do not think such a construction admissible. Its clear intent, was to prevent the building of any sewer, not in accordance with the general plan directed to be devised. This intent would be defeated, should the courts take the liberty of construing the act so as to sanction other sewers, which might be found totally inconsistent with the general plan when adopted, simply for the purpose of protecting contracts entered into prior to the passage of the act.

The order appealed from should be reversed, and the assessment vacated, with costs.

All concur.

Order reversed.