APPEAL by the defendant, Arthur E. Stevenson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 16th day of December, 1910, upon the decision of the court, rendered after a trial at the Erie Special Term, reversing a judgment of the Municipal Court of the city of Buffalo in favor of the defendant entered upon the dismissal of the complaint, and also from an order entered on the 16th day of December, 1910, directing the entry of the said judgment.
Henry W. Willis and Thomas E. Boyd, for the appellant.
Frank C. Westphal [Clark H. Hammond, Corporation Counsel], for the respondent.
The plaintiff, the City of Buffalo, claims the defendant is liable for a penalty of ten dollars in opening a street or alley in the city without obtaining a permit so to do. The substantial facts are undisputed, and the defendant succeeded in the Municipal Court on the ground that the license fee of five dollars, imposed by the ordinance of the city for the permit, was in fact a tax, and renders the ordinance invalid.
The charter of the city (Laws of 1891, chap. 105, and amendments) vests in the common council the authority to enact ordinances 'to regulate the use of [the streets], and to declare in what manner and for what purpose they shall not be used.' (§ 17, subd. 9.) In pursuance of this authority the common council, by ordinance, provided for granting permission 'to the owner or occupant of any lot for the purpose of laying gas, sewer, or water pipe from the main pipe or sewer in said street or alley to the line of said lot, or for the purpose of repairing such pipe or sewer.' (Ordinances, chap. 4, § 30.) The work has to be completed within the time directed by the chief engineer.
Later, when the department of public works was created by the Legislature, the commissioner of that department was given control over the public sewers of the city and 'of giving permits for house connections with same.' (Charter, § 271, subd. 2, as amd. by Laws of 1901, chap. 228, and since amd. by Laws of 1910, chap. 643.)
Subdivision 2 of said section 30 is as follows: 'Before any permits for the opening of a pavement shall be granted by the Bureau of Engineering of the Department of Public Works, the applicant shall pay to the City Treasurer a fee of five dollars for each and every such opening between the intersecting street lines in any block. The amount of such fees to be credited to the fund repairs of streets, Bureau of Engineering, Department of Public Works, by the Comptroller, June 30th, each year.'
It is further provided in said section 30: 'Any person who shall open any street or alley for the purpose mentioned in this section, without the permission of The Board of Public Works, or who shall fail to comply with any of the provisions of this section, shall forfeit and pay the penalty of ten dollars for each and every offense.'
It is assumed, although the record does not disclose the fact, that the defendant is a licensed plumber, and he opened the pavement on Fell alley in said city for the purpose of opening the sewer laid in that alley or street. He did not pay the five dollars or obtain a permit authorizing him to open the street or alley. The evidence shows that this alley had been a public street for a great many years, was paved and with a sewer--all under the control of the city authorities.
The counsel for the appellant claims that there was no proof of any ordinance imposing a penalty. There are several answers to this criticism. 1. No such objection was suggested on the trial. In the motion to dismiss the complaint the counsel for the defendant stated the grounds specifically that the ordinance was unconstitutional and not a proper police regulation, and that there was no consideration for the five dollars charged for the permit. He did not claim there was no ...