#### City of Buffalo, Respondent, *v.*Arthur E. Stevenson, Appellant.

Fourth Department,

May 3, 1911.

Municipal corporations — city of Buffalo— ordinance requiring permit and payment of fee for tearing up streets -with penalty — evidence — proof of ordinance — appeal — failure to object because of lack of proof — judicial notice of municipal ordinances — constitutional law — ordinance imposing fee for permit to tear up streets not unconstitutional — when fee ps not tax — reasonable charge for permit — public health and safety.

Where a defendant sued by the city of Buffalo for a penalty prescribed by a city ordinance for opening a public street to lay pipes without obtaining a permit, and paying a fee of five dollars, moves to dismiss the complaint solely upon the ground that the ordinance was unconstitutional and that there was no consideration for the payment, he cannot claim on appeal that there was no proof of the ordinance imposing the penalty.

Nor can he claim that there was no proof of such ordinance when the attorney for the city offered in evidence the chapter of the city ordinances containing the ordinance in question, and the opinion of the court indicates that the section was considered.

The rule that the courts will not take judicial notice of municipal ordinances not pleaded does not obtain in an action in the Municipal Court of the city where the ordinance has been enacted; and upon appeal from the judgment of said Municipal Court the appellate court will also take judicial notice.

Section 30 of the municipal ordinances of the city of Buffalo, requiring one to obtain a permit and to pay a five-dollar fee for opening city streets to lay pipes, etc., does not offend the clause of the State Constitution prohibiting the taking of property for public use without just compensation.

This is true, although the legal title to the street is in the adjoining owner, where the street is subject to a public user so as to entitle the common council to regulate the tearing up of pavements.

Nor is the payment of the. charge to the city a gratuity so as to be without consideration, for impairment of streets may result from tearing them up.

The test as to the validity of an ordinance requiring the payment of such fee is whether the sum charged is reasonable. A fee of five dollars is not unreasonable.

Where no proof is given that a charge made by a municipality for a permit to tear up streets is unreasonable it will be presumed to. be reasonable.

*118The imposition of such fee is not a tax for revenue to the city, but it is to indemnify it against the expense which may he fairly anticipated as the result of tearing up the street.

When the constitutionality of such ordinance is assailed, the safety and health of the people may he taken into account.

McLennan, P. J., dissented. '' ,

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. Wesiphal [Qlark ' H. Hammond, Corporation Counsel],*for the respondent.

Spring, J. :

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.

*119Latex, when the department of public works was created by the Legislature, the commissioner of that department was given control over the pubbc sewers of the city and “ of giving permits for bouse 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 apphcant' 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 be 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 tó 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 ordinance fixing the penalty, or that there was no authority in the common council to enact the ordinance. If such grounds had *120been urged, the proof could have been readily supplied. (As to the power of the common council generally to fix penalties, see charter, §§ 20, 23.)

2. The attorney for the city offered in evidence chapter 4, .section 30, subdivision 2 of the city ordinances, which included all of the chapter, or so much thereof as was pertinent, and Which included the portion prescribing the penalty, and the. opinion of the Municipal Court judge indicates that he considered. the whole section in evidence.

3. While it is true that the courts will not generally take cognizance of municipal ordinances and they must be pleaded and proved, it has been held in other jurisdictions that this rule does not obtain in an action in the Municipal Court of the city where the ordinance has been enacted. *(Ex parte Davis,*115 Cal. 445, 447; *Downing*v. *City of Miltonvale,*36 Kans. 740; 28 Cyc. 393, 394.)

This action was brought to enforce the penalty in the Municipal Court and the ordinances are. “the peculiar law of that forum,” which affords the reason for the departure from the general rule requiring proof of these ordinances. Upon appeal the appellate .court also takes judicial notice of the ordinances. *(City of Solomon*v. *Hughes,*24 Kans. 211.)

Nor does the imposition and collection of the license fee of five dollars offend against that clause of the State Constitution (Art. 1, § 6) which prohibits the taking of private property “ for public use without just compensation.” ' The street's are within the control of the municipal authorities and it's sewers are constructed and maintained by the department of public works. If a street is opened to enable, an occupant, whose lot fronts on the street, to make a connection with the sewer, the work must be. done under the supervision of the city engineer, and if a person should fall in the opening made and suffer injuries the city may be liable for the . damages sustained. In this case the opening was made Saturday and was not closed until Monday or Tuesday following. During that time the duty of guarding the excavation in order to prevent accidents was upon the city. While it might protect itself by a bond,. which would impose the duty of examining and ascertaining as to the sufficiency of , the instrument upon' the officers of the *121municipality, the person injured would look to the city for redress. ,

The legal title to Fell alley may not have been in the city, and probably was in the owners whose premises adjoined. The street control is the only subject of importance in this controversy. The alley was part of the street system, and the sewer of the sewer system. The regulation of the same by the city was essential for their proper enjoyment and for the safety and health of the public. The property right of the owner in the street is subsidiary to the public use. Whatever within reasonable limits is necessary to make effective the public user of the streets and to regulate the tearing up of the pavement or the opening of the sewers is within the competency of the common council. There must be some direct expense inevitably connected with the giving of the permit authorizing a person to tear up the pavement and open the sewer. The application must be examined and the permit made out and entered.. The supervision of the engineer must call for the personal attendance of some one in his behalf before and during the performance of the work. . Some one representing the city must know that the aperture is properly noted by red lights during the night, or by a barricade of some kind. When the work is completed it is necessary for the city to have the street restored to its former condition. In addition, there are contingent liabilities which may arise and which are not ascertainable when the permission is granted or the work carried on. Impairment of the streets at times will result; and in view of all these circumstances the payment of the charge to the city is not a gratuity; is not without consideration.-

It seems to me the test of an exaction of this kind is whether the sum charged is reasonable, and the fee of five dollars is not exorbitant. *(Water Co.*v. *Burgess, etc., of Darby,*199 Penn. 400.)

No proof was given that the charge made is unreasonable in amount. The presumption is that it is for a reasonable sum. *(Mayor, etc.,*v. *D. D., E. B. & B. R. R. Co.,*133 N. Y. 104; *Grannan*v. *Westchester Racing Assn.,*153 id. 449, 462.)

In determining the validity of an ordinance of this kind we must view it with reference to its general scope and object. In *122this particular instance the pavement may have been properly restored and no damage sustained by the city. In another case the license fee may he largely inadequate to cover the . loss sustained. The ordinance was intended not as a tax for revenue to the city, hut to indemnify it in some measure against the cost and expense necessarily incurred, or- which may he fairly anticipated to result from the opening of the street. The safety and health of the people of the city are elements to he taken into account when such an ordinance is assailed as being repugnant to any provision of the State Constitution.

The judgment should he affirmed.

All concurred, except McLennan, P. J., who dissented upon the grounds stated in the opinion of the Municipal Court judge.

Judgment and order affirmed, with costs.