People ex rel. Porter v. City of Rochester , 1856 N.Y. App. Div. LEXIS 19 ( 1856 )

Smith, J.

The office of a common law certiorari is to bring up for review the proceedings of subordinate tribunals, that this court may see that such tribunals keep within the limits of their acknowledged jurisdiction. Since the decision of Birdsall v. Phillips, (17 Wend. 464,) the court has been accustomed in examining the return to these writs, to confine its decisions to mere jurisdictional facts, although in respect to proceedings between landlord and tenant, and under the insolvent acts, and other cases where the statute gives the writ, it has been since repeatedly held that the return properly brings up for review the subsequent legal decisions and the final adjudication. Such is now the settled law, by the decision of the court of appeals in Morewood v. Hollister, (2 Seld. 309.) To exercise a supervisory power over the proceedings of all inferior magistrates and tribunals, to restrain them from the exercise of authority not conferred by law, and to reverse their proceedings when their jurisdiction has been transcended, is one of the most important duties of this court. The power to review the proceedings of municipal corporations in this court is undoubted, (20 John. 430. 2 Wend. 395, 230, 277,) How far and in what cases the court will éxercise this power are questions addressed to its sound judicial discretion. The writ is not one of right, like the writ of error at common law, but should always be, and generally is, allowed for good cause, and granted with great care and circumspection. While I maintain the power to issue the writ to review all jurisdictional facts where private rights are to be affected and burdens imposed by the corporate act complained of, I agree with Judge Cowen, in 2 Hill, 28, In the matter of Mount Morris Square, that “ in general we ought not to allow the writ when assessments of taxes or awards of damages are in question which affect any considerable number of persons. If there be a want of jurisdiction even in the judicial act sought to be reviewed, or, in other words, if there be excess of legal power by which any person’s rights may be injuriously affected, an action lies ; and it is much better that he should be put to this remedy than that the whole proceedings should be arrested, and perhaps finally reversed, for such a cause.” In the case of The People v. Supervisors of Allegany, (15 Wend. 198,) the certiorari was quashed, upon a very able opinion of Judge Bronson showing that the writ -ought not to be issued, to review the acts and proceedings of .a board of supervisors," in levying taxes. That it was not .a writ ex débito justitia ; that it ought not to issue without good, cause shown, and that great public detriment, or inconvenience might result from interfering with the proceedings of special bodies like supervisors, commissioners of highways and the like-—considerations which should always he taken into account by the court in allowing these writs. In The People v. The Mayor of New York, (2 Hill, 11,) the same learned judge says, “ If it were not for a few modern cases I should be of opinion that we have no authority to supervise in this way, the acts, ordinances and proceedings of the corporation of the city of ¡New York, or indeed of any other corporation public or private.” In the same case the same judge says, The allowance of the writ rests in the sound discretion of the court, and it has been often denied when the power to issue it was unquestionable, and where there was apparent error in the proceedings to he reviewed; and if it has been improperly awarded it is not too late to correct the error, after a return and hearing on the merits.” (15 Wend. 198. 1 Hill, 195, 200.)

In accordance with these views I should be inclined to quash or supersede the writ in this case, without examining the merits. Certain I am that the writ should not issue to a municipal corporation, as in this case, without notice and without a full opportunity for the respondents to show cause against it and bring to the consideration of the court such facts as may exist in each case calculated and proper to influence its discretion in allowing the writ. But the return is here, and I will therefore proceed to examine the merits, as it may be best for the interests .of the city, and may tend to stop litigation about the assessment in question, to have the questions raised and discussed here, passed upbn by the court. The certiorari requires the respondents to certify and return all papers, petitions, documents and proceedings under their control, concerning the construction of a suspension bridge across the Grenesee river, or relating to any assessment for the construction of such bridge, upon which any action had been had by the respondents. The return shows the presentation of petitions to the common council and their proceedings thereupon in ordering the construction of such bridge and directing the assessment to be made, to defray the expense of constructing the same, which, so far as they are material, will be noticed hereafter. The power of the common council of Rochester to order the improvement in question was not denied on the argument, and is undoubted. The question mainly discussed was whether they had taken the requisite preliminary steps to acquire jurisdiction to pass the proper ordinances for that purpose. Section 188 of the charter of the city of Rochester provides “ That the common council shall not proceed to open, widen or improve streets, lanes and alleys, or make sewers or other expensive works, until first requested by a majority of the owners of the property to be assessed for such improvement, nor until at least ten days’ previous notice shall be given by the common council, by publishing the same in two or more newspapers published in said city, stating that such application is pending before the common council, and specifying the time at which final action will be taken. Sections 189 and 190 provide thatbefore the common council shall determine to make any such improvement they shall make an order directing some officer, to be designated, to ascertain and report to the common council an estimate of the expense thereof, and they shall then, by an entry in their minutes, describe the portion of the city which they deem proper to be assessed for the expense of such improvement. They shall cause notice to be published in one or more of the daily papers for one week, specifying such improvement, the estimated expense thereof, and the portion or part of the city to be assessed for such expense, and shall require all persons interested in the subject matter of such improvement to attend the common council at the time appointed in such notice. At the time appointed in such notice the common council shall proceed to hear the allegations of the owners and occupants of houses and lots situated within the portion or parts of the city so described as aforesaid, and after hearing the same shall make such further order in respect to such improvement as they shall deem proper.” Under these three sections of the charter, before the common council can make the final ordinance or determination to make any such public improvement as is therein referred to, the following things are to be done and in the order following: 1st. A petition must be presented to it from a majority of the owners to be assessed for such improvement. 2d. Notice of such application must be published ten days in two daily newspapers. 3d. Some officer must be directed to make an estimate of the expense. 4th. An entry must be made describing the part or portion of the city to be assessed. 5th. Notice of such improvement, the estimated expense thereof, and the portion of the city to be assessed therefor, and- requiring all persons interested to attend at a time appointed to show cause Ac., must be published. All these steps, as appears from the return, were in due form taken by the common council, except the first. The point of discussion on the argument, and the chief ground on which the writ was sued out and allowed, was that the provision requiring a petition, signed by at least a majority of the owners of property to be assessed, to be presented to the common council, was not complied with. The return shows that nine several petitions were presented to the common council before they proceeded to act in respect to the improvement in question, with about eight hundred names thereto attached, asking for the improvement. The form of one of the petitions is as follows :

“To the honorable the common council of the city of Bochester.

The subscribers, taxpayers in the district proposed to be assessed, respectfully request your honorable body to levy a tax sufficient to pay the cost of building a suspension bridge over the river, below the lower falls, beyond the amount now appropriated therefor, and not exceeding seven thousand .dollars. They suggest that the territory be bounded north by the north line of the city; east by the east line thereof and Clinton street; west by the Brie canal, and south "by Brown and Gorham streets.”

The petitions were all in the same form, except that the suggestion at the close in respect to the territory to be assessed, was in some of them slightly varied as to its extent. The suggestion at the close of the petition cannot be regarded, I think, as of the substance of the petition, or in the light of a condition. It is a mere suggestion without force, and in no respect binding on the common council. The substance of the petition must be deemed a request, under section 188, by the signers, to the common council, to make the improvement in question. We have, then, petitions signed by 800 persons describing themselves as taxpayers, asking- the common council to levy a tax sufficient to pay the cost of building the bridge, &c. Before the common council acted at all on the subject, as they state in their return, these petitions had - been pre'sented and been duly referred to the committee on streets, bridges and public improvements, the chairman of which reported, before any further proceeding was had, except to direct the city superintendent to estimate the expense of the improvement, that the said committee had carefully examined into the matter and ascertained that said petitions were signed by a majority of the owners of the property to, be assessed for the construction of such bridge ; which report was accepted. This report was of course hypothetical; for'the extent of the territory to be assessed had not then been legally determined or fixed by any appropriate resolution, but it was‘doubtless based upon the action contemplated to succeed the making of such report, and must be construed in connection with the resolution introduced at the same sitting of the common council, by the same aider-man, and passed unanimously, fixing the limits of the territory to be assessed for the proposed improvement, and declaring that the common council had been requested by a petition signed by a majority of the owners of property to be assessed therefor, to proceed to the construction of the said bridge, and directing the publication of the requisite notice for all persons interested to show cause against it at the time therein fixed fof that purpose.

There .is an obvious inconsistency in the provisions of these three sections, 188,189 and 191, in restraining the action of the common council until the improvement contemplated is asked for by a majority of the owners to be assessed therefor, and making the action of the board in the fourth division above given of the preliminary proceedings to confer jurisdiction, to follow such petition, the territory not having before been in any wise ascertained from which the petition is to come, or in which the petitioners must reside. Literally these provisions cannot be carried out together, for the first comes last and the last in some degree first. The three sections must be construed together, so as to have a practical effect.

The inconsistency doubtless arose in the original enactment of section 188, to meet the improvement of a single' street or the construction of a sewer or the like, when it was apparent who was to ‘be benefited ; that is to say, all the inhabitants on the street or in the neighborhood of the sewer. The section was never designed for so extensive an improvement as this bridge. It must, however, be construed as the common council have practically construed it in this case. The common council must see, when it comes to order the improvement and fix the limits of the territory to be assessed, that a majority of the owners of property to be assessed therefor have in fact petitioned for the improvement in question. If they have a petition in the outset, as they had here, and such petition is in fact ascertained by them to be signed by a majority of the owners of the property to be assessed, when the part or portion of the city to be assessed for the said improvement is fixed, that is a substantial compliance with the sections of the charter, and all the compliance practicable in such' a case. When the common council, on the 7th of August, passed the resolution fixing the limits of the territory to be assessed, and asserted in the resolution, as above stated, that a majority of the owners of the property to be assessed for the said improvement had petitioned therefor, they must be deemed to have duly ascertained and determined that fact. Their resolution declaring such fact must be considered in the nature of a judicial finding in pais on that subject. It was rightfully regarded by the common council as a jurisdictional question. They referred these petitions to the appropriate committee to ascertain the facts, arid the committee did so, and made a report to the board on the subject, and this was immediately followed by the resolution aforesaid finding the fact or declaring it to be in conformity with such reports.

This finding ought to be, and I think is, conclusive on that question, in all places. The common council were called upon to decide on the facts upon which their jurisdiction depended, and we cannot say from any evidence returned to us that they decided erroneously. If the common council were a subordinate judicial body, and we had the right to reverse their decisions as we do the legal decisions of inferior courts upon appeal, we should hold their decision of such a question, upon such evidence as they had here, conclusive until reversed in due form. But the office of a common law writ of certiorari, as we have before seen—except when some statute gives the writ-—-is not to review erroneous legal decisions of inferior tribunals, but to set them aside for an entire want of jurisdiction. If no petition had been presented to the common council, as required in the 188th section of the charter, their proceedings would be clearly and palpably without jurisdiction, and we might reverse them; but not when they had, as in this instance, petitions, and had acted upon them carefully and in an appropriate manner, and finally decided that they were sufficient to entitle them to act in conformity with the prayer thereof.

The distinction I have made between the case where there is no evidence or facts upon which to base jurisdiction before the officers or tribunal called upon to act, and the case where there is some evidence tending to establish the requisite facts, and calling upon the tribunal, or officer, to pass upon its sufficiency or weight to establish the fact in question, is, I think, a sound one, and supported in effect by the decisions in the following cases : 5 Cranch, 173; Betts v. Bagley, (12 Pick. 572;) Birdsall v. Phillips, (17 Wend. 464;) 20 id. 779, 780, opinion of Judge Cowen, and In matter of Faulkner, (4 Hill, 598.) In this last case Judge Bronson says: Enough was proved to call upon the officer for the exercise of his judgment upon the weight and importance of the evidence, and if he erred in the decision of a question fairly presented, the error would not be fatal to the proceedings.” This was the precise case here. Enough was presented in the nine petitions, with the report of the committee on streets, highways and bridges, thereupon,, to call upon the common council to exercise their judgment upon the jurisdictional facts essential to entitle them to proceed to order the improvement in question; and having acted thereon, their decision is final and conclusive on that question. It was like, the case above cited from 12 Pick. 572. That was the case of an insolvent’s discharge under the two-thirds act of this state, set up in defense of a suit in Massachusetts. Chief Justice Shaw, page 583, says :' “ The question whether the petitioning creditors do in feet hold debts to the amount of two-thirds, is one of the facts to be judicially tried and determined by the judge or court;” and he says, “it would be preposterous to hold—if the judge erred in deciding that fact essential to his jurisdiction to grant the discharge—that all the proceedings would be coram nonjudice, and that all officers serving process have acted without authority.”

“It is,” as is well said by Judge Bronson in the case cited in 4 Hill, 602, “ only where there is a total -want of evidence upon some essential point that the officer will fail to acquire jurisdiction.” This cannot be pretended in this case.

But, upon the question whether the petitions presented to the common council did in fact contain the signatures thereto of the owners of property to be taxed for the said improvement, requisite in point of numbers and location under section 188, to confer jurisdiction, we think the relator and all others estopped from raising the question, by their omission to raise it before the common council, when called upon to make their obr jections by the notice required to be published, and in this case actually published, under and in pursuance of section 190. The notice in question apprised all persons interested of the extent of the territory to be assessed, and the amount of estimated expense of the contemplated improvement, and called upon them to attend the common council at a particular time therein specified, when allegations would be heard and action had thereon.

[Cayuga General Term, June 2, 1856.

The intent of these sections, 188,189 and 190, was to restrict the common council from making improvements which would involve local assessments, without the assent of a majority of the persons to be assessed. This was a question in pais in respect to each and every improvement, which the common council must decide in limine. All persons interested were called upon by the notice last aforesaid to look to this question too, and we think the legislature intended that the action of the common council, upon and after the publication of the last mentioned notice, should be final and conclusive upon that question. At least we are well satisfied that it is not our duty, upon the return to a common law certiorari, to listen to any objections of the kind presented here, and that we ought to hold the action of the common council final and conclusive upon all persons, in such cases, unless it clearly appeared that there was an entire and palpable absence of all evidence tending to confer jurisdiction before them. That was very far from the fact in this case.

The writ of certiorari should be dismissed and the proceeds • ings affirmed.

Welles, J., concurred.

T. R. Strong, J., dissented.

Proceedings affirmed.

T. R. Strong, Welles and Smith, Justices.]