Miller v. City of Amsterdam

• Decision Date: 21 April 1896
• Citation: 149 N.Y. 288,43 N.E. 632
• Parties: MILLER v. CITY OF AMSTERDAM.
• Court: New York Court of Appeals Court of Appeals

149 N.Y. 288

43 N.E. 632

MILLER

v.CITY OF AMSTERDAM.

Court of Appeals of New York.

April 21, 1896.

Appeal from supreme court, general term, Third department.

Action brought by John C. Miller against the city of Amsterdam. From a judgment of the general term (28 N. Y. Supp. 1021) affirming a judgment in favor of the plaintiff, entered upon the report of a referee, defendant appeals. Affirmed.

Action to set aside an assessment, valid on its face, upon real estate belonging to the plaintiff, for a local improvement alleged to have been made by the city authorities without jurisdiction. The answer denied the alleged irregularities, and set forth facts showing that all the proceedings on the part of the defendant were regular and valid. The action was tried before a referee, who found that the city authorities did not acquire jurisdiction, and ordered judgment in favor of the plaintiff, vacating the assessment and restraining the defendant from taking any steps to enforce the same. Upon appeal to the general term the judgment was affirmed, and the defendant thereupon appealed to this court. The facts, so far as material, appear in the opinion.

Edward P. White, for appellant.

H. V. Borst, for respondent.

VANN, J.

The charter of the city of Amsterdam authorizes the common council to cause any street in that city to be paved, and to determine by resolution what part of the expense, not exceeding 25 per cent., shall be paid by a general tax, and what part by a special assessment upon such real estate as the city assessors shall deem more immediately benefited by the improvement. Laws 1885, c. 131, § 95. It is further provided that no street shall ‘be paved by said city unless the owners, owning a majority of the amount of lineal feet fronting on the part of the street proposed to be paved * * * petition therefor and the same shall be ordered by a vote of two-thirds of the common council.’ Id. § 102. The charter contains no provision authorizing or requiring any board or officer to ascertain whether a petition for a pavement is signed by the owners of the requisite number of feet or not. It provides no means for a judicial determination of the fact, although, in defining the general powers of the common council and its committees, authority is given ‘to issue a summons to any person to appear and testify before them in respect to any matter pending or referred to them.’ Id. § 32. On the 29th of September, 1890, a petition signed by 65 persons, but not including the plaintiff, was presented to the common council, the body of which is as follows, viz.: ‘The undersigned, property owners on East Main street, respectfully petition your honorable body for the passage of a resolution or ordinance ordering the pavement of said street between Bridge street and the end of the street-car track, as formerly laid.’ The petition was referred to the committee on streets, which reported on the 1st of October, 1890, that the total frontage upon the street was 8,200 feet, or, after deducting 600 feet for intersecting streets, 7,600 feet, of which 4,065 feet, or more than a majority, was represented by the petition. The report was accepted, and thereupon a resolution was passed, unanimously, which, after reciting that ‘the owners of property on East Main street, in the city of Amsterdam, owning the majority of the amount of lineal feet fronting on said street between Market street and the easterly margin of Eagle street, have petitioned for the paving of such portion of East Main street,’ granted the prayer of the petition, and directed that the improvement be made accordingly. The usual proceedings were then taken, the street was paved, and an assessment was made upon the property of those especially benefited, including the sum of $398.09 upon certain real estate belonging to the plaintiff. In fact, as the referee found, and as is now conceded, the owners of the required frontage upon the street ‘did not sign the petition,’ and the main question presented for decision is whether the common council acquired jurisdiction to lay the pavement. The appellant claims that the petition was such as to require the common council to decide upon its sufficiency; that the council did decide, upon evidence showing an apparent majority, that it was sufficient; and that, even if it decided wrong, its action was of a judicial character, and cannot be inquired into collaterally. The respondent claims that when the existence of a fact is necessary before the officers of a municipal corporation can act, and no provision is made in the statute creating the corporation for the determination of such fact, it can be inquired into collaterally, when the officers have acted on the assumption that the fact existed.

The common council had no inherent powers, but only such as were conferred upon it by statute, and to such cases the rule of strict construction is applied. It is conceded that, unless it acquired jurisdiction, its action was unauthorized and void. It did not acquire jurisdiction by means of a petition signed by the requisite number of property owners, because the requisite number did not sign the petition. The command of the statute was that the pavement should not be laid, unless a certain fact existed, and that fact did not exist. Yet, as the common council, as it is assumed, decided in good faith, and with apparent reason, that the jurisdictional fact existed, it is claimed that such decision protected the subsequent proceedings of the city authorities from collateral attack. When that decision was made, there had been no opportunity for any property owner to be heard. No notice had then been given, and, up to that point, none was required or authorized by the charter. There was no voluntary appearance before the council by those interested. The decision was ex parte, in every sense. No method was provided to review it. The officers who made the decision were not judicial officers. Their duties were legislative and ministerial in character. To hold that such officers virtually acquired jurisdiction by deciding, even in good faith, that they had jurisdiction, would be an anomaly, and would deprive the landowners of the protection that it was the object of the statute to afford. Provisions similar to those under consideration have existed for many years in the charters of many cities throughout the state, yet we are referred to no authority upholding the appellant's position. Many cases have been before the courts in which the validity of local assessments has been questioned on various grounds, and the records of this court show numerious opportunities to present the point now urged upon our attention, as it is said, for the first time.

The appellant defends its position by this reasoning: That although the charter does not expressly charge the common council with the duty of deciding the jurisdictional fact, such duty is necessarily implied, and is judicial in character; that as there was some evidence before the council that the required majority had signed the petition, it was sufficient to require a decision in respect to such majority; that the decision, when made, was in the nature of an adjudication, which, if erroneous, could be corrected only by a direct proceeding for that purpose, and, if not so corrected, the subsequent action based thereon was not affected, however erroneous the adjudication might be. The defect in this argument is the assumption that there was implied authority to ascertain the particular fact, and that the decision that the fact existed was a judicial determination. It is not open to dispute that where an officer is expressly required to exercise his judgment upon the weight and importance of evidence, and has jurisdiction to act, a wrong decision of a question of fact fairly presented is in the nature of a judgment, which, even if wrong, stands until reversed. Here, however, there was no ‘evidence,’ in the usual sense of the word, to consider. The petition does not purport, upon its face, to be the petition of a majority. It is not verified, acknowledged, or authenticated in any way. It contains no statement to estop even those who signed it. It has none of the sanctions of safeguards of evidence. There was no express authority to decide upon its sufficiency. While it was the duty of the council to consider it, there was no implied authority to base a judicial decision upon it. Implied authority that may deprive a man of his property is not favored by the law. There is nothing in the statute...