People ex rel. O'Connor v. Supervisors of Queens Cnty.

• Decision Date: 05 October 1897
• Citation: 153 N.Y. 370,47 N.E. 790
• Parties: PEOPLE ex rel. O'CONNOR et al. v. SUPERVISORS OF QUEENS COUNTY.
• Court: New York Court of Appeals Court of Appeals

153 N.Y. 370

47 N.E. 790

PEOPLE ex rel. O'CONNOR et al.

v.SUPERVISORS OF QUEENS COUNTY.

Court of Appeals of New York.

Oct. 5, 1897.

Appeal from supreme court, appellate division, Second department.

Certiorari by the people, on the relation of Edward O'Connor and William W. Smith, to review the action of the board of supervisors of Queens county in establishing a new fire district in the town of Oyster Bay. From an order dismissing the writ (43 N. Y. Supp. 1121), petitioners appeal. Affirmed.

Thomas Young, for appellants.

Isaac P. Coale and Townsend Scudder, for respondent.

HAIGHT, J.

On the 30th day of July, 1896, the board of supervisors of Queens county passed the following resolution: ‘An act to provide for the formation of a fire district within the town of Oyster Bay, Queens county, N. Y. The board of supervisors of Queens county, pursuant to section 37 of an act known as the ‘County Law,’ do enact as follows: Whereas, a petition was, on the 30th day of July, 1896, duly presented to the board of supervisors of Queens county, praying that a district duly described in said petition be declared a fire district, pursuant to section 37 of the county law, and it appearing by the affidavit of Amos M. Knapp, attached thereto, that the said petition is signed by one-half of the taxpayers appearing on the last assessment roll as assessed for property within said proposed district, and representing more than one-half of the assessed valuation of the property included within said proposed district: Resolved, that the said petition be granted, and that the district particularly described in said petition be, and is hereby, affirmed and declared to be a fire district in the town of Oyster Bay, Queens county, N. Y., pursuant to the provisions of said section 37 of the county law, said district being described as follows.' Then follows a description of the district. It appears that a petition was presented to the board of supervisors, verified by Amos M. Knapp, who was one of the petitioners, in which he states that he was the clerk of the town of Oyster Bay, and that he had compared the petition with the assessment roll on file in his office, and that the names signed thereto constituted more than one-half of the names of the taxpayers within the proposed district as appears upon the roll, and that the value of the property held by the persons so signing represents more than one-half of the value of the property within the district. He neglects, however, to state that the comparison was made with the last assessment roll, and that the persons signing such petition owned more than one-half of the taxable real property in the proposed district. Section 37 of the county law, as amended by chapter 902 of the Laws of 1896, provides as follows: ‘Each board of supervisors may, on the written, verified petition of the taxable inhabitants of a proposed fire district outside of an incorporated village or city, and within the county, whose names appear on the last preceding assessment roll of the town within which such proposed fire district is located, as owning or representing more than one-half of the taxable real property of such district, or as owning or representing more than one-half of the taxable real property of such district owned by the residents thereof, establish such district as a fire district.’ The writ in question was issued to review the proceedings of the board. It is claimed on behalf of the relators that the defects in the verification, to which attention has been called, rendered the petition void, and that the board of supervisors did not acquire jurisdiction to pass the resolution establishing the fire district. The appellate division neither vacated nor affirmed the proceedings of the board, but simply dismissed the writ upon the ground that it had no jurisdiction.

An order which quashes or dismisses a common-law writ of certiorari is not appealable to this court, unless it appears in the order that the quashing or the dismissal of the writ was made for want of jurisdiction, or upon the ground that the proceedings were found regular. Code Civ. Proc. § 2127; People v. Board of Police Com'rs, 82 N. Y. 506;People v. Board of Fire Com'rs, 77 N. Y. 605;People v. Hill, 53 N. Y. 547;People v. Stillwell, 19 N. Y. 531;People v. Common Council of City of Kingston, 101 N. Y. 82, 4 N. E. 348;People v. Commissioners, etc., of Brooklyn, 103 N. Y. 370, 8 N. E. 730. In this case, as we have seen, the proceedings were dismissed for want of jurisdiction, and not in the exercise of the discretion vested in the learned appellate division. The order is, therefore, appealable to this court.

The serious question presented for our determination is as to whether the action of the board of supervisors in creating the fire district was a legislative or a judicial act. If legislative, it would not be reviewable in this proceeding. The writ of certiorari issues in cases expressly authorized by statute, and in cases in which it was issued at common law by a court of general jurisdiction, except in those cases where the power to issue it has been taken away by statute. It is appropriate for the review of the judicial action of inferior courts, or of public officers or bodies exercising judicial functions. The writ will not issue to review a merely legislative, executive, or administrative action, although it may involve the exercise of discretion. People v. Board of Sup'rs of Queens Co., 131 N. Y. 468-471, 30 N. E. 488; People v. Mayor, etc., 2 Hill, 9; In re Mt. Morris Square, Id. 14; People v. Supervisors of Livingston Co., 43 Barb., 232, affirmed 34 N. Y. 516;People v. Walter, 68 N. Y. 403;People v. Jones, 112 N. Y. 597, 20 N. E. 577. The constitution empowers the legislature by general laws to confer upon the boards of supervisors of the counties of the state such further powers of local legislation and administration as it may from time to time deem expedient. Pursuant to this provision, the legislature has conferred upon the boards of supervisors many important powers, among which is that of establishing fire districts. That these powers are, in the main, legislative in character, was practically conceded upon the argument in this case; but it was contended that the provision for establishing fire districts contained a requirement for a written, verified petition of the inhabitants of the district owning or representing more than one-half of the taxable real property thereof as a condition precedent, and that the board of supervisors had no power to act until jurisdiction had been conferred upon the board by the presentation of such a petition. It may be that the power of the board to act was dependent upon the presentation to it of such a petition. It is possible that the action of the board was unauthorized and void, but this question cannot be determined in this proceeding if the action of the board was legislative, and not judicial. Under the statute the supervisors could only act in a body, as a board, and the district could only be established by a majority vote of the supervisors. Each supervisor, in recording his vote, must, of necessity, act upon such information as he possessed bearing upon the subject, and in the exercise of his judgment and discretion. The power devolved upon the board was purely legislative, unless it was made judicial by the provision requiring the presentation of the petition. While the presentation of the petition may have an important bearing upon the question of the validity of the action of the board, we are not now able to see how it affects the character of the act. The statute provides that the petition shall be verified. It was verified as to the persons signing it. Proof as to the requisite number of signers could only be made after the petition was completed, and as to the manner in which this proof is to be presented the statute is silent. After the presentation of the petition, the supervisors were left to exercise the same judgment and discretion with reference to their votes as they...