Howland v. . Eldredge

Grover, J. Section 2 of the act to facilitate the construction of the Cayuga Lake railroad (Vol. 1, Laws of 1869, 677), makes the exercise of the powers conferred upon the commissioners appointed pursuant to section 1 of the act depend upon a majority of the tax-payers of the town, and owning more than one-half of the taxable property of said town *460 assessed and appearing upon the assessment roll of 1868, giving their consent in writing to the bonding of thu town pursuant to the act, which consent shall be proved or acknowledged in the manner provided by the act, and provides that the proof required to show that a majority of the taxable inhabitants representing a majority of the taxable property of the town have given the requisite consent, shall be the affidavit of the assessors, or a majority of them, of said town, and declares it to be the duty of the assessors to make such affidavit, whenever such consent shall be obtained, if so obtained, on or before the 1st day of January, 1870. It is conceded that the making of this affidavit by the assessors is a condition precedent to the right to bond the town pursuant to the act. That however manifest the fact that a majority of the tax-payers owning a majority of the taxable property have given their consent pursuant to the act may appear, yet no bonds of the town can be issued until the affidavit of the assessors is made as required. A very important question presented by this appeal, is whether this affidavit must be made in accordance with the conclusions of the assessors, derived from an examination of the evidence by them, and the exercise of their judgment thereon, or whether they may be compelled by the court by mandamus to make it directly contrary to what they believe the truth to be, but in accordance with what- the court has, upon motion, determined to be the real fact. It would seem that the mere statement of the question was sufficient to suggest the proper answer. It is the assessors to whom the power is given to examine the evidence upon this question, and it is upon their conclusion therefrom, and the exercise of their conscience -thereon, that the power to bond the town depends, and not that of any other board or tribunal. Had the latter been intended, an appeal from the determination of the assessors would have been given to some designated board or tribunal, and the judgment of the latter substituted in place of the affidavit of the assessors, in case it differed from their determination. The affidavit of the assessors must be in *461 accordance with what they believe to be the fact, otherwise they incur the moral guilt of perjury, irrespective of any determination the court may have made thereon. By the seventeenth section of the act, false swearing by the assessors is made perjury, and, should it turn out that they are right and the court wrong in their views, the only ground upon which they could escape conviction would be that the affidavit was not their voluntary act, but the result of coercion, which they had no power to resist. If this appeared upon the face of the affidavit, it is entirely clear that in no legal sense would it be their affidavit at all, but a mere nullity. It follows that there is no remedy provided by the act for the correction of errors into which the assessors may fall, in respect to the matter referred to their determination. The statute having declared it to be their duty to make the affidavit when the fact exists, the court have power, by mandamus, to compel them to proceed and examine the evidence and determine the fact, and if, from their determination, it appears that the requisite consent has been given, to make an affidavit in accordance therewith. This is the universal rule in respect to all subordinate courts and tribunals clothed with the exercise of judgment or discretion. They may by mandamus be compelled to proceed and determine the matter, but cannot be compelled to decide in any particular way. If they could, it would no longer be their judgment or discretion, but that of the court awarding the writ. Their determination is conclusive, unless some mode of review is provided. The present ease is no exception to this rule. When the assessors, in answer to the order to show cause why they should not make the affidavit made and presented to the court an affidavit to the effect that they had examined the evidence, and that a majority of the tax-payers of the town owning a majority of the taxable property had not given then* consent, the court should have dismissed the proceeding. It had no power to examine the case further and compel the assessors to make an affidavit entirely to the contrary. The judgment appealed from must *462 be reversed and the proceedings dismissed with costs to the appellant. All the judges concurring, except Andrews, J. (absent). Order reversed. Peckham, J., also read an opinion for reversal, holding that the assessors were right in denying that a majority owning a majority of the' property assessed had properly assented.