In the Matter of the Petition of Kendall

Earl, J. It is conceded that this assessment should be vacated in part but for the action had under the act chapter 580 of the Laws of 1872. It was shown that the contract for the work, for the expense of which the assessment was laid, was presented to the commissioners named in that act, and that they certified that it was free from fraud. It is contended on the part of the petitioner that the determination of the commissioners was wholly invalid, because, before entering upon their ■ duties, two of them did not take the oath required by the act. Section 2 of the act provides that, before entering upon their duties, they shall severally take and subscribe an oath or affirmation that they will “ severally, justly and fairly hear and consider the matter submitted to them, and make a just and true decision thereof.” The two took the oath as follows: “ That I will support the Constitution of the United States, and the Constitution of the State of Hew York, and that I will faithfully discharge the duties of the office of commissioner mentioned in such chapter 580 of the Laws of 1872, according to thfe best of my ability.” Without now determining whether or not the oath taken was a substantial compliance with the act, a broader view may be taken. The commissioners were public officers appointed to discharge important judicial functions. They were to hear *305 parties, take evidence and make determinations. Their action would, therefore, have been valid if they had taken no oath. They were appointed by competent authority. They discharged the duties of their office without, so far as appears, any question as to their official character. They were, therefore, at least officers de facto, and their official action was as absolutely valid and binding as to the parties appearing before them aiid the public, as it would have- been if the prescribed oath had been literally taken, and they had thus, in the strictest sense, become officers de jure. (In the Matter of the M. & H. R. R. Co., 19 Wend. 135; Weeks v. Ellis, 2 Barb. 320; People v. Cook, 8 N. Y. 67; People v. Hopson, 1 Denio, 574.) It would be a monstrous proposition to hold that the action of town assessors or of trustees of villages who under the general village act perform the duties of assessors, was void because they had neglected to take any official oath. It is no answer to the validity of the action of these commissioners as defacto officers that their action could result in taking private property for assessments "which might be consequent upon their action. So a sheriff or constable may seize private property, and a judge may render a judgment, which may result in taking or imposing burdens upon property. And yet the action of such officers could not for that reason b.e assailed, because they had failed to take the proper official oath of office and hence were merely defacto officers. We think, therefore, that it is clear upon this ground that the alleged defect in the oath taken by the two commissioners does not impair the validity of their action. It is further contended, on behalf of the petitioner, that the determination of the commissioners was binding only upon the city and the contractor — the parties to the submission under the statute. This contention, we think, is not well founded. Section 1 of the act provides that all contracts which the commissioners shall certify to be free from fraud are ratified and confirmed, and declared to be valid and binding, and if the contracts have not been executed, and the commissioners shall certify that there has been no fraud in the award of the *306 contracts, that the proper officers shall execute the same. Section 2 provides that the decision of the commissioners shall be binding upon the city and upon the other party to the contract or award, and shall be final and conclusive as to all questions of fraud in relation to the contracts, agreements or awards and the performance thereof. Section 3 provides that the comptroller of the city shall, upon the contracts thus certified by the commissioners, make such payments as Shall be required by the contracts to the parties entitled thereto in the same manner, and to the same extent, as if the contract had originally been regular, sufficient and-valid. Sections 4 and 5 provide for assessments upon property benefited of the expense of the work performed, or to be performed, under the contracts certified by the commissioners under the act. The object of this act as is thus apparent was to take a whole mass of illegal and invalid contracts, and if they were certified by the commissioners to be free from fraud, to confirm and render them absolutely valid. That the legislature had the power to do this is not questioned. (Brown v. The Mayor, etc., 63 N. Y. 239.) The moment the contracts were thus made valid and binding upon the parties thereto, they were just as effectual as a basis for an assessment as if they had originally been valid. It cannot be supposed that the legislature meant to make these contracts binding upon the city, to compel it to pay for work done under such contracts and to authorize assessments to be made for expenses of such work, and yet to leave the property-owners the right to assail such assessments because of the invalidity of the contracts. It is true that the determinations of the.commissioners are not binding as such upon any one but the parties to the contracts. ' But their determinations purge the contracts of all infirmity and render them valid. The property-owners are not parties to the contracts. They need not be consulted about them and have no right to be heard in relation to them. Their right to a bearing first comes when assessments are to be made against them. A contract valid and binding upon the city and under which it is obliged to pay for work done can lay the founda *307 tian for an unimpeachable assessment. This conclusion as to the absolute validity of such contracts is in harmony with some views expressed by Allen, J., in the Matter of Peugnet (67 N. Y. 441), but not with with some expressed by Churoh, C. J., in the Matter of Burmeister (76 N. Y. 174). A careful examination of the act of 1872, and preceding and subsequent legislation inpari materia has led us to the conclusion we have now reached. In the Burmeister Case we had under consideration section 7 of the act of 1872, in a case of repavement, and we do not deem it important now to consider or construe that section nor to determine precisely how far that ease should be limited as this is not a case of repavement and there is no allegation of fraud. These views lead to an affirmance of the order appealed from. The order should be affirmed, with costs. All concur, except Folger, Ch. J., not voting. Order affirmed.