People ex rel. Akin v. Morgan

By the Court, Mullin', P. J. The relator is met attire threshold of the investigation, with three objections, either of which being well taken renders it unnecessary to consider any of the points presented by the relator’s counsel. The 1st is, that there is no proper relator—a taxpayer .and resident of the town having no such status as entitles him to a certiorari to review the proceedings to bond said town; he town of Scipio being the only proper party as relator. 2d. A suit in equity is pending to cancel the bonds for the same errors and defects on which the proceedings are sought to be set aside in this proceeding, and a certiorari will not lie if the party has another remedy. 3d. A certiorari will not issue in this case to bring up the proceedings, as there is no final determination to be reviewed. I. Is the relator, as a tax-payer of the town of Scipio, entitled to a writ of certiorari to review the proceedings of the assessors ? It has been held, in several cases, that a tax-payer cannot maintain an action in his own name to restrain the collection of a tax assessed upon the inhabitants of a town, village or city of which he is a resident; nor can he maintain an action to set aside the proceedings of municipal corporations which only affect him as they do the other tax-payers or inhabitants of such corporation. But he can maintain such an action when he — 480 — sustains some specific injury. (Doolittle v. Supervisors of Broome, 18 N. Y. 155. Roosevelt v. Draper, 23 N. Y. 318. Kelsey v. King, 32 Barb. 410.) It does not follow that because a tax-payer may not maintain an action to restrain the assessment or collection of a tax, or to restrain or set aside proceedings of a municipal corporation, he may not be entitled to a certiorari to review the proceedings of those who assessed the tax, or performed the corpórate act, and to set it aside if found to have been done in violation of law. The decision of the assessors, that the consents of the required number of tax-payers have been obtained, and that they represent the requisite amount of property, is a judicial decision. They are required to examine the rolls, calculate the number of tax-payers, and the amount of property represented by them, and upon this and their own personal knowledge of the identity of the persons whose names are found upon the roll with those who sign the consents, they determine whether the required majority have consented to the bonding. Again; the tax-payer has no other adequate remedy. The decision being a judicial one, the officer or body making it is not liable for the error, if they have made one, and the mischief in this class of cases is complete and irremediable- the moment the bonds get into the hands of a bona fide holder for value, without notice of the error or defect which is relied upon to avoid them. Again; the cases above cited preclude the tax-payer from maintaining an action in equity to set aside the proceedings, and I know of no legal action the taxpayer can bring to protect himself against an unlawful issue of bonds. It does not require the citatio.n of authorities to show that a party is entitled to a common law certiorari to review the determination of a body or officer acting judicially, when he has no other remedy. (The People v. Van Alstyne, 32 Barb. 131. Le Roy v. The Mayor of — 481 — N. Y., 20 John. 430. Lawton v. Coms, of Cambridge, 2 Caines, 179. The People v. The Mayor, 2 Hill, 9. Matter of Mount Morris Square, Id. 14. Western R. R. Co. v. Nolan, 48 N. Y. 513.) If the relator is not entitled to review the proceedings by certiorari he is remediless, however unjust or illegal the proceedings to bond the town may be. I trust the time will never come in the history of the judiciary of this State when the courts will refuse to the citizen relief against injustice and oppression because of any supposed public policy that forbids it, or of the inconvenience it may occasion to either the public or individuals. The great number of actions that tax-payers might bring, if each is held entitled to maintain one in this class of cases, should not be allowed to influence the question, further than to require that one suit, only, shall be maintained, and that in behalf of all. II. Is the town the proper party to be the relator for the review of such proceedings ? It has not a particle of interest in the proceedings to bond it. To entitle a party to a certiorari, he or it must have an interest in the proceedings that are intended to be brought up by it. The town is not bound to pay the bonds; on the contrary, the law provides for their payment by the tax-payers thereof. What, then, has the town to do with the question? The town represents the tax-payers for most purposes; but in proceedings to bond it" in aid of railroads, the consent of a majority of the tax-payers must be obtained, before a suit can be brought, or proceedings instituted, to review the action of the assessors. A vote of a town meeting must be obtained in favor of bringing such suit or proceeding. The majority that consented to bond the town can defeat an attempt to get a vote of the town in favor of bringing the suit, and thus the minority are left without any protection against the action of the majority, however illegal or oppressive it may be. — 482 — It is easy to say that in a government like ours the majority must govern, and it is not to be supposed that they will act unjustly toward the minority, and if they do, the wrong must be redressed by an appeal to their sense of justice and magnanimity,. rather than by a resort to the judicial tribunals. When one man wrongs another, the doors of the court are thrown wide open to admit the injured party to obtain redress. But when a majority mortgage the property of the minority against their will, and in violation of law, they are turned over to the wrongdoers to obtain redress. Such a proposition adds insult to injury. When a candidate for office is deprived of his office by illegal voting, or the fraudulent action of those whose duty it is to canvass the votes, he has a remedy to redress the wrong; but when he is made a" stockholder in a railroad company against his will, and his property taken to pay for the stock, he is without remedy. This cannot be so in a land in which the commandment, '■'■thou shaltnotsteaV is not deemed to be abrogated. III. Is the suit in equity a bar to the remedy by certiorari ? I have referred to cases holding that a tax-payer cannot maintain an action in equity to restrain the collection of a tax that is imposed upon all the inhabitants of a municipality, in common with himself; nor to set aside a corporate act affecting the same class of persons. If this is the law the suit relied upon by the respondent’s counsel cannot bar the remedy by certiorari, as the plaintiffs in it can never obtain, by it, a particle of relief. IV. Is the determination of the assessors final, so that a certiorari may issue to bring the proceedings up for review % If 'the determination was not final when the certiorari was brought, then it never will be. The question whethér the required number of tax-payers had signed the consents was finally disposed of, and all that was thereafter — 483 — done was done by the commissioners in preparing the bonds and subscribing for stock—acts purely ministerial. For myself I entertain no doubt but the relator was entitled to the writ, and this court has the power, under it, to review the proceedings of the assessors, and, if found to be illegal, to set them aside. I have examined the book handed up that contains the writ and the return thereto, and I find in it no return other than that an abstract of which is given above; and that sets forth the meeting of the assessors, the inspection of the tax-rolls and consents, and their adjudication upon them, and their own knowledge of the identity of the persons signing the consents with those whose names are on the assessment roll. The respondent’s counsel evidently intends to use this adjudication as a bar to the right to go behind it, and review the action of the assessors. The court, in reviewing the proceedings, are governed by the return of the officers or body to which the writ is directed. (Matter of Eightieth St., 16 Abb. 169. The People v. The Mayor of New York, 2 Hill, 9. The People v. Wheeler, 21 N. Y. 82.) It will not take into consideration papers annexed to the return. (Case last cited, and Allyn v. Coms, of Schodock, 19 Wend. 342.) The relators’ first point is that the assessors had no jurisdiction to make the affidavit endorsed on the consents, as it does not appear by the return that the road of the ¡New York arid Oswego Midland ¡Railroad Company was located in the town of Scipio, or any other town of the county of Cayuga. When a statute prescribes the evidence that shall be furnished to an officer or tribunal in order to authorize the issue of process, or the performance of any other duty, jurisdiction is acquired when such evidence is furnished ; and no further or other evidence can be required. The railroad commissioners of Scipio were authorized — 484 — and required to borrow money and issue bonds when it was proved to them by the affidavit of the assessors or town clerk, or by that of the county clerk, that the consents required by the statute had been obtained. Bo proof is, required that the Midland Railroad Company had been incorporated, or its line located in Scipio, or elsewhere in the county of Cayuga. If these facts must have been proved, how was the proof to be made, orally or by affidavit '$ Who should administer the oaths, and how and by whom was the evidence to be perpetuated so that it could be returned when called for, by the courts or parties interested % BTeither the assessors nor commissioners have power to administer oaths; nor does the statute seem to contemplate that evidence on any subject should be given, except such as is derived from the assessment rolls, consents and the personal knowledge of the assessors. There may be cases in which proof in addition to that in terms required by the statute should be made, in order to confer jurisdiction. Should a statute authorize an order of arrest on proof that the defendant was a non-resident, it would probably be implied that proof of indebtedness or other cause of action should be made, in order to confer jurisdiction. But in such cases, the officer or court would have power to administer oaths, and could perpetuate the evidence taken before him; but when the officer or tribunal has no such power, the proofs specified in the statute need only be furnished. The legislature alone is responsible for the injustice, if any, resulting from such unguarded and unwise legislation. It is not necessary, under the act of 1866, which is the first act authorizing bonding in aid of the Midland company, that any road should be built or located before the bonds may be issued by the towns in the counties named in the first section of that act. The only security the people of the towns iy those counties had that — 485 — the moneys raised would be used for the construction of a railroad was the integrity of the directors. The acts of 1867 and 1869 authorized the directors of said railroad company to construct a branch road from the main line through the counties named in it, and of these Cayuga is one, whenever it should, in their judgment, be for the interest of said corporation, and the towns and cities along the line of said branch roads, or interested in the construction thereof in any county through which said road shall run, were authorized to bond themselves to aid in the construction thereof. The company to be aided is the New York and Oswego Midland, and the road for which the money raised is to be applied is the road of such company, which embraces the main line and its branches. The section seems to have been carefully prepared, and the distinction between the branches and the road of the company observed. The towns and cities along the line of the branches through which said road shall run were authorized to bond in aid of the construction thereof; that is, in aid of the road, not of the branches only. By the-act of 1871 the Midland company is authorized to extend and construct its road from Auburn or any point on the line of its road, easterly or southerly from said city, through such counties as it should deem-most feasible, to any point on Lake Brie or Niagara river, and any town in any county through or near which said railroad or its branches may be located, with certain exceptions not material to be referred to, may aid the construction of said railroad and its branches by the issue and sale of bonds. This section makes it quite certain that the money raised is to be applied to the construction of the road, including in that term all its branches, and is not to be raised to aid in the construction of the branches only, but may be applied wherever the company deems proper, subject to the general restriction that it is not to be ap — 486 — plied to the construction of the road or its branches beyond the county, except upon a condition not important to be stated. The counsel for the relator insists, in his second and third points, that the acts which authorize the bonding of towns in aid of railroads are unconstitutional and void, because the legislature has no power to pass su'd), acts; and that the acts, under which it is sought to bond the town of Scipio are unconstitutional for the reason that the acts of. 1866 and 1871 embrace more than one subject, and that is not expressed in the title, and there are provisions in it thus affecting the public as well as private rights and interests. The constitutional power of the legislature has been affirmed by the Court of Appeals, and it is not for this court to consider that question. The objection to the title of the acts of 1866 and 1871 is not well taken. It is difficult, if not impossible, to deduce from the cases any rule by which to determine what provisions in a local or private bill, not expressed in the title, render it void as being in violation of that provision of the constitution, (§ 16 of art. 3,) which provides that such bills shall not embrace more than one subject, and that shall be embraced in the title. But it seems to be decided. that when a local or private bill contains provisions which apply to the whole State, the act is valid, although the title does not refer to such provisions. (The People v. McCann, 16 N. Y. 58. Williams v. The People, 24 id. 405. 2 Dwarris on Stat. 472.) But when a statute which applies to the State at large contains provisions of a local or private nature, not disclosed in the title, the latter provisions are void as being in violation of the constitution. (The People v. The Sups, of Chautauqua, 43 N. Y. 10.) The title of the act of 1866 is, “ an .act to facilitate the construction of the New York and Oswego Midland — 487 — railroad, and to authorize towns to subscribe to the capital stock thereof.” The provisions of the statute give effect to the objects and purposes disclosed in the title ; and such an act is not a violation of the constitutional prohibition, however numerous or various they may be. (The Sun Mutual Ins. Co. v. The Mayor, 8 N. Y. 241. DeCamp v. Eveland, 19 Barb. 81. Brewster v. City of Syracuse, 19 N. Y. 116. Conner v. The Mayor, 5 N. Y. 285.) These remarks apply to, and dispose of, the objection to the act of 1871. The relator’s fourth point is, that the affidavit of the assessors should be vacated because the return is wholly defective. If the return is not sufficiently full in relation to the matters which the counsel desires to have reviewed, he should have applied for a further and more specific return. Not having done so, the return must be held sufficient if it sets forth the determination made, and the facts upon which it was founded. This the return states as fully as the writ requires. It was not necessary for the assessors to state the number of tax-payers whose consents were adjudged to be valid, and how many were rejected as invalid, This detail, if admissible, could only be obtained by a further return. The return shows, affirmatively, that upon the facts found by the assessors the determination is correct. The counsel’s fifth point is, that the assessors could not adjudge and determine, from their own knowledge, as to the identity of the persons whose names were signed to the consents with those whose names appeared on the assessment. Without the identity of these persons being established, the fact that a majority on the roll had signed the consents could not be established. The statute furnished no mode of proving those facts, except by the personal knowledge of the assessors, and — 488 — it was therefore incumbent on them to bring their personal knowledge to their aid in determining the question of identity. It is obvious, moreover, that the duty of determining this question was conferred on the assessors because of them acquaintance with the tax-payers of the town. Assessors, like other officers, must act upon legal proof when the statute under which they act gives them the means of obtaining it. But when they are required to act upon evidence, that is not what is known as legal evidence their action is valid, however the evidence may be obtained. The sixth point is, that it is a mistake to suppose that the legislature has made these affidavits any proof whatever of the conclusions stated therein, in a direct proceeding to vacate and set them aside. The court, upon a return to a certiorari, determines whether the officer or body making the return acquired jurisdiction to do the act, or make the determination, which is complained of, and whether it has conformed to the statute by which he, or it, was authorized to act. When the assessors in this case show that they had before them the assessment roll and consents, the signatures to which were proved as conveyances of real estate are required to be proved, they were authorized, aided by their personal knowledge of the tax-payers, to determine whether the requisite number had signed the consents, and they could return no other matter or fact. The determination when accompanied by the affidavit, is, it seems to me, from the very necessity of the case, conclusive in this proceeding. The affidavit is declared to be evidence that the consent of a majority of the taxpayers has been obtained, and it, or a copy of it, shall be admitted in evidence in any court; and before any judge or justice thereof. Whether it is conclusive in any other action or proceedings it is not important to consider. — 489 — [Fourth Department, General Term, at Buffalo, June 3, 1873. Mullin, Talcott and M. D. Smith, Justices.] Before any errors in the proceedings other than in determining whether a majority has consented to bonding under sections 1 and 2 of the act of 1861 are alleged, it is indispensable that it should be established that a majority has consented to the bonding, and it is to be presumed that the proof of those facts, for such a purpose, must be by evidence other than the affidavit of the assessors; but I will not attempt to dispose of that question. The counsel, in his ninth point, examines the consents and the assessment rods, and insists'that a majority has not consented to bond the town. I have already expressed the opinion that the decision of the assessors must, for the purposes of this case, be held to be conclusive. The determination of the assessors must be reviewed here upon the evidence before them, and not upon any other or different. We cannot get the benefit of then* personal knowledge as to the identity of persons, and it is therefore impossible for us to declare their determination erroneous. If we were at liberty to enter upon the investigation of the question whether a majority has signed the consents, without any other evidence of identity than is declared in the return, I should be of the opinion that it did not appear that a majority had signed the consents. The eighth and ninth points do not, it seems to me, require any further examination. They have been incidentally considered in the examination of the other points. The proceedings and determination of the assessors should be affirmed, and the certiorari quashed. Writ quashed.