People ex rel. Kimball v. Board of Supervisors

Bockes, J.: We have no hesitation in declaring our opinion that the resolution adopted by the Board of Supervisors, December 2, 1880, by which that body attempted to delegate to a committee comprised of five of its members, the right to locate and purchase a site for the “ Children’s Home,” where in their judgment the interests of the county would be best subserved ; and in their discretion to incur indebtedness upon the county therefor; and also in the erection of a building on such site, with all other and further action, whether by the board or by the committee, having in view the carrying into effect the resolution, was without sanction of law and void. Nothing is better settled both on principle and authority than this, that rights, privileges and duties conferred „or imposed upon public officers and public bodies in the aggregate, cannot be delegated — especially is this so as to subjects and matters where judgment and [134] discretion are to be invoked and exercised. The authority to select a site for the “ Home,” to contract for its purchase and to direct expenditures in the erection of the building, rested with the board, and required the exercise of the judgment and discretion of that body when legally convened for the performance of public duties. Its power and authority could be exercised in no other way. The substitution of a committee to take the ■ place of the entire board, as to matters involving the judgment and discretion of that body, was unauthorized; and all persons dealing with such committee would be bound to notice and knowledge of its incapacity to bind the county by any assumption of power by its' members. So, too, bonds of the county issued to carry out an unauthorized assumption of power would be invalid even in the hands of holders for value (Cagwin v. The Town of Hancock, 23 Alb. Law J., 313; Ogden v. County of Daviess, Id., 256.) But the question here is whether the relators are entitled to the relief they pray for by certiorari. This proceeding is not taken to reverse a judgment or judicial determination of the Board of Supervisors, but to obtain the judgment of this court, declaring and adjudging a resolution of that body null and void. The relief desired is anomalous in a proceeding by certiorari, where the judgment can be only, as the cases hold, either one of simple reversal or affirmance of the determination of public officers or public bodies when acting in a judicial or quasi judicial capacity. In this case we think the relief sought by the writ was unnecessary and without precedent; unnecessary, as the resolution and action of the board and of its committee are null and void on the face of the record brought before us ; and unprecedented and unauthorized, because it is sought by this proceeding to review acts which are entirely legislative, executive and ministerial in character. The selection of a site for the “ Home,” the incurring of expense in its purchase, the erection of an edifice thereon, and the manner of its erection, and the extent of the entire expenditure rested in the discretion and judgment of the board and was legislative in character rather than judicial; as was, indeed, the subject itself, whether or not a site should be procured and an erection made. The carrying out and into effect the determination, when made, would be executive and ministerial. There was nothing of a judicial character in the [135] exercise of the power and authority of the hoard over the subject. The action of the board in that regard could not therefore be reviewed by certiorari — such right is not given by statute, and it does not exist at common law. As laid down in the books, the office of the writ of certiorari is to correct errors committed by inferior courts, special tribunals, magistrates and even municipal corporations, when exercising judicial or quasi judicial powers, and acting summarily or in a way not known to the common law. Nor will the writ lie when the party affected by the act or acts complained of and sought to be reviewed has another adequate remedy in the courts. Citation of authorities in support of the above proposition has not been given because numerous and familiar. We are cited to The People v. The Board of Assessors (39 N. Y., 81), for the doctrine that the office of the writ extends to the review of all questions of jurisdiction, power and authority of an inferior body or tribunal to do the act complained of, and to all questions of regularity in the proceeding, and whether the inferior tribunal has kept within the boundaries prescribed for it by the expressed terms of the statute or by well settled principles of common law. Here, however, the court was speaking directly of tribunals and officers or. public bodies possessing and exercising judicial or quasi judicial function as regards the particular matter or subject of complaint; and this remark will properly apply to all that is relied on by the relator’s counsel contained in The People v. Mehropolitan Police Board (39 N. Y., 506), and in The People v. Supervisors of Westchester (57 Barb., 377), and in The People v. Supervisors of Madison (51 N. Y., 442). The decision most applicable to the case in hand is furnished us in The People v. The Supervisors of Livingston County (43 Barb., 232), where it is said : “ The- office of the writ of certiorai'i is to bring up for review in the superior court the record of an inferior court or of a tribunal exercising judicial functions. It is not the office of the writ to bring up the proceedings of any other bodies or classes of public officers. Courts are instituted to decide judicial questions, and superior courts review the record and proceedings of inferior courts or of officers or tribunals acting in a judicial capacity, and in no other.” In that case it was sought to review a resolution of the Board of Supervisors, as in this case, the passing of which resolution rested in the discretion of that body. [136] The court remarked: “ In passing the resolution brought before us on this writ, the Board of Supervisors were not acting in any judicial capacity — they were acting purely in a legislative capacity ; ” and further, the question before the board “ was not a question of a judicial nature, but one of a clear legislative character.” It may be here remarked that the removal of officers for cause and the assessment and levying of taxes are held to be judicial or quasi judicial acts, hence a remedy exists by certiorari in those classes of cases. It was further held in the case last above cited that a cer tiorari would not lie to bring up incipient resolutions or proceedings upon which a tax might ultimately be based, before any tax was laid or any final adjudication or determination was had in the matter. To the same effect is the decision in Cuyler v. Trustees of Palmyra (3 Hun, 549). In these cases the writs were quashed. For the reasons above given, we are of the opinion that the certiorari in this case should be quashed, but without costs. Learned, P. J., and Bookes, J., concur in quashing writ for the reasons given. As the writ is quashed we cannot pass on the validity of the action of the supervisors. Certiorari quashed, with costs.