Williams v. Brace

HosmeR, Ch. J. From the motion before the court, it appears, that the mayor, aldermen and common council, were duly notified to assemble ; and that a majority of the whole number was present at all times; although at one or two meetings, there was not the greater number of the members of the common council. Where a mode of proceeding is directed by law, it must be precisely pursued, or the acts of the persons assembled will be invalid. It is enacted, by the statute, p. 132. tit. 34. c. 1. s. 31. ed. 1808. “That there shall be a court of common council of said city, of which the mayor, aldermen and common council of said city shall be members, who, or a majority of them, shall have power to make by-laws,” &c. By analogy to the, cases in Westminster-Hall, cited in the argument, it would seem, that the mayor, the aldermen, and the common council, in the formation of the court of common council, ought to be considered as distinct integral parts; These determinations are founded, partly on usage, and partly on a presumed allusion to the form of the English government: and hence cannot, with propriety, be resorted to, in the construction of one of our statutes. Our law must be expounded from the popular meaning of the expressions used, by the legislature, to indicate their intention. It has been argued for the defendant, that by the words " the mayor, aldermen and common council.” was meant [195] by a descriptio personarum, to designate the individuals of these respective bodies; and for this there is much reason, not only from the phraseology of the law, but; more particularly, because the expression has reference to a court. Generally speaking, courts are not comprised of distinct integral parts, but of persons authorized individually to act. On this subject, however, there is one consideration so imperiously conclusive as to preclude the necessity of further discussion. From the incorporation of the city of Hartford, in 1784. to the present time, the court of common council has invariably acted on the principle, that the members convened were individuals, and not distinct integral parts ; and the same assertion is equally true in respect of all the courts of common council in the respective cities within the state. Expositio contemporanea est fortissimo in lege. I entertain no doubt but the court of common council, during the entire proceeding relative to the assessment, voted in a legal manner. To their acts, however, so far as they relate to the plaintiff there are two undoubted objections. In the first place, the court of common council had by law no right to order the erection of a railing ; nor did they make such order. Notwithstanding this, the expense of a railing forms a part of the assessment made. In the next place, the order on the plaintiff to pay the whole assessment for the improvement in front of his wife's land, was an assumption of right, without any colour of authority. The assessment should have been apportioned to each, in proportion to the right of property ; and the sum justly due from the plaintiff, as tenant for life, should have been directed to be paid by him ; while the amount due from the tenant in fee-simple, should have been assessed on her. For the debts of the wife anterior to the marriage, and those devolved on her by law afterwards, the husband is responsible, if they are collected during the coverture. But an action for the recovery of the demand, shewing the title of the plaintiff, must be instituted against both, and the judgment be rendered against them jointly. It is true, that the judgment puts a conclusive obligation on the husband, from the nature of that legal act; but this cannot be affirmed of an assessment: made by a court of common council. If, in the case under discussion, the order and assessment had been made pursuant to law', in the event of the husband’s death, the sum assessed on the person owning the fee, would have survived against the wife only. But, as the order and assessment [196] were made, if the husband should have died immediately afterwards, his assets would be obliged to make satisfaction, while Mrs. Williams, who, on this supposition, derives the whole benefit, would be entirely exonerated. The proceeding of the court of common council, in the above particulars, was not erroneous merely, but without jurisdiction, and, of consequence, void. In the cases of Dillingham v. Snow & al. 5 Mass. Rep. 547. and Henderson & al. v. Brown, 1 Caines 92„ in which it was adjudged, that trespass could not be sustained, the assessment was erroneous, but within the jurisdiction of the assessors. It was correctly decided, in Stetson v. Kempton & al. 13 Mass. Rep. 272., that trespass lies for the taking of property under am illegal assessment ; and although a part of the assessment was lawful, that the proceeding to collect it,was void, inasmuch as it is impossible to separate and distinguish, so that the act should in part be a trespass, and in past innocent. The plea is undoubtedly insufficient. If a part of the sum assessed is lawful, the damages may be diminished, by a deduction of the sum, which was legally collected. Brainard and Bristol, Js. were of the same opinion. Peters, J. being a citizen of the city of Hartford, declined giving any opinion. Judgment to be rendered for plaintiff and damages assessed, accordingly.