p. 509sois, was Burr’s engraved map of Broome county; and that no survey of the towns to he affected showing the proposed alterations, was furnished to said board of supervisors ;(114,) and that a map and certified statement was filed in the office of the secretary of state, and that said map so filed in the office of the secretary of state, (map opposite folio 108,) is entirely different from, and not a copy of the aforesaid Burr’s engraved map.
From the said judgment ordered at general term this appeal is had.
Henry R. Mygatt, for the appellants.
Giles W. Hotchkiss, for the respondents.
The objection is taken at the outset that the plaintiffs have not shown such an interest in the matter in dispute, as will enable them to maintain the action. This raises a question of considerable practical importance, which if it be now doubtful, ought to be definitely settled. It is not pretended.that the plaintiffs have any interest which is not common to all the resident freeholders of the alleged new town of Port Crane. The grievance is, that they are all threatened to be subjected, for the purposes of a local administration, to a jurisdiction not created according to law. This will affect not only the other freeholders besides the plaintiffs, but all the inhabitants of that local district, whether they are freeholders or not; for every person residing or owning property there will be liable in a variety of ways to the action of the local magistracy 'which the organization of the new town will call into existence. The same may be said of the portions of the original town of Chenango, which fall within the limits of the two other towns attempted to be created, and in a less degree of all the people of the county of Broome; for in the legal arrangements for the administration of justice, and the management of the fiscal affairs of the county, the magistrates to be chosen in the new towns, will be often called upon to perform duties which will affect not only their proper towns, but the
p. 510inhabitants of every town in the county. In a still slighter degree, but to an extent which may be appreciated, the substitution of pretended legal authority in any of the local divisions of the state for the rightful magistracy, works an injury to all the people; for the various and complicated official agencies by which the public business is carried on, require the cooperation of legal magistrates of every grade. An unauthorized and illegal change of the local districts into which the state for the purposes of administration is divided and subdivided, would naturally be productive of extensive inconveniences and losses to individuals, as well as to the state in
its corporate character. Assuming that the act by which the old divisions were subverted and the new ones attempted to be created, was void, as the plaintiffs maintain in this case, the officers constituted under the new arrangement, would have no rightful authority, and when their acts should result in directly touching the property or person of an individual citizen, the remedy for the wrong would be perfect in the ordinary course of justice.
Hence, if the plaintiffs in this case, are correct in their principal position, thatthey or any of them, shall be directly disturbed in their personal rights or pecuniary interests, by any one acting under the resolution of the board of supervisors, they have only to appeal to the court for redress against the wrongdoer in the ordinary way. Up to this, time no private interest of the plaintiffs has been invaded, and no injury peculiar to them is threatened. It is said that they may be assessed to pay taxes through the instrumentality of the officers of the new town. But as before remarked, if the proceedings to organize the town are void, no valid tax can be imposed through its agency, and the plaintiffs are under no necessity to institute a suit on that account. The real grievance of which they complain is, that they are about to be subjected to a jurisdiction for the purposes of local administration which has not been organized according to law; and the question is, whether they have in their individual character, a right to litigate that question with the public authorities ? The general rule cer
p. 511tainly is, that for wrongs against the public generally, whether actually committed or only apprehended, the remedy whether civil or criminal, is by a prosecution instituted by the state in its political character, or by some officer authorized by law to act in its behalf. For example, criminal offences of every grade as is well known, are punishable only by prosecution at the suit of the people. Where a crime committed against the public also includes a private injury, the latter may, it is true, be prosecuted at the suit of the party injured; but where there is no direct individual injury, no action can be maintained by a citizen on the ground that his interests as a member of the state have been interfered with or disturbed, though in a general sense, every citizen has an interest in the maintenance of order and the prevention of crime. Where a person wrongfully assumes under color of an election or appointment, to hold a public office, which if the pretension were well founded, would enable him to do acts affecting the persons or property of his fellow citizens, every one, and especially those who would "regularly be the subjects of his jurisdiction, has an interest of a certain kind in divesting him of his assumed authority, and yet nothing is more clear than that a private action for that purpose would not lie. The only method of ousting him is by information or action prosecuted by the attorney-general,
(People agt.
Stevens, 6
Hill, 616 .)
The principle is further exemplified in questions respecting nuisances. Common or public nuisances, which are such as are inconvenient or injurious to the whole community, in general are, as all are aware, indictable only and not actionable; for as Blaclcstone says, “ it would he unreasonable to multiply suits by giving every man a separate right of action, for what damnifies him in common only with the rest of his fellow citizens.” (Book 4, p. 16; Seely agt. Bishop, 19 Conn. 128 .) As this sort of injury if actually committed, can only be redressed by a public prosecution, so when it is only threatened, the preventive remedy by injunction can only be sought in the same manner. (Anon., 3 Atk. 750; Smith agt. The City of Boston, 7 Cush. 254 ; City of Georgetown agt. The Alexandria Canal Co.,
p. 51212 Peters, 91.) Where the act complained of, or which is apprehended, besides being a public nuisance, is specially injurious to a private person, he may maintain an action or a bill for an injunction in his own name. (Avivden agt. Tickner, 19 Ves. 616; Spencer agt. The London & Birmingham Railroad Co., 8 Sim. 193; Sampson agt. Smith, id. 433 ; Corning agt. Lowerie, 6 John. Ch. R. 440.) In this class of cases, it is sometimes difficult to determine whether the act complained of is specially injurious to the plaintiff or not. In Spencer agt. The London, &c., Railroad Co., where the bill was sustained, the act was the obstructing a street through which the plaintiffs had to pass from their stables to their place of business. In Sampson agt. Smith, where the plaintiffs also prevailed, it was the filling the street opposite the plaintiff’s draper’s shop, with smoke and soot from a steam engine, which the defendant used at his place of business on the opposite side of the street. In Coming agt. Lowerie, it was obstructing a paved street, upon which the plaintiff owned lots, and the injunction was granted. On the other hand, in The City of Georgetown agt. The Alexandria Canal Co., the alleged nuisance was an obstruction of the channel of the Potomac river, which was a common highway, where it passed through the city of Georgetown. The court considered the plaintiffs as private persons, and inasmuch as they had not averred and proved that they were owners of property liable to be affected by this nuisance, they held that they could not maintain a bill for an injunction. The court stated the rule to be, that in the case of a public nuisance, where the bill is filed by a private person as being for relief by way of prevention, the plaintiff could not maintain a stand in court, unless he averred and proved some special injury. In Bigelow agt. The Hubbard Bridge Co., ( 14 Conn. 565 ,) the plaintiff filed a bill to restrain the defendants from rebuilding a causeway across certain meadows adjoining the Connecticut river, which the plaintiff apprehended would cause the stream to overflow his lands and those of the other proprietors above. The court dismissed the bill, on the ground among others, that the injury, should it happen, was not peculiar to the plaintiff,
p. 513but common to the public generally. “ To preserve and enforce the rights of persons, (the court say,) as individuals and not as members of the community at large, is the very object of all suits, both at law and in equity. The remedy which the law provides in cases where the rights of the public are affected, and especially in cases of public nnisances, are ample and appropriate.”
O'Brien agt.
The Norwich, &c., Railroad Co., ( 17
Conn. 372 ,) was a case of the same class. The act threatened was erecting a bridge over a cove or arm of the sea, which would prevent the inhabitants of Preston, of whom the plaintiff was one, from having access to the mouth of the river Thames. The bill was dismissed, on the ground that no damage peculiar to the plaintiff was shown.
Smith agt.
The City of Boston, ( 7
Cush. 254 ,) is a case to the same effect.
These "cases are sufficient to show the principle upon which the courts act in this class of cases. In the present case, no difficulty of the kind referred to, arises. The act of the supervisors has no bearing upon the plaintiffs’ individual interests. Whatever interest they have in the‘question belongs to them only as citizens and members of the community. The doctrine of the cases referred to, is at least as applicable to other acts where the injury is common to the whole community as to cases of nuisance. In Hale agt. Cushman, ( 6 Metc. 425 ,) it appeared that a town in Massachusetts had passed a vote to pay certain expenses, which the plaintiffs, “ who were legal voters, and who together were hable to pay more than one-half of all the taxes to be assessed on the inhabitants of that town,” deemed to be illegal. They filed a bill to enjoin the payment, which was dismissed, upon the principle referred to.
A contrary rule would be productive of very grave inconveniences, If the action can be sustained, any tax-paying citizen may compel the public authorities to litigate in the courts the acts of any administrative board or officer in the state ; and thus proceedings which are intended to be summary and inexpensive, can only be perfected by the judgment of the court of final appeal. Every person may legally question the constitutional validity of an act of the legislature which affects
p. 514his private rights; but if a citizen may maintain an action for such a purpose in respect to his rights as a voter and. tax payer, the courts may regularly be called upon to review all laws which may be passed. They may, at the instance of any tax payer, be required to enjoin the comptroller from drawing warrants on the treasurer, and that officer from paying them, in every case where it may he conceived that the law authorizing the expenditure was passed without constitutional authority. The state tax of 1855, was lately impeached upon plausible grounds as having been imconstitutionally enacted. The question came before this court, and was decided upon a direct proceeding by the attorney-general against a board of supervisors. But upon the plaintiffs’ position in this case, the state and county officers might be compelled to litigate the question of constitutionality with any tax payer who should 'see fit to question a state or local tax in any and every case, and thus the fiscal business of the state would come to be transacted mainly in the courts. The law does not, in my opinion, afford . such an opportunity for excessive litigation. Where there is a question of official discretion, it must be decided by the officers in whom the constitution and laws have vested the discretion. If it bo one of jurisdiction, a party who in-common with liis fellow citizens is menaced by it, must in respect to his legal remedy, wait until his individual rights are invaded. If the grievance consists in an alleged illegal exercise of official functions, those who question them, if they would have a particular remedy, must invoke the action of the officer whom the law has appointed to sue in such cases. Ho private person or number of persons, can assume to be the champions of the community, and in its behalf challenge the public officers to meet them in the courts of justice to defend their official .acts.
My attention has been called. to a series of cases upon the general question under consideration in the courts of the first district, some of which seem to be in hostility to the views which I have stated. (Adrian agt. The Mayor, &c., of New-York, 1 Barb. S. C. Rep. 19 ; Brower agt. The Same, 3 id. 254;
p. 515Christopher agt.
The Same, 13
id. 567;
Milhau agt.
Sharp, 15
id. 193;
S. C., 17 id. 445; Stuyvesant agt.
Pearsall, 15
id. 244 ;
De Burn agt.
The Same, 16
id. 392 ;
Wetmore agt.
Storey, 22
id. 414;
Davis agt.
The Mayor, &c., of New-York, 2
Duer, 663 ;
Roosevelt agt.
Draper, 16
How. Pr. R. 137.) So far as these cases hold that a party owning property fronting on a public street, is entitled to maintain an action to restrain the commission of an act of nuisance in the street, which from the location of the plaintiff’s premises would render it specially injurious to him, T am of opinion that the law is correctly laid down.
Davis agt.
The Mayor, (4
Kern.) was decided upon that principle. But the cases referred to from the
first, third, thirteenth, fifteenth and sixteenth volumes of Mr. Barloitr's Reports, affirm that inhabitants, tax-paying citizens and owners of property in the city, can in respect to their interests as such, maintain suits to restrain the common council and other city officers from the performance of public acts alleged to be illegal. The decision in 2
d Duer, and the one referred to from
16th Howard, denies the correctness of that doctrine. I have looked carefully into the judgments which go the length mentioned, for the reasons upon which they proceed. The first in order was an action to restrain certain appropriations of money by the common council, in which the corporation suffered the bill to be taken as confessed. The judge, Edmonds, had doubts of the jurisdiction, but gave judgment for tlio plaintiff on the ground that the defendant had apparently acquiesced. In the next case
(Brower agt.
The Mayor, &c.,) the corporation were enjoined against leasing a pier in the Eorth river to the commissioners of emigration, to be used as a landing place for foreign emigrants. The judgment proceeds upon the assumption, that the act, if performed, would not be a function of government, but a disposition of property which the corporation held as owners, and that they were subject to the same duties in regard to it, and liable to the same remedies as though they were private owners.
In Christopher agt. The Mayor, &c., the common council was enjoined at the suit of parties claiming no other interest
p. 516than that of tax payers and freeholders, from proceeding with a contract made with an individual to build a market, on the ground that it was entered into in violation of the charter, and certain city ordinances. The title of the plaintiffs to prosecute was sustained upon the ground that the result of the proceeding of the council would lead to the imposition of a burden upon their property by means of increased taxation, and upon the supposed analogy between their position and that of the stockholders of a moneyed corporation. Two cases from the English chancery were relied on, which will be presently examined.
Milhau agt. Sharp was a suit to restrain the defendants from constructing a railroad in Broadway, pursuant to leave given by certain resolutions of the common council. The plaintiffs claimed not only to be tax payers, but owners of lots fronting on that street. An injunction was granted by a divided court; and so far as anything was said respecting the right of the plaintiffs to sue, it was sustained on the ground that they were tax payers, and the case of Christopher agt. The Mayor, &c., was referred to as authority for that position. Stuyvesant agt. Pearsall, decided at the June term, where persons describing themselves as property owners and tax payers of the city, prevailed in an application for an injunction against parties holding a grant from the corporation, of a right to lay down a railroad through certain city streets. Milhau agt. Sharp afterwards came on to trial before Mr. Justice Harris, at a special term, when judgment for a perpetual injunction was given, but the plaintiff’s right to maintain the suit was put expressly upon the ground that the act, if permitted, would cause a special and irreparable injury to the plaintiff’s lots fronting on the street.
In De Burn agt. The Mayor, &c., which was prosecuted by certain owners of real estate and tax payers, the corporation was enjoined by a court held before the judges, two of whom dissented, against entering into a contract with the other defendants, (who were also enjoined,) to employ them to lay down a pavement of a particular kind in certain streets of the city, the common council having resolved to enter into such a con
p. 517tract. The plaintiffs were determined to be competent parties to maintain the action, on the authority of the prior cases, to which I have referred, and another case to the same effect in the same court, which does not appear to have been reported.
Wetmore agt. Storey, the last of this class of cases which I have met with, was brought to enjoin the defendants against constructing the Ninth Avenue Eailroad, and resulted in the award of a perpetual injunction. It does not certainly appear whether the plaintiff’s title to prosecute was sustained on the ground of apprehended special damage to their lots on the street, or on the general doctrine established by the prior cases. These judgments all proceed upon the position that the acts of the common council, the execution of which was prohibited, were void either from want of authority or on account of a fraudulent breach of trust on the part of the members of the city councils. The acts which Avere about to be performed in the public streets, were as it Avas considered, Avithout authority of law. The resolutions, ordinances and grants from the common council being held null and void. Under such circumstances, the contemplated disturbance of the streets Avould have been simply acts of nuisance. As regarded the community at large, they Avould be public nuisances Avhich might be prosecuted by indictment and perhaps by information, at the suit of the attorney-general; and when especially injurious to the individual rights of particular persons, they would be the subject of private actions at their suit.
In sustaining actions by parties who only claimed to be OAvners of property, and^ersons liable to be taxed for public purposes in the city, I think the supreme court has overlooked the distinction Avhich I have endeavored to point out betAveen individual and public rights and remedies. With the single exception of tAVo cases cited by Mr. Justice Edmonds, in the case of Christopher agt. The Mayor, Sc., I do not find that any former precedent for the doctrine established, was supposed to exist in this country or in England. In the first of these two cases, (Branley agt. Smith, 1 Simons, 8,) certain waste lands in which the plaintiffs Avere entitled to rights of
p. 518common, were inclosed and allotted pursuant to a private act of parliament, which provided that the commoners who were interested might associate and make rules and regulations for their cultivation and management, and among other things might appoint a treasurer. The defendant was the treasurer under the act, and it was alleged that he had had thus appropriated moneys which he had received as treasurer, and that he contemplated further misappropriations. The bill was filed by nine of the persons who as householders and parishioners in a certain borough and parish, were commoners and interested in the inclosed lands, in behalf of themselves and the other commoners, for an account and an injunction against further misappropriation. The bill was sustained. Now, the right of common is as strictly a private right as any other interest in land. It is an incorporeal hereditament, and it is not less a private and individual interest in real estate when lands sub-. ject to rights of common, are allowed to be inclosed under private acts of parliament.
The other case is Grey agt. Chaplin, (2 Sim. & Stew. 167.) That was a bill by two of several shareholders, in a joint stock canal company, on behalf of themselves and all the other shareholders, to set aside an illegal agreement by which the managing commissioners had assigned the tolls to the defendant for ninety-nine years. It was a plain case of a bill for relief against the breach of a private trust, and the only point decided which has the remotest analogy to this case, is that a bill may be filed by a part of the persons in interest, where it appears that the relief sought by it is in its nature beneficial to all those whom the plaintiffs undertake to represent. I am of opinion, that neither of the cases sustain the position for which they were referred to in the supreme court.
The judgments of that court which have thus been briefly examined, are of too recent a date to furnish a precedent of themselves, and overlooking as it seems to me they do, a well established rule of law, I am unwilling to follow them in the decision of the present case. This case does not require us to pass upon the precise question which arose in those which
p. 519have been referred to. It may be that when a town is governed in its local affairs by means of a corporation, the citizens as corporators, stand in a different relation to the local government than in other cases. As that distinction, if it exists, would not aid the present plaintiffs, and as it has not been argued before us, we refrain from expressing any opinion upon it.
The judgment appealed from, for the reason which has been given, should be affirmed.