Ashton v. City of Rochester

The plaintiffs sought to enjoin the collection of a local assessment, alleged to be apparently valid but in fact void, imposed by the municipal authorities of the city of Rochester, to defray the cost of a local improvement. The record shows that the plaintiffs are respectively the owners of parcels of real estate situate on Lake avenue, between Vincent Place and Lyel avenue and Driving Park avenue, which have been assessed for the improvement. They brought this action in their own behalf, and in behalf of all other persons having property fronting on the street and assessed for the improvement, for the purpose of obtaining a judgment declaring the assessment null and void, and enjoining the city treasurer, who is also made a defendant, from issuing his warrant for the collection thereof. The courts below have determined the controversy against the plaintiffs' contention, and the only question here is whether there is any legal error in that determination. The question is really one of jurisdiction in the authorities to make the assessment. Under the charter of that city (Laws 1880, ch. 14) the common council has power to order the paving and improvement of any street and to pass the necessary ordinances requiring the same to be done, and to determine the manner and cost of such paving, and to designate the portion of the city which should bear the expense thereof. The work when authorized and determined upon is to be performed by contract, but the power of contracting for the execution of the work is, by the charter, devolved upon another separate and independent body, called the executive board. The power of this board to let and supervise the execution of the, contract commences only after the common council has authorized the work and designated the district upon which the assessment is to be laid.

When the common council has authorized the particular improvement and described the district upon which the assessment is to be imposed, and ascertained the expense thereof, then the assessors of the city are to levy the amount upon the several lots and parcels of real estate in the designated territory, in proportion, as near as may be, to the benefit which

By reference to title 7 of the charter, it will be seen that the executive hoard is clothed with very extensive powers and intrusted with very important duties. The members are ■elected by the people, are required to devote their entire time to the business of the city, and are compensated by a fixed ¡salary.' They have the control of the expenditure of. the funds for street purposes, and they are expressly made commissioners of highways of the city. The board can appoint and remove at pleasure the superintendent of streets, and fix his compensation. It is plain from reading the enumeration •of the various powers conferred upon the board by the charter, that the legislature intended to strip the common council of Rochester of most of the ordinary functions and powers that ¡such a body exercises in other cities, and transfer them to this

But when the common council has passed such an ordinance, then the judgment and discretion, with respect to such an improvement, which the charter has confided to the board for the public good, is at once called .into action. The question as to the necessity and propriety of improving a street by local assessment must be passed upon by the common council in the first instance, but when that body makes its decision, another body, entrusted by law with the general subject of street expenditures and improvements, must carry it out, and the latter body is thereby vested with jurisdiction on the subject.

On the 19th of March, 1889, and more than a month after the resolution was passed and sent to the executive board, a motion was made and adopted in the common council, “ that action on the final ordinance for Lake avenue * * * be reconsidered,” and at a subsequent meeting, on March 28,1889, another resolution was passed “that further action on the pending final ordinance for Lake avenue asphalt improvement be indefinitely postponed,” and that the surveyor be ordered to prepare a new first ordinance for the improvement. The plaintiffs claim that this motion and resolution had the effect to withdraw from the board all authority conferred by the original resolution. The executive board, after receiving the copy of the first resolution, proceeded to act, and advertised for bids and received the same, and on March 12, 1889, postponed action thereon from time to time until March 29, 1889, when it laid the matter on the table. On the 25th of April, 1889, the board was served with a peremptory writ of mandamus from the Supreme Court, granted after a full hearing, requiring them to award the contract, and to show to the court, •on a day subsequently, in what manner the writ was obeyed.

The plaintiff’s claim for relief is based upon the fact that the common council reconsidered and subsequently postponed indefinitely the resolution authorizing the improvement, and that, consequently, all subsequent proceedings were invalid. If the question as to the legal effect of the action of the common council in resolving to reconsider its former action was still open to the plaintiffs, we would be inclined to hold that the resolution was, by the adoption of the motion to reconsider, brought back to the stage in which it was before the final vote by which it was originally passed. The vote on the resolution was reconsidered, and consequently the effect which it would otherxvise have was lost. (Jefferson’s Manual, § 43 ; Roberts’ Rules of Orders, p. 66 )

The record shows that upon the application of certain of the property owners on the street, other than the plaintiffs, liable to be assessed for the improvement, the Supreme Court at Special Term awarded a mandamus against the executive board, commanding it to proceed upon the resolution and to award a contract for the performance of the work. That, acting in obedience to this command, the board did award the contract in accordance with the provisions of the charter prescribing the powers and duties of the board. The decision upon the

When a judgment is rendered by a competent court awarding a writ of mandamus against a board of supervisors or other body or officer having power to audit claims against a county or other municipality, commanding them or him to audit a claim or demand against the county or municipality, and it is audited in obedience to such command, the validity of the

We are not aware of any reason for holding that the principle does not apply to the plaintiffs in this case. True this is not a general tax but a special and local assessment. But it is nevertheless an exercise of the taxing power and its validity as well as the right of the plaintiffs to question or assail it in the courts rests on the same principles as are applicable to an assessment or tax for general purposes. If the expense of the improvement was to be paid out of the city treasury there would then be little doubt that an adjudication upon an application for a mandamus, involving as this did the validity of the proceedings up to that time, would have bound all the tax payers. Is the rule any different when a small part or even the whole of the expense is to be paid by the property owners within a certain district? Is the principle changed because the area over which the tax was distributed is contracted ? The executive board laid the matter on the table and, in eflect, refused to act, treating the resolution as rescinded by the common council. They were brought into court and the very question involved was whether the board had authority to contract for the execution of the work, and the court held, Upon full argument and against the contention of the board, that they had. The question was whether they had power tinder the proceedings to make a contract and incur an expense which was to be paid by the property owners, and it was adjudged that they had, and that it was their duty to do so. When the executive board was before the court on that application they represented and spoke, not only for themselves and the city, but also the property owners who were to be bound by the contract, and whose property was to be assessed for the expenditure which the work embraced in the contract

The executive board in making the contract and supervising the work acted, in a certain sense, as the agents of the property owners (Matter of Anderson, 109 N. Y. 554 ), and, therefore, the judgment of the court that the resolution of the common council was still in force, not only bound the agents but the parties they represented as well There are cases where an order of a court, such as an order of confirmation, is a part of the statutory proceedings for imposing the assessment. Such an order, when made upon the application of the city, might not be conclusive in all cases upon the property owner as to jurisdiction or the validity of the proceeding, especially where statutory methods of review are provided. We do not now stop to point out cases where the principle we are now considering would not apply. All we hold now is that it is applicable to the facts of this case. Granting that the resolution of the common council to make the improvement was, in effect, rescinded by the motion to reconsider, still a competent court held otherwise, in a proceeding to which the executive board was a party, and that board was compelled .by the judgment in that proceeding to make the contract which they did. The plaintiffs looked on, neglected to intervene in the application for the mandamus, or to appeal from the order granting it. They knew that the contract was made and the work on the street in front of their property executed and they have the

In any inquiry with respect to the binding force of a former judgment the term “ parties ” includes all who are directly interested in the subject-matter and who have a right to make defense, control the proceedings, examine and cross-examine witnesses, and appeal from the judgment. (Robbins v. Chicago, supra.)

There is a stipulation in the record by the respective attorneys to the effect that none of the plaintiffs were parties or privies to the' proceeding for the mandamus. This, of course, was not intended to bind the court upon any question of law arising upon undisputed facts. Its only effect is to establish a fact, namely, that none of these plaintiffs were parties to that proceeding by name, nor do they stand in the place of any of the property owners who applied for the writ. The legal conclusions to be drawn from the findings and the proceedings

All concur.

Judgment affirmed.

Upon a motion for a reargument the following opinion was handed down:

We have considered the points submitted in support of this motion and we are of the opinion that it should be denied. A former adjudication upon the question at issue is conclusive as a bar or as evidence. It is said that the proceedings resulting in the writ of mandamus were not pleaded and, therefore, are not available to the defendant. The fact, however, is found by the trial court, and it was not excepted to. Under such circumstances effect must be given to the finding. This court will assume that the evidence upon which the fact was based was received without objection and that the absence of a pleading was waived. If the finding had been excepted to the plaintiffs could raise the point now that it was not sustained by evidence or pleading, but as no such exception appears, they are in no position to attack it. (Daniels v. Smith, 130 N. Y. 696 .) But clearly one of the issues presented by the pleadings was the power of the executive board to pass the resolution and enter into the contract. A former adjudication in which that point was determined was evidence for the defendant on that issue, and the judgment upon the application for a mandamus was such an adjudication. (Culross v. Gibbons, 130 N. Y. 447 .)

The common council had no power to make the contract, but the executive board had. Therefore, in entering into such contracts the board represents the city in the same sense that the mayor and common council would represent it if the duty devolved upon them, and a judgment in an action or proceeding against the board to compel them to act with respect to the awarding of the contract, in which it is decided

Whether the plaintiffs were privies or not depended upon the legal conclusion to be drawn from the finding of the court, and not from any designation. given them in the stipulation. That is satisfied when construed to mean that none of these plaintiffs were parties to the record, or stand in the place of any person who was, by succession or transfer.

The motion should be denied, with costs.

All concur.

Motion denied.