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In re Kendall

85 N.Y. 302 Court N.Y. Decision date 1881-05-13 English

Delivered by Earl, J.

Contents

Majority

p. 302
In the Matter of the Petition of Daniel R. Kendall to Vacate an Assessment.

Headnote

The fact that the commissioners appointed under the act of 1872 (Chap. 580, Laws.of 1872), “in relation to certain local improvements in the city of New York,”'failed to take the prescribe.d.oath of office before entering upon the performance of their duties, does not affect the validity of their action in certifying that a contract was free from fraud; they having been appointed by competent authority and having discharged their duties without question as to their official character were at least' officers de facto, and their official action is binding and conclusive.
It is no objection to the validity of their action as officers de facto that it might result in taking private property to pay assessments.
The determination of said commissioners that a contract was free from fraud is binding, not only upon the city and the contractors, but as to the public; the effect of their certificate is to confirm the contract and render it absolutely valid, and a contract thus validated is as effectual as a basis for an assessment as if it originally had been valid.
In re Burmeister ( 76 N. Y. 174 ), distinguished.
(Argued May 3, 1881;
decided May 13, 1881.)
Appeal from order of the General Term of the Supreme Court, in the-first judicial department, made December 1, 1880, which reversed an order of Special Term vacating an assessment upon land of the petitioner for a sewer in One Hundred and Tenth street, in the city of Hew York.
The objections to the assessment were that a part of the expense of the work was for rock excavation which was not submitted to competition, a price being fixed therefor which the bidders were obliged to accept; also that surveyor’s fees were included. The contract had been submitted to the commissioners appointed under the act chapter 580, Laws of 1872, and was certified by them to be free from fraud.
The further material facts appear in the opinion.
Thomas Allison for appellant.
The seventh section of the act of 1872 (Chap. 580) did not prevent the vacation of an assessment where there was a want of authority. (Laws of 1872, chap. 580, § 7; In re Prot. Ep. School, 75 N. Y. 324 -328; In re Cram, 69 id. 459 ; In re Second Ave. Church, 66 id. 400 .)
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The owner not having been a party to the requirement which set the commissioners in motion, he was not prohibited from asserting against the assessment any objection fatal to the proceedings. (I n re Phillips, 60 N. Y. 16 ; In re Little, id. 343; In re Anderson, id. 457; In re Burke, 62 id. 422; Matter of Cram, 69 id. 452; Matter of N. Y. Prot. Ep. School, 75 id. 324; In re Burmeister, 76 id. 174.) Chapter 312 of Laws of 1874 requires the vacation of an assessment in a case where there is substantial error, and in effect superseded and acted as a repeal pro tanto of the act of 1872. (In re Second Ave. M. E. Church, 66 N. Y. 395 ; In re Prot. Ep. School, 75 id. 324; In re Emigrant Ind. Sav. Bk., id. 389; In re Cram, 69 id. 452; In re Waltet, 75 id. 354.) The vacation of an assessment is not confined to cases of repavement and fraud, but may be resorted to where there has been substantial error. (In re Cram, 69 N. Y. 352 ; In re Prot. Ep. School, 75 id. 324; In re Mahan, 81 id. 621; In re Manhattan Sav. Inst., 82 id. 142.) The defect complained of here isa substantial error. (In re Mahan, 81 N. Y. 621 ; In re Manhattan Sav. Inst., 82 id. 142; In re Merriam, 84 id. 596.) The terms of a statute may be held directory as between the city and the contractor, and mandatory when the proceedings taken under it in any way affect the rights of a citizen. (Moore v. The Mayor, 73 N. Y. 249 , 251.) The oath taken cannot be construed into an assumption on the part of the commissioners to render such a decision as the act required. (Me rritt v. Village of Portchester, 71 N. Y. 309 .) It was a condition precedent to their right to perform the functions of their office, and the oath was one of the safeguards provided by statute for the protection of the property-holder, and the legislature, by prescribing the form, made the form the essence of the act. (Adriance v. McCafferty, 2 Robt. 153; Hopkins v. Mason, 42 How. 115 .)
James C. Carter for respondent.
The contract was completely purged of the vice charged against it by the certificate of the commissioners, under the act of 1872. (Brown v. The Mayor, etc., 63 N. Y. 239 .) The oath actually taken must
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be deemed a substantial compliance with the requirements of the statute. (Dillon on Corporations, §§ 153, 154; S tockle v. Silsbee, 41 Mich. 615 ; In re M. & H. R. R. Co., 19 Wend. 135 ; 2 R. S. 605, § 7 [2d ed.]; Parish v. Golden, 35 N. Y. 462 ; Van Rensselaer v. Whitbeck, 7 id. 517 ; Buff. & State Line R. R. Co. v. Supvrs, of Erie Co., 48 id. 93, 105; Brevoort v. City of Bklyn., 18 Hun, 383 , 385; Parish v. Golden, 35 N. Y. 462 ; People v. Cook, 8 id. 67; 14 Barb. 259 , 290; Olney v. Pearce, 1 R. I. 292 ; Blodgett v. Holbrook, 39 Vt. 336 ; Supvrs. of Allegany Co. v. Van Campen, 3 Wend. 49 ; Coleman v. Shattuck, 62 N. Y. 353 ; Bowman v. Cockrill, 6 Kans. 311 , 324; People v. Supvrs. of Ulster, 34 N. Y. 268 , 272.)

It is conceded that this assessment should be vacated in part but for the action had under the act chapter 580 of the Laws of 1872. It was shown that the contract for the work, for the expense of which the assessment was laid, was presented to the commissioners named in that act, and that they certified that it was free from fraud.

It is contended on the part of the petitioner that the determination of the commissioners was wholly invalid, because, before entering upon their ■ duties, two of them did not take the oath required by the act. Section 2 of the act provides that, before entering upon their duties, they shall severally take and subscribe an oath or affirmation that they will “ severally, justly and fairly hear and consider the matter submitted to them, and make a just and true decision thereof.” The two took the oath as follows: “ That I will support the Constitution of the United States, and the Constitution of the State of Hew York, and that I will faithfully discharge the duties of the office of commissioner mentioned in such chapter 580 of the Laws of 1872, according to thfe best of my ability.”

Without now determining whether or not the oath taken was a substantial compliance with the act, a broader view may be taken. The commissioners were public officers appointed to discharge important judicial functions. They were to hear

p. 305
parties, take evidence and make determinations. Their action would, therefore, have been valid if they had taken no oath. They were appointed by competent authority. They discharged the duties of their office without, so far as appears, any question as to their official character. They were, therefore, at least officers de facto, and their official action was as absolutely valid and binding as to the parties appearing before them aiid the public, as it would have- been if the prescribed oath had been literally taken, and they had thus, in the strictest sense, become officers de jure. (In the Matter of the M. & H. R. R. Co., 19 Wend. 135 ; Weeks v. Ellis, 2 Barb. 320 ; People v. Cook, 8 N. Y. 67 ; People v. Hopson, 1 Denio, 574 .) It would be a monstrous proposition to hold that the action of town assessors or of trustees of villages who under the general village act perform the duties of assessors, was void because they had neglected to take any official oath.

It is no answer to the validity of the action of these commissioners as defacto officers that their action could result in taking private property for assessments "which might be consequent upon their action. So a sheriff or constable may seize private property, and a judge may render a judgment, which may result in taking or imposing burdens upon property. And yet the action of such officers could not for that reason b.e assailed, because they had failed to take the proper official oath of office and hence were merely defacto officers.

We think, therefore, that it is clear upon this ground that the alleged defect in the oath taken by the two commissioners does not impair the validity of their action.

It is further contended, on behalf of the petitioner, that the determination of the commissioners was binding only upon the city and the contractor — the parties to the submission under the statute. This contention, we think, is not well founded.

Section 1 of the act provides that all contracts which the commissioners shall certify to be free from fraud are ratified and confirmed, and declared to be valid and binding, and if the contracts have not been executed, and the commissioners shall certify that there has been no fraud in the award of the

p. 306
contracts, that the proper officers shall execute the same. Section 2 provides that the decision of the commissioners shall be binding upon the city and upon the other party to the contract or award, and shall be final and conclusive as to all questions of fraud in relation to the contracts, agreements or awards and the performance thereof. Section 3 provides that the comptroller of the city shall, upon the contracts thus certified by the commissioners, make such payments as Shall be required by the contracts to the parties entitled thereto in the same manner, and to the same extent, as if the contract had originally been regular, sufficient and-valid. Sections 4 and 5 provide for assessments upon property benefited of the expense of the work performed, or to be performed, under the contracts certified by the commissioners under the act. The object of this act as is thus apparent was to take a whole mass of illegal and invalid contracts, and if they were certified by the commissioners to be free from fraud, to confirm and render them absolutely valid. That the legislature had the power to do this is not questioned. (Brown v. The Mayor, etc., 63 N. Y. 239 .) The moment the contracts were thus made valid and binding upon the parties thereto, they were just as effectual as a basis for an assessment as if they had originally been valid. It cannot be supposed that the legislature meant to make these contracts binding upon the city, to compel it to pay for work done under such contracts and to authorize assessments to be made for expenses of such work, and yet to leave the property-owners the right to assail such assessments because of the invalidity of the contracts. It is true that the determinations of the.commissioners are not binding as such upon any one but the parties to the contracts. ' But their determinations purge the contracts of all infirmity and render them valid. The property-owners are not parties to the contracts. They need not be consulted about them and have no right to be heard in relation to them. Their right to a bearing first comes when assessments are to be made against them. A contract valid and binding upon the city and under which it is obliged to pay for work done can lay the founda
p. 307
tian for an unimpeachable assessment. This conclusion as to the absolute validity of such contracts is in harmony with some views expressed by Allen, J., in the Matter of Peugnet ( 67 N. Y. 441 ), but not with with some expressed by Churoh, C. J., in the Matter of Burmeister ( 76 N. Y. 174 ). A careful examination of the act of 1872, and preceding and subsequent legislation inpari materia has led us to the conclusion we have now reached. In the Burmeister Case we had under consideration section 7 of the act of 1872, in a case of repavement, and we do not deem it important now to consider or construe that section nor to determine precisely how far that ease should be limited as this is not a case of repavement and there is no allegation of fraud. These views lead to an affirmance of the order appealed from.

The order should be affirmed, with costs.

All concur, except Folger, Ch. J., not voting.

Order affirmed.

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