Allen v. Sisson — 48 N.Y. St. Rep. 872

Majority

p. 872

Horace J. Allen, Resp’t, v. George W. Sisson et al., App’lts.

(Supreme Court, General Term, Third Department,

Filed November 22, 1892.)

Headnote

1. Bills and notes—Notes executed by commissioner for improvements —Personal liability.

One P. performed services for the defendants as commissioner, and they executed their promissory note therefor, signed as “ Commissioners of Racket River Reservoir.” The hoard had the right to order the assessors appointed therefor to levy assessments to pay for the improvements, and to collect the same, but failed to order an assessment to pay said note or to collect assessments already made. Held, that defendants, by their failure to order such assessment or to collect those already made, became personally liable on said note.

2. Same—Personal liability for note executed by commissioners UNDER UNCONSTITUTIONAL LAW.

Even if the law appointing defendants commissioners was unconstitutional, they would ne liable on their note, for having employed P. and received the benefit of his labor, they must pay him.

3. Officers—Power conferred by statute—Rights inferred.

Where the right to compel assessors to levy assessments is necessary to make effectual the power conferred upon a hoard of commissioners to make and maintain reservoirs, such right will be inferred.

Appeal from a j udgment in favor of plaintiff rendered after a trial at circuit without a jury.

Action upon a promissory note given by defendants for services rendered them as a board of commissioners for improvements on the Racket river and signed by them as commissioners.

John A. Vance, for app’lts; M H. Neary, for resp’ts.

This action is brought upon a note of which the following is a copy:

“$846.82 Potsdam, June 24, 1882.

“ One day after date, for value received, we, as commissioners of Racket river reservoir, promise to pay to George Parker, or bearer, eight hundred and forty-six dollars and thirty-two cents, with interest.

“ Commissioners of Racket river reservoir.

(HENRY WATKINS. GEORGE W. SISSON. GEO. B. SWAN.

Swan, one of the makers, having died, the survivors were made defendants. By chapter 90 of the Laws of 1869, a board of commissioners were appointed for the purpose of improving the navigation of the Racket river and the hydraulic power thereof, to be termed “ Commissioners for improvements on the Racket river.” One George Parker performed'services for said commissioners .in improving the navigation of said river, and they executed the note in suit therefor. Said Parker transferred the "note to plaintiff.

The commissioners by said act were empowered to make dams,, and establish and maintain reservoirs on Racket _ river, and they were required to make an estimate of and determine the probable cost of such improvements, and the expense therefor was to be assessed and collected as provided in § 7 of the act. Section

p. 873

provided for the appointment of a board of assessors who shall make a schedule and description of the several lots that should be assessed as provided in the act, and that they shall assess on the property benefited the sum of $5,000 the first year, and thereafter from time to time such sums as shall be necessary. After the assessments are completed, the assessors shall certify the same, furnishing a detailed statement thereof to such commissioners. The act gives the latter the right of action to collect such assessments.

The court below found that seven assessments were made by the assessors under said act from and including 1872 up to and including 1879, amounting in all to $42,000, and that some part of such assessments remain uncollected. That the commissioners had failed to take legal measures to effect such collection and had not ordered any new assessment since the giving of said note. That the assessors had been ready and willing at all times to make any necessary assessment when required to do so by the commissioners.

Defendants having signed their proper names to the note in suit are prima facie liable personally. Brockway v. Allen, 17 Wend., 40 .

This is especially so in this case, because it is provided in chapter 90 of the Laws of 1869, that the commissioners appointed thereunder shall be termed “ Commissioners for Improvements on the Racket River,” while in the note in suit defendants are designated as “ Commissioners of Racket River Reservoir.” They do not appear, therefore, to have executed the note as commissioners under the act in question.

I am not prepared to hold, however, it being shown by defendants that Parker was in fact employed by them as commissioners under the act in question in the performance of labor authorized by such act, and that the note was intended to be given by defendants therefor as such commissioners, but by mistake there was a misnomer of their title, that the defendants could ordinarily be held personally liable. Brockway v. Allen, 17 Wend., 40 ; Bank of Genesee v. Bank of Patchin, 19 N. Y., 315 .

The evidence in the case does show that Parker was employed by defendants as commissioners under the act in question to perform labor authorized thereby, and hence it is doubtful if the defendants could be held personally liable unless they were guilty of negligence or misconduct, as found by the trial judge, in omitting to call upon the assessors under the act to make an assessment to pay the note in suit and in, failing to collect the assessment already made.

The law is well settled that public officers charged with a ministerial duty are answerable in damages to anyone specially injured by their neglect or omission to perform the duties of their offices. Piercy v. Averill, 37 Hun, 366 , and cases cited ; Bennett v. Whitney, 94 N. Y., 306 .

I will assume that in the first instance defendants were not personally liable on the note and only liable as commissioners. If

p. 874

.they had any duty to perform in the way of calling on the assessors to make ari assessment ,or to collect assessments made and failed to perform such duty, such failure was a direct injury to plaintiff or his assignor. He had no means of collecting his claim except by an assessment under the act,. The defendants failing to cause such an assessment to be made prevented the payment of his claim. Therefore, under the authorities cited, defendants, if bound to cause an assessment to be made or to collect those already made, are for the omission to do so liable personally.

Defendants insist that said chapter 90 of the Laws of 1869 created a corporation, and the negligence,' if any,' shown in the case, was therefore a corporate negligence and not that of defendants personally, and hence the defendants are not personally liable. Bassett v. Fish, 75 N. Y., 303 .

I am unable to perceive that the act in question created a corporation properly so called, although it is possible that its. effect was to make the commissioners a quasi corporation, the same as supervisors, trustees of school districts, etc. See 2 Kent, 27_ 8_

_ _ The corporation referred to in the case of Bassett v. Fish, cited by defendants, was formed under chap. 555, of the Laws of 1864, and was a corporation properly so called, and the distinction between such a corporation and a quasi corporation is clearly stated in that fíase. But if chap. 90, Laws of 1869, did create a quasi ■corporation, the commissioners under the act in question are public officers and liable for omission to perform their duties under the act within' Piercy v. Averill, supra, and kindred cases.

It is claimed by defendants that under chap. 90, supra, they as commissioners had no right or power and it was not their duty to cause an assessment to be made by the assessors. It is true the act does not in terms give them power to cause the making of an assessment, but it confers on them power to establish and maintain dams and reservoirs. It provides that they shall make an estimate of the probable cost of making said improvements and the board of assessors shall make an assessment therefor before the work is done. The board of commissioners therefore under the act are authorized to construct, establish and maintain dams and reservoirs. I think that on making the estimate of the amount required to be assessed in any year to do the required work they had the power to lay such estimate before the board of assessors and to require the latter to make an assessment. In no other way could the assessors know the amount necessary. In no other way can the law be carried out. It is a well settled principle that statutes containing grants of power must be construed so as to include the authority to do all things necessary to make the object of the grant effectual and to enable the donee of the power to-accomplish the express purpose of the act. Mayor, etc., of New York v. Bands, 105 N. Y., 211 ; 7 St. Rep., 337 ; People ex rel. Ostrander et al., v. Chapin, 105 N.Y., 309 ; 7 St. Rep., 209 .

. Here the commissioners were authorized to erect and maintain dams and reservoirs. Before doing so they must estimate the expense and the assessors must assess the amount. Can it be

p. 875

doubted that the commissioners had the power to lay before the assessors their said estimate and call upon them to make an assessment? Such a right is necessary to make effectual the power conferred upon them to make and maintain reservoirs, and hence is inferred.

Having the power it will not be doubted it was the duty of the commissioners to ask for an assessment in order that they might carry out the work devolved upon them.

The court below was, therefore, justified in his conclusion that defendants failing to require an assessment to pay the claim in suit were personally liable. I have examined § 3, chapter 432 of the Laws of 1872, to which our attention is called by counsel for defendants, and find some difficulty in construing it. I do not think, however, it was intended by said section to repeal § 7 of the original act. I am inclined to think it was intended by § 3, supra, to give power to the assessors to make different and separate assessments when called upon to raise any sum under the act.

' The court below also finds that defendants had failed to collect assessments made. I think the omission of defendants to so collect the same was a negligent act injurious to plaintiff and rendering them personally liable.

Counsel for defendants claim that it is not shown that any assessment was made to pay Parker’s claim, and hence it does not appear that he had any interest in any assessment made. Under the act the commissioners had the right to receive and collect all assessments. They are not restricted as to the use of assessments collected. In other words, money received by them under any assessment may be applied to the payment of any just claim. The assessments already made if collected could, under the act, be legally applied upon the note in suit. Hence the above position is not well taken.

Defendants also claim that the act in question was unconstitutional and hence defendants were under no obligation to enforce its provisions. I do not deem it necessary to discuss the constitutionality of the law. If in fact unconstitutional, undoubtedly defendants were not compelled to act under it. Bnt they acted under the law and employed plaintiff’s assignor, and having done so can they avoid paying him the value of the services evidenced by the note in suit on the ground that the statute in question is not constitutional ?

It is held that an unconstitutional act is not law; it confers no rights, imposes no duties, affords no protection, it is as inoperative as if never passed. Norton v. Shelby County, 118 U. S., 426 .

As we have seen, defendants employed Parker and gave him the note in suit for the value of his services. That prima facie they are personally liable although they signed the note as “ commissioners of Backet river reservoir.” But defendants contest the claim on the ground that they in fact executed the note for work done for them as “commissionersfor improvements on the Backet river,” under a law passed by the legislature of the state of Hew

p. 876

York If the "law is unconstitutional, as claimed, there was in fact no law. Defendants were not commissioners. They have no-defense to the action. Having employed Parker and received the benefit of his labor, they must pay him.

The other questions raised in the case I do not think it necessary to discuss.

The judgment should be affirmed,, with costs.

Mayham, J., concurs.

The defendants gave the note as public officers ; it could only be paid by moneys raised by assessment; other officers, over whom they had no control, were to make such assessments. I am in doubt under the case of Tone v. Mayor, 70 N. Y., 157 , whether it was their duty to compel such assessors to act,, and whether a failure to compel them to act makes them guilty of negligence and, hence, personally liable upon the note.