Majority
p. 385October, 1874. THE PEOPLE ex rel. CORWIN et al. v. PETER D. WALTER, County Clerk, et al., Commissioners and Assessors of Newfane. THE PEOPLE ex rel. MENTZ et al. v. PETER D. WALTER, County Clerk, et al., Commissioners and Assessors of the Town of Lewiston. THE PEOPLE ex rel. STOCKWELL et al. v. PETER D. WALTER, County Clerk, et al., Commissioners and Assessors of the Town of Wilson. THE PEOPLE ex rel. HESS et al. v. PETER D. WALTER, County Clerk, et al., Commissioners and Assessors of the Town of Somerset.
Headnote
Town bonding—Jurisdiction must be shown — Writ of certiorari—limitation of time in which it may issue— Chap. 241, 1869.In proceedings taken for the purpose of bonding towns in aid of railroads, it must appear affirmatively that there was lawful authority to bond the town ; jurisdiction will not in such cases be presumed.
Where an act (chap. 241 of 1869) authorizes the bonding of towns situate along
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the route of the railroad, the location of the road, in such manner that the town in question lies along.the route, is a condition precedent to the institution of any proceedings to bond it.
The time of limitation to the issuing of writs of certiorari, which, in the absence of special circumstances, has been usually adopted by the court, is two years, in analogy to limitations upon writs of error.
Oertioraris, issued on the application of certain tax-payers, to review the proceedings had in the several towns of Lewiston, Newfane, Somerset and Wilson, in the county of Niagara, for the purpose of bonding said towns in aid of the construction of the Lake Ontario Shore Railroad, in pursuance of the provisions of an act of the legislature, entitled, “ An act to authorize certain towns in the counties of Oswego, Cayuga and Wayne, to issue bonds and take stock in and for the construction of the Lake Ontario Shore Railroad,” passed May 11, 1868 (chap. 811 of 1868), and the act amendatory thereof, passed April 19, 1869 (chap. 241 of 1869). The act of -1869, among other things, provided :
“ Section 1. On the application, in writing, of twelve or more freeholders, residents in any town, incorporated village or city, except the city of Rochester, in either of the counties of Oswego, Cayuga, Wayne, Monroe, Orleans, or of the second assembly district of Niagara, situate along the route of the Lake Ontario Shore Railroad, it shall be the duty of the county judge,” etc.
William S. Farnell, for the relators.
The facts, proof and evidence, necessary for jurisdiction, must appear affirmatively from the return. ( 47 N. Y., 415 ; 46 id., 110.) The affidavit of the assessors is not conclusive. ( 52 N. Y., 538 ; 2 N. Y. S. C. R., 142.) Their affidavit must be sustained affirmatively by papers filed. ( 4 Lans., 534 ; 5 id., 89 ; 47 N. Y., 415 ; 45 id., 772 ; 46 id., 110; 3 Lans., 292 , 295.) The action of the assessors is quasi judicial. (Pierce v. Wright, 6 Lans., 306 .) No remedy being given by statute, a common-law certiorari is proper. (Lawton v. Comrs. of Cambridge, 2 Caines, 179 ; Le Roy v. City of N. Y., 20 Johns., 430 .) The writ was properly directed to county clerk, because papers were filed with him (3 Selden, 152); and to the assessors, because their decision is to be reviewed. (Conover v. Devlin, 15 How., 470 ; Harris v. Whitney, 6 id., 175; Fitch v. Comrs. of Kirkland, 22 Wend.,
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132 ; People v. Hill, Albany Law Journal, Apl. 5,1873.) It should have appeared that towns were situated on the line of the Lake Ontario Shore Railroad. (People ex rel. Rogers v. Spencer, 55 N. Y., 1 .)
Rhodes de Parkhurst, for commissioners.
Charles Rhodes, for county clerk.
Geo. W. Parkhurst, for assessors.
A. Perry, counsel.
The relators have no interest which justifies their prosecuting these proceedings. (1 Crary Spec. Proceedings, 157, 162; Colden v. Botts, 12 Wend., 234 ; Peoples. Stryker, 24 Barb., 650 , 654 ; People v. Overseers, 44 id., 467 ; Starkweather v. Seeley, 45 id., 164-168 ; Case of Fifty-first St., 3 Abb., 232 ; Ex parte Mayor of Albany, 23 Wend., 277 ; People v. Schell, 5 Lans., 352 ; Suprs. of Orleans v. Bowen, 4 id., 24; People v. Collins, 19 Wend., 56 , 64, 65.) The writ can only issue to court officers, and to review judicial acts. (1 Crary Spec. Pro., 160; Dillon Mun. Corp., 692; Bacon Abr., Cert., F.; Haw. Pl. Cr., chap. 27, §§ 41,43 ; Pugsley v. Anderson, 3 Wend., 468 ; Pearsall v. Comrs. of N. Hempstead, 17 Wend., 15 ; People v. Mayor of N. Y., 2 Hill, 9 ; People v. Suprs. of Queens, 1 id., 195, 200; People v. Board of Health, 33 Barb., 344 , 346 ; People v. Suprs. of Livingston, 43 id., 232; 12 Abb., 88 ; 20 How., 458 .) The writ can only bring up proceedings which remain before the tribunal to which it is addressed. ( 30 N. Y., 72 ; 43 Barb., 539 ; 48 id., 173; 15 Wend., 198 ; 17 id., 15 ; 3 id., 468; 49 Barb., 136 ; 22 Wend., 132 , 136; 45 N. Y., 772 , 775 ; 49 id., 655.) The assessors had jurisdiction and their action cannot be reversed on certiorari. (People v. Hurlburt, 46 N. Y., 110 ; People v. Smith, 45 id., 772; Howland v. Eldridge, 43 id., 460, 461; 30 id., 72; Buff. & S. L. R. R. v. Suprs. of Erie, 48 id., 93, 98, 99; People v. Halsey, 37 id., 344; People v. Delaney, 49 id., 655 ; People v. Barker, 48 id., 76, 77; People v. Ogdensburgh, 48 id., 390, 394.)
While the defects, alleged in the proceedings in the attempt to bond the several towns specified in the foregoing titles, differ in
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many particulars, yet one fatal defect is common to all the cases, namely, a total want of jurisdiction and power, on the part of the county judge of Niagara county, to appoint the bonding commissioners for either of the towns in question. Following the decision of the court of last resort, in the case of the People ex rel. Aikin v. Morgan et al., Assessors of the town of Scipio,[1] we must hold that it is incumbent upon the respondents to show that the lawful authority existed for bonding the town in aid of the railroad, at the time of the institution of the proceedings for that purpose. Without such authority there was no foundation for the proceedings which the relator seeks to have reviewed, and the assessors could have had no jurisdiction, whatever, to do the act complained of. Such jurisdiction cannot be presumed, but must be affirmatively shown.
By the act of April 19, 1869, under which, alone, the counsel for the respondents, in these cases, attempts to maintain the validity of the proceedings to bond these towns, the right to bond towns in aid of this railroad, is confined to the towns in certain specified counties, and in the western assembly district of Niagara county, situate along the route of the Lake Ontario Shore Railroad. Until such route is located and defined according to law, it cannot, of course, be known or made to appear, that any particular town is within the provisions of the act. And the location of the road, in such manner that the town in question lies along the route, is, as was held in the ease of the town of Seipio, a condition precedent to the lawful institution of any proceedings under the act to bond such town in aid of the road. Indeed, we can see no distinction in principle, so far as this question is concerned, between the cases presented to us and the case of the town of Seipio, before referred to; and, upon the authority of that case, as we understand it, we must hold that the objection, that it does not appear that either of the towns in question, is situated along the route of the Lake Ontario Shore Railroad, as it had been definitely located according to law, is fatal, upon these returns, to the entire proceedings by which the bonding of the four towns in Niagara county has been attempted. This conclusion leads to a vacation of the proceedings brought up, in conformity with the judgment of the
* 55 N. Y., 587 .
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Court of Appeals in the case referred to, unless the objection that the certiorari comes too late, is to prevail. There is no statute which prescribes the time within which a common-law certiorari must issue. The lapse of time which may have accrued between the issuing of the certiorari and the acts and proceedings sought to be reviewed, is an objection addressed to the sound discretion of the court, in view of all the facts and surrounding circumstances. The time of limitation to writs of certiorari, which, in the absence of special circumstances, has been usually adopted by the court, has been two years, in analogy to limitations upon writs of error. In the cases of the four towns in question, none of the affidavits of the assessors was made until the month of August, in the year 1870'; and they were, none of them, filed as directed, until after that time. The principal writ of certiorari, directed to the county clerk of Niagara county, in each case, is tested Hay 13th, 1872—-less than two years from the time when the assessors assumed to do any act by which the relators and those whom they represent could be prejudiced; and, from the time when the principal writ was issued, the cases appear to have been prosecuted by the issue of ancillary writs, and otherwise, with all due diligence. The propriety of the ancillary writs only appeared after and upon the return of the principal writ. The commissioners, who are alleged to have been appointed by the county judge, in 1869, did not attempt to do anything whereby the relators, or those they represent, could be prejudiced, before the fall of 1871, when the commissioners for three of the towns assumed to enter into contracts with the railroad company, to subscribe, on behalf of the towns for which they respectively assumed to act, for the stock of the railroad company. The fact that the commissioners have issued and delivered the bonds to the railroad company, affords no reason, under the circumstances, why the usual limitation of time upon the writ of certiorari should be shortened. Both the commissioners and the railroad company were aware, at the time of the issue of the bonds, that a certain portion of the tax-payers of these towns felt themselves aggrieved by the proceedings to bond tlieir respective towns, and claimed that the proceedings had been improperly and illegally conducted, and had procured writs of certiorari to be issued out of this court, with a view to the reversal of the proceedings. And it requires no great
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stretch of the imagination to suppose that both the commissioners and the railroad company had notice, in fact as well as by presumption of law, of many of the defects which were alleged against the proceedings at the time when the bonds were issued and received. It does not appear that any of the bonds are in the hands of bona fide holders, who have advanced value in good faith upon their security. And we are not called upon, in any manner, to consider what the rights of such holders, if any there be, may amount to, or how, or against whom, they may be enforced. We think, therefore, that the objection that the writs of certiorari were too late, cannot prevail in these cases. It was suggested on the argument, that the court had power to award a further return, by which, the apparent jurisdictional defect, to which we have adverted, might be cured. But, it is stated by the counsel for the relators, and such statement was understood not to be controverted by the respondents, that, in point of fact, there had been no such location of the Lake Ontario Shore Railroad at the time when the proceedings under review were had, as to bring the towns in question within the operation of the act of 1869, in reference to bonding.
On the whole, and without considering the various and grave objections to the proceedings in detail, we are of opinion that, for-the apparent want of jurisdiction hereinbefore referred to, the proceedings to appoint commissioners, and the proceedings of the assessors in regard to these four towns in Niagara county, namely, Newfane, Wilson, Lewiston and Somerset, must be vacated, and. judgment be entered on each of the writs of certiorari, vacating the proceedings accordingly.
Present—E. D. Smith, P. J., Gilbert and Talcott, JJ.
Judgment entered vacating each writ.