11 Abb. Pr. 164 | N.Y. Sup. Ct. | 1860
The assessment and proceedings complained of by the petitioner must be vacated; because the ordinance, purporting to authorize such assessment and proceedings, was passed by the Board of Assistants on the 8th of May, 1851, and by the Board of Aldermen on the 6th of February, 1852; that is, because it was not passed by both boards in the same year, but was passed by them in different years; so that, when passed by the Board of Aldermen on the 6th of February, 1852, the Board of Assistants, by whom it had been passed, had been retired from office, and had been succeeded by a new Board of Assistants.
It was expressly decided by the general term of this court, in Wetmore a. Story (22 Barb., 414; S. C., 3 Abbotts’ Pr., 262), that an ordinance so passed was absolutely void, although in
Whatever might be my own opinion of this question as an original question, it would not be proper, or in order, for me to set up my own opinion against this express decision of the general term; and I must therefore hold, in this case, that the', ordinance purporting to authorize the assessment and proceedings of which the petitioner complains, although approved by the mayor on the 7th of February, 1852, was absolutely void, and did not in fact authorize such assessment and proceedings.
If absolutely void, the subsequent amendment of it in 1853, by striking out the names of the three assessors originally inserted, and inserting three others in their place, did not and could not confirm it so as to make it a valid ordinance. There is nothing to show that when that amendment was made, the Common Council had the remotest idea that the ordinance required any confirmation. The amendment was, in terms, confined to the insertion of the three new names in the place of those originally inserted.
This application is made under the act, entitled “ An act in relation to frauds in assessments for local improvements in the city of New York,” passed April 17, 1858.
It cannot be doubted, if the words “ legal irregularity,” as used in the first section of the act, mean any thing, that the irregularity in the passage of the ordinance authorizing the assessment and proceedings in question was, and is, a “ legal irregularity” within the meaning of the act. The ordinance
But it is insisted on the part of the Corporation, that the said act of the Legislature under which the application is made, was passed in violation of article 6, section 8, of the Constitution of this State, which provides that justices of the Supreme Court shall not hold any other office or public trust; that the act undertakes to confer on the justices of this court a new or other office or public trust, which by the Constitution the Legislature were prohibited from doing, and the justices of this court are prohibited from accepting, or exercising; and, therefore, that I, as one of such justices, cannot entertain this proceeding, or make any order or adjudication in it.
It is very clear to me, that this act does not undertake to confer any new or other office or public trust on the justices of this court, within the meaning of the constitutional provision.
This court always had jurisdiction over the frauds and legal irregularities (so called by the statute) not only of individuals, but of corporations, municipal and private, within its jurisdiction ; and could always furnish a remedy to a party who had suffered, or was about to suffer, by such fraud or irregularity, in an action brought by him for such remedy; and perhaps, in certain cases, and under certain circumstances, could, by mandamus or certiorari, give a remedy for fraud or irregularity in the proceedings of a municipal corporation.
I think the act of April 11, 1858, in question, assumes this old and conceded jurisdiction of this court over frauds and legal irregularities (so called). It does not undertake to confer any new jurisdiction, or a jurisdiction over a new or additional class of subjects on the court, or the justices thereof; but simply declares, that an old and conceded jurisdiction of the court may be exercised and enforced through its justices in a new and summary manner, as to a certain class of frauds and “ legal irregularities” mentioned in the act. As the court can only act and exercise its jurisdiction through its justices, the act in form declares, that the justices of the court shall exercise the jurisdiction in the summary manner prescribed by the act.
If the act had extended the jurisdiction of the court, or in form the jurisdiction of its justices, to a class of municipal frauds and irregularities, for which at the time there was no legal or judicial remedy, I do not think it would at all have interfered with the constitutional provision referred to.
The Legislature is constantly conferring on this court, or in form on its justices, new powers, and imposing on them new duties. Of this, its justices may perhaps have some reason to complain, but I do not see how the Constitution can, if the duties are judicial duties.
The powers and duties of a public officer may be said, in a certain sense, to constitute the office; but adding one or several additional judicial duties to the office of a justice of the Supreme Court, whose powers and duties are already so multifarious and extensive, can no more confer on him any other office or public trust, than “ one swallow can make a summer.”
On this point my conclusion is, that it is competent for me, as a justice of this court, to entertain this proceeding, instituted by the petitioner under the act of 1858, and that I have jurisdiction under that act to grant the relief asked for by him.