23 Barb. 390 | N.Y. Sup. Ct. | 1856
The defendant in this case is a municipal corporation, deriving all its powers from, and exercising its functions in accordance with, the charter which constitutes its organic and fundamental law. The principle is too familiar and elementary to require the citation of authority in its support, (although the books abound with cases which establish the doctrine,) that such a corporation possesses and can exercise no powers except such as are expressly granted by its charter, or such as are necessary to carry into effect the granted powers.
The agency through which the corporation mainly acts, is the common council of the city, a body constituted by the charter, and having certain specific duties cast upon, as well as restraints thrown around it. It is an obvious result of this organization, that the municipal body, which is the corporation, can only be bound or affected where the common council, the subordinate agency through which it ordinarily acts, exercises authority in conformity with the law of its creation, and never can be bound
It is perhaps a common, but is nevertheless a very manifest error, to suppose that the common council of a city is a sort of independent body, having, to some extent, inherent executive as well as'legislative powers, not entirely subordinate to the law which creates and limits their authority, and consequently, that they, to some undefined extent, are “a law unto themselves” as well as to those with whom they are dealing. Such a doctrine has no support from principle or authority. If a corporation, when prosecuted for an act of its agents, (the common council for the time being, of a city,) are to be met by such a plea, the doctrine of estoppel will have reached an extent little dreamed of heretofore, and there would be no conceivable stretch of power on the part of that body for which the corporation would not be held responsible. On the contrary, the true principle, as stated by Nelson, J., in Cuyler v. Trustees of Rochester, (12 Wend. 168,) is that “the charter prescribes the powers of the trustees, beyond which they cannot go. If they do, they act as individuals, and not in the character of trustees, and their proceedings, of course, are inoperative and void.” In suits against corporations of a municipal character, they, like all other principals, may defend themselves on the ground that the act by which they are sought to be made responsible, was an act done without their authority. The same doctrine is upheld and enforced in the judgment in the court of appeals, in Mayor of Albany v. Cunliff, (2 Comst. 178,) where it is held that the assent of the common council to an act beyond their authority, can never estop the corporation from raising the objection. The ofiicers act for their principals, and are of course limited, in their legitimate action, to the powers conferred by the charter creating them. If the council cannot bind the corporation expressly, they cannot conclude them by way of estoppel. “This rule,” says the court, “although it may sometimes operate harshly, is a safe and sound one, and should be applied uniformly to all persons acting in a representative capacity, where they travel beyond their legitimate powers.”
It follows, therefore, that the council, if they had attempted it, had no power whatever to bind the city to pay for the work in question in this case, out of the ordinary revenue of the city, or forthwith upon its completion. All the duty that rested upon the common council, and I may add, all the power they possessed, was to cause the expense of the work to be assessed and means taken for its collection in the manner provided by the charter, and to apply the money, when received, to the payment of the contractor. There is no pretense that this duty has not been performed, with all requisite promptness and fidelity. Immediately upon the completion of the improvement, which was in November, 1855, the amount due for the work was certified by the city surveyor, presented to the council, referred to the appropriate committee, who, at
The only authority which has been invoked in opposition to these conclusions is the case of Cumming v. Mayor &c. of Brooklyn, (11 Paige, 596.) As I understand that case, it contains no doctrine which will enable the plaintiff to recover upon the case made by him. Without stopping to remark upon the important consideration that the charter of Brooklyn (Laws of 1834, p. 90, et seq.) contains no such special provisions as does the charter of Utica, in regard to the collection, keeping and disbursement of specific funds, and restraints upon the power of the council to order payments to be made therefrom, it is sufficient to say that the decision was put upon the express ground of a breach of duty on the part of the council, in not taking the necessary steps to cause a legal assessment
This view is decisive of this cause, and if my conclusions are sound, shows that upon the allegations and proofs in this action the plaintiff cannot recover. But I think it equally clear, that in this case the council never undertook to transcend their power, and have made no contract or engagement by which the corporation were bound to pay the contractor absolutely upon the completion of the work, or out of general funds belonging to the city. By looking at the evidence as it is spread out on the record, it will be seen that the council commenced the contemplated improvement under the 66th section of the charter, and have proceeded throughout in accordance with its provisions. They published proposals and a plan of the work, which had been filed with the city clerk, containing all the specifications required, and stated therein explicitly, that “ the expense thereof was to be assessed pursuant to the 66th section of the city charter, and the acts amending the same.” In the proposal which the contractor made, he offered to do the work upon certain specified terms, “according to plans and specifications thereof, on file with the city clerk.” In accepting the proposal and directing the work to be done, which the
I should deeply regret the necessity of arriving at the conclusion to which this discussion has conducted me, were the result to be the loss to the contractor in this case, or his assignee, of the hard earned compensation to which he is justly entitled. That consequence, however, will by no means follow. The council have performed their duty by levying the tax and putting in motion the proper machinery to ensure its collection. There is indeed an allegation in the complaint to the effect that the improvement is one the common council had no
The judgment must be reversed and a new trial ordered, with costs to abide the event.
Pratt, J., and W. F. Allen, J., dissented to the proposition first discussed in the above opinion, but concurred in the result, upon the ground stated in the second proposition.
Judgment reversed.
Pratt, Bacon and W. F. Allen, Justices.]