166 N.Y. 163 | NY | 1901
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *165 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *167 It is claimed by the counsel for the village that the appeal brought by the town board should be dismissed, because the decision of the Appellate Division, so far as it reversed the proceedings sought to be reviewed, was unanimous and, according to the presumption required by section 1338 of the Code, this was in effect a determination that there was evidence supporting or tending to sustain a finding of fact. It is insisted that we are thus deprived of jurisdiction to review that part of the order appealed from. (Const. art. 6, § 9; Code Civ. Pro. § 191.) We think this section simply requires us to assume, when the record is silent upon the subject, that the reversal was not founded upon a question of *169 fact, so as to enable us to review the questions of law, and that the presumption was not intended to deprive this court of jurisdiction by requiring us to assume that the Appellate Division actually decided that there was evidence to support the facts found. The section was enacted, substantially in its present form, before the Constitution was so amended as to prohibit the review of a unanimous decision as to the sufficiency of the evidence. It was not intended to limit but to extend our jurisdiction. The presumption is artificial and should not be pushed beyond the single purpose for which it was prescribed. A unanimous reversal differs from a unanimous affirmance in that the latter necessarily involves the conclusion that there was sufficient evidence to sustain the facts, whereas the former may be based upon the facts as well as the law, although, if the decision does not so state in express terms, we are obliged to presume, for the sole purpose of reviewing the questions of law, that it was on the law only.
Moreover, section 1338 applies only to an appeal from "a judgment entered upon the report of a referee, or a determination in a trial court, or from an order granting a new trial." A town board is not a court; its members are not referees and they did not attempt to grant a new trial. The appeal, therefore, of the town of Sweden should not be dismissed.
The point is made by the counsel for the town that it does not appear by the return that the village officials, for whose services the claims in question were presented, were each paid a salary, and that hence there was no foundation for the claims under the statute. It is distinctly alleged in the petition that these officers received a salary for their services which was paid by the village. The writ recites the same allegation and the return does not deny it, although it denies certain other allegations of the petition and writ. Thus the question is presented whether the material allegations of fact contained in a petition for a writ of certiorari, which are not denied directly or indirectly by the return, are to be taken as true. *170
Section 2138 of the Code provides that a certiorari to review must, except in one instance not now important, be heard "upon the writ and return and the papers upon which the writ was granted." This provision is new and indicates that the petition has a function to perform aside from merely authorizing the issuance of the writ. The section was construed by Judge EARL, speaking for all the judges, in People ex rel. Peck v.Commissioners, etc. (
This section was further considered in People ex rel. Miller
v. Wurster (
The ground upon which the Appellate Division dismissed the writ as to the claim of 1899 was "that when the writ herein was issued the town board had adjourned and consequently had lost jurisdiction of the proceedings." This conclusion finds some support in the discussion of another question in Osterhoudt v.Rigney (
The claim that the village of Brockport was reincorporated and thus became entitled to the benefits of the General Village Law is challenged upon the ground of irregularities affecting the special election held to determine the question of reincorporation. The statute provides that if at such election the majority of votes are in the affirmative "then the village shall become and be incorporated under this act." (L. 1870, ch. 291, § 30.) A conclusive answer to this challenge is found in chapter 84 of the Laws of 1873, entitled "An act in relation to the village of Brockport," which does not violate section 16 of article 3 of our State Constitution, as claimed by the town board. This act contains seven sections, all relating to the powers of the village under its charter except section five, which declares in effect that it has a charter by confirming said special election. Each section has a direct connection with the village of Brockport. We agree with the learned Appellate Division that where "the title of a local law expresses a general purpose or object, all matters fairly and reasonably connected therewith and all measures which will or may facilitate the accomplishment of such purpose or object are properly incorporated into the act and are germane to the title." (CitingPeople ex rel. City of Rochester v. Briggs,
While we have considered all the questions raised by either party, we shall express our views only as to one more, leaving *173 the rest to the necessary inference flowing from our final conclusion.
It is apparent from the return, although not so expressly stated, that the claims under consideration were rejected in gross for the reason that in the opinion of the town board they were not valid claims against the town, not because the services were not rendered, but because the village had no right to present such claims as it had not been lawfully reincorporated. The good faith of the members of the town board can be sustained only upon the theory that they regarded any charge for the fees of the village officials, even when duly proved, as having no foundation in law. In determining that no part of either claim was valid they committed an error of law to the prejudice of the relator. (Code Civ. Pro. § 2140.) It may be, however, that some of the items, which approximate 1,500 in number, should not be allowed. The Appellate Division itself adjusted and allowed the claim of 1898, which included meals furnished prisoners and other items that may or may not be properly chargeable to the town, or, if chargeable, it may be that they should be reduced in amount. The counsel for the village admits that "the sum charged for meals may be cut down by the board, and doubtless the same is true of other items," but he continues, and we agree with him, "when the town board rejected the bills as a whole it committed an error of law which it is the province of a writ of certiorari to review." The audit of the town board evidently extended no further than to reject the bills, because under no circumstances could any of the items be allowed. Unless the opportunity is given to the auditing board to sift the items and reject those charged for services not performed, or not allowed by law, and reduce those charged at too high a rate, injustice may be done. Under these circumstances, we think, the claims should be remitted to the town board, with instructions to audit them as required by law.
The order appealed from, in so far as it dismisses the writ as to that portion of the relator's claim presented in 1899, is reversed; but said order, so far as it relates to that portion of *174 the relator's claim presented in 1898, is modified by striking out the provision readjusting and allowing the same, and as thus modified is affirmed, with costs. It is further ordered, that the claims for both years be remitted to the town board of the town of Sweden, with instructions to audit the same pursuant to law, and that the relator recover the costs of this appeal.
PARKER, Ch. J., O'BRIEN, BARTLETT, HAIGHT, MARTIN and LANDON, JJ., concur.
Ordered accordingly.