112 N.Y. 216 | NY | 1889
If the ordinance of the board of aldermen, under which the work of regulating, grading and paving Broadway was done, appeared on its face to be contrary to the law, and, therefore, to be void, this action to recover back the moneys paid by plaintiff should fail. This appears to be substantially conceded, as a proposition, by plaintiff's counsel; where, under his second point that the payment was not voluntary, he says, "as a matter of law the assessment being valid on its face, the payment was not voluntary." As a matter of fact, the payment of the assessment in question was effected by the mortgagee of the property, who, upon making the mortgage loan, deducted its amount from the moneys payable to the plaintiff and satisfied the lien of record. This fact, of course, frees the case from the element of a payment under duress of person or of goods, through the coercive action of the municipal authorities.
The issue before the trial court was as to the legality of the assessment, with respect to the ordering of the work and the manner of its performance, and upon that point proof was had. The resolution or ordinance under which the work was done, provided for "the same to be done in such manner as the said commissioner may deem expedient and for the best interests of the city and of the property-owners." It appears that the commissioner of public works, who was referred to, contracted, in writing, with one Tracy for the performance of the *219 work, at the price of upwards of $140,000, and it also appears that this contract was not made after any public advertisement for bids. But, for the purposes of this case, the sole question which we shall consider is whether this ordinance on its face carried notice of the illegality of the corporate act, not whether matters of proof dehors the record otherwise established the invalidity of the assessment. If the ordinance was on its face void, then the plaintiff cannot plead her ignorance of the law in justification of the payment. The principle is elementary that a party cannot recover back money paid, upon the ground that he supposed he was bound in law to pay it. The ordinance delegates to the commissioner of public works a discretion in the performance of the work which it orders done; for it reads that it is "to be done in such manner as the said commissioner shall deem expedient," etc.
In the Matter of the Emigrant Industrial Savings Bank
(
The reasoning of the learned judge is conclusive. In his opinion, what was there left to the commissioner's discretion was the mode in which the work should be performed, and not merely the manner of employing persons to do the work, or of the purchase of necessary supplies. We think that the legislature, in conferring the exercise of a power, sovereign in its attributes, as is the power to tax or assess, upon the common council, must be held to have confined its exercise exclusively to that body as such. The common council is a representative body of the taxpayers, and it would not do to hold that the power to take, or to burden the property of citizens might be exercised by others than by those to whom the power was given. In this case, the mode of performance of an important and expensive work was, by the language of the ordinance, left to the sole discretion of the commissioner of public works; when it was the imperative duty of the common council to provide specifically as to how it should be done. They might direct the work to be done otherwise than by contract; but the exercise of that discretion was carefully provided for in a certain manner. The law intended that the expense of doing work for the corporation, where it would exceed $1,000, should only be incurred after public competition for the contract. It intended that the common council should determine whether the expense should be incurred through a contract or otherwise, and it never intended that *221 the determination, which it indeed commanded they should make, should be left to an officer. This they had no power to do.
This court has in the past, as recently, considered the question of what is a delegation of power and a consequent violation of the law by the common council. In Thompson v.Schermerhorn (
It should be a logical conclusion, from the authorities and *222 from the reasoning upon the case, that when the ordinance, or the resolution directing a local improvement, is essentially illegal, as violating in its provisions the statutory power conferred upon the common council, the payment of an assessment, imposed for the expense incurred under its authority, is a mistake of law, and in such a case relief cannot be granted. Nothing in the argument advanced by the appellant militates against this view. She was under no compulsion to pay the assessment; for there was concededly no duress of person or goods and the payment was not forced by warrant or seizure. We do not understand that the rule goes further in its authority to permit of a recovery back of moneys paid by a person under a tax or assessment, than in a case where, its payment being compelled by an actual or threatened seizure of his person, or divestiture of his goods, he asserts by action and successfully maintains its illegality.
If the tax or assessment is patently illegal and its payment is coerced, an action on the equity side of the court to have it declared void and the moneys paid returned, would be a proper form of remedy; but, lacking the element of coercion, in the form of a duress of person or property, payment must be held to be voluntary.
The court below thought the action was barred by the statute of limitations. We have had occasion to review the question raised by the defense of the statute in such cases, in the case decided in November term of Friend v. Mayor, etc. (
The order of the General Term reversing the judgment of the Special Term should be affirmed, on the grounds stated in this opinion, and judgment absolute ordered for the defendant on the stipulation, with costs.
All concur.
Order affirmed and judgment accordingly. *223