People ex rel. Trustees of Village v. Board of Supervisors of Queens Co. , 43 N.Y. St. Rep. 665 ( 1892 )

Earl, Ch. J.

On the 25th day of May, 1891, the supervisors ■of Queens county passed an act “ for the improvement of certain public highways in the town of Jamaica, in the county of Queens,” in which they provided for grading, regulating and macadamizing certain streets and highways in the village and town of Jamaica. The act provided for raising $400,000 for the expense of the improvement upon bonds to be issued by the county treasurer of the county, and it regulated the rate of interest, the time, of payment and the form of the bonds. It provided that the whole expense of the improvement should be paid by taxes to be levied in the town of Jamaica, and it appointed five persons commissioners to take charge of arid superintend the improvement,- who were to serve without compensation.

The supervisors claimed authority to° pass the act under § 2 of •chapter 855 of the Laws of 1869, and it was passed with the assent of two-thirds of all the supervisors, the supervisor of Jamaica voting therefor.

These relators, claiming that the action of the supervisors was illegal, and unauthorized by law, procured a writ of certiorari to review their action, and the court granting the writ ordered that further proceedings to lay out and repair the highways by the board of supervisors, or by the special commissioners by them Appointed, be stayed pending the certiorari proceeding, or until the further order of the court. The supervisors made return to the writ, and the court upon the return, and after hearing counsel for the respective parties, affirmed the proceedings of the supervisors.

Upon that hearing the counsel for the supervisors, as we infer from the opinion of the court, objected that the proceedings could not be reviewed by writ of certiorari. The court overruled that objection, and decided the case presented to it upon the merits. The same objection is made here, and we think it is insuperable. The court is so clearly without jurisdiction to review the proceedings of the supervisors upon this writ that we ought not to pass, upon the merits involved.

The writ of certiorari is appropriate only to review the judicial! action of inferior courts or of public officers, or bodies exercising: under the laws judicial functions ; and there is no authority to be found in the reports of this state sanctioning its use for any other purpose. When the action of a public officer or of a publics body is merely legislative, executive or administrative, although it may involve the exercise of discretion, it cannot be reviewed by certiorari. And so it has been so often held that the rule-has become elementary. People v. The Mayor, 2 Hill, 9; Matter of the Mount Morris Square, id., 14; People ex rel. Savage v. The Board of Health, 33 Barb., 344; People v. Supervisors of Livingston Co., 43 id., 232; aff’d 34 N. Y., 516; People ex rel. Corwin v. Walter, 68 id., 403; People ex rel. Burnham v. Jones. 112 id.,. 597; 21 St. Rep., 820.

This act of the supervisors of Queens county was purely a legislative act. Legislative power was devolved upon them under the’constitution by the legislature, and the act was as purely legislative as if it had been passed by the legislature itself. If this action by the supervisors can be reviewed by certiorari, then every act and resolution of the board of supervisors, every ordinance of a city board of aldermen, every ordinance and resolution of a village board of trustees, and generally all the acts of public: officers involving the exercise of some discretion could be reviewed in the same way, and thus there would be a wide departure from the practice and procedure which have always prevailed in this: state, and much embarrassment might attend the discharge of legislative, executive and administrative functions by public-, officers, local boards and state departments.

In all the cases cited by the learned counsel for the relatorsin support of this writ, the board or officers whose action was-reviewed by certiorari had some judicial function to discharge, and hence they are all distinguishable from this.

The writ of certiorari was not needed in this case to prevent a. failure of justice or to defeat the consummation of an alleged wrong. Assuming, according to the contention of the relators, that the act of the supervisors was unauthorized and illegal, they and every aggrieved taxpayer could arrest all proceedings under the act by an action instituted under laws specially provided for such cases. Code, §§ 1925, 1928 et seq.; chap. 531, Laws of 1881, as amended by the act, chap. 673, Laws of 1887; Barker v. The Town of Oswegatchie, 41 St. Rep., 821.

The supreme court should not, therefore, have affirmed the action of the board of supervisors, but should have quashed the writ

Our conclusion, therefore, is that the order of the general term should be reversed and the writ of certiorari quashed, without •costs to either party in this court

All concur.