People ex rel. Bulger v. Hart , 132 N.Y.S. 827 ( 1912 )

Woodwabd, J.

The relators are residents of the city of Olean, and this writ of certiorari was issued upon their petition to review the action of the assessors, and of the city clerk of the city of Olean, on the ground that certain assessments made for the purpose of paying for a stree-t improvement were illegal and void. The assessors and city clerk have made a return to the writ, but the relators in Hist, that the return is not complete, and they ask that the respondents he required to malee a further return. They point out that'.the city clerk is clerk of the board, of assessors, and that he is required to' keep a record of all of the proceedings of the common council, and they claim (1) that the writ requires a return of all of the proceedings of the common council and commissioners of public works preliminary to the assessment; (2) that it requires the assessors to return whether the common council had fixed and determined the amount of the expense of the improvement, and whether they had such amount as determined by the council before them when they made the assessment; (3) that the petition alleges that no .amount was assessed by the assessors to- each property owner, but only the number of feet frontage and an arbitrary valuation per foot; also that the city clerk threatened and proposed to spread the amount of the expense of the improvement as ascertained by him on the roll; (4) that the roll returned shows the expense of the improvement has been added, but fails to state whether it was - done by the clerk or the assessors, or whether before, or after the roll was filed after review.

The object of a writ of certiorari, as we understand it, is to review the action of a body having jurisdiction of a given subject-matter, .for the purpose of correcting errors, where no appeal is otherwise available. This being the case, it is obvious that the requirement of the writ went uo further than to require the board of assessors, or its clerk, to produce such of the proceedings of the common council and of the commissioner of public works as were within its control, and we are of -the opinion that the return is not defective in this respect.

There is no force in the suggestion that there is a failure to show whether the council had determined the amount of the expense of the improvement, and whether this fact was before them -at the time, as it could make no' difference with the action of the assessors.

The allegation that there was no' amount assessed bv the assessors is not important. The only question for the assessors to determine, under the charter of the city of Olean, is the number of feet of frontage; and then the assessment is merely a matter of computation to determine the equal distribution 'of the cost upon each foot of frontage, and this work might be done, either by the assessors or by their clerk, without invading any rights of the petitioners.

I am persuaded that the relators are not entitled to a further return, and that the entire proceeding is based upon an erroneous theory of the law. The board of assessors are not authorized to review or correct any of the errors of the common council or of the board of public works, or of any other body or person; their authority is limited to a review of their own work, and to a correction of such errors as they may have made in determining the distribution of the burden of the public work. If the common council acted without a proper petition before it, or if the board of public works failed to properly advertise for bids, or if any other preliminary requirement was neglected, the parties aggrieved might have brought an action to prevent the work being consummated, or they can, upon an effort being made to collect the assessments, assert the jurisdictional defects • here urged; hut they have no proper place in a proceeding to review the action of the assessors, for it is not shown, that the assessors have done, or failed to do, anything which the law forbids or commands. The return shows, conclusively, that the assessors have acted within their jurisdiction properly. . If there- were antecedent jurisdictional defects, the hoard of assessors had no power to correct them; and no court would he justified in overturning the action of the common council, or of the hoard of public works, without those bodies being before it.

No "further return should he required, and the writ should he quashed, with costs.

Writ quashed, with costs.