
    Howell and Christopher against The City of Buffalo.
    Under the charter of 1843 ( Chap, 132 of 1843), the common council of Buf- - falo were required to cause the damages sustained hy the owners of land adjoining a street, in consequence of a change of the ^rade thereof, to he assessed hy the same assessors, and in the same proceeding, as the expenses of working the grade and paving the street. Such expenses having been assessed and collected; Held, That the order of the common council for a subsequent and separate assessment of the consequential damages of the wners of lands upon the street, was absolutely void.
    An officer of the corporation, having levied and collected from the plaintiffs the sum imposed upon them by a void assessment, made for a purpose within the general powers of tho corporation, and for which the common council had authority to have levied an assessment in a regular way; Hddt that the corporation was liable to the plaintiffs in action of tort. Denlo, C. J., contra; Comstock and Bowen, Js., concurring.
    The provisions of the amended charter of Buffalo (Zímcs of 1853, 472), making it a bar to any action for the collection of any demand or claim that it has never been presented to the council for audit or allowance; or, if on contract, that it was presented without affidavit verifying the claim; Held, Not to extend to a demand arising out of tort. Denlo, C. J.,dissenting.
    The plaintiffs sued the corporation of Buffalo, in the Superior Court of that city, for taking and carrying away and converting to its own use, certain bank notes of the value of $355. The answer, besides denying the matters set forth in the complaint, set up a justification under certain proceedings of the common council and city officers, in levying and collecting an assessment upon the plaintiffs, for benefit on account of altering the grade of a street. The trial took place before Mr. Justice Clinton. The city charter of 1843 empowered the common council to cause the streets to be graded, leveled, paved and repaved, and to cause the expense to be assessed upon the real estate deemed benefited by the improvement, in proportion to the benefits resulting thereto as nearly as might be. The common council was to determine the amount to be assessed, and to appoint five freeholders to make the assessment. Parties feeling themselves aggrieved by the assessment, might appeal to the common council, who were authorized to confirm or annul it; and in the latter case they were to order a new assessment, by the same or other assessors. (Laws of 1843, 144, § 11.) If the assessors should determine that any owner of real estate on a street should suffer damage by the leveling or grading it, they were authorized to assess such damages upon the owners upon the same street deemed to be benefited, and the amount of such damages were to be added to the assessment roll. (Id., § 12.) “Whenever the established grade of any street, &c., shall be altered by the common council, * * * the owner of any lot or house upon such street, &c., may claim damages therefor,” and “the assessors,” in that case, “ shall ascertain all such damages, and assess the same as hereinbefore provided upon the real estate benefited by such alteration.” (Id., § 13.) “All assessments by this act directed or permitted to be made upon real estate, unless it be otherwise provided by this act, shall be made in the manner particularly prescribed by the eleventh section of this act. ” (Id.,% 14.)
    It appeared that the grade of Green-street, in Buffalo, had been established in 1836, and that it was built upon that grade, which was not changed until the year J852.
    
      On the first day of June, in that year, the common council by resolution directed that Green-street, between Washington and-Michigan-streets, should be graded and paved. On the thirteenth of July, in that year, the expenses of such grading and paving were fixed by the common council at $4630; and assessors were appointed to assess that amount upon the real estate deemed to be benefited. They made an assessment roll' which was returned to the common council in August, 3852, and was subsequently confirmed by that body, and the amount ordered to be collected. In pursuance of the order above mentioned, Green-street was graded and paved in the autumn of 3852.
    On the 28th September, 3.852, the common council passed a resolution “fixing and establishing the grade of Green-street,” between "V^ashington-street and Michigan-street, in which the rise and descent from certain given points were stated in feet and parts of a foot; and it was shown that the grade so established altered the level which had existed since the year 1836. It was also shown that the paving and grading above mentioned was executed upon the level specified in the last mentioned resolution. After the adoption of this resolution, certain owners of houses and lots on the street claimed damages on account <of the change of grade; whereupon the common council [appointed five freeholders to ascertain the amount of such •damages and assess the same upon the owners of property deemed to be benefited. An assessment was accordingly añade, by the assessors so appointed, in which the plaintiffs in this action, who were owners of lots on the street, were assessed a considerable amount for benefit. There was an ajrpeal to the common council from this assessment, and it was annulled; and the council thereupon appointed other assessors, who made a new assessment, upon which the plaintiffs were again charged for benefit to the amount of $450; and it was for the seizure of the bank hills of the plaintiffs by one of the city collectors, for the payment of this assessment, that this action was brought. The plaintiffs were two of the parties who appealed from the first assessment, their complaint being that they were entitled, upon the merits, to receive damages instead of being required to pay them. They were heard before the council, but did not make any objection to the legality of the proceeding.
    Before the seizure of the plaintiffs’ bills, as above mentioned, a revised charter for the city of Buffalo was passed by the legislature, taking effect on the 1st day of January, 1854. It contains a section in the following words : “ The common council shall audit and allow all accounts chargeable against the city; but no unliquidated account or claim or contract shall be received for audit or allowance, unless it be accompanied with an affidavit of the person rendering it, to the effect that he verily believes that the services or property therein charged have been actually performed or delivered for the city; that the sums charged therefor are reasonable and just, and that, to the best of his knowledge and belief, no set-off exists nor payment has been made on account thereof, except such as are included or referred to in such account or claim. It shall be a sufficient bar and answer to any action or proceeding in any court, for the collection of any demand or claim, that it has never been presented to the council for audit or allowance; or, if on contract, that it was presented without said affidavit, and rejected for that reason; or that the action or proceeding was brought before the council had a reasonable time to investigate and pass upon it.” (Laws of ] 853, 472, § 1.)
    The defendant’s counsel, among other objections, insisted on the following positions, which were overruled by the judge: First. That if the assessment was held to be illegal and void, still the city corporation would not be liable for the act of trespass committed by its officers; Second. That the omission to present the claim for allowance to the common council (which, it was admitted, had not been done) was a bar to the action, and also that the assessment was in all respects legal. The defendant’s counsel excepted. The judge decided that the plaintiffs were entitled to recover, and gave judgment in their favor, which judgment was affirmed at a general term; and thereupon the defendant appealed here. The case was submitted on printed argu ments
    
      A. J. McNett, for the appellant.
    
      Pool & Lewis, for the respondents.
   Brown, J.

Title five of the act to revise the charter ,of the city of Buffalo, passed April 13th, 1853, relates, among other things, to the funds and expenditures of the city. The first section authorizes the common council to audit and allow all accounts chargeable to the city. It also provides that no unliquidated account, or claim, or contract shall be received for audit, unless accompanied with an affidavit of the person rendering such account or claim, to the effect that he verily believes the services, or property therein charged, have been actually performed, or delivered, for the city, and that the sums charged are just, and that there are no payments or offsets, except such as are named. The section then declares “ it shall be a sufficient bar and answer to any action, or proceeding in any court, for the collection of any demand or claim that it .has not been presented to the common council for audit or allowance; or if on contract, that it was presented without said affidavit, and rejected for that reason,” &c. The manifest purpose of all this, is to afford the common council an opportunity to examine, adjust and pay for property or services furnished to the city before suit brought. The word claim is used in connection with the word account, and whatever signification might be given to it under other circumstances, it is qualified and limited by the language with which it is connected, and the obvious purpose of the section of which it forms a part. If the demand is liquidated, and the amount ascertained, no affidavit is needed. But if the services are performed, or the property is furnished under a contract, and the prices or the extent of the services, or the quantity of the property, is uncertain, and open to any question, then an affidavit must be annexed. The expression, “ or if on contract,” found in the concluding clause of the section, is imperfect, and not the best that could have been selected to effect the purpose designed, yet it does not imply that claims arising ex delicto, must be submitted for examination and audit to the common council before action brought.

Section eleven, of the act of the 17th of April, 1843, to consolidate and amend the act to incorporate the city of Buffalo, authorizes the common council to cause streets, alleys, See., to be graded, leveled, paved, &c., and to determine the amount to be assessed for the improvement, which is to be charged upon the real property benefited. It also provides for the election of five assessors, to make the assessment upon the property, with the right of appeal to. parties aggrieved. Section twelve provides for awarding to the owners of lands, which are, in the opinion of the assessors, damaged by such improvement, a reasonable recompense for the injury, which they are to assess upon the real property benefited, and add the same- in the assessment roll, which they are required to make, and certify to the common council. This power may be exercised by the assessors upon their own motion, and without the claim of the owners of the lands injured. • Section thirteen authorizes the owners to make an affirmative and formal claim for these damages; “ and the commissioners, or assessors, as the case may.be, shall ascertain all such damages, and assess the same as hereinbefore provided, upon the real estate benefited by such alteration,” that, is as provided in section eleven. These three sections are all that are material to the present inquiry. The law nowhere favors the idea of double assessments by separate boards of assessors, one to ascertain the benefits and distribute the expenses of the improvement, and the other to ascertain the lands injured, assess the damages and distribute the same over the property benefited. There is to be but one board of assessors, and but one asessment of benefits and damages. The common council may, upon appeal, and in pursuance of the provisions of section eleven, vacate the assessment, and direct a new one to be made by the same or by new assessors; but the entire asessment is to be made de novo, both in respect to the expenses of the improvement, and the damages done to property, over and above its benefits. Both estimates, and their dis tribution upon the lands are inseparable. The damages awarded as a compensation for injury to the damaged landu are in excess of the benefits, which the same lands derive from the improvement, and the sums charged upon the benefited lands are a just proportion of the benefits, as well as of the damages awarded to others. Two separate boards of assessors, one to distribute and assess the expenses upon the lands thought to be benefited, and the other to estimate and award damages -to those thought to be injured, and to distribute and assess the same upon the lands thought to be benefited, might differ widely in their estimate of what lands were benefited, and what were injured; and their assessments and awards- could result in nothing less than confusion and positive injustice.

The common council of the city, by a resolution adopted on the 1st of June, 1852, ordered Green-street, between Washington and Michigan-streets to be graded and paved. By another resolution of the date of the thirteenth of July of the same year, the expenses of such grading and paving were ascertained and determined to be $4630. Assessors were duly appointed, who proceeded to assess and distribute the expenses upon the property benefited, in conformity with the provisions of the eleventh section of the act. The assessment roll was filed in the proper office, and duly confirmed by the common council. The assessors saw no occasion for the exercise of the powers conferred upon them by the twelfth section, in respect to lands damaged by the improvement; and no one, as far as appears from the papers, made any claim for damages under the thirteenth section. The common council is the agent and instrument of the landowners, in, respect to these improvements. The work is to be conducted and completed under its direction. It is to ascertain how much certain owners are to pay, and others receive; to collect the money and see that it is applied to the uses of the improvement. Its authority must be strictly pursued. (McCullough v. The Mayor of Brooklyn, 23 Wend, 458; Lake v. The Trustees of Williamsburgh, 4 Denio, 520 ; Sharp v. Speir, 4 Hill, 76.) The proceedings had under the resolutions of the 1st of June and the 13th of July, 1852, for the grading and paving of Green-street, between Washington and Michigan-streets, were a due and complete execution of the powers of the common council on that subject. The trust was executed and the power of the trustee exhausted. All the subsequent proceedings referred to in the bill of exceptions, for the assessment of the damages of the owners of lands injured by the improvement, were without authority and void. They afford no justification for the seizure of the property of the plaintiffs, which is the subject of complaint in this action.

It is hardly necessary to say that the acts out of which the plaintiffs’ cause of action arose, were matters within the scope of the corporate powers of the city of Buffalo. The common council had power to grade and pave the street: to cause the damages done to the owners of lands to be assessed upon other lands benefited: to issue a warrant to collect the moneys assessed. What was done was an irregular and illegal exercise of a power, which the common council doubtless possessed. For such acts of its authorized agents, the corporation is liable in an action of

tort. (2 Kent’s Com., 284; Ang. & Ames on Corp., 250, 330.)

The judgment should be affirmed.

A majority of the court concurred in this judgment. Denio, C. J., Comstock and Bowen, Js., dissented; the chief judge delivering the following opinion.

Denio, C. J. (Dissenting.)

The common council of Buffalo determined to cause Green-street to be graded and paved; but, instead of causing the expense of the work, and the damages, which individual owners of lots on the street might suffer, to be assessed at the same time by one set of assessors, they first appointed assessors to assess the expense of the improvement upon the owners chargeable on account of benefit; and, after they had made their report, another set were appointed to assess upon the parties so chargeable, the damages which owners of lots injured by the change of grade might sustain. To give color -to the last proceeding, the council passed a resolution defining or “ fixing” the grade by a particular statement of the inclination which the street, when finished, should assume. The grade should have been, and probably was, determined upon when the expense of the work was estimated, before the first set of assessors were put in motion; for it would be impossible to ascertain the cost of the work without deciding upon the shape of the street and reckoning the amount of excavation and embankment. The resolution describing the grade after the first assessment was made, appears to have been essentially a fictitious proceeding, and of no legal import. I am of opinion that the charter did not contemplate and does not warrant this double proceeding. When a street is to be graded and paved, the council is to determine the manner in which the work is to be done, including the necessary direction as to the grade or level which it is to assume. They are then to estimate the expense, and appoint assessors to apportion that expense, together with such claims for damages, for injury to individual property owners, as they shall allow, among the proprietors of lots whom they slfall consider benefited. This is the plain meaning of the eleventh, twelfth and thirteenth sections of the sixth title of the charter. The contrary course pursued by the common council in this instance, not only occasions increased expense, but it commits to two different boards the performance of a duty which does not well admit of a division, and which the law therefore required should be the work of a single administrative body. I therefore agree in opinion with the Superior Court, that the last assessment was illegal and void, and that the act of taking the plaintiffs’ property to satisfy the award against them was a trespass.

The next question is whether the city corporation is liable in a common law action for this trespass committed by its officers; and I am of opinion that it is not liable. Municipal corporations are organized for the purpose of carrying on the local government of the districts over which their powers extend. They are made bodies politic for the purpose of taking and transmitting the title to property, of maintaining a standing in court in order to vindicate the title to, and protect from injury, the public property committed to their charge, and that they may become parties to contracts respecting the public b usiness which they are authorized to carry on. The officers of municipal corporations are public officers, in the same sense with other functionaries who are entrusted with public duties in districts which are' unincorporated. They are all officers of the government, with powers more or less extensive as regards territory and the character of their duties. There is no reason why the people of an incorporated city or village should be responsible for the unlawful acts of their officers, which does not apply with the same force to the public in a locality not embraced within the boundaries of a municipal corporation. The general rule certainly is, that the individual who comImits the illegal act is to respond to the party aggrieved, though it be done under color of official authority and upon pretence of law. For the negligent performance of» an act I which the officer has authority to do, the community which | he represents may be, and in certain cases is, liable; but // where the officer so far departs from his duty that the law ( adjudges the whole act void, the individual, and not the community, should answer. The Superior Court must have adjudged, in sustaining the action, that the assessment for which the plaintiffs’ property was taken was entirely void; yet they determined at the same time that it possessed so much legal validity that it concluded the corporate body in whose name it was done. These two propositions cannot, in my opinion, be reconciled with each other. If void, it was not a public or a corporate act. It was the deed of individuals professing and probably believing that they acted by the authority of law, but in truth proceeding upon their own responsibility, without any lawful authority whatever. As they were acting without the scope of their public agency, this concluded nobody but themselves. The case is plainly distinguishable from the class of adjudications to which The Mayor, §c., of New-York v. Furze (3 Hill, 612) and Bailey v. The Mayor, &c., of New-York (3 Hill, 531, affirmed in 2 Denio, 433) belong. In these cases the injury to individuals was committed in the course of the performance of a public act. They are distinguishable, upon the same principle, from Hiclcolc v. The Trustees of the Village of Plattshirgh and King v. The City of Buffalo, lately decided in this court. In the last of these cases, though the process upon which the plaintiffs’ property was taken was coram non judice and void, it was notwithstanding held that the city, at the instance of whose officers it was sued out, was responsible, for the reason that it was intermediate process taken out in the course of a prosecution legally carried on in the name of the city corporation by its officers; and it-was therefore held that the case was not within the prin ciple which I have undertaken to maintain. I think the Superior Court fell into an error, in the case under review, in holding the corporation responsible for the trespass of its officers.

I am also of opinion that the case, if otherwise sustainable, was within the provisions of the charter of 1853, which requires demands or claims against the city to be presented to the council for audit or allowance before an action can be maintained upon them. The case is within the policy of the provision, for it is at least as reasonable that the local legislature should have an opportunity to adjust a demand arising in tort as one growing out of an express or implied contract. It is also within the words of the statute. “ Demands or claims” are the largest words of that class, and clearly embrace a cause of action founded upon a trespass to personal property. Littleton says that the most beneficial release which a man can have is a release from all demands 508); and Lord Coke declares that a release of all claims extends to all demands (Co. Lift., 291, b). Again, the language of the section shows that demands arising out of a tort were intended to be embraced. All claims and demands against the city are to be presented to the council, and, “if on contract,” there must also be an affidavit; plainly showing that other demands than such as arose upon a contract’were in the contemplation of the legislature. If the provision had made the common council the ultimate judge whether the claim should be allowed it would be liable to the constitutional objection that the party was deprived of his right to a trial by jury; and so if the condition to the maintaining of the action were such as substantially to destroy his legal remedy at common law. (Morse v. Goold, 1 Kern., 281.) The requirement to present the demand to the common council, and to wait a sufficient time to enable the council to examine into its justice, would not seriously embarrass a party.

These views, if correct, would lead to the reversal of the judgment of the Superior Court, and to the awarding of a new trial.

Judgment affirmed.  