
    Annie B. Phelps, App’lt, v. Mayor, Aldermen, etc., of the City of New York, Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed January 15, 1889.)
    
    1. Tax—Money paid for illegal tax—When cannot be recovered from the city.
    Where the ordinance directing an assessment is essentially illegal, as violating in its provisions the statutory power conferred upon the common council of the city of New York, the payment of an assessment imposed for an expense incurred under its authority is a mistake of'law and in such a case relief "cannot he granted.
    2. Same—When payment of voluntary.
    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. Reid, that the money was not paid under duress of person or of goods. That it could not be recovered back from the city.
    3. Same—When money paid can be recovered back.
    A person is Hot permitted to recover back money paid under a tax or assessment, except where its p- yment was compelled by an actual or threatened seizure of his person or divestiture of his goods, although he-assorts by action and successfully maintains its illegality.
    
      4. Same—Illegality of.
    The resolution or ordinance under which the work for which the assessment was made, was done, provided for “the same to be done in such a manner as the commissioners of public works may deem expedient, and for the best interest of the city and property owners.” Held, that this ordinance was ineffectual to dispense with the provisions of the charter requiring advertisements for sealed proposals, and a contract with the lowest bidder as required by Laws 1882, chapter 410, section 6-1.
    5. Same—Common council cannot delegate power to tax.
    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, confined its exercise exclusively to that body as such. It cannot delegate it to another.
    Appeal from a judgment of the supreme court, general term, first department, reversing a judgment in favor of the plaintiff rendered at special term.
    The judgment recovered by the plaintiff against the city, was for moneys paid by her for an- assessment, which the judge at special term held to have been illegal and void. On .appeal, the general term reversed that judgment and ordered a new trial, on the ground that the Statute of Limitations had barred the action before its commencement. From the judgment of reversal, the plaintiff appealed to this court.
    
      David D. Acher, for app’lt; D. J. Dean, for resp’ts.
    
      
       Affirming 14 N. Y. State Rep., 937.
    
   Gray, J.

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 the 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, vvas 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, ot 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 oi‘ 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 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 de hors 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 moneys 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 (75 N. Y., 388), this court held that where an aggregate expenditure of more than $1,000 was involved in the completion of any particular work for the corporation, the same must be by contract, to be awarded to the lowest bidder after advertisement for sealed proposals, unless otherwise ordered by a vote of three- fourths of the members elected to the common council. This was deemed an imperative requirement of the law, under the provisions of section 91 of the Laws of 1873, and as its provisions were embodied in the consolidation act of 1882 (§ 64), they are equally imperative here.

In the case cited, Judge Rapallo said, with respect to words in the ordinance precisely similar to those quoted from this record, and which were there claimed to authorize the commissioner of public works to do the work without contract. “Assuming that the power intended to be given , to the commissioner by this clause related to the manner of employing the persons to do the wol'k, and to the purchase of the supplies necessary therefor, and not merely to the mode in which the work should be performed, we think it was ineffectual to dispense with the provisions of the charter requiring advertisement for sealed proposals, and a contract with the lowest bidder.

The law confers upon the common council the power and duty of deciding in each particular case whether those provisions shall be dispensed with, and requires a vote of three-fourths of all the members elected to accomplish that purpose. This is eminently a discretionary power which cannot be delegated. It is their judgment which the law requires, and not that of any officer they may designate. There is no provision in the law itself authorizing them to delegate this power, and the case falls within the settled principle that powers of this description, involving the exercise of judgment and discretion, cannot be delegated; a principle which applies to public bodies and officers, as well as to private individuals.”

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, where 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 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 (6 N. Y., 92) their ordinance provided for the work in pitching and flagging a street to be done in such manner as the city superintendent, under the direction of the committee un roads of the common council, shall direct and require. It was held that it was contrary to law for failing to specify the manner in which the improvement was to be made, and this court affirmed the judgment against the city.

In the Matter of the Emigrant, etc., Bank, which we have quoted from, the assessment was avoided, and Thompson v. Schermerhorn is cited, as is the case of Birdsall v. Clark (73 N. Y., 73), where the question was whether a general resolution, directing the superintendent of streets, where the owner neglected to do the work by the time limited, “to cause the same to be done,” was a proper exercise of the power conferred upon the common council.

It was held not to be; for the reason that the power conferred by the charter to cause the work to be done by contract or otherwise, involved the exercise of a discretion as to the manner of its performance which was vested solely in the common council. Then, in Stuart v. Palmer (74 N. Y., 183), an action to vacate an.assessment on lands and to restrain collection, this court affirmed a judgment for the defendants, on.the ground that the acts' under which the assessment was laid were unconstitutional and void, and hentie no assessment laid under them could be a cloud upon title to land.

In Wells v. City of Buffalo (80 N. Y., 253), a similar action to the last, it was held that the complaint was properly dismissed, Rapallo, J., saying: “If the act is unconsti.tional no assessment imposed under it can be a cloud upon plaintiff’s title. It is void upon its face.”

It should be a logical conclusion from the authorities and from the reasoning upon the case that where the ordinance directing an assessment 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 under a tax or assessment than in a case where its payment, being compelled by an actual or threatened seizure -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 voluntarily.

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. (111 N. Y., 331; 19 N. Y. State Rep., 126); and it is unnecessary to discuss it in this case.

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 defendants on the stipulation, with costs.

All concur.  