
    The People of the State of New York ex rel. Edward O'Connor and William W. Smith, Relators, v. The Board of Supervisors of Queens County, Respondent.
    
      County La/w — the action of a board of supervisors in establishing a fire district is-legislative — it cannot be reviewed by certiorari.'
    
    The authority conferred upon boards of supervisors, by section 37 of the County Law (Chap. 686 of the Laws of 1892, as, amended by chap. 902 of the Laws of 1896) to establish fire districts outside of incorporated villages, is-clearly a legislative power, and, being such,; its exercise cannot be reviewed by means of a- writ of certiorari.
    ’ Certiorari issued out. of the Supreme Court and attested on the- , 21st day of September, 1896,.directéd to the board of supervisors of Queens county, commanding them to certify aiid return to the office-of the clerk of the county of Queens all and singular their proceedings relating to the- passing of a resolution which purported to-establish a fire district in the town of Oyster Bay, Queens county.
    
      Thomas Young, for the relators'. .
    
      Toumsend Boudder, for the respondent.
   Willard Bartlett, J.:

The establishment of fire districts outside of incorporated villages is provided for by section 37 of the County Law (Chap. 686, Laws of 1892,, as. amended by- chap. 902,, Laws- of 1896). That section empowers the board of supervisors of a county to establish such fire districts, on the written verified petition of the taxable inhabitants of the territory which it is proposed to comprise therein, “ whose names appear on the last preceding assessment roll of the town within which such proposed fire district is located, as owning or representing more than one half of the taxable real property .of such district of as owning or representing more than one-half of' the taxable real property of such district owned by the residents thereof.”

On the 30th day of July, 1896, the board of supervisors of Queens county adopted a resolution which was numbered fifteen, and which was entitled, “ An act to provide for the formation of a Eire D-istrict within the Town of Oyster Bay, Queens County, New York.”' This resolution recited the presentation to the board of supervisors of a petition praying that a district, duly described therein, be declared a fire district, pursuant to section 37 of the County Law, and granted the prayer of said petition by establishing the district particularly described therein as a fire district in the town of Oyster Bay, Queens county, New York, in accordance with the provision of the County Law already cited.

The relators in the present proceeding ask this court to review the action of the board of supervisors in passing this resolution, and to annul the determination of the board, to the effect that the conditions existed which authorized the establishment of a fire district outside an incorporated village in the town of Oyster Bay. They allege that there were really nine petitions instead of a single petition, and that only one of the nine purported to be verified; and, furthermore, that, even if these nine papers be regarded as one petition, there cannot be found in them, taken altogether, any evidence that the signers constituted the taxable inhabitants of the proposed fire district whose names appeared on the last preceding assessment roll of the town of Oyster Bay as owning or representing more than one-half of the taxable real property of such district or as owning or representing more than one-half of the taxable real property of such, district owned by the residents thereof.

At the outset of the argument in behalf of the defendant it is. insisted that the creation of a fire district is a legislative act, and, therefore, that the action of the supervisors in creating such a district is not reviewable by certiorari.

This objection is well taken and is fatal to the proceeding. A similar attempt to review the action of these same defendants was-made in the case of The People ex rel. The Trustees of Jamaica v. The Board of Supervisors of Queens County .(131 N. Y. 468).. There the subject of. attack was an act for the improvement of certain public highways in the town of Jamaica; and it was held that, the court was so clearly without jurisdiction to review the action of' the board of supervisors upon a writ of certiorari that it ought not to pass upon the merits which the relators sought to have determined. “ The writ of certiorari,” said Earl, Oh. J., in that case, 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 notion of. a public officer, or of a public 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.”

■ The authority bestowed upon boards of supervisors by the County Law to establish fire districts in their counties outside' of incorporated villages is clearly a legislative power; and being such it is not ■assailable by means of the writ of certiorari. It may well be that a resolution adopted in the exercise of this power would be .adjudged void in a judicial proceeding which was appropriate to test its validity if it were made to appear therein that the conditions precedent, prescribed by the County Law, did not either appear to ■exist or exist in fact when the resolution establishing the fire district was adopted- It is to be noted in the present case, however, that fhe relators nowhere allege that the- papers which were treated by the board as one petition were not in fact signed by a sufficient number of taxable inhabitants of the character prescribed' by the .amended statute. The petition was evidently drawn with reference to section -37 of the County Law in its original form, instead •of the section as amended in 1896 ; and the failure of the relators to allege that the names of the signers did not appear oh ' the last preceding assessinent roll of .the town of -Oyster Bay as owning or representing the proportion of real property required by the amendment, may be regarded as indicating that the signers were in fact -assessed for taxes upon a sufficient quantity of real estate to enable them to invoke the action of the board of supervisors for the establishment of the desired fire district.

But, however this may be, the writ of certiorari in the present proceeding must be dismissed for want of jurisdiction.

Writ of certiorari dismissed, with costs to the defendant.

All concurred.

Writ dismissed, with ten dollars costs and disbursements- to the defendant.  