
    BEEKMAN’S CASE.
    
      Supreme Court, First District ;
    
    
      Special Term, October, 1860.
    Assessment.—Municipal Ordinance.—Court.
    An ordinance of a municipal corporation, passed by one board at one session, but not passed by the other until the next session, is not duly passed, and is void.
    A subsequent amendment, duly passed, does not operate to give validity to the ordinance.
    Such objection to an ordinance authorizing an assessment, is a “legal irregularity” within the act of 1858, allowing assessments in the city of New York to be set aside.
    That act is not unconstitutional as conferring any new office or trust on the justices of the Supreme Court.
    Application to set aside an assessment.
    The grounds of the motion are fully stated in the opinion.
    
      A. M. Burr, for the petitioner.
    
      H. H. Anderson, for the corporation.
   Sutherland, J.

The assessment and proceedings complained of by the petitioner must be vacated; because the ordinance, purporting to authorize such assessment and proceedings, was passed by the Board of Assistants on the 8th of May, 1851, and by the Board of Aldermen on the 6th of February, 1852; that is, because it was not passed by both boards in the same year, but was passed by them in different years; so that, when passed by the Board of Aldermen on the 6th of February, 1852, the Board of Assistants, by whom it had been passed, had been retired from office, and had been succeeded by a new Board of Assistants.

It was expressly decided by the general term of this court, in Wetmore a. Story (22 Barb., 414; S. C., 3 Abbotts’ Pr., 262), that an ordinance so passed was absolutely void, although in form duly approved by the mayor, on the ground, as I understand the reported reasons for the decision, that the Legislature, in designating by the charter the power vested in the two boards, as the Common Council of the city, as the legislative power must be presumed to have intended, that the universally recognized principles of actual legislatures, or legislative bodies, should apply to, and control the so called legislative action of the Common Council of the city of New York; so that a resolution or ordinance passed by the Board of Assistants in one year, could not be taken up as unfinished business, and concurred in by the Board of Aldermen in another year, so as to make it a valid resolution or ordinance of the Common Council, without consulting the existing Board of Assistants; but that, like the unfinished business of other legislative bodies, it must be taken up de novo.

Whatever might be my own opinion of this question as an original question, it would not be proper, or in order, for me to set up my own opinion against this express decision of the general term; and I must therefore hold, in this case, that the', ordinance purporting to authorize the assessment and proceedings of which the petitioner complains, although approved by the mayor on the 7th of February, 1852, was absolutely void, and did not in fact authorize such assessment and proceedings.

If absolutely void, the subsequent amendment of it in 1853, by striking out the names of the three assessors originally inserted, and inserting three others in their place, did not and could not confirm it so as to make it a valid ordinance. There is nothing to show that when that amendment was made, the Common Council had the remotest idea that the ordinance required any confirmation. The amendment was, in terms, confined to the insertion of the three new names in the place of those originally inserted.

This application is made under the act, entitled “ An act in relation to frauds in assessments for local improvements in the city of New York,” passed April 17, 1858.

It cannot be doubted, if the words “ legal irregularity,” as used in the first section of the act, mean any thing, that the irregularity in the passage of the ordinance authorizing the assessment and proceedings in question was, and is, a “ legal irregularity” within the meaning of the act. The ordinance was, or purported to be, the very foundation or authority for the assessment and proceedings complained of. The irregularity of its passage must, under the decision in Wetmore a. Story, be held to be fatal to the assessment, and all proceedings under it.

But it is insisted on the part of the Corporation, that the said act of the Legislature under which the application is made, was passed in violation of article 6, section 8, of the Constitution of this State, which provides that justices of the Supreme Court shall not hold any other office or public trust; that the act undertakes to confer on the justices of this court a new or other office or public trust, which by the Constitution the Legislature were prohibited from doing, and the justices of this court are prohibited from accepting, or exercising; and, therefore, that I, as one of such justices, cannot entertain this proceeding, or make any order or adjudication in it.

It is very clear to me, that this act does not undertake to confer any new or other office or public trust on the justices of this court, within the meaning of the constitutional provision.

This court always had jurisdiction over the frauds and legal irregularities (so called by the statute) not only of individuals, but of corporations, municipal and private, within its jurisdiction ; and could always furnish a remedy to a party who had suffered, or was about to suffer, by such fraud or irregularity, in an action brought by him for such remedy; and perhaps, in certain cases, and under certain circumstances, could, by mandamus or certiorari, give a remedy for fraud or irregularity in the proceedings of a municipal corporation.

I think the act of April 11, 1858, in question, assumes this old and conceded jurisdiction of this court over frauds and legal irregularities (so called). It does not undertake to confer any new jurisdiction, or a jurisdiction over a new or additional class of subjects on the court, or the justices thereof; but simply declares, that an old and conceded jurisdiction of the court may be exercised and enforced through its justices in a new and summary manner, as to a certain class of frauds and “ legal irregularities” mentioned in the act. As the court can only act and exercise its jurisdiction through its justices, the act in form declares, that the justices of the court shall exercise the jurisdiction in the summary manner prescribed by the act. The act gives to the justices new and additional powers, and imposes upon them new and additional duties, but only as to the mode or manner of exercising an old and conceded jurisdiction, and which, as I have before said, I think the act itself assumes to belong to the court. The act, in fact, gives a new remedy for an old and conceded class of wrongs, and that is all it does, or undertakes to do.

If the act had extended the jurisdiction of the court, or in form the jurisdiction of its justices, to a class of municipal frauds and irregularities, for which at the time there was no legal or judicial remedy, I do not think it would at all have interfered with the constitutional provision referred to.

The Legislature is constantly conferring on this court, or in form on its justices, new powers, and imposing on them new duties. Of this, its justices may perhaps have some reason to complain, but I do not see how the Constitution can, if the duties are judicial duties.

The powers and duties of a public officer may be said, in a certain sense, to constitute the office; but adding one or several additional judicial duties to the office of a justice of the Supreme Court, whose powers and duties are already so multifarious and extensive, can no more confer on him any other office or public trust, than “ one swallow can make a summer.”

On this point my conclusion is, that it is competent for me, as a justice of this court, to entertain this proceeding, instituted by the petitioner under the act of 1858, and that I have jurisdiction under that act to grant the relief asked for by him.  