Opinion
March Term, 1897.
Henry M. Field and Frank Rice, for the appellant.
John Colmey and James C. Smith, for the respondents.
It is said in the opinion of the learned referee, and claimed by the counsel for the respondents, that while the strict letter of the statute quoted in the statement of the case under which the commissioners acted required an assessment for benefits of the ten lots of land adjoining and along the line of the sewer omitted from the assessment, it should be deemed that the intent of the Legislature was that only parties determined by the commissioners to be benefited should bear the expense of construction of the sewer.
The authorities cited by the learned counsel for the defendants fully sustain his position, that when the language of a statute calls for a construction the intent is to be sought for and to control; that the letter of the statute does not always govern; that a reasonable construction should be adopted. Those authorities, however, only appear in cases where the language of the statute requires construction. When the meaning is clear, when there is no ambiguity, another principle, stated by GRAY, J., in People ex rel. Bockes v. Wemple ( 115 N.Y. 302-308), applies, viz.: "The intent of the Legislature is to be sought, primarily, in the words used, and, if they are free from ambiguity, there is no occasion to search elsewhere for their meaning. As it was said in McClusky v. Cromwell ( 11 N.Y. 593), it is not allowable to interpret what has no need of interpretation, and when the words have a precise and definite meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning. The natural and obvious meaning should be taken without resorting to subtle and forced construction."
The language of the act under consideration is not ambiguous. The commissioners are plainly directed to assess the sum to be raised upon the owners of the property adjoining and along the line of said sewer, and on the owners of such other real property as they shall deem benefited.
The claim of the respondents is that the act should be construed as if it provided that the sum to be raised should be assessed only against the property benefited by the sewer, and as if the words "upon the owners of property adjoining and along the line of said sewer or drain" were omitted. I can find no authority for giving such a meaning to a statute that requires no construction — for holding that no force or meaning should be given to the words above quoted.
Under section 3 of the act before its amendment, it was provided that the cost of a sewer, the construction of which was authorized by the act, should "be borne and defrayed wholly by the owners of all lands that shall be benefited thereby." On the amendment of the section the language above quoted was substituted. If the Legislature intended that the expense of the sewer should only be borne by those benefited, and to leave the question as to who were benefited entirely to the decision of the commissioners, it was easy to do so by using the same language as in section 3 before the amendment.
I think the language of subdivision 6, section 3 ( supra), clearly evinces a legislative determination that lands along the line of a sewer, the construction of which is authorized by the act, are to be held benefited by it. The commissioners appointed under the act have no right to determine otherwise; they can only decide what other lands are benefited, and the relative amount to be raised from the same, and from the lands along the line of the sewer. They are compelled to assume that every piece of land adjoining or along the line of the sewer (the territory designated by the Legislature as benefited) derives some benefit, and to assess the same in proportion to such benefit. They cannot modify the determination of the Legislature.
It is well settled that the Legislature, in providing for a public improvement, may designate the district benefited within the municipality where it is to be made, and charge the expense of it upon the property in such district; that this is an exercise of the taxing power, which is unlimited not only to the extent of the taxation to be imposed, but as to the manner, whether generally, upon all the property of a locality, or upon such only as is supposed to be benefited. ( In the Matter of Van Antwerp et al., 56 N.Y. 261; McLaughlin et al. v. Miller, 124 id. 510; Spencer v. Merchant, 100 id. 585.)
Assuming, however, that the contention of the respondents as to the construction which should be given to the act in question is correct, and that the Legislature intended that only that portion of the property actually benefited should be assessed, it is apparent that the ten lots in question were omitted by the commissioners from the appraisal for benefits, and were not considered or appraised. I understand that the referee so found in his seventh finding. He says: "That there were wholly omitted from the said assessment for benefits, ten pieces or parcels of real estate over and upon which the said West Side Sewer was constructed, so that the same were in fact adjoining or along the line of said sewer, owned in severalty as follows:" (Stating the names of the several owners.)
And apparently, as a reason for such omission, the referee proceeds to state the fact that the several owners of such lots conveyed the same to the trustees of the village, with the agreement contained in such deeds that the several grantors should not be assessed for benefits.
The word assessment is defined to mean "the act of assessing, determining or adjusting the amount of taxation, charge, damages, etc., to be paid by an individual, a company, or a community." (Century Dict.)
The referee's finding that the ten lots were wholly omitted from the assessment for benefits is equivalent to saying that such property was not considered by the commissioners — was not appraised. The commissioners, under the construction given the statute by the respondents, were called upon to determine whether the ten lots were subject to assessment, and the amount for which they should be charged — to appraise them — but they omitted them from such appraisement and assessment.
If there can be any doubt as to the meaning of the referee in his seventh finding, it will not be improper to examine his opinion with a view of ascertaining what he intended to determine in the finding in question. He says: "The trustees of the village, for the purpose of obtaining the right to construct the sewer across the rear ends of these lots, extending from Main street back to the railroad, took conveyances from the owners of lands between the brewery and Gibson street which were assessable for the construction of the Main street sewer, conditioned that they should not be assessed for the cost of construction of the West Side Sewer, and in consequence of such conveyances the commissioners omitted to appraise and assess these lands for the construction of such sewer." It is impossible to read the evidence and admissions contained in the case without reaching the conclusion that the statement of fact thus quoted from the opinion of the referee is correct; that the commissioners did not appraise the ten lots, or consider them in their appraisement for benefits, because of the agreement of the trustees with the owners thereof.
It is difficult to see how, under the circumstances, the commissioners could have appraised the said property for benefits.
Undoubtedly the action of the trustees of the village of Canandaigua, in entering into an agreement with the vendors of the ten lots in question, that in consideration of such conveyance they should not be assessed for benefits, was illegal and unauthorized. The statute gave the trustees authority to purchase a right of way, and probably to settle the amount of damages therefor, but provided for the appointment of commissioners to assess benefits. Under the act no power whatever is given to the trustees to settle the amount of benefits, and no power will be implied.
But, although such action of the said trustees was beyond their authority, I think it prevented the commissioners from appraising and assessing the property in question for benefits. When the latter were called upon to make such appraisement, the village owned a sewer and the easement or right of way through the land where it was constructed. The right of way through a portion of such land had been obtained by voluntary conveyances from several grantors, and in each deed, as a consideration therefor, had been inserted a covenant that said grantor should not be assessed for benefits. The trustees of the village, while retaining the possession of the right of way thus conveyed, could not repudiate the covenant contained in the conveyances, which was, in fact, the consideration thereof. It was estopped from claiming before the commissioners that such grantor could be assessed for benefits.
The commissioners were necessarily bound by the action of the trustees. Benefits could not be assessed until the trustees had acquired a right of way and built the sewer, and until the damages had been determined. When the commissioners were called upon to act, the ten parties in question had conveyed a right of way and released their damages in consideration of the covenant contained in their several deeds that they should not be assessed for benefits. If the commissioners could hold this agreement void, the release of damages was also invalid. The action of the commissioners was necessarily based upon the previous action of the trustees, and that the release of damages was valid. And this being the case, they were compelled to hold that the agreement as to benefits, the consideration of such releases, was also valid. They could not hold the said several conveyances valid for the purpose of conveying a right of way for the sewer and release of damages therefor, and invalid as to the covenants therein in regard to benefits, which was the consideration thereof.
I think, therefore, that, whether the provisions of subdivision 6, section 3 ( supra), be construed as counsel for the respondents claims it should be, or otherwise, the commissioners were prevented, by the illegal action of the trustees of the village of Canandaigua, from appraising a portion of the land through which the West Side sewer was laid, for benefits; that they did not attempt to obey the provisions of the statute in that regard, but wholly omitted the ten lots in question from such appraisement, and that hence the assessment was invalid.
The commissioners having intentionally omitted from the assessment a portion of the property designated by the Legislature as benefited, and the necessary result of such omission being to increase the amount of the plaintiff's assessment, under the well-settled doctrine that where a board of officers in making a local assessment materially depart from the authority delegated them, they act without jurisdiction, this action was properly brought. ( Savage v. City of Buffalo, 59 Hun, 606; 131 N.Y. 568; Hassen et al. v. City of Rochester et al., 65 id. 516; sub nom. Hassan v. City of Rochester, 67 id. 528; Elwood v. City of Rochester, 43 Hun, 102; sub nom. Ellwood v. City of Rochester, 122 N.Y. 229.)
Under the authorities cited the assessment in question was absolutely void as against the plaintiff. Judge EARL, in Van Deventer v. Long Island City ( 139 N.Y. 133-139), referring to the cases of Hassan et al. v. City of Rochester et al. and Ellwood v. City of Rochester ( supra), and another case, says: "These cases hold that where the law requires the expense of a local improvement to be assessed upon property within prescribed limits to be benefited thereby, in proportion to the benefits, the assessment is void if any of the property be omitted from the assessment."
It is urged by the learned counsel for the respondents that the act under consideration has provided a remedy for erroneous acts on the part of the commissioners by a review of an assessment before them and an appeal to the County Court; that this remedy is exclusive, and, hence, that this action cannot be maintained. I have examined the cases cited by him, one of which is Garratt v. Trustees of Canandaigua ( 135 N.Y. 436). In that case, however, it appeared that the authorities of the village in constructing the sewer acted within their jurisdiction; that they had not violated the provisions of the statute authorizing the construction of a sewer, but in the exercise of their judgment and discretion had adopted a faulty plan. It was held in the case cited that, under such circumstances, a court of equity would not interfere as the plaintiffs could obtain relief by a rehearing before the commissioners and the appeal provided for by the statute.
There are authorities holding that in case of a public improvement authorized by a statute, in which a mode of redress is provided for persons claiming to be injured in consequence of a failure to obey the provisions of the law in making the improvement, such mode is exclusive and no right of action exists in their favor except that directed by the statute. ( Heiser v. The Mayor, etc., of N.Y., 104 N.Y. 68; People v. Wasson, 64 id. 167; MacLaury v. Hart et al., 121 id. 636.)
But in neither of the cases cited did it appear that the persons or officers, whose proceedings were sought to be restrained or vacated, had acted beyond their jurisdiction; that the act of which the plaintiff complained was void for want of power. Hence, those authorities do not conflict with the doctrine laid down in the case of Hassan et al. v. City of Rochester ( supra). In that case an action similar to this on a similar state of facts was held properly brought, although chapter 143, Laws of 1861, under the provisions of which the public improvement therein considered was authorized, provided for a review of the assessment and an appeal to the Supreme Court. Sections 197, 198 and 199 of that act provided that, after an assessment for a local improvement had been made, the common council should give notice that on a certain day they would hear appeals from the assessment, and the day designated they should hear the allegations and proofs of all persons who should make complaints; and the act provided that the common council might rectify and amend the assessment in whole or in part, or might set it aside and direct a new assessment, or ratify and confirm it; that any assessment so ratified and confirmed should be final and conclusive. A right of appeal to the Supreme Court was also given. The act in question thus provided a tribunal authorized to hear the allegations and proofs of the parties aggrieved by an assessment, and it contained a further provision that the decision of this tribunal should be final and conclusive. In his opinion in the Hassan Case ( 67 N.Y. 528-537) Judge MILLER, referring to the provisions of the said statute, remarked: "The confirmation by the common council of the assessment in question, after notice under the provisions of the charter, does not, we think, preclude the plaintiffs from the benefit of the equitable relief demanded. The provisions of the charter which relate to the confirmation of assessments (S.L. of 1861, 332, §§ 197, 198, 199) vest no authority in that body to confirm an assessment made in violation of an ordinance and where it is plainly apparent that the assessors have disregarded the same. Such a proceeding of the assessors is unavailing, because they exceeded their powers, and its confirmation cannot infuse into it any element of strength and vitality or remedy the difficulty. It must fail, because it is inherently defective; nor have the common council the power to enact or alter an ordinance of this kind without pursuing the preliminary steps which the charter requires for such a purpose. * * * As the assessors did not comply with the law and exceeded their authority, and the common council proceeded to confirm an assessment made in violation of the ordinance and without any legal right, there was an excess of power which is fatal to the assessment. The defect in the proceedings was more than an irregularity, and was not obviated by the confirmation of a void proceeding. When the statute makes the confirmation conclusive, it has reference to a valid proceeding, which is sanctioned by law, and is within the jurisdiction of the assessors."
In Ellwood v. City of Rochester ( 122 N.Y. 229) an action was sustained brought to set aside an assessment made upon the plaintiff's lot for a local improvement, although chapter 14, Laws of 1880, under the authority of which the assessment was made, had a similar provision for a rehearing before the common council and for an appeal to the Supreme Court.
The Hassan and Ellwood cases establish the doctrine that where local authorities, in making a public improvement and assessment in pursuance of the authority of a statute, act beyond their jurisdiction, a provision in the law for a rehearing by officers named, and for an appeal, does not prevent a party injured from maintaining an equitable action to obtain redress. The provision in such a statute for a rehearing is intended to afford relief in case of irregularities, unequal assessment, or irregular practice on the part of the local officers acting within their power, but not for injuries sustained in consequence of acts beyond the jurisdiction of such officers. Those acts are void, and the decision of the local tribunal authorized to review cannot give them validity.
If village authorities in making a local improvement, acting within the power conferred upon them by statute, in the exercise of their judgment and discretion err, as in Garratt v. Trustees of the Village of Canandaigua ( supra), the remedy is to be sought by an appeal under the provisions of the statute where an appeal is given, or by certiorari. But if they materially depart from the authority delegated, they act without jurisdiction, and a right of action is vested in the person injured.
The assessment in question, although in fact void, was on its face valid, and extrinsic evidence would be required to establish its invalidity. It formed a cloud on plaintiff's title, and I think, under well-settled principles, the plaintiff is entitled to the relief it claims.
Without considering other questions raised in this case, I conclude that the judgment should be reversed, the referee discharged and a new trial granted, costs to abide the event.
LANDON, J., concurred; PARKER, P.J., concurred in result; HERRICK and MERWIN, JJ., dissented.
I concur with Mr. Justice PUTNAM, but I desire to remark, respecting the contention of the respondents, that the plaintiff's remedy is limited to the appeal to the County Court prescribed by chapter 266, Laws of 1887; that the provision for an appeal has reference to an assessment upon all the lots within the field of assessment designated pursuant to the rule prescribed by the charter. Here the assessment was not upon all the lots within such a field, but was upon either a portion of them, or upon all the lots of a different field, designated in violation of the statutory rule, or by a departure from it. It is plain that the appeal prescribed by this statute for the review of errors alleged to have been committed by the commissioners while acting within the powers conferred upon them by the statute — that is, in making the assessment upon all the lots within the field of assessment designated pursuant to the statutory rule — cannot be so extended as to exclude all other remedies for relief against an attempted assessment of the lots in some other field of assessment. The commissioners have not been authorized to make this assessment, and the rule of appeal which the statute would attach to their authorized work does not attach to their unauthorized work. It passes legislative ken to foresee what public officers will do when they wander outside of their powers, and it would be unwise and perhaps unconstitutional for the Legislature to attempt, even under the guise of affording a remedy at law, to limit by statute the general equitable jurisdiction of the Supreme Court in cases where the alleged legal remedy, if successfully invoked, would shield unauthorized assumption of power from correction. On the face of the record it appears that no assessment was made upon the persons or property of ten persons therein named, but it is not stated in the commissioners' report that such persons owned lands along the line of the sewer. Extrinsic evidence was necessary to show all the material facts respecting the omission of such lands from the assessment.
I dislike to dissent from the conclusion arrived at by the majority of the court, but it seems to me that the plaintiff should be compelled to resort to the remedy provided by statute, otherwise complete justice cannot be done; by permitting the maintenance of actions of this kind, where the statute provides a summary remedy by which an assessment can be vacated or corrected, persons will be allowed to escape payment of any part of the expense of public improvements by which they are benefited, whereas, by proceeding under the statute, if there is anything improper or illegal in the assessment, it may be corrected, if necessary vacated and a new assessment made, and all parties made to bear their just share of the burden.
Subdivision 7 of section 3 of chapter 266 of the Laws of 1887, being an amendment of the law under which the proceedings for the public improvement in question were taken, provides that an appeal may be taken by a person considering himself aggrieved to the County Court, and that "upon such appeal the County Court may, by an order, affirm, alter, vacate or correct said report, which order shall be final."
The action here is to remove a cloud upon the plaintiff's title created by the assessment in question, and is an action entertained by courts of equity when a lien affecting real estate appears on its face to be valid, when the defect in it can be made to appear only by extrinsic evidence, which will not necessarily appear in proceedings taken to enforce the lien. ( Crooke v. Andrews, 40 N.Y. 547; Marsh v. City of Buffalo, 59 id. 280.)
And equity takes cognizance of it because there is no adequate remedy at law.
Here an adequate remedy is provided by the very statute under which the lien is created. The plaintiff seeks to have the assessment vacated; the County Court is by the statute authorized to do that very thing; all the relief to which it is entitled the County Court has power to afford.
General authority was conferred upon the County Court to hear all grievances, and there is nothing to justify us in holding that its power was intended to be confined merely to cases of irregularity or simple mistakes.
The words used, "may by an order affirm, alter, vacate or correct," are ample to include relief for any and all cases that can arise under an assessment, and for any and every cause.
The fact that no procedure was prescribed by the statute as to the manner in which the County Court should conduct the proceedings authorized, makes no difference. When power to do an act is conferred upon a court, and no practice is prescribed, it may adopt such practice as it adjudges necessary to enable it properly to perform the duty enjoined upon it. "Presumptively, * * * whatever judicial procedure is essential to enable courts to exercise their function is authorized." ( McQuigan v. D., L. W.R.R. Co., 129 N.Y. 50-52.)
Whatever judicial practice or proceedings, known to the courts, it might be necessary to take to enable a party, considering himself aggrieved, to present his grievance fully to the court, the County Court, I think, might authorize or permit, whether that consisted in merely bringing up the record, as in certiorari, or in taking evidence extrinsic to the record.
That being so there is no occasion for equity to interfere.
A court of equity is never at liberty to draw to its general jurisdiction a question remitted to a competent and sufficient authority, by express command of the statute, unless under some very exceptional circumstances. ( People v. Wasson, 64 N.Y. 167; MacLaury v. Hart, 121 id. 636, 642. See, also, Heiser v. The Mayor, 104 id. 68; Garratt v. Trustees of Canandaigua, 135 id. 436.)
It is not necessary to hold that the statute has absolutely ousted courts of equity of jurisdiction in the premises, but the existence of the statute is a reason why such courts should not exercise their equitable powers. "The statute having given a legal remedy which is adequate there is no occasion for administering equitable relief." ( Andrews v. Monilaws, 8 Hun, 65; Sebald v. Mulholland, 26 N.Y. Supp. 913.)
As was said in the case of MacLaury v. Hart ( 121 N.Y. 636 -642), "The present action seeks to withdraw from the tribunals specially clothed with authority to determine the controversy the right to decide it, and has no adequate foundation except distrust of those tribunals. * * * That the statute merely designates the ultimate tribunal and prescribes its authority, without specifying the practice to be pursued, does not justify an inference that it will proceed in a partial or unjust manner, or contrary to its normal rules of action. There is no reason, therefore, why the statute remedy should not be pursued."
We are not at liberty, it seems to me, to say that a County Court is not a competent or sufficient tribunal to deal with the questions involved in this assessment.
Neither are there any exceptional circumstances in this case that justify the interference of equity, but there are equitable considerations that it seems to me require us to refuse to take cognizance of this class of cases, when there is a statutory remedy provided, except under very exceptional circumstances.
If the plaintiff had resorted to the judicial tribunal specifically named in the statute, the assessment could have been corrected as justice required, and the plaintiff, while being compelled to pay its fair and proportionate share of the expense of the improvement, would have been relieved of any excess; the whole assessment would then have been necessarily brought in question, and a fair and legal assessment could have been made.
Here, the only effect of the plaintiff's succeeding is to relieve it from the assessment; this action does not affect the assessment as a whole; it does not modify or correct it; it simply relieves the plaintiff's property from the lien of the assessment, and as there is no provision in the law for a reassessment, its necessary result is to relieve the plaintiff from paying any part of the expense of the improvement in question, and compels the village authorities to pay from the general funds that which ought to be paid by those especially benefited by the improvement.
The purpose of the provision of the law providing for an appeal to the County Court, and those contained in other local laws relating to municipal improvements, where a specified manner of review is provided, is to provide a summary way of reviewing assessments and determining their legality, and promptly correcting any errors or mistakes, and readjusting the assessment when necessary, and thus compel all who ought to share in the burden to pay their just share, and the beneficent and equitable purpose of the statute is defeated if a property owner is permitted long after the assessment is made, and when perhaps every one else has paid, to ignore the statutory remedy provided and commence his action, not to correct or legalize the assessment, but simply to have that portion of it levied upon his property vacated, and thus entirely relieve himself at the expense of the taxpayers.
In the cases of Hassen v. City of Rochester ( 65 N.Y. 516) and Ellwood v. City of Rochester (122 id. 229; S.C., 43 Hun, 102) the question here discussed was not at all considered, and they, therefore, are not authorities upon the question.
Neither is the case of Hassan v. City of Rochester ( 67 N Y 528) an authority upon this question. There it was held that a confirmation of the assessment by the common council did not preclude the plaintiff from applying for equitable relief.
In that case the statute (Chap. 143, Laws 1861, §§ 195, 197, 198, 199) provided that after an assessment had been made it should be returned to the common council; that public notice thereof should be given, and that the common council should hear all persons who might complain of it, and rectify and amend it in whole or in part, or set it aside and direct a new assessment, and ratify and confirm it, with or without correction, and further provided that any assessment "so ratified and confirmed by the common council shall be final and conclusive."
That is hardly, it seems to me, a remedy to review an assessment; it is simply part of the machinery by which the assessment is made, and the words "final and conclusive" are used merely in the sense that the assessment was then complete, and that no reassessment could be made. ( Miller v. City of Amsterdam, 149 N.Y. 288, 299.)
Neither do I think the case of Kinnan v. F.S.S., M. St. N.A.R. Co. ( 140 N.Y. 183) is adverse to the position I have assumed. That was an action in equity to compel the defendant to issue to the plaintiff stock in lieu and in place of certificates of stock that had been lost or mislaid, and it was contended that the court was not at liberty to grant or administer the relief sought, because there was an adequate remedy at law; for the reason that, by an act of the Legislature, it was provided that one who had lost his stock certificate might apply at a Special Term of the Supreme Court for an order to show cause why a new certificate should not be given, and upon such hearing the court might proceed summarily to hear and determine the facts and make an order to require the company to issue a new certificate upon receiving from the petitioner a bond of indemnity. The court held that that was not a remedy at law; that it was exactly the relief which a court of equity would regularly and habitually award, and that the statute merely provided for a summary method of obtaining the same equitable relief that was theretofore granted by courts of equity; that the statute must be regarded as giving a cumulative, additional and summary remedy of a purely equitable character, and to be administered by an equity court.
As heretofore stated, it is not necessary to hold that the statute ousted courts of equity of their jurisdiction, but simply that, with the method of obtaining relief provided by this statute, courts of equity ought not to take cognizance of an action to remove a cloud upon title created by an alleged illegal assessment, unless under very exceptional circumstances, because, in the action to remove a cloud upon title, relief can only be afforded to one, and that, too, at the expense of others, while, under the statute, a broader equity can be administered and justice done to all.
In the case last cited it was held that the statute merely provided the means of procuring by a summary method the same relief that could theretofore have been administered by a court of equity.
The statute here under consideration goes much further, and enables the County Court to do that which a court of equity, in an action to remove a cloud upon title, cannot do. In the one case, as heretofore stated, the plaintiff in the action simply procures a removal of the lien of the assessment from his premises; under the other, the County Court can do complete equity and justice to all parties, a fact that the court should take into consideration, and give great weight to, in determining whether it will assume jurisdiction of the case for the sole benefit of the plaintiff, or whether it will remit it to the remedy provided by the statute where justice can be done not only to it, but to all others affected by the proceedings under consideration.
This is not a case where the persons charged with making the assessment proceeded without jurisdiction.
There is no complaint here that any of the proceedings held prior to the apportioning of the assessment were illegal; everything appears to have been legally done prior to the apportioning of the expense among and upon the properties benefited. The assessors then had authority, that is, jurisdiction, to make the assessment. The error complained of is in the assessment itself, that is, that it was not apportioned and levied upon all the property benefited, the Legislature having, as it is claimed, adjudged that certain described property would be benefited, and provided in the statute that it should be assessed.
The assessors having the jurisdiction to make the assessment, the illegal or erroneous exercise of that authority does not affect the question of jurisdiction, although it may render the assessment an illegal one.
Jurisdiction of the subject-matter is the power to adjudge concerning that matter, and does not depend upon the ultimate determination arrived at or the means by which such ultimate determination is reached. ( Hunt v. Hunt, 72 N.Y. 217; Sweet v. Merry, 109 id. 83, 94.)
It is not a question, as to whether the assessors had the legal right to make this assessment that has been made, but whether they had the legal authority to make an assessment of the expenses incurred in the improvement in question; if all the necessary preliminary steps were legally taken, then they had authority to make an assessment, and no subsequent acts of theirs could divest them of that authority.
Jurisdiction depends upon the state of affairs when the persons or body seeking to exercise it first commence to act in the premises, and the erroneous or illegal exercise of jurisdiction does not relate back and deprive the body or persons of the jurisdiction originally vested in it or them.
It seems to me, therefore, that the act of the persons making the assessment was not without jurisdiction; that the statute has provided a sufficient remedy in a competent forum for the redress of all grievances, and if the plaintiff has neglected or refused to avail itself of the statutory means provided, where a broader equity may be administered, and justice be done to and for all, that there is no reason for a court of equity interfering for its sole benefit, and relieving it from paying any share of the expense of the improvement.
The judgment should be affirmed, with costs.
MERWIN, J., concurred.
Judgment reversed, referee discharged and a new trial granted, costs to abide the event.