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Opinion of the Court, per ALLEN, J.
directed by the Revised Statutes, and to prescribe and regulate the duties of the assessors upon such review. Section 8 of the act of 1851 is the substitute for S 26 of the Revised Statutes, and follows immediately after the provisions regulating the review and correction of the assessments, and declares that “when the assessors, or a majority of them, shall have completed their roll, they shall severally appear before one of the justices of the town,” etc., and make and subscribe an oath in the form prescribed, which oath shall be written on the assessment roll, signed by the assessors and certified by the justice. The assessment roll, thus signed, is to be delivered to the supervisor of the town on or before the first of September, and by him delivered to the board of supervisors. (1 R. S., 394, $ 27.) In the nature of things, and in the sequence prescribed by the statute, the roll cannot be verified until the time for review and the hearing of objections is passed, and the objections, if any are made, are disposed of. The roll is not and cannot be completed until then, and the duty of the assessors in preparing the roll and making the assessments cannot be fully performed and ended, until after the third Tuesday of August, the day assigned by statute for the meeting of the assessors to review their assessments. (Laws of 1851, supra, $ 4.) The act of 1851 did not change fhe time for the completion of the assessment roll and its verification by the assessors. For the purpose of deposit for inspection, the roll is to be completed on or before the first of August; but for the purpose of verification and delivery to the supervisor, it cannot be completed until after the time fixed for its final review and correction.
The affidavit of the assessors to the assessment roll before us was made on the 29th of July, although it purported to have been made on the 26th of that month. But the assessors could not by law then make the affidavit required. They had other duties to perform to complete the roll before it could be verified, and the time had not arrived when by law they could declare it completed and verify it as the completed and perfected roll. The aflidavit was a nullity, and the defect
Opinion of the Court, per ALLEN, J.
appearing on the face of the paper by the date of the jurat, it conferred no jurisdiction upon the board of supervisors to impose a tax upon persons or property named therein.
It follows that the supervisors imposing the tax and signing the warrant to the collector were without jurisdiction and liable as trespassers.
The affidavit made a part of the assessment roll delivered to the collector with the warrant, and as it disclosed the want of jurisdiction in the board of supervisors to act, the process furnished no protection to that officer. (Van Rensselaer v. Witbeck, supra.) In Parish v. Golden (35 N. Y., 462), in the affidavit annexed to the assessment roll, a single clause was omitted, which the court may not have thought of the substance of the verification. The judge delivering the prevailing opinion was evidently of the opinion that the affidavit was a substantial compliance with the statutes. He says that the case was distinguishable from Van Rensselaer v. Witbeck, and while he thinks the latter case ought not to be extended, he is far from attempting to overrule it. The salutary doctrines of that case cannot be disregarded without encouraging a laxity in the discharge of official duty and endangering the rights of the citizen.
The rules which are prescribed for the protection of private rights ought not to be relaxed by courts, but should be rigidly adhered to and enforced.
It is not necessary to criticise the decision of Parish v. Golden, but it ought not to be regarded as shaking in the least the older case of Van Rensselaer v. Witbeck, or the principles upon which that decision was based.
The judgments in both actions should be reversed and a new trial granted.
Statement of case.
THE PEOPLE ex rel. THE ERIE AND GENESEE VALLEY
RAILROAD COMPANY, Respondents, v. J. NELSON TUBBS et al., Commissioners, etc., Appellants.
Where commissioners are appointed under the provisions of section 22 of
the general railroad law (chap. 140, Laws of 1850), their power over the proposed route is not restricted to that part of it which lies within the bounds of the land of the party procuring their appointment, but they may make any alteration of the proposed route within the county which may be necessary to obviate such objections of the party aggrieved as they may deem well founded ; and in exercising their power to alter the proposed route, it is the duty of the commissioners to complete the alteration so as to preserve the continuity of the line; they have no power to so change a portion of the proposed route as to leave it disconnected at either end
with the other portions, and thus to abridge or interrupt the road. The statute contemplates but one board of commissioners in a county, and
all alterations to be made in the proposed route in such county should be made by that board; it should, therefore, complete its work by either affirming the route proposed by the company, or making all necessary alterations; and when this is done the route through the county is established.
(Argued February 16, 1872; decided May 21, 1872.)
APPEAL from judgment of the General Term of the Supreme Court in the fourth judicial department, reversing the order and determination of defendants as commissioners appointed pursuant to the provisions of the general railroad act, to examine the proposed route of the Erie and Genesee Valley Railroad Company in the county of Livingston, which order was brought up for review upon certiorari. (Reported below, 59 Barb., 401.)
Defendants were duly appointed commissioners under the twenty-second section of the general railroad act (chap. 140, Laws of 1850), upon the petitions of George Hartman and William Hartman, alleging that the proposed route needlessly injured their lands. The commissioners made the following order:
“Now, therefore, by the authority vested in us by law, we hereby direct and determine that the location of said road
Statement of case.
through the premises of the said William Hartman and George Hartman shall be changed from the route as laid down on the map of the said company on file in the clerk's office of Livingston county, to a line described as follows, to wit: The center line of the said road through the premises of the said William and George Hartman shall be laid in and correspond with a straight line joining the point of intersection of the center line of the Erie and Genesee Valley railroad (as located on their map on file) with the center line of highway running east and west and known as the Zerfass road (said point of intersection being marked ‘A’on the accompanying map) and the point of intersection of the center lines of Jefferson and Ossian streets, in the village of Dansville, said last point of intersection being marked 'B'on accompanying map.” The point last mentioned was some distance from the line of the road.
Lester B. Faulkner for the appellants. The writ should have been dismissed. (People v. Highway Commissioners, etc., 30 N. Y., 72; People v. The Mayor, etc., 2 Hill, 9.) None of the matters returned under the unauthorized portion of the writ were properly before the court at General Term. (People v. Highway Commissioners, 30 N. Y., 72; People ex rel. · Woodward v. Covert, 1 Hill, 674; People ex rel. Robinson v. Ferris, 36 N. Y., 218.) It is only by certiorari directed to the justice, or by the direct proceeding by appeal for that purpose, that the regularity of the appointment of the appellants as commissioners can be examined. (People v. Stryker, 24 Barb., 650 ; 1 Hill, 674, supra; People v. Stevens, 5 Hill, 616; People v. Hopson, 1 Denio, 575; Greenleaf v. Low, 4 id., 168; Weeks v. Ellis et al., 2 Barb., 320; Sheldon v. Wright, 1 Seld., 497.) The office of the writ is to relieve only from errors stated. (Monro v. Baker, 6 Cow., 396; People v. City of Rochester, 21 Barb., 656; Ex parte Mayor of Albany, 23 Wend., 277.) The relator will be confined to the grounds of complaint stated. - (21 Barb., 657, supra; 24 id., 640.) He can raise no questions that were
Opinion of the Court, per RAPALLO, J.
not raised before the commissioners, except jurisdiction. (Peo ple v. Carrington, 2 Lansing, 368; 21 Barb., 657.) The facts will be examined only to enable the court to see whether the inferior tribunal has exceeded its powers. (People v. Board of Assessors, 39 N. Y., 81; Hyatt v. Bates, 1 Hand, 166.) The court is not bound to follow strict grammatical construction in construing the order. (5 Abb. Digest, 381, SS 236, 240.) Upon the principles of construction applicable to statutes the determination may be held to locate the whole route. (Fidler v. Cooper, 19 Wend., 288; 1 Abb. Dig., 209.) Every reasonable intendment will be made to uphold the determination. (People v. The County Court of Jefferson County, 56 Barb., 145; Ott v. Schreppel, 1 Seld., 482; Jackson, etc., v. Ambler, 14 Johns. R., 96; Bacon et al. v. Wilber, 1 Cow., 117; Mead v. Burns, 32 N. Y., 275.) The route laid down will stand if it can be reduced to certainty. (Jackson v. Ambler, 14 J., 96.) If the company can make it certain it should stand. (14 J., 96; Laws 1850, chap. 140, $ 20.) The relator cannot complain of what it did not request. (1 Seld., 482; 14 J., 96.) The petitioner is not bound to watch over the action of the commissioners upon other lands, in order to uphold the line upon his own. (Clark v. Phelps et al., 4 Cow., 190.) The commissioners had implied power to do whatever was necessary to effect the object. (Stief v. Hunt, 1 N. Y., 20; Livingston v. llarris, 14 Wend., 329.) The commissioners had power to alter the line on other lands than the petitioners. (In re L. 1. R. R. Co., Court of Appeais, 1870.)
John A. Van Derlip for the respondents.
RAPALLO, J. By the 22d section of the general railroad law, every company formed thereunder is required, before constructing its road through any county, to file in the clerk's office a map of the route intended to be adopted in such county, and to give written notice of the route so designated to all actual occupants of the land over which it is to pass.