The Barre daily times. (Barre, Vt.) 1897-1959, 1905-05-13

be delegated, the maxim Of the law be-
ing deleeatus non potest deieeafe. An
individual clothed with judicial flnc-
tions cannot delegate the discharge of
those functions to another, unless he is
expressly empowered to do 50 under
specified circumstances For tie ordin,
AIRY rule Is, that although ministerial
officer may appoint deputy, 4 judicial
officer cannot BIoome's Iega. Max
18th Ed.) s40 Walsh u Southworth,
s Exch., i50; Baker v Cave, IL &
", 678 kent's Com. 49, Consequent
Is, the acts of the street commissioners,
pursuant to such attempted delegated
power in determining the tie pablic
good and the convenience and necessity
OF individuals, demanded that a portion
.pf Main street ,e paved, We're without
authority in law and void Il follows
that the paving Of the street aud tie as-
sessnent Of a portion Of the expense
thereof On the orators lands and build
ines were unauthorized and invalid
Ii is further contended BY the de-
PENDANT that on the case E'ade cut BY
the bin, the orators have adequate REM
edy at law, and there is no ground for
relief in equity. BY the provisions Of
the city charter, ar assessment made
upon lands on buildings, as a portion al
&he expense Of paving d street, etc, shall
be recorded ia Che city clerks Office,
and when 50 recorded, the amount SO
assessed shall be and remain il lien. in
the nature Of a tax, upon the lands OF
buildings assessed, until the same shall
be paid The bill alleges that the as
sessment against the orators lands and
buildings has so become lien thereon
and is a cloud on the title. to remove
which court Of equity has larisdie-
ton
! The question il thus presented,
whether the so-called lien Is d cloud
upon the title. II IL il, there can b.
no doubt regarding equity Jurisdictions
| but If it is not, the orators cannot
stand upon this ground for equitable
relief.
These are session proceedings con
lcerning the regularity Ut which nothing
| is presumed. The facts, necessary t.
| give jurisdiction must affirmatiyely APP
lpear. Kent v. Village Of Enosburg Falls
| before cited. Since the facts are want
ling, the proceeding constituting the al
legged cloud Is void ON its face, SO that
! no extfinsic evidence is necessary t.
show its invalidity. In these circum
stances there is no cloud to remove, anc
4 a court of equity will not interfere
but leave the party to his remedy al
law, 3 Pom, Eq. jus. sec, 1899; Rooney
tv. Soule, As VT 500, his rule was ap
lplied In its common form and equitable
II 80 tssl ~ Il ~ tal
Nc, I'll
The charter provides that an assess
ment shall be made according TO spec
ial benefits to such lands OF buildings
upon such street, lane or alley, or por
ton thereof, according to the front
lagen The bill all that the assessment
was made according to frontage with
out refenenre to special benefit Of TIN
different properties, and the amour
lthat each owner OF land fronting sal,
lstreet was specially benefited according
10 frontage. 1t further alleges tina
some of the property is very much NOR
improved by way OF buildings erecte'
thereon than the orators and that som
of the lots are deeper than the orators
, and that some lots contained two 0
three times the number Of square fee
contained in the land Of the respectiy
, iOrators
The power to make such assessment
exists only when distinctly conferre
by legislative authority, and where tn
mode of exercising the power is pre-
: scribed, it must be followed. And til
assessment must afiirmatiyely show
on its face, that is was made aecordin
, to the rule prescribed; for the law II
cards it as OF the substance Of the prs
ceedings, and we cannot treat it as IN
material, nor can presumption suppl
its place. Merritt, ct al Y. Village
Portchester, III N. ", 500; liberman
v. City Of Milwaukee, s Wis, 42s
, State, New Brunswick Rubber 80.