Wright v. Briggs — 2 Hill & Den. 77

Majority

p. 77

Wright vs. Briggs.

Headnote

An act to incorporate a village, after authorizing the trustees “ to cause the sidewalks on the streets and highways within said village” to be improved, empower, ed them to compel the owners and occupants of lots “ to make such improvements upon the said side-walks, streets and highways, as aforesaid and, in case of refusal by any owner or occupant, that then the trustees might make his part, assess him with the expense, and cause the same to be levied and collected by warrant: Held, that an assessment upon an owner for improving a street, as distinct from the side-walk, was- void; for the jurisdiction of the trustees was limited to the latter.

And the village collector having seized property upon a warrant issued on such an assessment, this appearing on the face of the warrant; held, that replevin lay against him by the owner.

On error from the Oneida C. P. The action below was replevin, by Wright, against Briggs, the collector of the village of Rome. Briggs took the plaintiff’s goods under a tax warrant' professedly founded on the 8th section of the act to alter the charter of the village of Rome. (iSess. L. of 1835, p. 118.) The provision under which the tax was laid, is as follows: “ The trustees, «fee. shall also have power to cause the side-walks on the streets and highways within the said village to be level-led, raised, gravelled, stoned, paved, flagged and repaired, and ornamented with trees ; and to compel the owners or occupants of any lands or lots adjoining such side-walks, streets or highways, to make such improvement upon the said side-walks, streets and highways, as aforesaid,, in front of said land or lot; and to determine and prescribe the manner,” «fee. The act then provided that, in case the owner, <fcc. refused, the trustees might make the improvement and assess the owner, «fee. for the expenses ; upon whom the collector was to levy them under a warrant.

The trustees made an improvement by grading the street itself, (not merely the side-walk,) opposite the plaintiff’s premises, after he had refused, «fee.; assessed the expenses of such improvement on him, and issued their warrant, under which the defendant levied on the plaintiff’s personal proper

p. 78

ty; but was arrested in his course by replevin from the court below. The warrant imported on its face that the assessment was made for an improvement within the street. The court below holding the collector justified, directed a verdict for the defendant, on which judgment being given, the plaintiff brought error to this court.

C. Tracy, for plaintiff in error,

JET. A. Foster, for defendant in error.

By the Court,

The provision in question “sets out by authorizing the trustees to improve the side-wallcs on streets and highways, specifying the kind of improvements which they may bestow; and then gives them power to compel' the owners, &c. on such side-walks, streets and highways, to make such improvements upon said side-walks, streets and highways, as aforesaid, in their front. Were it not for the last words, streets and highways, the power would be most obviously confined to the improvement of the side-walks only. The statute had two objects, viz. 1. To prescribe the kind of improvements, and on what they should be made: in this it is confined to side-walks. 2. To define the persons who, or at whose expense, the improvements should be made ; and they are compellable to make such improvements upon such sidewalks, [streets and highways] as aforesaid. No substantive power is given to improve the streets or highways, which is very singular, if the legislature intended to put them on the same footing with the side-walks. And when they come to designate the persons whom the trustees may compel, the inference is that they would not use such a clause for extending the power of the trustees to a subject perhaps much more important and expensive. The limit as to subject matter and mode of improvement was before defined; < and all they wanted was the means of having such improvements made. Accordingly, they speak of the persons who are bound to make such improvements

p. 79

as aforesaid. Saying, such improvements upon said sidewalks, streets and highways as aforesaid, might, I admit, be plausibly considered an extension of the improvements to a new subject,' if streets and highways were necessarily distinct from the sidewalks ; but the improvements mentioned at the outset, are improvements of those very streets and highways. Improving the side-walks, is improving the streets and highways, and though these latter words may be unnecessary and tautological, yet they may have been intended to be identical with sidewalks. This is more strongly to be inferred when it is said they are all to be improved as aforesaid. The import of the clause primarily intended for providing means, by designating the persons who are to make the improvements, should not be extended beyond its natural compass without clear words. Ambiguity is not enough; and I think we have no more than that at any rate, upon which to build the taxing power claimed by the trustees.

The consideration of former repealed statutes in relation to the village, does not relieve the difficulty; nor can we help the trustees by noticing that the power claimed by them exists in other village charters. We might as well say, that because many villages are incorporated by statute, others shall be deemed incorporated without any statute. We can look only to the particular charter for powers claimed under it whether express or constructive ; and Avhen a power is claimed which, in its exercise, will derogate from individual right, it ought not to be alloAved upon doubtful construction merely, at least not upon ambiguous words, as I think it must be here, if allowed at all. (See Beaty v. Lessee of Knowler, 4 Pet. Rep. 152 .)

The judgment below should, therefore, be reversed.

Ordered accordingly