People ex rel. City of Lockport v. Board of Supervisors — 17 N.Y. St. Rep. 342

Majority

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The People of the State of New York ex rel. The City of Lockport, Resp’ts, v. The Board of Supervisors of the County of Niagara, App’lt.

(Supreme Court, General Term, Fifth Department,

Filed June 23, 1888.)

Headnote

1 Mandamus—When will lie to compel levy op tax—Laws 1886, chap. 868—Construction op—Mandatory statute.

Laws 1886, chap. 868, entitled “An act to authorize the hoard of supervisors of the county of Niagara, to raise by tax, and pay money to the city of Lockport, for money paid for laying the Niagara street water pipe,” and which provides that “The board of supervisors of the county of Niagara, are hereby authorized, by a majority vote of said board, to raise by general tax * * * $1156 * * * for the construction of Niagara street water pipe, in the city of Lockport,” is mandatory, and the power conferred by it a duty imposed upon the defendant, the performance of which can be enforced by mandamus.

3. Statutes—Legislative intent—Inducement to pass the act.

The legislative intent may be sought for in the inducement to the passage of an act and its apparent purpose.

Appeal from order of Erie special term, directing that a peremptory, mandamus issue requiring the defendant to raise by tax upon the property of the county the sum of $1156, to be paid to the relator. The proceeding was taken under chapter 368, of Laws of 1886, entitled “an act to authorize the board of supervisors of the county of Niagara to raise by tax and pay money to the city treasurer of the city of Lockport to reimburse the city of Lockport for money paid for laying the Niagara street water pipe” and which provides that “The board of supervisors of the county of Niagara are hereby authorized, by a majority vote of said board, to raise by general tax on the taxable property of said county, at the same time and in like manner with the other county taxes raised therein, the sum of $1,156, to be paid to the city treasurer of the city of Lock-port, for the amount of returned tax on local assessment No. 272, for the construction of Niagara street water pipe in the city of Lockport.” The defendant appeals.

E. M, & F. M. Ashley, for app’lt; John T. Murray, for resp’ts.

The determination of the question presented depends upon the construction and effect given to the provis- ' ions of chapter 368, Laws of 1886. By that act power was given to the defendant to raise by tax, to be paid to the city of Lockport, the sum specified for the purposes therein mentioned.

If the provision in terms authorizing the action of the | defendant was mandatory in legal effect and imposed upon ' the board of supervisors tbe duty to raise by tax the sum mentioned in the act, the order appealed from was properly

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made. Otherwise if the power conferred was discretionary in character.

The legislative intent may be sought for in the inducement to the passage of the act and its apparent purpose. Upon that subject it appears that, in 1872, the city of Lock-port passed an ordinance for the extension of the water pipe or main along in Niagara street, the expense of which to be charged upon the property benefited by the improvement,that the work was done by the city, and of the expense of the improvement there was assessed against the property of the county, on which were the county buildings, a stun which, on May 11, 1874, amounted to Si, 156. The board of .supervisors refused to levy the tax for the payment of the claim to the city. Upon the relation of the latter, an alter native mandamus was issued, and the trial of the issues presented in that proceeding resulted in a judgment for the defendant. But that decision seems to have been made upon the ground of irregularity or defect in the proceedings of the common council to provide for making the improvement. After that determination, the judgment was treated by the board as in the way of further action on the claim of the city. And in January, 1886, the defendant adopted a resolution containing a provision that a bill be prepared for passage by the legislature enabling the board of supervisors to credit and allow to the city of Lockport as full settlement of its claims, the sum before mentioned. And in May following, the act in question was passed. The board after-wards declming to include this claim in the tax levy, this proceeding was taken by the city.

The assessment against the county property seems to have been its proportion of the expense of an improvement actually made by the city, and no reason appears why the county was not properly chargeable with such assessment, except as it was relieved from" legal liability by some defect in the proceedings taken by the common council of the city preliminarily to the work. This defect was of a character which might be waived by parties benefited, and cured by legislation.

It therefore seems to have been just and equitable that the county should pay the amount of its assessment to the city. And when the act was passed authorizing the payment to be made through the levy of a tax for the purpose, there remained nothing in the way to its being in that manner done. The act being passed to enable the defendant to perform a public duty in discharge of a just claim, is upon well settled principles entitled to such construction as will give mandatory import to the words used, and impose upon the defendant the duty to exercise the power thus given. People ex rel. Otsego County Bank v. B’d Supervisors of Otsego County, 51 N. Y., 401 ; People ex rel. Conway v. Board of Supervisors of Livingston County, 68 id., 114.

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It is contended on the part of the defendant that the words “by a majority vote of said board” in the act, fairly indicate and require the conclusion that it was passed merely to remove the disability and to enable the defendant, when a majority so voted, to make the levy, and that such result was dependent upon the voluntary action of such majority. It is not entirely clear what was the purpose of the insertion of those words in the act.

They are an expression of the ordinary methods of proceedings and of producing results of the action of such, bodies.

By emphasizing the use of those words in the act and applying to them their literal import, there might be some difficulty in supporting the position of the relator. But the considerations bearing upon the purpose of the statute indicated by its title and general provisions as well as the circumstances leading to its passage, of which the legislature are presumed to have been fully advised, áre such as to require for it the construction which renders its terms mándatory, and the power conferred by it a duty imposed upon the defendant.

The order should be affirmed.

Barker, P. J., Haight and Dwight, JJ., concur.