Caswell v. Allen

7 Johns. 63 | N.Y. Sup. Ct. | 1810

Yates, J. delivered the opinion of the court.

The only question in this cause is, whether the supervisors' of the county of Cayuga had a discretion as to the raising^ ©f this money ¿ or whether the act is mandatory, and obliged them to do it, without delay ?

By the act of the 20th of March, 1807, entitled an act more effectually to compel the supervisors of the towns, in the different counties of this state, to raise such sums of money as they are directed to raise and levy, by acts $>f the legislature,.it is enacted, that ip all cases,, when, the supervisors of any county in this state, have, or shall be directed by law, to raise moneys, for the erection of public buildings, or other purposes, and shall neglect or refuse to raise the sum so required to be raised, in the manner so directed by any act or acts of the legislature, every supervisor so neglecting or refusing to conform to the directions of any law passed, or to be passed, for the' purposes aforesaid, shall forfeit and pay the sum of 250 dollars ; the one moiety whereof, when recovered, shall be put into the hands of the treasurer of this state, and the other moiety shall go to the benefit of the person who shall prosecute the same to effect.

This law was passed to prevent a growing evil. Many instances had occurred, of supervisors not only neglecting, but absolutely refusing to comply with acts of the legislature, by which they were directed to raise money for public purposes, and by such neglect, impeded the progress of measures evidently beneficial to the community.

Although required for public convenience, yet, owing to local prejudices, and disputes, these measures could not be forwarded. The statute, therefore, to prevent this evil, subjected the persons, by whose means the benefits intended by those laws were prevented, to the penalty stated in the act.

The law of the 3d of April, is sufficiently explicit to convey the meaning of the legislature. It is there enacted, “ that it shall be the duty of the supervisors of the county of Cayuga, to levy and raise, bv tax, on the freeholders and inhabitants of the said ' v * county, a sum not exceeding 800 dollars ? and to apply the same money, so to be raised, in building a fire proof clerk’s office, at or near the court-house, when the same is erected, under the the direction of the said supervisors, by their superintendants, to be by the said supervisors appointed for that purpose,” &c,

This act is mandatory. ‘ No discretion appears to be. given to the supervisors; they were obliged, forthwith* to raise and levy the tax, as directed; and the supervisors, who, by their votes, prevented a compliance with the statute, have rendered themselves liable for the penalty mentioned in the law of the 20th of March, 180 A

It was suggested, in argument, that it was the duty of the board of supervisors, of the year 1807, exclusively; and that they, only, were liable to the penalties of the statute. Such reasoning cannot be correct. Their ne - glect could not destroy thé' further operation of the statute, as to all future boards. It became their duty also ; and such qf the supervisors as neglected or refused tq comply with the directions of the statute, are equally liable to its penalty. The duty and responsibility is the same in both cases.

According to the strict construction of this law, which . must'' be the rule here, it being a penal statute, I cannot discover that a discretion, authorizing a delay, can possibly have been intended by the .legislature. It is alleged, that the court-hoúsé not being established, made it unnecessary, and, consequently, improper. And in order, to show that the site for the court-house had not been located, the 4th section of the act of the 6th of April, 1808, authorizing commissioners to fix the place, has been cited.

But admitting that, to give operation to the statute of the 3d of April, the establishing of the court-house was first necessary, and that it was incumbent on the plaintiff to show that an acre of land around' the building had been conveyed to the supervisors of the county, this did not come in question on the trial. 0

The judge laid down a rule of law, which the plaintiff’s counsel were bound to respect; and the refusal to give further evidence admits, that they solely relied on the defendant’s refusing to' vote for raising the money; and this declining to give further evidence cannot be a ° considered as an admission, that evidence as to the conveyance did not exist.

An attempt was made to show that the money raised in 1807, and 1808, was virtually a compliance with the directions of the act; but when it appears, by the evidence, that the sums raised in both those years were not more than sufficient to defray the contingent charges of the county, and the amount requisite for the court-house, it cannot operate as an excuse; more especially, as it cannot be denied that the question, as to raising the money, for the special purpose of erecting a fire-proof office, had been put to the board of the supervisors, and was negatived by a majority, in which vote the defendant concurred.

The suggestion, that the board of supervisors had received no official notice of the law, cannot exculpate them. It is not reasonable to suppose that they were ignorant of the existence of this law, upwards of 18 months after it had passed j nor could such a fact, allowing it to have existed, remove their liability. They were, however, informed of the law, by the member who introduced the subject, and made the motion to raise the sum directed by the statute, in the board of supervisors ; on which motion the part taken by the defendant, as before stated, rendered him liable, as one of the supervisors, for preventing the measure.

The nonsuit, therefore, ought to be set aside, and a yew trial granted.

Rule granted.