35 Barb. 472 | N.Y. Sup. Ct. | 1861
Application was made at the special term held at Brooklyn, in November, 1861, upon due notice for an order that a writ of mandamus issue against Peter Williamson, collector of taxes in the town of Flatbush, upon the following facts, which appeared in the moving papers:
Nathan B. Morse, Nicholas Stilwell and one John Gr. Bergen were duly appointed by the county court of Kings county, commissioners under the act of the 17th of April, 1854, to provide for the continuation of Flatbush avenue from the city line of Brooklyn into the town of Flatbush,
To form a just estimate of the powers and duties of the officers charged with the execution of this statute, reference must be had to its various provisions. The commissioners and the collector have no authority except such as is specially conferred therein, and that authority must be strictly pursued. The purpose of the act is to lay out, grade and otherwise improve an avenue for public use, and to take private property for that purpose. The powers to be exercised for that purpose are in derogation of the common law. They are powers to take the property of one person and transfer it to another; and although the object to be achieved is a public benefit—a useful public improvement—the actors must
There is also another impediment in the way of granting the motion for a mandamus, quite as formidable as that already mentioned. Those who framed the statute have taken little or no thought in adjusting its several provisions in harmony with one another, and to define with reasonable precision the duties of those persons charged with its execution. Certain parts of the act proceed upon the theory that a certain kind of assessment is to be made by the commissioners, while in fact the act directs another and a different kind, and that the moneys are to be collected from one source while in fact the act, in express terms, directs that they shall be realized from another. After reviewing and completing the assessment and its confirmation by the court, the commissioners are directed by the 7th section “ to issue a warrant to the collector of the town in the form that warrants of the board of supervisors are made out. This direction implies that the moneys are assessed upon persons in respect of their property, and not upon property irrespective of persons. So the collector is, by the same section, and after the lapse of sixty days from the time he receives the warrant, to return the same to the commissioners, which “he shall make out and ver
" The order of the special term should be affirmed with costs.
Emott, Brown and Scrugham, Justices.]
Laws of 1851, p. 776.