35 A.D. 136 | N.Y. App. Div. | 1898
If the act of 1897 is a valid one, we think it was the duty of the board of estimate and apportionment to include the sum of $6,384.02 in its estimate of the several sums necessary to be raised by taxation upon the city at large, and transmit the same to the common coun~ cil. To refuse to do this was to refuse obedience to the statute. The Legislature intended that all the steps necessary to the execution of the statute should be taken. Mandamus is the proper remedy. (People ex rel. Witherbee v. Supervisors, 70 N. Y. 228.)
The respondents object that the statute is defective and not capable of enforcement. This objection rests upon the fact that the sum which the act directs to “ be assessed and charged upon and paid by the city of Troy at large,” is too small by $512.41 to pay in full all of the extra assessment upon the abutting lot owners between Hoosick street and the north boundary of the city, and only enough to pay such owners between Vanderheyden street and such north boundary.
Mo doubt it was the intention of the Legislature to charge upon the city at large the whole amount of the extra assessment from Hoosick street to the north boundary of the city — the act apparently says so — and by inadvertence the sum of $6,384.02, instead of $6,896.43, was inserted in it. The deficiency is 7.43 per centum of the frill amount necessary. .
If I owe A. and B. each $100, and hand C. $190, with directions to pay them both in full, the direction is necessarily limited by the means, and O. would be justified in paying each $95.
The act can be carried into effect in like manner, that is, by paying to the parties entitled their ratable proportion of the amount provided for the purpose. This ratable method of payment is not, however, before us for adjudication. We suggest this method, if no
It is further objected that the act is void because an exercise of judicial instead of legislative power, in that it in effect vacates the extra assessments which, from the manner in which they are imposed, are judgments or have the force of judgments.
It may be conceded that the Legislature cannot exercise judicial power. It has not attempted to do so in this enactment. The assessments are not vacated. They are to be paid by the city at large, at least to the extent of the appropriation, except such as have been paid by the lot owners, and as to these the city is to refund the ratable amount of the respective payments.
The act is entitled, “ An act for the refunding of erroneous assessments in the city of Troy.” There is nothing in the body of the act declaring the assessments erroneous. The title of this act neither adds to nor detracts from the enabling and mandatory provisions of the act itself. The word “ erroneous ” is not used in the title in the
We have examined the other objections urged by the learned corporation counsel, and do not think they justify or excuse the board of estimate and apportionment in refusing to include in their estimate and apportionment the $6,384.02, which the act declares “shall be assessed and charged upon and paid by the city of Troy at large.”
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion for a peremptory mandamus granted, with ten dollars costs.