85 N.Y. 323 | NY | 1881
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *325 The object of the relators was to put the respondent in motion, and so enforce the performance of a public duty. It was not one of individual interest, and the right of prosecution, therefore, was not confined to a single person. Moreover, the objection that the writ includes the grievance of three separate towns, and that their several supervisors improperly unite in the complaint, does not affect the merits. If sustained, it would only lead to three writs directed to the same end, and, if good at any time, was available by motion to quash the writ; and we concur with the General Term in the conclusion that, having submitted to answer, the *327 respondent must succeed, if at all, upon the facts alleged by it. (Com. Bank of Albany v. Canal Com'rs, 10 Wend. 27.)
Second. It was the duty of the respondent to receive and act upon the decisions of the State assessors, although they were not filed before the commencement of its annual session. This question was presented in the case of The People, ex rel.Supervisors, v. Hadley (
The construction contended for by the respondent would make all these provisions and proceedings depend for their efficacy upon compliance with the terms of the fourteenth section of the act of 1873, and introduce them as qualifying and controlling words. Although the appeal may be taken at any time, heard when the assessors direct, the hearing adjourned when necessary, determined at the convenience of the assessors, and their decision obeyed, yet, says the respondent, this is with aproviso, that "the determination is in fact filed with the clerk of the board before the first day of its session." Let us recur to the act of 1873 (supra), on which the statement is based. Under it the decision made by the assessors is to be filed with the clerk of the board of supervisors. But by whom? The statute does not declare. We must, therefore, suppose *329 either that the duty is imposed upon the board of assessors, or that they may hand the decision to the appealing party, whose interest it is to render the decision effective, and for that purpose must see to it that it is filed. These events are made impossible by the act of 1876 (supra). So far as the assessors are concerned, their connection with the appeal ends when they comply with the imperative command of the statute by mailing the decision. They must forward it by mail to the clerk, and the post-office department is made the agent for that purpose. They cannot deliver it to the successful supervisor; it must go to the post-office. They are not to file it themselves, but are to forward it by mail. Again, the time prescribed by the statute is different. By the act of 1873, the decision must leave the assessors' hands in such season that it may be filed "on or before the commencement of the session of the board of supervisors." By the act of 1876, they may retain it for ten days after it is made; and it may not be made until after the commencement of the session. Is it not obvious, then, that in respect to all points covered by section 14 of the act of 1873 (supra), the provisions of that of 1876 are inconsistent and repugnant? Indeed the conflicting claims of the parties in this case present a clear argument in favor of the appellants. Both agree that a determination has been made, and are bound to admit that if executed it will remedy injustice, but the respondent says it is of no force because it was not filed before the first day of the session of the board. In reply the appellants say it was mailed within ten days after it was made, and each disputant cites a statute sustaining his assertion. Now, if the last statute gives a complete rule on the subject, it carries with it a repeal of the other, not only by implication, because it is inconsistent, but for that reason it is also within the repealing clause. Any other conclusion renders the act of 1876 (supra) inoperative, and the co-existence of section 14 of the act of 1873 would in many cases (and this is one) be destructive of the object for which the scheme of review was created. The object is the correction of errors and the prevention of injustice, and no reason is perceived why this should not be effected at any time *330 while the matter is in the power of the board of supervisors. But it is enough for our present purpose to say that the inconsistency between the two acts is so great that they cannot both be obeyed, and the earlier must be deemed abrogated. Indeed it comes directly within every branch of the rule laid down inFoster's Case, Coke's Rep., pt. XI, *56 b, for the last is "contrary to it in quality, in matter, and in respect to the form prescribed;" and the cases cited by the respondent tend to no other result.
No other point is presented by the return or the demurrer. The question, therefore, whether the costs of the appeals were properly disposed of by the State assessors is not before us.
The judgment of the General Term should be reversed and that of the Special Term affirmed, with costs.
All concur, except FOLGER, Ch. J., taking no part.
Judgment accordingly.