
    People ex rel. City of Lookport v. Board of Supervisors.
    
      (Supreme Court, General Term, Fifth Department.
    
    June 23, 1888.)
    1. Counties—County Boabd—Mandamus to Compel Levy oe Tax.
    A city, by ordinance, extended a water-main through a street, the expense to he borne by the property benefited. The county supervisors refused to levy a tax for the amount due the city for the county property on the street. A trial of a mandamus to compel a levy resulted in judgment for defendant, on account of informalities in the proceedings of the city council. Afterwards, in Laws N. T. 1886, c. 368, it was provided that the board of supervisors should be authorized, by majority vote, to raise by a tax the amount due the city for the water-maip. JJeld, that the act was passed to enable the supervisors to discharge a just claim, and was mandatory on them, and mcmdamus would lie to compel them to perform the duty.
    2. Statutes—Consteugtion—Mandatory Statutes.
    The words “by a majority vote of said board, ” when considered with the general provisions of the act and its title, “An act to authorize the board * * * to raise by tax, and * * * reimburse the city, ” are such as to require the construction rendering its terms mandatory, and the power conferred by'it a duty imposed on the board of supervisors.
    Appeal from special term, Brie county.
    Appeal from order of Brie special term, directing that a peremptory mandamus issue requiring the defendant to raise by tax upon the property of the county the sum of $1,156, 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 one thousand one hundred and fifty-six dollars, to be paid to the city treasurer of the city of Lockport for the amount of returned tax on local assessment number two hundred and seventy-two, for the construction of Niagara-Street water-pipe in the city of Lock-port.” The defendant appeals.
    Argued before Barker, P. J., Haight, Bradley, and Dwight, JJ.
    
      IS. M. & F. M. Ashley, for appellant. John T. Murray, for respondent.
   Bradley, J.

The determination of the question presented depends upon the construction and effect given to the provisions of chapter 368, Laws 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 the duty to raise by tax the sum mentioned in the act, the order appealed from was properly 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 Lockport 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 sum which, on May 11, 1874, amounted to $1,156. 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 alternative 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 .afterwards declining 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 v. Supervisors Otsego Co., 51 N. Y. 401; People v. Supervisors Livingston Co., 68 N. Y. 114. 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, are such as to require for it the construction which renders its terms mandatory, 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.  