
    Isaac Hampton, Resp’t, v. Martin S. Hamsher, App'lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1887.)
    
    1. Highway—Assessment fob labor on—Included under Rev. Stat., CHAP. 13, ART. 1, TIT, 2, § 4.
    This action was brought to recover pay for three and one-half days work upon the highway The plaintiff was a resident of the town of Ossian, living upon a farm lying partly in that town and partly in the town of Hunda. The whole of the farm was assessed for town, county and state purposes in the town of Ossian. The defendant, as commissioner of highways in the year 1885, in apportioning the amount of highway work chargeable against the plaintiff in the road district in which he lived in the town of Ossian included for the purposes of such apportionment and assessment for highway labor, that portion of his farm lying in the town of Hunda, following the last assessment roll of the town of Ossian. Rev. Stat., chap. 13. art. 1, tit. 2, § 4, provided that when the line between two towns or wards divided a farm or lot the same should be taxed if occupied in the town or ward where the occupant resided. * * * Held, that this provision was not necessarily limited to town, qounty or state taxes, but covered highway taxes as well.
    5 Repeal—Of amendment repeals entire provision—Rev. Stat.,
    CHAP. 13, ART. 1, TIT. 2, § 4, AMENDED BY LAWS 1871, CHAP. 287, REPEALED by Laws 1872, chap. 355.
    This section was amended by Laws 1871, chap. 287, and the latter repealed by Laws 1872, chap. 355. Held, that the entire provision was thereby repealed.
    8 Re-enactment—Rev. Stat., chap. 13, art. 1, tit. 2, § 4, re-enacted by Laws 1886, chap. 315.
    The section has been re-enacted by Laws 1886, chap. 315.
    4. Highway commissioner—Last assessment roll must be followed—
    Rev. Stat., art. 2, tit. 1, § 19.
    It is provided by Rev. Stat., chap. 16, art. 2, tit. 1, § 19, that every per son owning or occupying land in the. town in which he or she resides * * * * shall be assessed to work on public highways in such town. By section 24 it is provided that in making such assessment the commissioner shall assess, in each year days work, at least three times, the number of the taxable inhabitants in the town, and that, with certain exceptions, each male inhabitant above the age of twenty-one years shall be assessed at least one day. The residue is then to be apportioned upon the estate, real and personal of every inhabitant of the town as appearing by the la«t assessment roll and upon lands of non residents appearing on a list before provided to be made. Held, that the matter was not discretionary with the commissioner, but that he was positively required to apportion the work, and, in so doing, to follow the last assessment roll.
    5. Highway—Assessment for labor on—What is proper assessment.
    The farm of the plaintiff, including that portion which lay in the town of Hunda was borne upon the last assessment roll of the town of Ossian. He'd, that he was properly assessed upon that land for highway purposes in the town of Ossian.
    6 Same—Assessment—How limited by Revised Statutes, art. 2, tit. 1,
    § 19
    
      Held, that the assessment was not limited by section 19 to lands in the town, but to persons owning land in the town.
    7. Same—Revised Statutes, art. 2, tit. 1, § 22—Applies only to lands
    OF NON-RESIDENT—WHAT LANDS NOT IN THAT CLAUSE.
    
      Held, that section 22 had reference solely to the lands of non-residents, and that those oí the plaintiff were not such; that by that section the commissioner had no power to assess the value of a lot, but that the value was that affixed to the last assessment-roll of the town, and that the plaintiff’s land not being borne on the assessment-roll of the town of Runda, their value could not be determined by the commissioners of the town.
    8. Resident—Lands of—Rot included in Laws 1832, chap. 107, § 1, and . Laws 1835, chap. 154, § 1—These provisions must be bead with
    Revised Statutes, chap. 13, art. 1, tit 2, § 4.
    
      Held, that Laws of 1832, chapter 107, section 1, and Laws of 1835, chapter 154, section 1, relative 1o the assessment for highways of lands of nonresidents, and enacted while Revised Statutes, chapter 13, article 1, section 4, was in force, had application only to such as were occupied by the owner in person, or by his servant or agent, for the purpose of cultivation, and improvement, but upon wh ch he did not reside.
    9. Highway tax—Must be worked out in district where land lies—
    Revised Statutes, chap. 13, art. 1, tit. 1, § 4, not repealed by Laws 1866, chap. 770—Provisions must be read together.
    
      Held, that Laws of 1866, chapter 770, to the effect that highway tax upon land or property should be worked out in the district in which the land lay should be read in connection with section 4, above cited, which was not thereby repealed.
    10. Assessment-roll—What not omitted lands within Laws of 1887, chap. 481 § 6
    
      Held, that the plaintiff’s lands in the town of Runda were not omitted lands within Laws of 1837, chapter 431, section 6, as they were in fact borne upon an assessment-roll.
    11. Government—Expenses of—System for maintaining—Management OF HIGHWAYS IS PART OF.
    
      Held, that these various enactments were enacted while section 4, above cited, was in force, and were part of a, harmonious and uniform system devised "for the purpose of assessing property and maintaining the expenses of the state, county and local government, of which the management of highways formed a part.
    12. Assessment of lands intersected by town lines—Must be t,att>
    FOR ALL PURPOSES IN ONE TOWN.
    
      Held, that it was not intended that farms intersected by town lines should be assessed in one town for one purpose, and in another town for another.
    Appeal from a judgment of the county court of Livingston county, reversing a judgment rendered by a justice of the peace of that county.
    
      C harlesJ. Bissell, for ap’lt; John M. McNair and Ralph T. Wood, for resp’t.
   Haight, J.

—This action was brought to recover pay for three and one-half days’ services performed upon the highway. The plaintiff was a resident of the town of Ossian, living upon a farm partly in that town and partly in the town of Hunda. The whole of the farm was assessed for town, county and state purposes in the town of Ossian. In the year 1885, the defendant, as commissioner of highways, in apportioning the amount of highway work chargeable against the plaintiff in the road district in which he lived in the town of Ossian, included for the purposes of such apportionment an assessment for highway labor, that portion of Ms farm lymg in the town of Hunda, following the last assessment roll of the town of Ossian.

It is contended that he had no jurisdiction to do this, and that he consequently became liable to the plaintiff for the damages suffered by reason of this assessment. The respondent in his brief concedes that the whole farm was properly borne upon the assessment roll of the town of Ossian for the purposes of town, county and state taxes. If we could follow this concession, we should have but little trouble with the case.

Section 4, title 2, article 1, chapter 13 of the Bevised Statutes provided that “ When the line between two towns or wards divides a farm or lot, the same shall, be taxed, if occupied, in the town or ward where the occupant resides. If unoccupied, each part shall be assessed in the town in which the same shall lie, and this whether such division be a town line only or be also a county line. This provision was general and not necessarily limited to town, county or state taxes, but covered highway taxes as well. But the difficulty is, that this section was amended by chapter 287 of the Laws of 1871, and that chapter was repealed by chapter 355 of the Laws of 1872, the effect of which was to repeal the entire provision. Harris v. Board of Supervisors of Niagara County, 33 Hun, 279, 282 ; McMillan v. Bellows, 37 id., 214; The People v. Board of Supervisors of Montgomery County, 67 N. Y., 109.

The legislature, however, doubtless did not intend this result and has hastened to re-enact section 4 of the Bevised Statutes so repealed, which was done by chapter 315 of the Laws of 1886.

The plaintiff, however, took no proceedings for the correction of the assessment roll of the town of Ossian, but appears to have acquiesced in the assessment of the whole of his farm in that town.

We, therefore, pass to consider the duties of highway commissioners in reference to assessing highway labor in their respective towns. Section 19 of title 1, article 2, chapter 16 of the Bevised Statutes, provides: “Every person owning or occupying land in the town in which he or she resides and every male inhabitant, above the age of twenty-on'e years, residing in the town when the assessment is made, shall be assessed to work on public highways in such town, and lands of non-residents, situated in such town, shall be assessed for highway labor as hereinafter directed.” Section 24 provides that, “in making such estimate and assessment the commissioner shall proceed as follows: 1. The whole number of days’ work to be assessed in each year shall be ascertained and shall be at least three times the number of taxable inhabitants in such town. 2. Every male inhabitant above the age of twenty-one years (excepting ministers of the gospel and priests of every denomination, paupers, idiots and lunatics), shall be assessed at least one day. 3. The residue of such days work shall be apportioned upon the estate, real and personal, of every inhabitant of such town as the same shall appear by the last assessment roll of the said town, and upon each tract or parcel of land, of which the owners are non-residents, contained in the list made as aforesaid.”

It will be observed that under this subdivision of the section the residue of the work, after assessing one day to every male inhabitant over twenty-one years of age, etc., is to be apportioned upon the estate, real and personal, of every inhabitant of the town as the same shall appear by the last assessment roll of the town. Here is a positive statutory requirement for the commissioner to apportion the work, and, in doing so, to follow the last assessment roll. He is given no discretion in the matter. In the case under consideration the defendant did follow the last assessment roll in apportioning the plaintiff’s highway labor and as that part of the plaintiff’s farm lying in Nunda was borne upon the assessment roll of Ossian, it followed that he was properly assessed for that land in the town of Ossian for highway purposes. *

The learned county judge in commenting upon the provisions of section 19 has transposed the same, and then draws the conclusion that its provisions are limited to lands lying within the town. He reads it as follows: “Every person owning or occupying lands in the town in which he or she resides, and the lands of non-residents situated in such town are the lands upon which the apportionment is to be made.” We do not so read it. It is, every person owning or occupying land in the town that is to be assessed for work on the public highways, and then follow provisions, in reference to non-resident lands, which are also to be assessed. The first subdivision of the section does not in terms, limit the assessment to lands in the town but limits it to the persons owning land in the town.

■It is, also, contended that that portion of the plaintiff’s farm lying in Nunda could properly be assessed, in that town under section 22, which provides that the commissioners of highways in each town at their first or subsequent meeting shall make out a list and statement of the contents of all lots, pieces or parcels of land within such town owned by non-residents therein. Every lot so designated shall be described in the same manner as is required for assessors, and its value shall be set down opposite to such description. Such value shall be the same as was affixed to such lot in the last assessment-roll of the town and if such lot was not separately valued in such roll, then in proportion to the valuation which shall have been affixed to the whole tract of which such lot shall be a part.” But this section has reference to non-resident lands. Non-resident lands are defined to be unoccupied lands not owned by a person residing in the town or ward in which the same are situated Section 3, article 1, title 2, chap. 13, B„ S.

The plaintiff’s farm in Nunda was not non-resident land, but were lands upon which he lived, being a portion of the farm tilled and cultivated by him. But this section gives no power to the commissioner of highways to assess the value of the lot. For the value is the same as was affixed to the last assessment-roll of the town. The commissioner of highways in Nunda could not value the lot, neither could he get its value from the last assessment-roll of that town, for it was not borne upon the assessment-roll of that town.

We are consequently of the opinion that this section has no application to the lands in question.

Again, section 1, chapter 107 of the Laws of 1832, provides that “Lands of non-residents within any town occupied and improved by the owner or owners, or Ms or their servants or agents, shall be liable to the same assessment for highways as if the owner or owners were residents.”

And, again, by section 1, chapter 154 of the Laws of 1835: “ The real property of non-residents, unless improved or occupied by a servant or agent, shall be subject to assessment of highway labor and at the same rate as the real property of resident owners.” It must be remembered that these provisions were enacted when section 4 of the Revised Statutes, to which we have already referred, was in force, and must be considered in comiection with it, and when so considered, it is apparent that there is no conflict, and that the lands mentioned in these sections mean other lands in the town owned by an individual, wMch he occupies for the purpose of cultivation or improvement, either in person or by his servant or agent, but upon which he does not live. The provisions of chapter 770 of the Laws of 1866, to the effect that highway tax upon land or property shall be worked out in the district in which the land is situated, should also be read in connection with section 4. We do not tMnk that tMs chapter repeals that section. The plaintiff’s lands in Nunda were not omitted lands within the provisions of section 6 of chapter 431 of the Laws of 1837, for they were in fact borne upon the assessment roll. All of these provisions were enacted wMlst section 4 was in force and before its repeal. We have alluded to it for the purpose of determining the proper construction intended for these provisions. These various enactments are a part of the system which the legislature has from time to time devised for the purpose of assessing property and maintaining the expenses of the state, county and local government, of which the management of the highways forms a part. The system was intended to he harmonious and uniform, and we can not believe that it was intended that farms intersected by town lines were to be assessed in one town for one purpose and in another town for another.

The Trustees of the Village of Angelica v. Morse (56 Barb., 380) and The People ex .rel. The Hudson River R. R. Co. v. Pierce (31 id., 138) are distinguishable from the case under consideration, but both of these cases are authority for holding that the commissioners of highways in apportioning the highway labor must follow the last assessment roll in determining the amount of labor to be assessed to each resident of their town.

We are consequently of the opinion that the judgment of the county court should be reversed and that of the justice affirmed.

Corlett, J., concurs; Bradley, J., not voting.  