Keeler v. Frost.

§ 27.) Where nothing is shown to the contrary, it will be presumed that all the trustees met and consulted in doing the act. (17 John. 461, 468. 9 Wend. 17. 21 id. 178. 3 Denio, 253.) In the case under consideration, it is expressly shown that Worden did not meet with the other two trustees when the apportionment and assessment of this tax was made. Nor was he notified of their meeting for that purpose. The fact, if admitted, that he signed the warrant, does not relieve the case in any respect. The statute and common law both require the apportionment to be made upon the joint consultation of all the trustees, and not that the warrant shall be signed by all. (Fulsom v. Streeter, 24 Wend. 270. Douning v. Ruger, 21 23 Wend. 324.) The

id. 182. 9 id. 19. 17 John. 461. county court seems to have placed the case upon the distinct ground that, as Worden's name was afterwards signed to the warrant, this must be deemed an approval and ratification of the apportionment made by the other two. The error which the county court committed in this respect, consists in applying the rule of principal and agent to these officers. Worden could not delegate his authority to the other two trustees to make the assessment. Neither could he, after they had made it, ratify and adopt the assessment or apportionment by indorsing his approval, in the absence of the others. The authority which the trustees are required to administer, in apportioning this tax, involves the exercise of judgment and discretion--a power which cannot be delegated. (Powell v. Tuttle, 3 Comst. 396.)

It follows, therefore, that this assessment was wholly illegal, and the defendants were in fact trespassers in issuing their warrant and seizing and selling the plaintiff's property. The judgment of the county court must be reversed, and that of the justice affirmed.

[Delaware General Term, July 8, 1856. Gray, Shankland and Mason, Justices.]

22b 402

бар512

THE TRUSTEES OF THE VILLAGE OF ELMIRA VS. DUNN.

Where the charter of a village authorized the trustees to raise money by tax, to be assessed on the estates, real and personal, within the corporation, and collected from the several owners thereof, to pay the contingent and other expenses of the corporation, and the trustees imposed and assessed taxes against the defendant on certain premises of which the corporation had given a lease to another for 990 years, for $400 in hand paid, and for the annual rent of three pepper corns if demanded, of which premises the defendant was in possession, having acquired the interest of the lessee therein; Held, that the premises were rightfully taxed to the defendant as real estate of which he was the owner.

THE reporter has not been furnished with any papers in this

case, from which to prepare a statement of the facts. It is believed, however, that the opinion of the court states all the particulars necessary to an understanding of the decision.

E. P. Hart, for the plaintiffs.

J. Dunn, for the defendant.

By the Court, MASON, J. The second section of title five of the charter of the village of Elmira, (Laws of 1850, p. 324,) authorizes the trustees of said village to raise money by tax to be assessed on the estates, real and personal, within the corporation, and collected from the several owners thereof, &c. to pay contingent and other expenses of the corporation, &c. In 1854 and 1855 the trustees of said village imposed and assessed taxes against the defendant on certain premises of which the plaintiffs had given a lease for 990 years, for $400 in hand paid, and for the annual rent of three pepper corns if demanded. The defendant had acquired the interest of the lessee, and was in possession of the premises. The question presented for our adjudication is, whether the defendant is liable to be taxed for these premises under this charter. I think he is. The tax is to be assessed on the estates, real and personal, within the corporation, and to be collected from the several owners. Under

Trustees of Elmira v. Dunn.

our revised statutes the interest of a lessee in such a case is regarded as an estate in land. (1 R. S. 722, §§ 1, 5.) A judgment against the lessee becomes a lien and charge upon such estate as real estate, and the same may be sold, the same as real estate. (2 R. S. 359, § 3. 7 Wendell, 468.) And that such a lessee might redeem the same from a prior mortgage, given by the lessee, was expressly held in Averill v. Taylor, (4 Selden, 44.) Such estates take their place under our statutes as estates in lands. (1 R. S. 722, 1. Id. 750, 10. Id. 762, 36.) And such is the view taken in the prevailing opinion in Averill v. Taylor, (4 Selden, 52.) It is true that they had been so long treated as personal property that the legislature, for the purpose of preserving a rule of property in regard to personal representatives and the creditors of deceased persons, (2 R. S. 82, 6,) have provided that leases for years shall go to the administrators and be distributed as personal property. They went there at common law; but after the legislature had given to such estates the dignity and importance of real estate, and had expressly declared that they should be embraced in the term lands, and had given them a place in the division of estates in lands, declaring them to be subject to the lien of judgments and of sales on execution, the same as real estate, there was a necessity that they should provide by express enactment that they should go to the executors or administrators, and be distributed as personal property; otherwise they would have descended as real estate to the heir at law. If I am right in the views above expressed, it follows that these premises were rightfully taxed to the defendant as real estate of which he was the owner. It does not alter the positive character which our statutes declare shall be given to such a leasehold interest in the hands of the lessee or the owner of the term, that for the single purpose of the statute of distributions they have seen fit to place it with the personal property of the deceased, and give it the same direction. The 6th section of title 5, chap. 13 of 1 R. S. 419, has no application to the case; for the reason that

The People v. Common Council of Brooklyn, &c.

the defendant is the person who ought to pay the tax, as it was property assessed to him. I concur in the judgment advised by my brother SHANKLAND.

Judgment for the plaintiffs.

[DELAWARE GENERAL TERM, July 8, 1856. Shankland, Gray and Mason, Justices.]

THE PEOPLE, ex rel. Edwards W. Fiske, vs. THE COMMON COUNCIL OF THE CITY OF BROOKLYN and THE COMMISSIONERS for widening Fulton street.

The common council of the city of Brooklyn adopted the following resolution: "Whereas, that part of Fulton street opposite the City Hall is very narrow, and the present is the best opportunity the city may have for some time to widen said street, therefore, Resolved, that the matter of widening said street be referred to the street committee." That committee reported in favor of the measure, and recommended that an application should be made to the legislature for leave to make the improvement. Application was accordingly made, and an act was passed by the legislature, on the 17th of April, 1854, entitled "An act to widen Fulton street, between Red Hook Lane and Court street, in the city of Brooklyn," and providing that "Fulton street, between Red Hook Lane and Court street, is hereby widened as follows." The second section provides that the common council may apply to the county court, or to the supreme court, at a special term, for the appointment of commissioners of estimate and assessment, &c. Subsequently the common council adopted a resolution directing the city counsel forthwith, upon the receipt of "the act widening Fulton strect," to take the necessary and legal measures to carry out the provisions of the law for that purpose. The city counsel accordingly applied to the county court for, and procured the appointment of, three commissioners of estimate and assessment. Held, that the statute was peremptory upon the common council to pursue the designed improvement to its consummation; and that upon the refusal of the common council to proceed with such improvement, a mandamus would lie.

Held also, that an order made by the supreme court, at a special term, authoriz ing the common council to discontinue proceedings for widening the street, was not for either of the purposes for which alone that court could act, and was therefore void, for the want of jurisdiction in the court to grant it. Held further, that the provision in the 2d section of the statute, that the common council "may" cause application to be made for the appointment of

The People v. Common Council of Brooklyn, &c.

commissioners, did not leave it optional with the common council whether to proceed or not, nor indicate that the project had not been conclusively adopted, and its completion peremptorily ordered, by the legislature.

The word "shall" may be substituted for "may" in the interpretation of a statute, when the good sense of the entire enactment requires the change. This rule applies when a statute establishes an improvement, and devolves upon any person or persons, or a corporation, the performance of such acts as may be requisite to insure its completion.

THIS

HIS was an application for a peremptory mandamus to compel the defendants to proceed in the matter of the widening of Fulton street in the city of Brooklyn, and to complete the The facts are fully stated in the opinion of the court.

same.

H. C. Murphy, for the relator. I. The duty of the common council is prescribed by the special act widening Fulton street, passed April 17, 1854. (Sess. Laws of 1854, p. 781.) By that statute no discretion is vested in the common council as to whether the street shall or shall not be widened. The corporation asked, and the legislature granted, a law widening the street ipso facto; thus absolutely divesting the owners of the land of the right to use the property required for the street. The providing compensation was therefore the only duty of the common council. The act is mandatory upon them for that purpose.

II. When there is no discretion vested in the corporation. as to the propriety or impropriety of the improvement, and the legislature has directly exercised the right of taking private property for public use, the assumption by the corporation of a right to withhold the compensation would nullify the law, which cannot be supposed.

III. The cases in the books have arisen in proceedings where the corporation had the right to determine, themselves, as to the propriety of the improvement. (See The People v. Corporation of Brooklyn, 1 Wend. 321.) The court, following the act of April 3, 1827, say, "The trustees are authorized, but not compelled, to lay out and make such new streets as they shall think necessary."