People ex rel. Haight v. Village of Peekskill

Pratt, J.:

In the year 1883 commissioners were appointed to assess damages for the relator and others arising from the alteration of the grade of a street in the village of Peekskill, under the provisions of chapter 113, Laws of 1883. The commissioners afterwards made their report by which they assessed such damages at $650. This report was duly confirmed and costs were adjudged at the sum of $388 ; an appeal was taken from that order to the General Term and it was afterwards affirmed.

In March, 1885, the application was made to the trustees of the village, to put this claim in their annual tax levy, which they refused to do. This is an appeal from an order granting a mandamus directing the trustees to put the same in their next tax levy. No question seems to be raised but that mandamus was a proper remedy, but it is claimed that the trustees had no power under the charter of the village to do the act required. In this case the claim which the trustees were required to put in the tax levy has been reduced to a judgment. It seems to be conceded that there is no way by which it can be paid, unless it is done by levy and collection of taxes for that purpose, there being no public property liable to levy and sale under the judgment. "We think the act of 1883 under which the relator claims makes damages and costs for improvements a charge upon the village, and therefore imposes a duty to pay. Section 3 is as follows : “All damages ascertained and determined under the provisions of this act, together with the cost of such proceedings, 'shall be charged upon the village, town or other municipality chargeable with the maintainance of the street, highway or bridge so altered or changed.” It is the general rule of law that whenever a charge is made against a municipal corporation by law, it carries with it an implied power to pay, and as a tax is the only way it can pay it must levy a tax for that purpose. This principle appears decisive ■of this case. If the act passed March 16, 1883, chapter 113, stood .alone no question could be made as to the propriety of granting this mandamus. It is claimed on behalf of the defendant that the village charter of Peekskill, which was passed on the 19th of March, 1883, chapter 117 had the effect to repeal chapter 113, and to ■deprive the trustees of the village of an implied power of raising the money by a levy of a tax except for the purpose specifically ■described in that charter. Ve do not deem it necessary to decide this question. The claim of the relator having passed into a judgment he has the common-law right to have it paid. It is the duty -of the village to pay it, and having no property upon which a levy can be made there is no other method by which it can be paid ■except by having an amount inserted in the tax levy sufficient for that purpose.

The claim having passed into a judgment, it does not lie with the trustees of the village to claim that these damages were not properly assessed or that they were incurred without authority of law or not in accordance with the charter. Assuming, however, that chapter 113 of the Act of 1883 was repealed, we think the trustees have ample power to levy the tax required under section 2 of title .9 of the charter (chap. 117 of 1883), without submitting the same to a vote of the inhabitants of the corporation.

By that section damages occasioned or assessed for laying out or opening streets, alleys or highways or altering or widening the same, can be levied and collected without such vote. Such damages are excepted from the subjects for Avhich a tax cannot be levied without being authorized by a vote of the inhabitants.

These damages that were assessed for altering the highway clearly come Avithin the exception contained in the section referred to. We have examined the various objections raised by the counsel for the trustees and see no valid reason for reversing the order.

Order affirmed, with costs.

Barnard, P. J., concurred; Dykman, J., not sitting.

Order granting memdamus affirmed, with costs.