New York Central & Hudson River Railroad v. Maine

24 N.Y.S. 962, 78 N.Y. Sup. Ct. 417, 54 N.Y. St. Rep. 384

Opinion

MERWIN, J.

In Talcott v. City of Buffalo, 125 N. Y. 280, 26 N. E. Rep. 263, it was held that the provision of Code Civil Proc. § 1925, authorizing an action by a taxpayer to prevent waste of or injury to the property of a municipality, as supplemented by the acts of 1881 and 1887, is confined to cases where the acts complained of are without power, or when corruption, fraud, or bad faith amounting to fraud is charged. This was approved in Ziegler v. Chapin, 126 N. Y. 342, 27 N. E. Rep. 471, and it is said "by Finch, J., (page 348, 126 N. Y., and page 472, 27 N. E. Rep.:)

“If the officer is honest and faithful, no suit against him is needed. The taxpayer may explain to him the facts, and discover to him the fraud, and the courts are open for his protection, and the means of redress are at hand. It is only when, in the face of explanation and knowledge, he still refuses to act, and persists in carrying out the wasteful contract, that an action against him is needed; and then it rests upon his misconduct,—upon his collusion and fraud,—which must be alleged and proved.”

Under these cases, and the finding at special term that the defendants acted in good faith, and in the belief that the submission contained a full, fair, and truthful statement of all the facts upon which the controversy between them depended, and that there was no intent or purpose on their part to injure or defraud any taxpayer of the county, the present action is not maintainable, unless the acts complained of were beyond the authority of the board, and wholly illegal and void. Ziegler Case, page 349, 126 N. Y., and page 472, 27 N. E. Rep. It is not claimed that the board had no power to make a submission of the controversy, but that the facts were not so stated as to present all the questions in the case. The submission stated that the taxes against the railroad company were duly collected from the company by the collectors, and paid over by the collectors to the county treasurer; that they were paid out by him for general county purposes, including state taxes, and no part have been applied by the county treasurer to the creation of a.sinking fund for the payment of the town bonds; that in each of the years in question there was-raised by taxation upon the taxable property of the town a sum equal to the railroad’s share of the entire tax in excess of the amount required to be raised by the town for ordinary expenses,, and those sums were set apart by the county treasurer for a sink- ' ing fund for the payment of the bonded debt, and were so applied. _ The facts as found by the special term are that the railroad company paid its taxes directly to the county treasurer before the treasurer received from the collector any portion of the taxes collected by him; that upon receiving such taxes from the railroad company the county treasurer credited the town in the sinking fund account with a sum equal to and identical in amount with the tax levied against the company, and stated in such account that it was the railroad tax from such railroad, and that the amount so credited was used and applied in the sinking fund account; that there was raised by the town each year (except one,, and then the deficiency was afterwards collected) an excess equal to the railroad’s share of the entire tax as stated in the submission, and the amount credited to the sinking fund each year was exactly equal to this excess; that the moneys credited by the treasurer to the sinking fund account were not kept in separate deposit, but were deposited in bank, in his general account as county treasurer. The act under which the sinking fund was created (section 4, c. 907, Laws 1869, as amended by chapter 283,. Laws 1871) does not provide for the payment directly from the railroad company to the county treasurer. It provides that the taxes “collected” upon the assessed valuation of any railroad, etc., shall be paid over to the county treasurer. This recognizes the idea that the moneys are supposed to go through the hands of the collector. The submission, therefore, when it stated that the moneys were collected by the collector, and paid over by him to the treasurer, stated the legal effect of the transaction. So it is to be observed that, if the moneys paid in by the railroad company were set apart to the sinking fund, there was no separation of funds by the county treasurer; so that, when the excess raised by the town came in, the county had the benefit of the full amount, of the tax levied against the town, and the town had no benefit from the application of the railroad taxes. It, in effect, made up to the county the deficiency occasioned by the application of the railroad taxes, as the law required. In regard to such a case it is said in Bridges v. Board, 92 N. Y. 580:

‘•The county is neither entitled to these moneys," nor to an equivalent amount, from the town of Liberty. It is entitled to receive from the taxpayers of that town only that proportion of such amount, which its assessed' valuation bears to the aggregate valuation of the taxable property of the whole county, and this amount is collectible only through the general tax levy.”

It would therefore seem, if the county received and used the “excess,” so called, it received and used an amount it was not entitled to have from the town, and this amount was exactly equal to the tax against the railroad company.

It is quite manifest that whether we take the facts as stated in the submission, or as found at the special term, the county received from the town the same amount that it was not entitled to have, or would not have had, if the law had been carried out. The whole was raised under one warrant, and the one important fact was whether the county had too much. The counsel for the plaintiff, however, claims that the facts as found by the court upon the trial raise a new and material question, which should appear by the case upon submission, and that is: When a town has had the benefit of the railroad taxes as provided by the statute, and by its own independent act has provided for and paid any deficit arising thereby, can it recover such amount from the county? In other words, the town has voluntarily raised and paid to the county more than it was bound to pay, and therefore, it is argued, it cannot recover it back, although the county has had the full benefit of it. The first mistake was made by the board of supervisors when, in making the apportionment of state and county taxes among the several towns, it failed to deduct the assessed valuation of the railroad property. Bridges v. Board, above cited. This mistake, it might be argued, induced the action of the town, and, if so, there would at least be a strong equity in favor of the town. In Woods v. Supervisors, 136 N. Y. 403, 411, 32 N. E. Rep. 1011, which was a submission like the present, it is said that it cannot be doubted that the board of supervisors could have most effectually waived the defense of the statute of limitations by honestly and without collusion refusing to plead it. If so, can it here be doubted that the board had power to waive the defense, if it existed, that the payment by the town was voluntary, it being found that there was no fraud or collusion, and the county having had the benefit- of the moneys? • In substance, taking the facts as claimed by the plaintiff, there was no controversy between the town and county on the subject of the voluntary payment, but on other questions, which then seemed of more importance than they do now, by reason of subsequent decisions of the courts. We are, in effect, asked to compel the county, if it makes any submission at all, to make it in a way that will raise a defense, and litigate a question that it does not care to raise and litigate. It seems to me that we cannot fairly say that the board acted beyond its power, or that its action was illegal or fraudulent. The court to which the submission was to be made was only to be called on to pass on the questions raised by the facts as agreed on. It was immaterial to it whether the county raised all the defenses possible. The remarks of Judge Andrews in Osterhoudt v. Rigney, 98 N. Y. 232, are, in principle, quite pertinent:

“Whether the claim is a proper town or county charge, in a case where It is doubtful, and rests upon disputed evidence, and what amount shall tie allowed, when not fixed by statute, are questions which the statute commits to the determination of the board of audit; and, however much it may ■err in judgment upon the facts, so long as it keeps within its jurisdiction, and acts in good faith, its audit cannot be overhauled, but is final, as well to the taxpayer as to the claimant. Supervisors v. Briggs, 2 Denio, 26; People v. Supervisors of Delaware Co., 45 N. Y. 196, 200. It would be intolerable to permit a taxpayer, upon a mere allegation of error in the ■course of the proceedings of boards of audit in matters within their jurisdiction, to compel the supreme court in a collateral action to re-examine claims allowed upon their merits, and to approve or reverse the proceedings upon its own view of the justice or equity of the claim. The adjudication of a board of audit proceeding regularly .within its jurisdiction, establishing a ■claim against a town, although the allowance may be excessive, or although It may err in its conclusion upon the facts, does not constitute waste or injury to the property of the town, within the act of 1872.”

The foregoing considerations lead to a reversal. Judgment reversed, and new trial ordered; costs to abide the event.