64 N.Y. 112 | NY | 1876
The plaintiff's claim is founded upon three several bonds purporting to have been issued in pursuance of chapter 590 of the Laws of 1869. The act in question legalizes the acts and proceedings of the electors at a special town meeting which had previously been held for the purpose of raising money to pay bounties for furnishing substitutes; authorizes the board of town auditors to audit such claims, and the issue of town bonds to each person furnishing a substitute as therein provided. The fourth section of the act declares that said bonds shall be legal claims against the town; and the fifth section makes it the duty of the board of supervisors, at any annual meeting, to levy and impose a tax for the payment of said bonds. The bonds being issued *115 as the law requires, the town is obligated to provide means for the payment of the same. And the several amounts thereby secured are not in the nature of unliquidated demands, which are required to be audited and allowed by the board of town auditors, and which these officers are authorized by law to adjust and settle. As each of the bonds upon its face is an admitted debt against the town, which it is liable to pay, the question arises whether an action will lie to recover the amount, or some other remedy must be adopted for that purpose. It is insisted that no duty or obligation of providing the money and paying the bonds is imposed upon the defendant, and that the remedy is by mandamus against the board of supervisors. This position is, I think, erroneous, and cannot be upheld. The provision of the fifth section of the act, which requires the board of supervisors to levy taxes for the payment of said bonds, is a duty imposed upon public officers with a view of carrying out the general purposes of the law; and after the bonds are issued and in the hands of bona fide holders, they constitute a lawful demand against the town, for the payment of which its officers are bound to provide. Upon their failure to do so, an action lies against the town, which, as a body corporate, can sue and be sued in the manner prescribed by the laws of this State (1 R.S., 337, § 1; 2 id., 473, § 95); and if a judgment is obtained, it becomes a town charge (1 id., 357, § 8), which is to be laid before the board of supervisors, and the amount assessed, levied and collected the same as other contingent charges against the town. Numerous decisions in the Supreme Court sustain an action against a town in cases of a similar character. The subject is fully discussed in Brown v.The Town of Canton (4 Lans., 409); Hathaway v. The Town ofSolon (5 id., 267); Northrup v. The Town of Pittsfield (2 T. C., Sup. Ct., 108), and does not require elaboration.
In Brown v. The Town of Canton (supra), the action was upon an instrument executed to secure bounty money, similar in its character to that upon which this action is brought. *116
The right to prosecute a town by action in similar cases is also sanctioned by this court in Hathaway, Supervisor, v. The Townof Cincinnatus, recently decided. The case last cited has all the essential features of Hathaway v. The Town of Solon
(supra), and the point discussed was distinctly presented and decided. As the plaintiff had a clear legal remedy by action against the town, and the liability of the defendant was beyond any question, a mandamus would not lie. (Ex parte Lynch, 2 Hill, 45; Perkins v. Hawkins,
The objection made that the board of town auditors had no authority to audit the claims upon which the bonds were issued, at the time named, is not well taken. They are authorized to make the audit at any meeting of the board by the second section of the act. This does not mean the annual meeting only, but at such meeting as may be convened for that purpose. Considering the object of the act, it is fair to assume that an early meeting of the board was intended, and that no great delay was designed in adjusting the claims provided for. The time of the meeting, as well as the form of the obligations to be issued, and the time of payment, to which objections are now made, were evidently intended to be vested in the discretion of the officers who were authorized to issue the bonds, and it is not apparent that they have exceeded their jurisdiction in any of the particulars named. It may also be added that the objections last considered do not appear to have been presented upon the trial, and for that reason they are not now available.
It is too evident to require discussion that the repeal of the act of 1869, by chapter 21 of the Laws of 1873, could not affect the bonds already issued, and the holders have a vested *117 right to collect the same, which the law fully protects. Good faith demands that those rights should be protected, and they cannot be impaired by any subsequent modification or repeal of the statute under which they were issued.
The judgment was right, and must be affirmed.
All concur.
Judgment affirmed.
