| NY | Mar 26, 1878
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The affidavits before us in this case differ in their statements of facts. In such case, if the relator takes no issue upon the allegations of the affidavit of the defendants, and proceeds to argument, and asks for a peremptory writ, that is equivalent to a demurrer; it admits the truth of those allegations as statements of fact, but denies their sufficiency in law to prevent the issuing of the writ. (People ex rel. v.The B'd of App't,
Then the question is, whether even that amount should have been allowed. The defendants were once authorized by law, to allow the treasurer of their county one per centum on all sums received and paid out by him. (Laws of 1855, chap. 346, § 1, p. 622.) In 1863, in the general appropriation bill of that year (Laws, chap. 393, § 5, p. 665), the Legislature provided that the several county treasurers of the State, on or before the first day of April in each year, should pay to the State treasurer the amount of State tax raised and paid over to them respectively, retaining the compensation to which they might be entitled, not exceeding the amount authorized by law, and not in any case exceeding $2,000. It is a rule, that where there are no words of explicit repeal in a later act, it does not repeal by implication a former act, unless the later enactment is so repugnant to the former as that they both cannot exist together.
This rule applies, in an especial manner, where the former enactment is local and the later one is general. Yet, if it is plain, that the Legislature meant to make a new and exclusive rule for the whole State and for all cases, the local act must yield to the later general act. It is plain, that this fifth section of the act of 1863, meant to include every county treasurer in the State, and to require from every such officer, payment of the State tax into the State treasury by the first day of April in each year. It is plain, that it meant to affect the compensation of every county treasurer, and to restrict him to the legal recompense, and not to permit that to go beyond $2,000. The emphatic words "in any case," with which the provision above given ends, points the restriction to every county treasurer and to every locality in the State, and overrides every other provision in regard to compensation *177 which would allow more than that sum, so far as an excess over that sum is concerned. But it is claimed, that it relates only to the compensation which may be retained from the State treasury, and not to that which any county may, under any law, elect to give a county treasurer. This, however, depends upon this notion: Is it not the purpose of the statutes and the practice of the government that, whatever compensation the county treasurer may receive for receiving and paying over the State tax, is to be paid in effect by the State, by the county treasurer retaining the same, from the payment made by him, on account of the State tax, to the State treasurer. We think that such is the law and the practice. Then the effect of those laws, which give to boards of supervisors the power to fix the compensation of county treasurers, is this: That they may fix it at so much to be paid by the State, and so much by the county. This being so, a general act, which limits the amount of compensation from the State treasury, is hostile and repugnant to an act which allows a local authority, to give a rate of compensation which will yield more to the officer for the receipt and payment of the State tax; and being so, the local act must fall pro tanto. We are, therefore, of the opinion that the board of supervisors of Westchester county may name a rate of compensation for the treasurer of that county as high as one per centum; but, if that will give him more than $2,000 on the moneys paid by him to the State treasurer, it is inoperative above that amount as to those moneys, though, on all other moneys, it is operative in full, whatever may be the sum which the compensation reaches.
It follows from this that the county treasurer in the case before us had no right to retain, as his fees, on receiving and paying over the State tax, more than $2,000; and that the board of supervisors erred in auditing his account made upon a different theory; and that the writ of mandamus was properly sent to them, unless some of the minor objections made by them are valid.
It is said, (as one of these), that the writ will not remedy *178 the difficulty or afford the relief sought. It will remove the adjudication upon the accounts of the treasurer made by the board. This was made in a matter, and as to the accounts of an officer, where it had jurisdiction. It was not void; it was erroneous, as it proceeded on a wrong notion of the law. Thus, if the writ goes, the treasurer is left without the protection of that audit, and must answer to any authoritative tribunal upon the facts and the law of his case as they will appear.
We do not think that the doctrine of Sup. of Chenango v.Birdsall (4 Wend., 453" court="N.Y. Sup. Ct." date_filed="1830-05-15" href="https://app.midpage.ai/document/supervisors-of-chenango-v-birdsall-5513380?utm_source=webapp" opinion_id="5513380">4 Wend., 453) applies in this case. That was a raking over, by action on the bond of a county treasurer, of his accounts for a series of years, after they had been passed upon and settled by the predecessors in office of the plaintiffs in that case. It was put upon the ground of a final settlement having been made, with knowledge of all the facts, and after the calming of differences of opinion as to the propriety of the charges made by him. The judgment was, that a subsequent board could not ignore that settlement and open the accounts again and sue. The case is different here. This is the same board which passed the resolution. A taxpayer intervenes, and asks the command of the court to that board to rectify a legal error into which it had fallen. Upon the whole then we are of the opinion that a writ of mandamus was authorized. It has been noticed that the amounts alleged, and admitted to have been retained by the treasurer, are not the same in the two affidavits. If the writ absolutely affected the amount, it would need to be amended; but it is in the alternative. It names the sum of $1,370.02; but it adds, "or any other sum which is in excess of the sum of $2,000." The writ can be obeyed under our decision, by demanding of the treasurer, or by not auditing to him, the sum named in the defendants' affidavit. As the appellants have obtained something by their appeal, to wit, a reduction of the sums practically adjudged, they should pay no costs in this court; as they have not obtained all that they claimed, they should not recover costs here. *179
And the order should be modified in accordance with these views, without costs to either party as against the other.
All concur.
Ordered accordingly.