10 N.Y. 180 | NY | 1873
Lead Opinion
The board of supervisors of the county of Delaware, at its annual session in 1872, levied upon the town of Hancock, in that county, a tax of $11,138.98, to pay the interest due and to become due during the ensuing year upon $100,000 of bonds issued by the railroad commissioners of the town, and purporting to have been issued upon the faith and credit and in behalf of the town, and in pursuance of the authority conferred by the “ act to facilitate the construction of the Hew York and Midland railroad, and to authorize towns to subscribe to the capital stock thereof,”
This sum was included in the general tax levied upon the town of Hancock in that year, and the board of supervisors issued to the defendant, as collector of the town, a warrant for the collection of the tax, directing him to pay out of the moneys collected by him, to the railroad commissioners of the town, the sum of $11,138.98, which was recited in the warrant to be the amount of railroad moneys levied therein. The defendant executed the warrant and collected the tax, but refused to pay it to the relators, as directed by his warrant, but paid it to the supervisor of the town; and it is claimed that he was justified in making such payment, on the ground that the direction contained in the warrant was unauthorized, and that the supervisor was legally entitled to receive the money. This view is founded upon the section of the Eevised Statutes (1 R. S., 396, § 37) prescribing the form of a collector’s warrant.
The warrant is to direct the collector to pay to certain town officers named the several sums raised in the town for the objects specified in the section; and to the supervisor of the town “ all other moneys which shall have been raised therein to pay any other town expense.” The residue of the moneys collected is to be paid by the collector to the treasurer of the county.
By the fourth section of the act of April 5, 1866, it is made the duty of the board of supervisors, under the circumstances stated therein, to cause to be levied and collected in each year, upon the real and personal estate of any town whose bonds have been issued under the act, at the same time and in the same manner as other taxes are levied and collected, the sum necessary to pay the principal and interest due and to become due during the year upon the bonds. This sum, the section declares, “ when collected, shall be paid to the said commissioners, and by them applied to the payment of the principal and interest on said bonds, or so much thereof as shall remain unpaid after the application of
The statute of 1866 is imperative that the money raised by taxation to pay the principal or interest on the bonds issued under the act shall, when collected, be paid to the commissioners. Conceding that the money so raised is to defray a town expense, within the meaning of the clause in section 37, which has been quoted, we are of opinion that the statute of 1866 operates as a qualification of the general statute prescribing the form of the collector’s warrant, so far as to authorize the board of supervisors to direct the collector to pay over the money raised, to meet the payments on the bonds, directly to the commissioners.
It is also insisted that the defendant was justified in refusing to pay the money in question to the relators, on the
We deem it unnecessary, in disposing of this case, to consider the effect to be given to the affidavit of the assessors, that the consent of a majority of the tax-payers, representing a majority of the taxable property of the town, had been obtained to the creation of the debt. This affidavit was annexed to and filed with the consent, and was in the form required by the act. The statute declares that “ the same, or a certified copy thereof, shall be evidence of the fact therein contained, and shall be admitted in evidence in any court of this State, and before any judge or justice thereof.” It is claimed on the part of the relators that the evidence furnished by the consent and affidavit is conclusive, against the town in favor of a transferree in good faith of the bonds, of the fact that the requisite consent had been obtained.
The cases of Starin v. Town of Genoa and Gould v. Town of Sterling (23 N. Y., 439) are relied upon by the defendant as establishing the opposite view. The statute considered in these eases differs in some, and perhaps material respects, from the one in question; but we refrain from expressing any opinion upon the point presented.-
Assuming that the bonds were invalid, and that no tax could be legally levied to pay them, the defendant cannot dispute the right of the relators to the money in question.
The cases of Ross v. Curtis (31 N. Y., 606) and of Murdock v. Aikin (decided in this court in 1863, but not reported) are conclusive against the defendant upon the point in question. In Ross v. Curtis the action was brought by the holder of bonds, purporting to have been issued by the town of Sterling under an act authorizing the town to borrow money upon its bonds in aid of the construction of a railroad upon
The payment to the supervisor of the town was unauthorized ; and it is not a ground for refusing to issue the writ that the defendant has, by his voluntary and wrongful act, subjected himself to loss, or that the performance of the duty enjoined upon him may, in consequence thereof, be difficult
The judgment should be affirmed, with costs.
Dissenting Opinion
(dissenting). This case is distinguishable from and not within the principles which were controlling in Murdock v. Aikin (29 Barb., 59); S. C. in Court of Appeals in 1863, opinion by Davies, J., and Ross v. Curtis (30 Barb., 238; 31 N. Y., 606). In each of those cases the defendants had demanded and received the moneys for the use and benefit of the bondholders, and had the same solely as their agents and trustees, and could not within well-settled principles be permitted—after having availed themselves of their agency, and affirmed the right of the bondholders, their principals and cestuis que trust, for tl te purpose of obtaining the money—when called on by them, to controvert their right to it. In the language of Judge Grover, in People v. Mead (36 N. Y., 224), “ judgment in each case was given for the plaintiff upon the plain familiar principle that an agent or trustee, receiving money to be paid over to his principal or cestui que trust, is not permitted to dispute the right of the party for whose benefit he received it.”
This principle is not applicable to the case in hand. It was assumed in the cases cited, whether with strict accuracy either as to the fact or the law it is not necessary to consider, that it was competent for the debtor town to pay the interest on the bonds, even though their collection could not have been enforced by law, and that the payment of the money to the defendants, to meet the interest, was the completed act of the town by which its liability was conceded; and the defendants occupied the position of agents receiving money for their principal from a person acknowledging the right of the principal to it, and could not, therefore, controvert the claim of the latter.
The defendant, in these proceedings, occupies no such position to the town, or the relators, or to the bondholders. Under a general warrant of the supervisors of the county of
The power of the supervisors to direct the payment of any money to the relators, and the authority of the latter to demand and receive it, depends upon the existence of outstanding obligations of the town, to the payment of which the money would be properly applicable. The defendant, then, has moneys which he was bound by law to collect, but to which the relators are not entitled by reason of any special relation between the defendant and themselves. He received and holds them as a public officer, to be disbursed only pursuant to law.
The writ of mandamus only issues to give effect to a clear legal right existing in the relator; that is, the party asking for a mandamus must be clothed with a clear legal and equitable right to the thing demanded, and which thing is properly the subject of the writ, legally demandable from the person to whom the writ must be directed. (People v. The Mayor of Brooklyn, 1 W. R., 318; People v. Supervisors of Chenango, 1 Ker., 563 ; People v. Ransom, 2 N. Y., 490; Tapping on Mandamus, 28 Law Lib., 320, 321.) The relator must succeed on the strength of his own title to the money or thing demanded, and not on the defects or want of title in the defendant or any other person. It does not therefore aid the relator that neither the collector nor the town of Hancock has legal title to the money, if that could be shown. If the relators have no legal claim to it, and there are no bonds outstanding to the payment of the interest upon which it is applicable, a way will be found to appropriate it to the use of the public from whom it has been collected. The relators are only entitled to demand and receive ‘the money for the payment of interest upon bonds issued pursn
If relators, demanding a writ of mandamus, elect to rest their case upon affidavits, the answering affidavits—which in such case must take the place of a return to an alternative writ, neither traversed, or confessed and avoided—must be taken as true. If the allegations of the opposing affidavits were not true, or might have been avoided, the relators should have taken an alternative mandamus, and upon the coming in of the return, properly verified, traversed or otherwise answered the allegations, to the end that the question of fact might be tried in an orderly and proper manner. The court cannot, in this irregular way, be called upon to pass upon controverted facts or conflicting affidavits.
The opposing papers clearly show, unexplained and uncontradicted, that the majority of taxable inhabitants, representing, as owners or otherwise, a majority of the taxable property of the town, did not assent to the issue of the bonds. The forms of the assent are open to criticism; and it may be doubtful whether they were not vitiated by reason of a condition therein for the release of individuals who had subscribed to the capital stock of the railroad company. But I do not propose to consider the question as to the sufficiency of the consents in point of form.
The relators now claim, however, that the question of fact,
The act does declare that' the fact shall be proved by the affidavit of one of the assessors of the town, or of the town or county clerk, indorsed upon or annexed to the consents, and that the consents and affidavit shall be filed, and “ the same, or a certified copy thereof, shall be evidence of the fact therein contained, and shall be admitted in evidence in any court of this State, and before any judge or justice thereof.” This is a part of the second section, but not a part of the condition or proviso qualifying or limiting the exercise of the power conferred, but is a part of an independent paragraph.
To give the affidavit the effect claimed for it, would be to exalt the incident and give it a place superior to that of the principal act, and make that the effectual and validating process which was only designed as a method of preserving secondary and presumptive evidence of the effective act and consent of the tax-payers. That this was not the intent of the legislature is plainly inferable, not only from the terms of the act, and the omission to declare the affidavits conclusive proof of the facts contained in them, but also from the supplementary and explanatory act of 1868, declaring in effect the immateriality of all defects, irregularities and omissions in such affidavit, or the filing or recording thereof.
It is quite certain that the consents need not be proved by the affidavit, but may be proved in any other way by competent evidence. That would have to be done if the affidavits were defective or had not been made or filed. The parties are not tied up to the making of proof by the affidavit authorized by the statute. (Jackson v. How, 19 J. R., 80; Jackson v. Eaton, 20 id., 477.) The legislature has in some instances made ex parte affidavits conclusive evidence of the facts stated in them; but the facts proved, and the proof of which it was necessary to perpetuate, have been in most instances the acts of the individuals making the affidavit or
The question is really one of interpretation, and depends for its solution upon the intent of the legislature as indicated by the terms of the act. It must be conceded that there is a manifest distinction between making ex pa/rte depositions or other documents proof or evidence of any particular fact, and admissible as such, and making the same evidence conclusive and incontrovertible proof of the same facts. In this State the legislature have been careful in very many instances, when such has been the intent, to declare in terms that proof in a prescribed form, and by ex parte declarations, certificates or affidavits, should be conclusive; and it would be to interpolate, under the pretence of interpretation, a very significant word in the statutes, and greatly to extend its effect,by implication, to hold that the affidavit in this case is made conclusive evidence of the facts stated, and that proof cannot be received to impeach it. There is nothing in the context of the statute to indicate that anything more was intended than to provide an easy method of making presumptive proof of an important fact which might not always be controverted, and which it would be expensive to prove by oral examination of living witnesses, and which could work no. injury so long as the proof was not final and conclusive.
.Statutes derogating from the common law, whether in respect to rules of evidence by which rights are determined, or the rights themselves, are not to be extended by implication beyond the evident intent of the legislature. The material fact, upon which any right and every power under the statutes rests, is the formal assent of the tax-payers; and and if those intrusted in questioning' such assent, and having a legal right to do so, are to be shut up and concluded by the ex pa/rte affidavit of a single individual, either an assessor or the town or county clerk, the statute should, in terms, or by an implication so strong as to exclude every other inference, so declare.
Many instances might be cited, from the statutes, of evidence made conclusive in terms, but two will suffice to indicate the care of the legislature in this respect: 1 Revised Statutes, 173, section 22 ; 1 Revised Statutes, 69, act in relation to the Revised Statutes.
Other acts might be referred to in which affidavits or official certificates are required, and upon which action is based and proceedings had; but they are not, ordinarily, held conclusive evidence except to the extent declared by the statute. (Jackson v. Morse, 18 J. R., 440.) A record or the transcript of a record of a conveyance was early made evidence, without further proof. (Act of 1801, 1 K. & R., 478; 1 R. L., 370, § 5.) But it was not conclusive evidence, and might be impeached. (Jackson v. Schoonmaker, 4 J. R., 161; Jackson v. Hayner, 12 id., 469.) The Revised Statutes expressly
By the election laws it has ever been the duty of the cam vassers to adjudge and determine the result and certify the same, and the .certificate has been the evidence of title to office of an individual declared to be elected; and yet, at all times, the right to go behind the certificate, and by extrinsic proof impeach the same, has been allowed. (People v. Van Slyck, 4 Cow., 297; Same v. Ferguson, 8 id., 102.) It was claimed, in those cases, that the action of the canvassers was judicial and that their judgment was conclusive, as well as that their certificate of the fact was incontrovertible; but the claim was overruled by the courts. The Eevised Statutes differ somewhat from the prior statutes regulating elections, and declare in totidem verbis, “that the certificates of the board of canvassers, authorized to canvass the votes for any elective office, shall be evidence of the election of the persons therein declared to have been elected.” (1 R. S., 118, § 17.) It has been held that the certificate was sufficient but not conclusive evidence of an election. (People v. Vail, 20 W. R., 12.) Judge Bronson said, the court concurring, that as well upon principle as upon authority it was not conclusive.
Eo way is provided or means given by the act for questioning or vacating the affidavit of the assessor or town clerk, and it can only be attacked when, as in this case, some right is asserted or some direct action taken based upon the fact of which the affidavit is made evidence.
The title of the relators to the office of commissioners is not in issue. They were appointed in an independent proceeding, upon the application of twelve freeholders, and the validity of the appointment did not depend upon the assent of the tax-payers to the stock subscription. But the right of the relators to exercise the powers conferred upon them was dependent upon such assent, and, in asserting a right, the con
It then comes directly in issue, and the truth of the fact may be controverted, but in no other way can the action of the affiants and their conclusions, either of fact or of law, involved in the final result embodied in the affidavit, be judicially reviewed.
The operative effect of an affidavit of a compliance with the statute authorizing the creation of a municipal debt in aid of railroad corporations, when made and filed as required by law, has been incidentally before this court; but in no case has it been held that the affidavit was, under all circumstances, conclusive and incontrovertible evidence of the facts stated therein, except in the single' case of People v. Mitchell (35 N. Y., 551), and then under a statute differing essentially from that under review, and which declared that “such proof shall be valid and conclusive to authorize such subscription,” etc. (Laws of 1863, chap. 18, and an act amending the same, which declared that “ such affidavits shall be valid and conclusive proof, in all courts and for all purposes, to authorize and uphold the respective.subscriptions of the stock and the issue of bonds,” etc. Laws of 1864, chap. 402.) The affidavits were held conclusive because of the peculiar and explicit language of the statute. By chapter 283 of the Laws of 1853, the commissioners, appointed pursuant to the act authorizing the village of Borne to subscribe to the capital stock of the Ogdensburgh, Clayton and Borne railroad, were required, before issuing the bonds of the village, to certify that individual subscriptions to the stock, which were made a condition precedent to a subscription by the
The interests of bona fide holders of the bonds of the town of Hancock are not involved in these proceedings. What would be the effect of the affidavit of the assessors, as evidence of the facts stated therein, in an action against the town by a bona fide holder of the bonds, I do not consider. These proceedings are not in behalf of such holders, and the question whether any, and, if any, how many, and which of the bonds had come to the possession of bona fide holders is left at least in doubt. Certainly no case is made showing that any particular individual is entitled to demand and receive the interest upon any one or more of these bonds, as a bona fide holder, within the eases of Bank of Rome v. Village of Rome or Chute v. Winegar (supra). The commissioners, as rela
The order, I think, should be reversed, and the motion denied.
All concur for affirmance, except Allen, J., dissenting, and Chubch, Ch. J., not voting.
Order affirmed.