126 N.Y.S. 259 | N.Y. App. Div. | 1910
Lead Opinion
The relator here appeals .from the final order in a mandamus proceeding dismissing its petition. Within the town of Oobleskill is situated the village of Oobleskill. This village forms a separate road district, a separate school district and a separate tax district. In 1908 there were in said village of Oobleskill two banks, with an assessed valuation of $266,240.67. By these banks there was paid in taxes $2,662.41. Section 24 of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1907, chap. 739) provides: “ The tax hereby imposed shall be distributed in the following manner : The board of supervisors of the several counties shall ascertain the tax rate of each of the several town, city, village, school and other tax districts in their counties, respectively, in which the shares of stock of banks and banking associations shall be taxable, which tax rates shall include the proportion of State and county taxes levied in such districts, respectively, for the year for which the tax is imposed, and the proportion of the tax on bank stock to which each of said districts shall be respectively entitled shall be ascertained by taking such proportion of the tax upon the shares of stock of banks and banking associations, taxable in such districts, respectively, under the provisions of this act, as the tax rate of such tax district shall .bear to the aggregate tax rates of all the tax districts in which said shares of stock shall be taxable.” By reports of the several clerks it appeared that the tax rate in the village of Oobleskill was $1.53 upon every $100. In the town of Oobleskill there were two rates; one rate of forty-three cents, which was applicable to the whole town, including the village property, as well as the property
Prior to 1901 bank stock was assessed to individual owners, but it was all assessed in the tax district in which the bank was located. Under the law as it then existed, it will not be claimed that such stock was assessable for any part of the highway tax for the district outside of the village of Cobleskill. Prior to 1901 this bank stock would be assessable at the rate of 153 for the village of Cobleskill and 43 for the town of Cobleskill. Under the former law the stockholder, however, could swear oil that tax by showing a personal indebtedness to the amount thereof. In 1901 the statute was changed so as to provide for atax of one per cent upon the values of such shares, of stock, and taking away from the stockholder the right to swear off those taxes by showing a personal indebtedness.
Several preliminary objections are urged to this proceeding. It is claimed that the village accepted the proportion assigned to it, and, therefore, is precluded from questioning the method by which that proportion was reached. But the amount accepted concededly belonged to the village. No readjustment can lessen thai amount, and there can, therefore, be no estoppel as against the village by reason of its acceptance thereof. It may still claim that it was entitled to a greater percentage. It is further claimed that the county treasurer is a necessary party. It might well be answered that the defect appeared upon the face of the complaint and was waived by not demurring. (People ex rel. Bacon v. N. C. R. Co., 164 N. Y. 297.) In my view, however, of the relief to which the relator is entitled the county treasurer is not in any way a necessary party. It is further claimed that these moneys had been paid over in good faith both to the village and the town, and that neither th.e board of supervisors nor the county treasurer can take
Finally it is objected that the relator has mistaken its remedy; that the determination by the board of supervisors is judicial and should be reviewed only by certiorari. To this proposition we do not agree. The functions of the board were simply ministerial. They were not judicial. The board was to take the tax rate as furnished them by the clerks of the village and of the town and make its computations thereupon. It did not lie with the board to question whether the tax rate, was properly made by the town or by the village, and there was no judicial function involved in making the apportionment. (People ex rel. Schau v. Mc Williams, 185 N. Y. 96; People ex rel. Lawyer v. Supervisors, 39 Misc. Rep. 162; People ex rel. Trustees v. Board of Supervisors, 181 N. Y. 471.)
Another question not suggested in the briefs of counsel is suggested by one of my colleagues — that the. terms of office of the supervisors who made this erroneous determination had expired, and that a new board cannot be mandamused to correct tlie error of an old board. This determination was made in the fall of 1908; the alternative wi’it of mandamus was issued in February, 1909, while the same supervisors were still in office. It wras tried in October, 1909, but was not determined until February, 1910, after tlieii terms of office had expired. It cannot be that the law’s delays will forfeit a right which existed at the time of the commencement of the proceeding. This proceeding while in form against the supervisors, was in fact against county officers as such, and if the
The final order should, therefore, be reversed on law and facts and a new trial granted, with costs to the relator to abide the event.
All concurred, Cochbane, J..‘, in result, except Kellogg, J., dissenting in memorandum.
Dissenting Opinion
As said in People ex rel. Bridgeport Savings Bank v. Feitner (191 N. Y. 88, 100), “it is evident that the scheme of taxing bank shares, not only in respect to the amount but also as to the method and manner of its imposition* stands by itself, independent and separate from that prescribed for the assessment and taxation of other property.” We must then- construe the language of the statute according to its ordinary meaning, and gain but little advantage by inquiring how under the old law the bank tax was disposed of. The statute requires this tax to be apportioned between the town and village according to their respective tax rates. There is properly but one tax rate in the town as a town rate.
It is true that the village property is exempt from paying any taxes in the town on account of certain highways of the town to equalize the town and village, because the village maintains its own highways. The fact that certain property in a town is exempt from certain taxes of the town does not change the tax rate of the
Final order reversed on law and facts, and new trial granted, with costs to relator to abide event.