136 N.Y. 403 | NY | 1893
The facts in this case were agreed upon and submitted to the General Term under the provisions of § 1279, of the Code.
The town of Stockbridge in the county of Madison, through the plaintiff, its supervisor, sought to recover from the county certain taxes levied and collected in the town from the New York and Oswego Midland Railroad Company, for the benefit of which corporation the town had issued its bonds under the provisions of chapter 398, of the Laws of 1866. The taxes so levied and collected, the plaintiff claims, have been diverted, by the action of the board of supervisors and the treasurer of the county, from the use of the town to general county purposes, contrary to the provisions of Ch. 907, of the Laws of 1869, as amended by Ch. 283, of the Laws of 1871.
The General Term held that the plaintiff was entitled to the relief demanded only with respect to the county taxes collected and diverted within six years prior to the commencement of the action. The principle upon which the decision rests seems to be that the state taxes collected from the railroad within the town are not within the statute and the county could lawfully apply them to general purposes, and that as to all taxes collected in the years 1882 and 1883 the plaintiff's claim was barred by the Statute of Limitations.
The right of towns that have issued bonds in aid of railroads *407
and which are still outstanding to reclaim taxes collected from the railroad within the town, but diverted to general purposes, is well settled. (Clark v. Sheldon,
In this case, however, it becomes necessary to determine the effect of certain special statutes, applicable to the railroad in question and the towns issuing bonds in its aid, upon the general law.
By § 16 of Ch. 398, Laws of 1866, the statute under which the bonds of this town were issued, the property of the railroad road was exempted from all taxation for state, county, town or municipal purposes, until a single track was completed and in operation, but the exemption was not in any event to extend beyond the period of ten years. The next statute that must be considered is the general law, Ch. 907, Laws of 1869, as amended in 1871, already referred to, the fourth section of which enacts as follows:
"All taxes, except school and road taxes, collected for the next thirty years or so much thereof as may be necessary, in any town, village or city, on the assessed valuation of any railroad in said town, village or city, for which said town, village or city has issued or shall issue bonds to aid in the construction of said railroad * * * shall be invested by said treasurer and by him held as a sinking fund for the redemption of the bonds so issued."
This provision became at once applicable to every municipality that had issued bonds which were outstanding under any law in aid of the construction of any railroad within its borders: but as the railroad, in aid of which the town in question had issued its bonds, was then by law exempt from taxation it could not apply until the exemption was removed by lapse of time or otherwise. This event happened upon the passage of Ch. 296 of the Laws of 1874, the first section of which expressly repeals the exemption and provides that thereafter all the property of the corporation shall be subject to taxation *408
for all purposes. The provisions of the act of 1869 above quoted immediately took effect and became applicable to this town and to the taxes collected from the railroad within its limits. But the act of 1874 contained another provision from which the principal argument in support of the judgment under review is deduced. It was provided that the collector of taxes in each town that had issued bonds in aid of the railroad should pay over to the commissioner of the town, within five days after collection, all moneys collected by him for county taxes which had been assessed upon the property of the railroad within the town to be expended and applied by the commissioner in payment of the interest on the bonds, or the principal. It is urged by the learned counsel for the defendant that as the act of 1874 first removed the exemption from all taxation from the railroad property, and at the same time provided for the disposition of the county taxes, collected on the property within the town, it must be deemed to contain the whole law on the subject applicable to the towns that had issued their obligations in aid of this particular railroad, or that the two enactments are so repugnant to and inconsistent with each other that the act of 1869 must be deemed to be repealed as to the towns embraced within the purview of the act of 1874, as both provisions cannot operate at the same time. This position, we think, is untenable. The act of 1869 required the treasurer to invest the moneys collected from railroads within the bonded towns, and thus to form a sinking fund for the redemption of the bonds. All taxes collected from railroad property within such towns were thus tied up for future use, and current expenses, including the current interest on the bonds as the same fell due, had to be provided for by taxation on other property. When the act of 1874 was passed the railroad was evidently in the hands of a receiver, and the obligations which the towns and municipalities had assumed began to press upon them in a manner perhaps not yet fully realized. Hence the legislature was induced not only to repeal the exemption but to modify the act of 1869, as to these towns, by providing that the county taxes collected from the railroad *409
within the towns, instead of being invested should be used to pay the current interest on the bonds, as it became due, leaving the general law to have full operation upon the taxes collected for state purposes. The case does not come within the rule that a former statute is to be deemed repealed by implication when a subsequent one, though not purporting to amend or repeal the former, is so repugnant to the first act that both cannot operate together, or when the later statute was evidently intended to furnish the whole law on the particular subject. (Lyddy v.Long Island City,
Boards of supervisors represent the county in its corporate capacity and have power to bind it to the extent conferred by statute and when any act of such board is challenged as beyond its power, or not binding upon the county, resort must be had to the specific powers enumerated in the statute which such board may exercise. But in such cases the body is not confined *411
to the exercise of the precise act contained in the grant of power but, from the nature of the case as well as upon settled principles, it possesses and may exercise such incidental powers, not expressly enumerated or mentioned in the statute, but which are fairly and reasonably necessary and proper in order to give effect to or carry out the powers expressly conferred. (Dillon on Mun. Corp. § 89; Brady v. Mayor, etc., 1 Barb. 584;Supervisors v. Bowen, 4 Lans. 24.) Boards of supervisors are expressly empowered by statute "to examine, settle and allow all accounts chargeable against the county, and to direct the raising of such sums as may be necessary to defray the same." It cannot be doubted that the board had power to settle and allow the plaintiff's claim and to restore the money which had been appropriated to the benefit of the county at large, instead of investing or using it for the benefit of the town as required by the statute. Nor can it be doubted that in this suit the defendant could have most effectually waived the defense of the Statute of Limitations by honestly, and without collusion, refusing to plead it. Having the power to audit and settle the claim and to bind the county in that respect, it is difficult to discover any sound reason in law or in morals for the contention that the stipulation in question is not also within the scope of their necessary incidental powers. The board may have been in doubt as to their powers or duty to pay or audit and by the stipulation it procured time and induced the plaintiff to delay legal proceedings. Under such circumstances justice requires that the defendant be held bound by the stipulation in the same way as if made between individuals for a like purpose. It was said by CHURCH, Ch. J., in Buffalo v. Bettinger (
The judgment should be reversed and judgment ordered for the plaintiff for the entire claim with interest in conformity with this opinion, with costs in this court to the appellant.
All concur.
Judgment reversed and judgment accordingly.