
    HASBROOK against THE KINGSTON BOARD OF EDUCATION.
    
      Court of Appeals ;
    
    
      June Term, 1867.
    Appealable Order.—Refusal to grant Injunction. —Remedy against Illegal Tax.
    A refusal to grant a temporary injunction against the collection of a tax, where but a small portion of the amount involved in the controversy can be affected at the time by such temporary injunction, is not an order which in effect determines the action, and prevents a judgment from which an appeal might be taken; and therefore an appeal does not lie from it to the court of appeals.
    If a motion for a temporary injunction is denied, not on the ground that the plaintiffs could ultimately have no relief, but because a temporary interference was not deemed advisable by the court to which the application was made, the court of appeals will not review the discretion of that court upon the question.
    In order to sustain an appeal, the papers should show that the motion was denied upon the ground that the plaintiffs could ultimately have no relief.
    An injunction cannot issue to restrain the collection of a tax, although illegally imposed.
    Of the power of boards of eduction to raise moneys for educational purposes by taxation.
    Appeals from orders.
    Two appeals were taken in actions relating to the collection of the same tax, and raising the same question ; and were brought before the court of appeals at the same time. The one was in an action brought by Abraham B. Hasbronck and others, appellants, against the Kingston Board of Education, Elijah Ellsworth, collector, and Cornelius Burhaus, treasurer of the Kingston School District, resj)ondents. The other was in an action brought by the People of the State of New York, appellants, against the same defendants, respondents.
    They were appeals from orders of the supreme court at general term, affirming orders made at special term, denying motions for temporary injunctions to restrain the collection of the tax, and the disbursement of the moneys.
    The Kingston Board of Education was incorporated by an act of the legislature, passed in 1863, and amended in 1864 (Laws of 1863, ch. 360 ; Laws of 1864, ch. 40), for the establishment and maintenance of free public schools in the Kingston School District; and the said act, as amended, provides that the said Board of Education shall have power, and it shall be their duty to raise, from time to time, by tax, to be levied upon all the real and personal estate in the Kingston school district, “ such sums as they may determine to be necessary and proper for the payment of the salaries of the superintendent and teachers hi the public schools under their charge, repairs of school-houses, fences, out-buildings, and grounds belonging thereto, and all other necessary and contingent expenses for establishing and maintaining the said public schools, and the necessary and contingent expenses of the Board of Education.”
    The Board of Education, in the spring of 1866, determined that it was necessary and proper to raise by tax the sum of $22,000, to meet deficiencies of the last, and the expenses of the then current year, for the purpose aforesaid ; and thereupon levied and assessed a tax for that sum, and delivered the tax-roll, with the usual warrant for its collection, on the fourth day of June, 1866, to the defendant, Ellsworth, for its collection.
    On the 16th of July, 1866, and after nearly $14,000 in •amount, of the tax, had been collected, and a portion thereof disbursed, Abraham B. Hasbrouck and four others, in behalf of themselves and “all other taxable inhabitants and other persons having property liable to taxation in the Kingston School District,” commenced the first above-entitled action against the Board of Education, their collector and treasurer, to restrain them from the collection of that part of the tax remaining uncollected, and from paying out, disbursing, and appropriating the moneys collected.
    At the special term of the supreme court held in July, 1866, the plaintiffs in the first-mentioned cause applied for a temporary injunction, to restrain the collection of the tax, and disbursement of the moneys collected, during the pendency of the suit. That motion was denied, and the injunction refused. From that decision an appeal was taken to the court at general term in the third district. The order made at special term was there afiirmed, and from that affirmance an appeal was now taken to the court of appeals.
    After the denial of the injunction in the first cause, an action was commenced in the name of the people, by the attorney-general, the complaint containing substantially the same allegations as those contained in the other cause, demanding judgment for a perpetual injunction to restrain the levy, assessment, and collection of any taxes by the defendants, without authority of the inhabitants, other than for certain limited purposes, and for those purposes not exceeding $5,000 ; and to restrain any further proceedings in the collection of the taxes then assessed, and disbursement of the moneys, and for other relief.
    A motion for a temporary injunction to restrain the collection of the tax and disbursement of the moneys was made in that cause, and was denied. From the order denying it, an appeal was taken to the court at general term, where the order was affirmed; and an appeal was now taken to this court from that decision also.
    
      E. Cooke, for the appellants.
    —I. The defendants, to justify their proceedings, must maintain that the expense clause in the former part of section 13 covers all the purposes of the school district, and gives the board an unrerestricted power of taxation. Such a construction is inadmissible. (1.) It renders inoperative the entire provision in that section for raising an additional tax of $5,000, upon a vote of the district, thus violating the fundamental rule of construction of statutes, which requires that effect shall be given to every provision of a statute. (2.) It results in palpable absurdity. Its effect would be, the board having been made the exclusive judges of what sums are necessary and proper to be raised, and how often, to give the same power to raise by tax all sums necessary and proper to be raised, with permission, after such duty had been performed, ■ to raise, if they chose, an additional sum beyond what was necessary or proper, for the same purposes ; but to restrict the. improper and unnecessary levy to $5,000.
    II. If the language is obscure, or if a literal interpretation would render the provision absurd, the sense of the legislature must be sought in the obj ect and spirit of the act (Rice v. Mead, 22 How. Pr., 449 ; People v. Utica Ins. Co., 13 Johns., 380 ; Jackson v. Collins, 3 Cow., 89 ; White v. Magee, 32 Barb., 253; Beebe v. Griffin, 14 N. Y. [4 Kern.], 235). (1.) The original act of 1863 disclosed the policy of the law to impose a restriction upon the powers of the board to tax the district. That the legislature did not design to remove that restriction by the amendment of 1864, is evident from the fact that the $5,000 limit remains in the section. The necessary and contingent clause is included in the restrictive portion of the section as well as in the former. The language is no less comprehensive there than in the other connection. Its being there is conclusive evidence of the intention of the legislature to place it under the restriction. (2.) The general description of necessary and contingent expenses following the specific objects of teachers’ wages and repairs, must r e referred to those specified objects, according to the rule, that “general words following particular words apply only to things ‘ ejusdem generis' ” (Chegary v. Mayor, &c., 13 N. Y. [3 Kern.], 229 ; Casher v. Holmes, 2 Barn. & Adol., 592). (3.) The only objects specified in the estimate for which the board had power to levy a tax without authority from the inhabitants, were salaries, teacher’s wages, and repairs to buildings.
    III. The light to levy a tax to repay money borrowed to discharge the teacher’s wages, cannot be supported under the general corporate powers of the board. (1.) Their powers are restricted to the purposes specified in the act. (2.) The act (§ 19, subd. 6) provides for the payment of teacher’s wages out of moneys tp be raised by tax (Citing 1 Rev. Stat., 600, § 3 ; Hodges v. City of Buffalo, 2 Den., 112 ; Halstead v. Mayor, &c. of New York, 3 N. Y. [3 Comst.], 433).
    IY. The $5,000 limitation applies to the whole section, and is to be construed as limiting the amount of taxes for any one year, whether levied with or without the consent of the taxable inhabitants. (1.) Section 19, subdivisions 3 and 6, specifies teacher’s wages and repairs, and these, by the concluding paragraph of section 13, are peremptorily subjected to the restrictive provision. (2.) The words “not exceeding $5,000 in anyone year,” apply to all taxes to be raised. This clause, in short, if not general in its application, is totally ineffectual for any purpose. The duty of the court is to give it effect. (3.) The object of this permission was not to compel an unwilling board of education to expend a larger amount than such board should deem necessary. (4.) The language is permissive, not mandatory. (5.) No way is provided for calling a regular meeting of the inhabitants to take a vote, except through the board, and at their option (§ 6). (3.) The board can, consequently, levy a tax only for superintendent’s and teacher’s wages, and'repairs, and for those purposes not to exceed $5,000 in any one year.
    Y. The wrongs committed.and threatened by the defendants are the proper subject of equitable cognizance, and the plaintiffs are entitled to the relief demanded. (1.) The Kingston School District is made a full corporation, and the Board of Education invested with the general corporate powers defined by the revised statutes (Laws of 1863, 593, § 9). (2.) The corporation exists only for its own purposes, and the duties of the board concern only the strictly corporate interests of the district. In this respect they are distinguishable from such municipal and quasi corporations as exercise political functions necessary in the administration of- the government (Lorillard v. Town of Monroe, 11 N. Y. [1 Kern.], 392 ; Morey v. Town of Newfane, 8 Barb., 651; Riddle v. Proprietors of Locks, &c., 7 Mass., 169 ; Doolittle v. Supervisors of Broome, 18 N. Y., 155). (2.) The reasons, therefore, upon which equitable interference to prevent the collection of an illegal State, county, or town tax, or individual redress for the wrong of collecting such a tax is denied, do not apply to this case (Citing 3 Hill, 612 ; Delmonico City of New York, 1 Sandf., 222; Mower v. Licester, 9 Mass., 247; Lorillard v. Town of Monroe, supra; Doolittle v. Supervisors of Broome, supra).
    
    VI. The corporation is a trustee, and its constituents the cestid que trust, and a court of equity takes jurisdiction of the case as of a trust (Ang. & A. on Corp., §§ 312, 391; Willard Eq., 739). It was so expressly declared in the act creating the district (See Laws of 1863, 600, 601, § 21; Dodge v. Woolsey, 18 How. U. S., 331).
    VII. A court-of equity will intervene at the suit of a member to restrain a corporation from wasting or misapplying its funds (Ang. & A. on Corp., §§ 312, 391, 392, 393 ; Robertson v. Smith, 3 Paige, 233 ; Hichens v. Congreve, 4 Russ., 562 ; Bissell v. Michigan, &c. R. R. Co., 22 N. Y, 275 ; Dummer v. Corporation of Chippenham, 14 Ves., 245 ; Bromley v. Smith, 1 Sim., 8 ; Gray v. Chaplin, 2 Sim. & St., 267 ; approved in 18 N. Y, 167). (1.) The gravamen of the present action is to prevent a misapplication of the moneys over which the Board of Education have control, to purposes not authorized. As the only object of collecting it is thus to misapply and waste it,' the collection should be restrained as incident to the relief principally claimed. (2.) The action is thus sustainable upon the authorities cited, even were it the case of a public tax, where reasons of public convenience would ordinarily incline the court not' to restrain the collection of a tax.
    
      M. Schoonmaker, for the respondents.
    —I. Tire decision of the general term, affirming the orders denying the motion for an injunction, were final, and no right of appeal therefrom exists to this court. (1.) The granting, continuing, or dissolving a temporary injunction rests in the discretion of the'court of original jurisdiction (Vandewater v. Kelsey, 1 N. Y. [1 Comst.], 533 ; Selden v. Vermilyea, Id., 534). (2.) The orders appealed from are not embraced within that class of orders from which an appeal is permitted by section 11 of the Code. (3.) The additional words inserted in subdivision 2 of section 11, by the amendment made in the Laws of 1867, ch. 781, §2, “ or discontinues the action,” cannot avail the appellants. (4.) The refusal to enjoin does not leave either suit in a situation by which the defendants can, by collection of the tax, render further proceedings in the. action useless.
    II. The injunctions were properly refused. The supreme court has no jurisdiction to restrain the collection of a tax by injunction, even if the same has been illegally imposed ; the parties injured thereby have an adequate remedy at law (Haywood v. City of Buffalo, 14 N. Y. [4 Kern.], 534; Mutual Benefit Life Ins. Co. v. Supervisors of New York, 32 How. Pr., 359). (1.) An injunction to prevent the collection of a tax for the maintenance of public schools, if granted, would be productive of public injury and inconvenience. (2.) Persons aggrieved have a full remedy by suit at law against the members of the Board" (Pennsylvania Coal Co. v. Delaware & Hudson Canal Co., 31 N. Y., 93). (3.) All parties aggrieved have a more appropriate and effectual remedy by appeal to the superintendent of public instruction (Laws of 1864, 1284, §1, subd. 7). (4.) On such an appeal, the superintendent has power to correct errors in taxes; to direct a new levy ; to authorize the refunding of money improperly collected ; and to stay the collection of a tax during the pendency of the question before him. He has also authority to determine what are contingent expenses, and his decision is conclusive (Laws of 1864, 1278, § 18). (5.) As to whether his jurisdiction is exclusive, see Storm v. Odell (2 Wend., 287); Laws of 1827, ch. 15, tit. 2, §10.
    III. The order appealed from in the action brought by Hasbrc uck and others, should be affirmed. (1.) Ho individual members of a community, either in their own names, or in the names of themselves and others, can, or have any right to maintain actions to restrain the collection of taxes (Doolittle v. Supervisors of Broome, 18 N. Y., 155; Roosevelt v. Draper, 23 Id., 318 ; Ketchum v. City of Buffalo, 14 Id. [4 Kern.], 356). (2.) A large portion of the taxable inhabitants having voluntarily paid their taxes, there is no longer any community of interest among them, upon which to sustain an action brought in their names or for their benefit (Habicht v. Pemberton, 4 Sandf., 657).
    "V". Upon the merits, the injunctions were properly denied in both cases. The Board of Education have not exceeded the powers conferred upon them by statute. (1.) The act of incorporation of. the defendant Board of Education expressly conferred upon them the right to levy and raise such sums as they might determine to be necessary and proper foil the payment of salaries, &c. (2.) The amount of such taxes is left to their judgment; and in the exercise of the latter they act judicially. (3.) The general power of taxation, conferred as above cited, is not curtailed or rendered nugatory- by the subsequent clause of the section providing for the raising of additional sums, not exceeding $5,000, in any one year. (4.) The rules of construction, as now favored or established by the courts, do not favor an implied revocation of powers conferred for public purposes, nor any construction which nullities any part of a statute; they require statutes to be so construed as to give effect to every provision of the act. (5.) Upon the principles governing the construction of statutes, counsel cited Broom's Leg. Max., 247, 4th ed., 440 ; Waller v. Harris, 20 Wend., 555 ; 1 Kent Com., 462; Ketchum v. City of Buffalo, supra; McCluskey v. Cromwell, 11 N. Y. [1 Kern.], 593; Broom's Leg. Max., 266-268, 4th ed., 477-480 ; Purdy v. People, 4 Hill, 384 ; Newell v. People, 7 N. Y. [3 Seld.], 97; Gibbons v. Ogden, 9 Wheat., 188; Wilkinson v. Adams, 1 Ves. & Beam., 466 ; McCartee v. Orphan Asylum, 9 Cow., 437; Bowen v. Lease, 5 Hill, 221; 19 Vin. Abr., 525, Pl. 132; Weed v. Tucker, 19 N. Y., 422). (6.) The provisions o'f the second clause in question are cumulative, and not restricted in then terms ; they do not curtail the powers granted to the Board in the previous clause. (7.) An additional power does not contemplate a restriction of existing power. (8.) The limitation óf §5,000 does not refer to or restrict the amount of money authorized to be raised -by the board in the first clause of the section; it limits only the additional sum authorized to be raised by direction of the inhabitants. (9.) The fact that the second clause authorizes the raising of such additional sums, is not restrictive of the powers given in the first clause, notwithstanding it may cover the same ground. The entire .power given in the section may exist in both cases. (10.) The construction • contended for by the defendants is in accordance with the manifest intention of the legislature. The object of the legislature was the establishment and maintenance of free public schools, and to make full provision for the education of the children in the Kingston School District; and for that purpose, extended powers are conferred upon the board of education by the act of incorporation. (11.) Section 13 of that act was amended, in order to authorize the raising of a larger amount of money, than the original act provided for, the amount prescribed in the latter having proved insufficient for the purposes indicated.
    Y. The tax complained of was levied only for the purposes specified within the authority aforesaid.
    YI. Even if the court are of opinion that the board have erred and exceeded their powers, the remedy is not by injunction to stay the tax, but by actions at law against the members of the board, or by appeal to the superintendent of public instruction.
    VII. The appeals in both of the above cases should be dismissed with costs.
   Hunt, J.

—The objection is made, that the orders in question are not appealable to this court. I think the objection is well taken.

It is claimed that the appeal is sustainable under subdivision 2 of section 11 of the Code, which gives such appeal from “an order affecting a substantial right . . .

when such an order in effect determines the action, and prevents a judgment from which an appeal might be taken,” or discontinues the action, or grants or refuses a new trial. The order in question does not determine the action or prevent a judgment from which an appeal might be taken. It may possibly prejudice the plaintiffs to the extent of that portion of the tax of 1866 yet uncollected ; but the action remains, with the question to be decided by it, for future years, and with the power of appeal from the judgment to be rendered. If it shall be held, ultimately, that the plaintiffs are right, then the defendants, in their levies, will be restricted to §5,000 a year, or be limited to the specific items admitted by the plaintiffs to be properly within their jurisdiction.

If the defendants’ view is sustained by the courts, they will be at liberty the next year, and so long hereafter as the law shall remain .unrepealed, to levy such sums as they may determine to be necessary and proper for the purposes specified in the act. There is evidently much the most important duty of the action yet to be performed.

The amount of the present tax, yet uncollected, is trifling compared with the amount which will be determined by the judgment yet to be rendered. The orders in question do not, in effect, determine the action, "or prevent a judgment from which an appeal can be taken, arid are therefore not appealable to this court.

Again. The papers- do not show whether the motion was denied upon the ground that the plaintiffs could ultimately have no relief, or because a temporary interference was not advisable. In the latter case, the motion below was addressed to the discretion of the court; and the general term having acted, we cannot review their determination (People v. New York Central R. R. Co., 29 N. Y., 418 ; Clark v. City of Rochester, 34 Id., 355). Whether the interests of the individuals who had not yet paid their tax should command the interposition of that tribunal, or whether the interests of education were the more important in the particular case, were matters for the discretion and judgment of the court below. In such cases we require them to act, but we do not assume to determine what their action shall be (See cases above cited).

I am of the opinion, also, that an injunction cannot legally issue to restrain the collection of a tax, although illegally imposed (Haywood v. City of Buffalo, 14 N. Y. [4 Kern.], 534, 537 ; Mutual Benefit Life Ins. Co. v. Supervisors of N. Y., 32 How. Pr., 359).

The party must take Ms remedy by action for the damages he has sustained. (Id.).

Upon the merits, I am also of the opinion that the action of the board was legal. Section thirteen of the act in question, as originally passed, authorized the Board, and made it tlieir duty “ to raise, from time to time, by tax, . . . . such sum, not exceeding in all $5,000 in any one year, as they-..may determine to be necessary and proper, and such additional sum as the taxable inhabitants at an annual meeting may direct to be raised, not exceeding the like amount of $5,000 as aforesaid, for any and all of the purposes to which the powers and duties of the said Board extend, as hereinafter mentioned” (Laws of 1863, 597).

The evident intent of this act was to limit the power of the Board to the sum $5,000 as the amount authorized to be raised on their own discretion in any one year.

If, however, the taxable inhabitants should think ¡proper to order the raising of an additional sum of the like amount, then it became the duty of the Board to raise that amount also ; all of which sums were to be applied indiscriminately to the purposes to which the powers of the Board extended.

In 1864 (ch. 40, § 1), the section in question was amended, so that it read as follows: “§ 13. The said Board of Education shall have power, and it shall be their duty to raise, from time to time, by tax, to be levied,” &c., such sums as they may determine to be necessary and proper for the payment of the salaries of the superintendent and teachers in the public schools under their charge, repairs of school-houses, fences, out-buildings, and grounds belonging thereto, and all other necessary and contingent expenses for establishing and maintaining the said public schools, and the necessary and contingent expenses of the Board of Education. And they may also raise such additional sum, not exceeding $5,000 in any one year, as the taxable inhabitants of said Kingston School District may at any meeting, regularly called, authorize or direct, for the purchase of school-houses, lots or sites for school-houses, and to defray the expenses of the erection, altering, and improving school-houses, out-houses, and their appurtenances, or for such other purposes as are included within the powers and duties of the Board of Education as hereinafter mentioned.” .

Although there may be difficulty in giving an accurate grammatical or technical reading to'this language, there is but little difficulty in ascertaining its .meaning.

For the ordinary current expenses of maintaining the school system organized by the act, such as teachers’ salaries, repairs of buildings, and contingent expenses, the Board was authorized to raise money in their discretion, and without limit as to the amount.

If it was desired to purchase school-houses, or lots on which to erect school-houses, or to alter or improve in a permanent manner the school biddings in use, permission or authority was to be obtained from the taxable inhabitants duly assembled. The fact that such meeting might direct the raising of moneys for other purposes included within the powers of the Board, does not interfere with this construction. It was simply superfluous. The Board already had the power.

Heither do I see any difficulty to arise if it should be held that a like power was intended to be given to the citizens when regularly assembled as directed by the act.

Under the decision in Ketchum v. City of Buffalo (14 N. Y. [4 Kern.], 361), the power to establish and maintain schools” is very comprehensive, and, if needed for that purpose, would give large powers to the Board in question. There is no evidence in the present case that the Board have attempted to raise money for any other than legitimate purposes.

The adoption of the statement set forth in the complaint as the ground.of their levy is expressly denied, and it is averred that the proposed levy was made for the purpose of providing for the payment of the salaries of the superintendent and teachers, repairs to the schoolhouses, and other contingent expenses, and to pay arrears for the same purpose, for which they were indebted. These were properly and legitimately within their control.

Both upon the form and upon the merits, I am of the opinion that the appeals should be dismissed, with costs.

All the judges concurred.

Weight and Portee, JJ., not voting.

Appeals dismissed.  