
    The People of the State of New York ex rel. Essex County, N. Y., Relator, v. Nathan L. Miller, Comptroller of the State of New York, Respondent.
    
      Matute of Limitations—it applies to a proceeding by a county to compel the Comptroller to pay to the county the extra taxes, which it has been compelled to pay because of land held therein by certain railroads having been exempted from taxation.
    
    In 1857 and thereafter the Legislature passed various statutes exempting certain railroad corporations owning lands in Essex county from taxation thereon. These exemptions continued until September 12, 1883. The railroad was not •constructed in Essex county and that county received no benefits from the privileges and exemptions granted to the railroad corporations.
    In 1862 the Legislature passed a statute (Chap. 225) requiring the Comptroller to repay to the county of Essex the extra taxes which it had been compelled to pay by reason of the exemptions granted to the railroad corporations.
    In 1868 a similar statute (Chap. 355) was passed. The act of 1868 was amended from time to time so as to include the entire period covered by the exemptions.
    The county of Essex presented a claim under chapter 225 of the Laws of 1862, which was allowed on July 30, 1862, but until 1901 it made no further attempt to enforce its rights under the statutes in question. In 1901, by chapter 315 of the Laws of that year, the act of 1868 was further amended by adding thereto the following section:
    “ § 3. The account herein provided for shall be stated by the Comptroller, on or before January first, nineteen hundred and two, and shall include such taxes as '' may baVe .been lost by the failure of the treasurer .of these respective counties • to return the same during the period of exemption mentioned in the aforesaid acts, provided, however, that such statement shall be made to such counties as. shall, on or before August first, nineteen hundred and one, file with the Comptroller a statement of all taxes claimed to be lost as herein mentioned, and á ■ failure to do so on the part of any such county shall- exclude it from the-■provisions of this act.”
    July 31, 1901, the county of Essex filed a' claim for reimbursement for the loss-occasioned by the exemption of the railroad lands.
    
      ..Held, that -a tribunal in which the county is-claim for -reimbursement could be -determined and enforced had existed for the period limited by the Statute of Limitations for the commencement of an .action or proceeding to. enforce an. equitable claim between the citizen and the State, and that, as the claim had not been presented until after the expiration of such period, the Comptroller was prohibited from allowing the claim by section .6 of article 7 of the Constitution, which provides: “Neither the Legislature, canal board, nor any person or persons acting in behalf of the State, shall audit, allow or pay any claim which, as between citizens of the State, would be barred, by lapse of time.”
    Certiorari issued out of the Supreme Court and attested on the 26th day of April, 1902, directed to Nathan L. Miller, Comptroller of the State of New York, commanding him to certify and return to the office of -the clerk- of the county of Albany all and singular hie-proceedings, decisions and actions in refusing to allow- the claim -of Essex county filed with him July 31, 1901.
    The relator is a municipal corporation and one of the political divisions of the State of New York.
    The Sacketts Harbor and Saratoga Railroad Company was organized pursuant to a special act of the Legislature (Laws of 1848, chap. 207). Said railroad company obtained the rights, powers and privileges stated in an act entitled, “ An act to authorise the formation of railroad corporations ” (Laws of 1848, chap. 140), and the special rights, powers and privileges stated in said special act, and the modifications and extensions thereof contained in subsequent acts. (Laws of 1851, chap. 72; Laws of 1853, chap. 244; Laws of 1855, chap. 122; Laws of 1857, chaps. 98 and 280 ; Laws of 1860, chap. 37; Laws of 1861, chap. 45; Laws of 1862, chap. 90.)
    Among the special powers and privileges granted to said company was the pre-emption right of selecting and purchasing any quantity of land not exceeding 250,000 acres from lands belonging to the State in the counties of Herkimer and Hamilton. Said company Was authorized to construct and maintain a railroad on the most eligible and direct route from Sacketts Harbor to Carthage, in the county of Jefferson, and from Carthage to the most convenient point of connection with the Saratoga and Schenectady Railroad, in the county of Saratoga, and also to construct and maintain certain branch roads and to effect certain other connections.
    By said chapter 280, Laws of 1857, the name of said company was changed to the Lake Ontario and Hudson River Railroad Company, and on August 11, 1860 (see Laws of 1861, chap. 45) the Adirondac Estate and Railroad Company was organized as provided by chapter 37, Laws of 1860, to take the rights, privileges, franchises, etc., of said Lake Ontario and Hudson River Railroad Company.
    Previous to 1857 the proposed railroad was located from Carthage to Saratoga, and as so located, passed through the westerly part of Essex county. In and prior to 1857 the Sacketts Harbor and Sara-toga Railroad Company acquired the title to about 140,000 acres of land in Essex county. On the 13th day of March, 1857, chapter 98 of the Laws of 1857 was passed, which provides:
    “ Section 1. From and after the passage of this act the lands of the corporation ‘The Sacketts Harbor and Saratoga Railroad Company,’ by whatever name the said corporation may hereafter be lawfully called, or which it shall hereafter acquire on existing contracts, or existing pre-emption rights, shall be free and exempt from all taxation until the twelfth day of September, one thousand eight hundred and seventy-nine; but this section shall not apply to the road-bed or track, nor to lands occupied or used for structures necessary to the working of its road, nor to any lands after the same shall have been sold by said corporation.”
    Chapter 236 of the Laws of 1863 authorized the formation óf a railroad corporation “ for the purpose of constructing and operating a railroad from some point in the county of Saratoga up and along the valley of the upper Hudson into the wilderness, in the northern part of this State,” and it further provided that when formed it might purchase, take and hold lands to the amount of 1,000,000 acres in said wilderness, and also that “ all of said lands shall be free and exempt from all taxation until the twelfth day of September, eighteen hundred and eighty-three; ” also, that “ nothing in this act contained shall be construed to make the State liable to pay any county, town, school, or highway tax upon any,of said lands hereby exempted from taxation.”
    A corporation was formed pursuant to the General Railroad Act (Laws of 1850, chap. 140) and said,act of 1863 called the “ Adirondack Company.” (See Laws of 1865, chap. 60.) The rights and privileges of the Adirondack Company were modified and extended by said chapter 60, Laws of 1865, and also by chapter 250, Laws of 1865; chapters 718 and 850, Laws of 1868; chapter 857, Laws of 1871; chapter 864, Laws of 1872, and chapter 695, Laws of 1873.
    The said Adirondack Company acquired all the lands, rights, franchises, privileges and property of said other companies in Essex county.
    The exemptions from taxation were not extended beyond September 12, 1883. The relator seeks to obtain from the treasury of the State the amount which it alleges is due if under chapter 355 of the Laws of 1868, and the acts amendatory thereof, relating to taxes on non-resident lands, mentioned in said acts, relating to the real property of said companies, .
    On July 31, 1901, the relator filed with the defendant a statement of all taxes claimed by it under said acts, and on December 31, 1901, the defendant wholly rejected the same and refused to, state said account. This writ is to review said determination of the defendant. Further facts appear in the opinion. .
    
      Frcmle L. Bell and Lewis F. Oarr, for the relator.
    
      John Gv/rmeen, Attorney-General, and William H. Wood, for the respondent.
   Chase, J.:

That the acts relating to the several railroad companies, including those exempting their lands from taxation, have resulted in a wrong to Essex county and the inhabitants thereof, cannot reasonably be denied. The acts were undoubtedly passed upon the theory that a railroad could not be built upon the route in said acts proposed without special aid, and that if a railroad should be there constructed it would result in a great benefit to the localities traversed by it and also to the State at large in the. development of its resources and in the sale of its wild lands.

It may then have been assumed that if the railroad should be built as proposed the exemption from taxes for a limited time of the lands acquired by the company, other than for its roadbed or track and for structures necessary for the working of its road, would take very little, if any, from the lands that would be taxable, if the railroad should not be constructed.

If the railroad as originally contemplated had been constructed and operated the net result of all of said legislation might'not have been injurious to said county and the owners of taxable lands therein, but unfortunately for Essex county the railroad was not constructed in its territory, and it seems now to be conceded that the county and its inhabitants have not received any benefit from the privileges and exemptions granted to said companies.

The power of the State to authorize the payment from the treasury of the State to a county to reimburse it for loss occasioned by reason of a portion of its lands being exempt from taxation under the circumstances here disclosed is not disputed.

In Cayuga County v. State (153 N. Y. 279, 287) the court, in discussing a claim presented against the State for moneys expended in the trials of convicts for crimes committed in a State’s prison in said county, say“ It is clearly within the scope of legislative power to rectify wrongs of this character, and if, in the opinion of the Legislature, one county or political division has been compelled to bear more than its proper share of taxation, or taxes have been locally assessed and paid, which in equity should have been charged upon the whole State, there can be no doubt that, in the absence of constitutional limitation, the Legislature may remedy the injustice and direct reimbursement out of the treasury of the State.”

The defendant insists, however, that the relator’s claim cannot be allowed because such equitable claim as between citizens of the State would be barred by lapse of time.

The State Constitution (Art. 7, § 6) provides: “Neither the Legislature, canal board, nor any person or persons acting in behalf of the State, shall audit, allow or pay any claim which, as between citizens of the State, would be barred by lapse of time. This provision shall not be construed to repeal any statute fixing the timé within' which claims shall be presented or allowed, nor shall it extend to any claims duly presented within the time allowed by law and.prosecuted,with due diligence from the time of such, presentment. * * * ” . ' ’

The exemptions, from taxation Which the relator asserts created: an equitable claim against the State in its favor commenced about: forty-five years prior to. the time1 when the relator filed its claim with the defendant and expired about, nineteen years prior thereto; The Statute of Limitations, however, only applies from the time when an, action, or proceeding to enforce the right asserted may be commenced. If a tribunal lias existed before-.which the relator’s claim could have been determined and enforced for the limited time stated in our Statute of. Limitations, in which an action or proceeding must be commenced upon an equitable claim between, citizens of the State, then the Comptroller is constitutionally pro-, hibited from allowing or paying the claim of the relator.

By chapter 225, Laws of 1862, it is provided“ Section 1.. The. Comptroller of the State, of New York is hereby authorized and directed in his statement and, settlement of the accounts of non-resident taxes returned from the counties, of Essex and. Warren as nonresident, and; of the State tax apportioned on and charged to said county, to credit the treasurers of said counties, of Essex and War-, ren with the amount of all taxes heretofore rejected by the Comptroller from the, non-resident- taxes returned as unpaid, for-ihe. years eighteen, hundred and fifty-seven, eighteen hundredaand fifty-eight, eighteen, hundred and fifty-nine and eighteen., hundred and sixty, which were so rejected on, the ground that the same were exempt from, taxation, by the provisions, of. an act entitled, 6 An act; exempting the-land of the Sackett’s Harbor and Saratoga'Railroad . Company from taxation until the sale-of the. same or the maturity, of their bonds,’ passed March thirteenth, eighteen hundred and. fifty-seven,, or of an act entitled ‘ An, act to, facilitate the completion of the Lake Ontario and Hudson River Railroad,’ passed February eighteenth, eighteen; hundred and. sixty, or of both of said acts, and to cause, any amount, that may be found due to said treasurers of said Counties; of Essex and Warren after such credit, and after stating tfie, account, of, said counties of, Essex and Warren, as in other - respects, provided by law, to be-paid to the treasurer of. said counties of Essex-and Warren, out of the treasury- of this State.

§ 2. The Comptroller shall hereafter in his annual statements or settlements of the account of non-resident taxes returned from ■the counties of Essex and Warren as unpaid, not reject or disallow any part of said taxes so returned on the ground that the lands on which the same are assessed are exempt from taxation under the acts above named in the first section of this act, or either of them ; but if said taxes are in other respects legally assessed and returned as unpaid, he shall admit and allow the same to the credit of said treasurers of said counties of Essex and Warren.”

By chapter 355 of the Laws of 1868 it is provided: “ Section 1. The Comptroller of this State is hereby authorized and required to ■state an account with the treasurers of the counties of Hamilton, Warren and Essex, in which he shall credit said treasurers with the non-resident taxes, including the State tax apportioned to said counties from and including the year one thousand eight hundred and sixty to and including the year one thousand eight hundred and sixty-seven, which were rejected, canceled or disallowed under the provisions of chapter ninety-eight and two hundred and eighty of the laws of eighteen hundred and fifty-seven or of the acts supplementary thereto, or amendatory thereof, and of chapter two hundred and thirty-six of the laws of eighteen hundred and sixty-three and the acts supplementary thereto or amendatory thereof. Any amount which shall be found due upon such stated account, shall be paid to said counties respectively out of the treasury of this- State.

“ § 2. The Comptroller, in his annual statement and settlement of the non-resident taxes, returned from the counties of Hamilton, Warren and Essex as unpaid, shall not hereafter reject, cancel or disallow any part of said taxes so returned on the ground that the lands on which the same are assessed are exempt from taxation under the acts named in the foregoing section of this act or any of them; but if said taxes are in other respects legally assessed, he shall admit the same to the credit of said counties of Hamilton, Warren and Essex.”

Said act of 1868 was amended by chapter 487 of the Laws of 1870 by including therein the counties of Franklin and Clinton, and by changing the time from which the Comptroller was authorized and required to; state, the account from the year 1860 to the year 1857, and also by including therein new matter as follows:' “ And - he shall also credit said treasurers in said account with the amount of the non-resident taxes including the State tax from which the ; non-resident land's in their respective counties have been exempted by the aforesaid acts ; such amount shall be computed Upon an assumed valuation of one dollar per acre and at the rate per cent "of ■ - such taxes, in each of the years aforesaid from; eighteen hundred • and fifty-seven to eighteen hundred and sixty-seven inclusive.”

By chapter 217 of the Laws of 1889 said act of 1868 was again amended by striking - therefrom the name of the county of Clinton and. by adding to the time for which the Comptroller was direéted to- - credit the. treasurer of the relator for non-resident-taxes, the Words “And from and. including the year one thousand eight hundred and • sixty-eight to one thousand eight hundred and eighty-three inclusive.”

By chapter 515 of the Laws of 1901 there was added to said act-of 1868, as amended, another section as follows“ § 3. The account herein provided for shall be stated by the Comptroller, on or before-January first, nineteen hundred and two, and shall include 'such •'■ taxes as may have been lost by the failure of the treasurer of these-respective counties to- return the same during the period of exemp- ' tion mentioned in the aforesaid acts, provided, however, that such statement shall be.made to such counties as shall, on or before August first, nineteen hundred and one, file with the Comptroller a statement of all taxes claimed to be lost as herein mentioned, and a. failure tó-: ' do so on the. part of any such county shall exclude it from the provisions of this act.” .

Neither of the acts relating to the statement of such account; has ever been expressly repealed, and, so far as .they give to the-, relator more than one remedy, such remedies are cumulative and. not exclusive.

Under chapter 225 of the Laws of 1862 the relator presented to the Comptroller a-claim - which was allowed July 30, 1862, at $4,725.45 and credited to said county, but no further claim has ever-been presented by the relator under either of said acts prior to the-claim now under consideration, and no other proceeding of any kind has ever been brought to enforce the rights of the. relator under either of ■ said acts, or to compel the Comptroller or the. treasurer of said county to perform the duties devolving upon them respectively by virtue of said acts or either of them.

It is stated in the relator’s petition that after the passage of chapter " 355, Laws of 1868, the relator “ returned to the said Comptroller many of the taxes which should have been assessed upon said lands previous to the year 1867, and also thereafter did assess such lands, or most of them, and returnéd them to the Comptroller as. unpaid taxes, or taxes upon lands of non-residents, and said Comptroller rejected, cancelled and disallowed all of the same, and gave-to your petitioner no credit on account thereof, except in a few instances and for small amounts, and did charge back to your petitioner the whole amount of taxes so rejected, cancelled and disallowed. That your petitioner pursued the course of assessing such lands and returning them to the Comptroller as unpaid taxes, or-taxes upon lands of non-residents, during all of the time the same-were so exempt from taxation, and in each instance for the most, part the Comptroller rejected, cancelled and disallowed the same- and charged them back to your petitioner. * * * That after the passage of said chapter 217, Laws of 1889, your petitioner, through its county treasurer, presented and returned to said Comptroller many of the taxes which had been previously rejected, can- . celled and disallowed upon said lands, and the Comptroller again, either cancelled or rejected the same, or failed to give your petitioner credit therefor. And thereafter your petitioner continued to return to the Comptroller the taxes assessed upon said, lands, as it was authorized to do under chapter 355, Laws of 1868,. and said Comptroller did reject, cancel and disallow the same, and charged them back to your petitioner, and continued so to do while’ said lands remained free and exempt from taxation.”

Chapter 225 of the Laws of 1862, as well as chapter 355 of the Laws of 1868 and the amendments thereto, expressly recognized assessments actually made on said lands so exempt from taxation. So far as the assessments were actually made and returned to the-Comptroller as unpaid there has been at all times not only express-authority in the Comptroller to state the account thereof with the relator, but it was made his duty so to state said account and to credit the treasurer of Essex county with the amount of such unpaid non-resident taxes. If assessments were actually made from time: to time on some of said lands that were not. properly returned, as unpaid it was the fault of the county treasurer of. said county iri not: performing, his: duty as required .by law. By chapter 355 of the Laws of: 1868, as. amended by chapter 487 of the Laws, of 1870. and chapter 217 of the: Laws of 1889, the amount which would have been obtained for taxes from lands so exempt from, taxation and. not assessed had the same been, assessed and collected is expressly provided for by authorizing and requiring the Comptroller to credit the treasurer of the county with the same “ computed upon, an assumed valuation of one dollar per- acre and. at the rate per cent of. such taxes in each of the years.”

It thus appears, that if public officer® expressly charged with well--defined duties had performed such duties the relator would from year to year have been credited with the full amount of any equitable: claim that it had by reason, of said exemptions.

The courts have, at all times,-been open to protect the relator; in-compelling such public officers to perform the duties expressly-devolved upon them.

We are of the opinion therefore, that the. determination, of the Comptroller that, the claim of the- relator is barred by lapse .of. time is right, and that it. should be. confirmed, with fifty dollars coste and disbursements.

AH concurred".

Determination- of the Comptroller confirmed,, with fifty dollar® costs: and. .disbursements. 
      
      
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