
    The State of New York, App’lt, v. The County of Kings et al., Resp’ts.
    
      (Court of Appeals,
    
    
      Filed January 13, 1891.)
    
    1 Taxes—Void law.
    When the state finds that a tax law is void and cannot he enforced against unwilling taxpayers, it is its duty to either refund to that portion of the taxpayers of the state who have voluntarily paid the tax under the law the sums respectively collected of them, or to enforce against those refusing to pay such tax the payment of a sum equal to the amounts paid by other taxpayers under the void law.
    2. Same—Duty of the legislature.
    So long as a county neglects the payment of its equal proportion of the .taxes of the state, the duty rests upon the state government to adopt the necessary means and measures to compel that county to perform its neglected duty, irrespective of the length of time which has elapsed since its neglect occurred.
    3. Same.
    The moral obligation which each county is under to contribute its equal share to the payment of taxes affords ample authority to the legislature for the exercise of their power to levy a tax sufficient to put its burdens on terms of equality with other parts of the state.
    4. Same—Statute oe limitations.
    . Subject to the constitution alone, the power of the legislature to levy taxes is unlimited, and no loches or statute of limitations can bar it from the exercise of that power when justice or equity require it to be done. A statute of limilation applies only to the prosecution of legal actions and proceedings and can have no effect upon the exercise of legislative power.
    
      5. Boabd op claims—Appeals.
    No appeal lies to this court from any tribunal unless authorized by some statute, and there is no statute which gives an appeal in a case of this character from the board of claims.
    Appeal from decision of the board of claims in favor of defendants.
    
      Chas. F. Tabor, for app’lt; Wm. Q. Cooke, for resp’ts.
   Ruger, Oh. J.

By chap. 734 of the Laws of 1872, the state attempted to impose a tax of 3|- mills per dollar on the assessed valuation of real and personal property in the state. This act was subsequently declared void by the courts on account of remediable defects of form. In the meanwhile, however, most of the counties of the state had levied and collected the tax and paid the amount thereof into the state treasury. Some of the counties, however, among which was the county of Kings, neither levied nor paid over to the state the amount of the tax, and thus a serious inequality in the burden of taxation among the various counties of the state was produced. After the final decision in the courts declaring the act of 1872 void, the legislature, in the year 1873, by chap. 643 of that year, entitled An act to provide for the support of government and for other purposes,” undertook to relevy the tax of 1872 upon the whole state, in a form not open to constitutional objections, but providing, substantially, therein that the payment by the several counties, apparently liable therefor, to the state of the tax of 1872 should be accepted as a satisfaction of the sums required to be paid by the levy of 1873. It was also provided thereby that “there shall be levied and imposed by the board of supervisors of the county of Kings upon the real and personal property of said county liable to taxation for the fiscal year beginning on the 1st day of October, 1873, in addition to any and all other taxes levied and collected therein by law, the sum of $682,984.22, and when the same shall be paid into the treasury of the state it shall be in satisfaction of the tax to be levied and imposed and of the money to be raised and collected in said county in pursuance'of this act.”

This sum was the precise amount required to be paid by the county of Kings, under the act of 1872, to bring it upon terms ■of equality with the other counties of the state in regard to the taxes of that year. Perfect equality could not, however, be effected among the various civil divisions of the state in respect to such tax, unless the defaulting counties should also be required to pay interest upon the sums in which they were in default. It was, therefore, provided by chap. 760 of the Laws of 1873 that the several counties of the state which did not in the fiscal year commencing on October 1, 1872, pay into the treasury the amount which would have been required from said county under the act of 1872, if valid, should pay an amount equal to the interest thereon from the time when the same was payable to the time when the same should be eventually paid; and that such amount ■should be raised and paid over by the board of supervisors of said county in the same manner as other debts and moneys for which said counties were liable to the state. The county of Kings never paid to the state the sum of $682,984.22 required by the law of 1873; but did, in 1873, raise and pay over the sum of $634,801.26, leaving unpaid of the tax assessed by the Laws of 1872, and relevied in 1873, the sum of $48,182.95, besides interest, which has been estimated to amount to the sum of $47,808.90 for the first year of its default. The entire amount, therefore, claimed by the state in this proceeding was the sum of. $95,991.85, with th¿ interest thereon. In 1873 the county of Kings effected a reduction of the assessed valuation of its real and personal property to the amount of nearly $14,000,000; and instead of providing for the payment in that year of the gross sum of $682,984.22, as required by § 4 of chap. 643 of the Laws of 1873, it assessed the tax of 3£ mills upon the reduced valuation of 1873, thus falling $48,182.95 short of raising the amount it was required to pay by the law.

This conduct was a manifest evasion of the requirements of the law df 1873, and, if such law was legally enacted, can be justified upon no principles of justice or morality. When the state found that the tax law of 1872 was void and could not be enforced against unwilling taxpayers, it was its duty, in the interest of justice and honesty, to adopt one of two courses, either, first, to refund to that portion of the taxpayers of the state who had voluntarily paid the tax of 1872 the sums respectively collected of them; or, secondly, to enforce against those refusing to pay such tax the payment of a sum equal to the amounts paid by other-taxpayers in 1872. The act of 1873 indicated that the state elected to pursue the latter course, and since that time it has been ineffectually endeavoring to prevail upon the county of Kings to pay such an amount as should put it on terms of equality with other taxpaying portions of the state.

It is quite difficult to see why the public officers, or if they were in-default, why the legislature has so long delayed and disregarded the plain duty of compelling the county of Kings to perform its obvious duty. The requirements of the act of 1873 are plain and unambiguous, and there would seem to be no reason why they should not have been enforced against Kings county, either by the law officers of the state or by the legislature, if additional legislation was required. It is the imperative duty of the legislature to see to it that the burdens of taxation shall be laid as equally as possible upon all classes, and the toleration of any serious inequality, which can be obviated by legislation, constitutes a reproach to the legislative body. So long, therefore, as the county of Kings continues to neglect the payment of its equal proportion of the taxes of the state, the duty rests upon the state government to adopt the necessary means and measures to compel that county to perform its neglected duty, irrespective of the length of time which has elapsed since its neglect occurred.

There seems to be no sufficient reason why a reference of this subject should have been made to the board of claims, as it involved the performance of a legitimate duty, and the examination and decision of the court of claims on a partial consideration of the subject could not have aided the legislature in the performance of that duty, or excused its non-performance. Its duty to equalize the taxation of the year 1872 would still have remained to be performed even if the decision of the board of claims had been against the state, and its decision in favor of the state would not dispense with the legislation necessary to effect the object in view.

The reference seems to have been simply a contrivance by which the county of Kings was enabled to evade for a time the performance of its unquestioned duty.

The facts of this claim are fully spread out in the printed statutes of the state and upon the books of its comptroller; and any person-having a desire to be informed concerning them could have been fully satisfied by making inquiry of the regular financial officer of the state. A resolution by the legislature asking for such information from the comptroller would have elicited at any time all the light in respect to the subject that was material or necessary to enable it to legislate intelligently upon the subject. Its duty in the premises was a plain legislative obligation to inquire whether all portions of the state had paid their proportionate shares of the tax of 1872, and, if they had not, to enact promptly such laws as would, if properly enforced, place the whole state on terms of equality in respect to such tax. This could only be done by imposing a tax upon the delinquent parties sufficient in amount when enforced to produce equality among the taxpayers. notwithstanding the act of 1872 had been declared unconstitutional, there still remained a moral obligation upon the taxpayers of Kings county, by reason "of the circumstances, to make their contributions to the state treasury equal to those of other taxpayers, and principles of justice as well as equity required that irregularities produced by the operation of statutes should be remedied by the legislature.

The power of that body to correct these irregularities is undoubted, and so long as it permits one portion of the state to be taxed for the benefit of another, without effort to adjust the irregularity, it is justly subject to the reproach of neglecting its constitutional duty. The moral obligation which the county of Kings is under to contribute its equal share to the payment of taxes affords ample authority to the legislature for the exercise of their power to levy a tax sufficient to put its burdens on terms of equality with other parts of the state. The authority which the legislature possesses on the subject of taxation is well defined in the case of Genet v. City of Brooklyn, 99 N. Y., 301, where it was said that “ The power of taxation is vested in the legislature and is practically absolute, except as restrained by constitutional limi-' tations. The power of taxation being' legislative, all the incidents are within the control of the legislature. The purposes for which a tax shall be levied; the extent of taxation; the apportionment of the tax; upon what property or class of persons the tax shall operate; whether the tax shall be general or limited to a particular locality, and in the latter case the fixing of a district of assessment ; * * * are matters within the direction of the legislature and in respect to which its determination is final.”

Subject, therefore, to the constitution alone the power of the-legislature to levy taxes is unlimited, and no loches or statute of limitations can bar it from the exercise of that power when justice or equity require it to be done. Stuart v. Palmer, 74 N. Y., 183; Genet v. City of Brooklyn, 99 id., 307.

The legislature seem to have been conscious of a neglect of duty, and in 1884 it passed an act apparently intended to initiate some proceedings in reference to the subject. Chap. 318, Laws of 1884. The act is short and reads as follows: Section 1. The board of claims is hereby authorized and directed to hear, audit and determine the claims of the state for balances due on the books of the comptroller from Clinton, Kings, Putnam, Richmond and Schuyler counties; said balance arising from interest due on state tax, defalcation of county treasurers and other causes, and to make such awards as shall be just and equitable. Section 2. This act shall take effect immediately.”

It was under this act that the claim in question was made before the board of claims. The county of Kings voluntarily appeared before that board and claimed that it was not liable to the state; for the reasons, first, that its claim was barred by the statute of limitations, and, secondly, that the acts of 1873 were, for various reasons, unconstitutional. The board of claims, without determining the question of the constitutionality of the acts referred to, decided that more than six years had elapsed since the state had become entitled to enforce its liability, and the claim was therefore barred.

If it be assumed that the only question submitted to the board of claims was whether a remedy under the statutes of 1873 was the only one which was open to the state, and that those statutes were constitutional and six years had elapsed without action on the part of the state to enforce its claim, some support might be found for the award of the board of claims. It is undoubtedly true that the statute of limitations generally runs against simple contract debts resting upon contract, or statute in favor of the state and they may be barred by the lapse of six years. Sec. 389, Code of Civil Procedure. But is quite absurd to say that the right of the state to enact laws for the purpose of effecting a just and equitable distribution of the burdens of taxation among its citizens can be bound by any lapse of time. A statute of limitation applies only to the prosecution of legal actions and proceedings and can have no effect upon the exercise of legislative power.

It is quite difficult to see how the board of claims reached the 'conclusion that the claim of the state was barred. It is elementary that a statute of limitation does not run until after a cause of action has accrued to the creditor, and yet that court concluded that the statute was a bar, although they were in doubt whether the Laws of 1873 were constitutional or not

The Law of 1872 was confessedly unconstitutional, and the respondents there and here contended that the Laws of 1873 were equally void, as being in violation of the constitution. Without determining this question, the board held the state barred. It is quite probable if the board had considered the constitutionality of the Laws of 1873, it would have held them to be unconstitutional, as it gave a strong intimation to that effect in its opinion. We cannot understand its expression that there were “other objections made to an award in favor of the state which were difficult' to obviate,” as referring to any other question than that one, which, aside from the statute of limitation, was the only question, raised in the case. Unless, therefore, the constitutionality of the Laws of 1873 was found by the trial court, we do not see that the question of the statute of limitations was in the case. Such a statute does not begin to run until after a cause of action has accrued to the creditor, and if no legal obligation to pay the tax in question was ever imposed on the county of Kings, the state could then have had no claim upon which the statute would operate.

But, in reviewing the proceedings of the board of claims, we have been embarrassed, not only by the vagueness and uncertainty of the questions submitted, but also by doubts as to the validity of the referring act itself. We do not question the fact that the board of claims is a constitutional tribunal, and is lawfully authorized to determine claims against the state which may have been referred to it; but it does not follow that the legislature-can compel citizens to appear before it and litigate claims made by the state, or any other party, against them. Such boards have usually originated out of the apparent inj ustice of depriving the citizens of all remedies against the state through the inability of the regular judicial tribunals to acquire jurisdiction over the sovereign. Such jurisdiction can be obtained only by the consent of the sovereign, People v. Dennison, 84 N. Y., 281, and in giving such consent the government may lawfully prescribe the terms and conditions upon which such prosecutions shall proceed, and it may lawfully create a special tribunal for the hearing and determination of such exceptional cases as' established courts are precluded by the general laws or policy of the state from hearing and deciding.

The state may, to a certain extent, abandon its prerogative and consent to appear before a special tribunal. McElrath v. United States, 102 U. S., 440. This, however, does not necessarily authorize the legislature to create a judicial tribunal of general jurisdiction to hear and determine judicial questions which are cognizable in the regular constitutional tribunals of the state. Section 19, Art. 6 of the Constitution; see DeHart v. Hatch, 3 Hun, 375. We do not, however, propose to discuss or determine this point, as there is still another question which precludes us altogether from considering this appeal, and that is the non-appealability of the award in question. The .act of 1884 does not, in terms, purport to amend the acts of 1883 and 1884, creating the court of claims and providing for the practice to be followed therein, and does not of itself authorize an appeal to this court from any award made under it The acts creating the board of claims provide-especially for appeals from certain special awards therein authorized to be made to the court of appeals by any party who may be aggrieved; but do not, in terms, provide for appeals generally from all decisions made by such tribunal. The legislature in making reference of • special cases to the board of claims, have generally provided in the acts making such references for an appeal to this court. Chap. 829, Laws of 1884; chap. 85, Laws of 1884.

It may be implied from this practice that it did not suppose the right of appeal existed unless specially provided for. The jurisdiction attempted to be given to the board of claims in this case is novel, special and altogether foreign to the purposes for which that tribunal was originally organized, and the right of appeal conferred by that act cannot, we think, be construed to cover a jurisdiction so different from that contemplated by the act of its creation.

Ho appeal lies to this court from any tribunal unless authorized by some statute, and we do not think there is any statute which by reasonable construction gives an appeal in this case.

The appeal is, therefore, dismissed.

All concur, except O'Brien', J., who takes no part.  