
    Lewis H. Clarke, as a Taxpayer, etc., of the Town of Sodus, Resp’t, v. Andrew F. Sheldon, as County Treasurer of Wayne County, App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 19, 1890.)
    
    1. Town bonds — Action to comped application op railroad taxes— Costs.
    Costs cannot be allowed in a proceeding under chap. 907, Laws 1869, to compel the purchase of town bonds by the county treasurer, as such proceeding is instituted before the county judge as an officer and not before the court.
    2. Same — Interest.
    Where the duty of a public officer to pay over money in his hands for a particular purpose is not well defined, and the officer has acted in good faith and without fault has parted with the moneys, and they have neither actually or constructively earned any increase,. interest should not be charged against him.
    
      3. Same — Estoppel.
    Where the town has received and used for proper town purposes the moneys which ought to have gone into the sinking fund, it should he deemed estopped to claim a repayment of such moneys either directly or indirectly.
    Appeal from a final order of the county judge of Wayne county, filed December 26, 1888, directing the defendant, as county treasurer, to purchase the ’bonds of the town of Sodus issued in aid of the construction of two railroads through such town, one known as the Sodus Point & Southern Bailroad, and the other as the Borne, Watertown & Ogdensburg Bailroad.
    
      Charles H. Boys, for app’lt; J. Welling, for resp’t
   Macomber, J.

The town of Sodus, prior to the year 1871, issued its bonds in the amount of $113,000, under chapter 811 of the Laws of 1868, to aid in the construction of the Lake Ontario Shore railroad, now known as the Borne, Watertown & Ogdensburg railroad; and also issued bonds in the sum of $77,000, under chapter 907 of the Laws of 1869, to aid in the construction of the Sodus Point" & Southern railroad, the two railways passing through such town and crossing each other.

Since the construction of these railways respectively, the taxable property thereof has been assessed, and these companies have paid taxes so assessed, in the same manner as in cases of other taxpayers.

The petition in this proceeding was filed in the month of February, 1882, praying for an order from the county judge, under chapter 907 of the Laws of 1869, as amended by chapter 283 of the Laws of 1871, requiring the county treasurer of Wayne county to execute the provisions of these acts by investing the sum of $427.69, the amount of taxes, other than school and road taxes, received by him for the years 1881 and 1882, collected on the assessed valuation of the two railways in that town, under the assessment of 1881, to aid in the construction of which the town had issued its bonds. Upon a hearing before the county judge, the petition was dismissed, and the order on such dismissal was subsequently affirmed by the general term of this court On appeal, however, to the court of appeals, these decisions were reversed, with directions to the county judge to proceed under the petition.

It was held by that court that by the scheme of raising a sinking fund under these statutes, other portions of the county did not have imposed upon them any additional tax for the benefit of the town of Sodus, and that the provisions of the State Constitution, § 8, art 7, prohibiting the payment out of the treasury of the state of any moneys excepting in pursuance of an appropriation, was not violated thereby, inasmuch as the fund realized from such taxation does not belong to the state, or go into its treasury. It was there further held that the law was not repugnant to § 20, art 3, of the Constitution, declaring that every law which imposes a tax shall distinctly state the tax and the object to which it is to be applied. 106 N. Y., 104; 8 N. Y. State Rep., 537.

At its annual session in 1881, the board of supervisors of Wayne county levied upon the taxable property in the town of Sodus, including these railways, a total tax of $33,636.97 for town, school, county and state purposes. The amount of such total tax of that year, paid by the Rome, Watertown & Ogdensburg railroad, was $2,231.38, and by the Sodus Point & Southern railroad the sum of $370.71, amounting in the aggregate upon both railroads to the sum of $2,602.09. The tax of $370.71 was paid by the Sodus Point & Southern Railroad to the town collector, and by the collector to the defendant on the 13th day of February, 1882, which was three days after this proceeding was begun. The tax upon the Rome, Watertown & Ogdensburg Railroad of $2,231.38 was paid by the company January 30,1882. The taxes of both railroads, so paid to the county treasurer, were placed by him to the credit of the collector of the town of Sodus, for the objects and purposes to which they, with other taxes from the same town, were appropriated by other than the sinking fund statutes.

Since the decision of the court of appeals in this case, the defendant has amended his answer by setting up the fact that none of the taxes of that year, paid by the railroads, remained in his hands. This allegation of the answer was sustained by the proofs and by the findings of the county judge.

, At least one modification of the report of the county judge must be made. This is substantially conceded by the counsel for the respondent. There has been allowed to the respondent costs of the proceeding before the county judge. Costs were properly allowed to him in this court, and in the court of appeals, under the decision already mentioned. But we know of no statute which permits the allowance of costs as in an action where the special proceeding is instituted, not before the court, but before the judge at chambers. Patterson v. Burnett, 23 N. Y. State Rep., 363 ; Hill v. Sheldon, 28 id., 885.

The amount of such costs, namely, $152.35, must consequently be deducted from the final order.

In another respect we are of the opinion that the report must be modified, ana that the allowance of interest upon the sum so received by the county treasurer should not have been made by the final order herein. Up to the time of the decision of the court of appeals hereinbefore mentioned, the act of 1869 had been practically unenforced throughout the state. The general term, in what was then the fourth department, in the case of Phelps v. Williams, 5 Albany L. J., 204, which was decided prior to any demand made upon the defendant in these proceedings, held that the provision of the act upon which this proceeding was founded was unconstitutional and void.

The question, therefore, is, whether or not, under the law as it was then deemed to be, the defendant has been guilty of any unreasonable refusal to comply with the demand made upon him in the year 1882 for setting apart these funds. Undoubtedly public officers who fail to pay over money in their hands, according to their well-defined and legal duty, will be charged with interest from the time they should have paid the same. Supervisors v. Clarke, 25 Hun, 282. But where such duty is not well-defined, and where the officer has acted in good faith, and without fault on his part has parted with the moneys, and they have neither actually nor constructively earned any increase, we think interest should not be imposed.

There should besides be made another substantial deduction, namely, $1,999.11, being the sum in excess of the amount claimed in the petition, and in excess of any moneys for which the defendant could properly be held accountable under the facts as disclosed under the amended answer. The sum demanded in the petition was $427.69. The sum allowed is $2,426.85, as stated in the final order. This additional sum of $1,999.11 is made up of taxes collected from the railroads for town purposes, and which were received and applied by the town officers of such town exclusively to town purposes about four years before the decision of the court of appeals in this action. It stands, as conceded in thé case, that the town taxes of the year 1881, to the amount of $24,781.89, were received by the town officers of the town of Sodus to whom they were directed to be paid. The town received from the railroad companies $2,018,45, which sum was used by the town for its own town purposes.

The county of Wayne ought not to be held liable beyond the amount of money which it has actually received or appropriated. All moneys to pay charges of the town, and which were, in fact, turned over by the collector to the supervisor, overseer of the poor and railroad commissioners of the town, ought not to form a basis of recovery in this action; if the town has received back this money which the railroad companies have paid it cannot complain of the board of supervisors for not putting it into the sinking fund.

The following computation will show the amount and proportion of taxes by the railroads for exclusively town uses, and which the town has actually had and used, and which never, in fact, came into the county treasury. The figures in the official schedule of taxes of 1881 appear on page 195 of the proceedings of the board of supervisors, and are printed in the case. These show the specific purpose for which the taxes, including those received from the railroads, were expressly levied and appropriated.

Total amount levied upon the town of Sodus, $33,636.97, made up as follows:

School tax.................................. $2,015 33

County tax.................................. 3,566 98

State tax.......:............................ 1,962 30

Town tax................................... 26,092 36

Total........... $33,636 97

This town tax of $26,092.36, which the town has already received, was made up of the following items and charges:

Town contingent fund......................... $2,545 70

Roads and bridges........................... 250 00

Special town tax for the railroad commissioners.... 21,986 19

Re-assessed on town.......................... 6 92

Supervisors audits............................ 816 35

To re-imburse county poor fund................ 487 20

Total................................... $26,092 36

It is established that of the total $33,636.97 of the taxes, collected by the collector of the town, there have been paid to the town officers, for the use of the town, the following sums:

To supervisors, contingent fund............... $2,545 70

To highway commissioners.................... 250 00

To re-assessed on town....................... 6 92

To town railroad commissioners............... 21,986 19

Total................................... $24,788 81

To this should be added the sum of $816.35, for supervisors audits of charges against the town, audited by the board of supervisors, instead of the town board, and the sum of $487.20 to reimburse the county poor fund, being the debt of the town of Sodus for the care of its town poor. These last two items came into the county treasurer’s hands by the warrant of the board, but were paid out by him for the benefit of the town, and they, added to the foregoing $24,788.81, make up the total of the town tax as above $26,092.36.

The proportion of the taxes levied upon the town for all purposes, to those levied upon the town for its own use, is the proportion of the total taxes paid by the railroads to the part thereof paid for town purposes. By computation it shows, that out of the $2,602.09 paid by the two railroads as taxes levied in 1881, the town received, (not the county), and applied to its own use the sum of $2,018.45. These taxes should be deducted from the sum for which the defendant is held liable by the final order appealed from. The county judge, however, has allowed $19.34 thereof, paid by the railroads as road taxes; so that the actual deduction should be $1,999.11. Deducting this amount from the $2,426.85 there remained the sum of $427.74, for which the defendant is liable, being five cents more than is demanded in the petition. This slight discrepancy arises from the fact that the petitioner has given the county credit, as the sum received from the railroad companies, for $2,018.50 when it should have been $2,018.45.

We know of no reason why the foregoing basis of computation and principle of liability should not apply to this petitioner. It is true that the respondent is not the town of Sodus, but only one of its inhabitants and taxpayers. His right, however, to bring this action is derived from the fact that under certain circumstances a taxpayer is permitted to place himself in the place and stead. of the municipal body, and claim for such municipality a restoration of its funds. He represents and speaks for the town. But his rights cannot be greater than those of the town. The town, having received and used for proper town purposes the moneys which ought to have gone into the sinking fund, should be deemed estopped to claim'-a repayment of such moneys, either directly or indirectly.

In Strough v. Supervisors of Jefferson Co., 50 Hun, 54; 23 N. Y. State Rep., 940, affirmed in 28 N. Y. State Rep., 967; and in Wood v. Supervisors, 50 Hun, 1; 18 N. Y. State Rep., 671 (not affected in this respect by the decision of the court of appeals), no claim or recovery was had except- for the county and state taxes. In Hill v. Sheldon, 28 N. Y. State Rep., 885, decided by this court, the county judge refused to find that the taxes raised for town purposes were all expended by the town itself for its own purposes ; and the case itself was not clear and specific on that question; while in the case now before us the fact stands undisputed that the town of Sod us has had the benefit of all such moneys. In the Hill case the petitioner asked that such moneys as well as the county and state taxes be turned into the sinking fund, while in this case the claim was made for the state and county taxes only.

The final order of the county judge should be modified in the particulars mentioned, and, as so modified, affirmed, but without costs of either party on this appeal.

Corlett, J., concurs in result; Dwight, P. J., not voting.  