
    Abraham B. Hasbrouck and others, Appellants, v. The Kingston Board of Health, Elijah Ellsworth, Collector, and Cornelius Burhans, Treasurer, of the Kingston School-district, Respondents. The People of the State of New York, Appellants, v. The Same, Respondents.
    An order denying a motion for an injunction restraining school officers . from collecting a tax and disbursing moneys, is not an order that “ determines the action and prevents a judgment,”, and from which an appeal1 may be taken to this court..
    
      It seems that an injunction cannot legally issue to restrain the collection of a tax, although illegally imposed. The aggrieved party must take his remedy by action for the damages sustained.
    The act incorporating the-Kingston board of education, chapter 360, Laws of 1863, as amended by chapter 40, Laws of 1864, empowers the board to levy taxes in their discretion for the purposes named in the act, without, a vote of the inhabitants.
    These appeals both embrace the same tax and raise the same questions. They are appeals from orders of the General Term, affirming orders at Special Term denying motions for temporary injunction to restrain the collection of the same tax and 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; id. 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 arid 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.” .
    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 the deficiencies of the last, and the expenses of the then current year, for the purposes 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 4th day of June, 1866, to the defendant Ells-worth, 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-be,half 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 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 entitled cause applied for a temporary injunction to restrain the collection of the tax and disbursement of the moneys collected during the pend-ency of the suit. That motion was denied and the injunction refused. From that decision an appeal was taken to the General Term of the third district. The order, at Special Term, was there affirmed, and from that affirmance an appeal was taken to this court, and that is the appeal first above entitled.
    After the denial of the injunction in the first cause as above stated, an action was commenced in the name of the people, by the attorney-general, containing substantially the same allegations as those contained in the other cause, demanding j udgment for a perpetual injunction to restrain the levy, assessment and collection of any taxes by the defendants, without the authority of the inhabitants, other than for certain limited purposes, and for those purposes, not exceeding $5,000; and to restrain any further proceed-i ings 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; the order denying it was' appealed from to the General Term. The General Term affirmed the order, and an appeal was- taken to this court from the decision at the General Term, which is the appeal secondly above entitled.
    
      E. Cooke, for the appellants.
    
      M. Schoonmaker, for the respondents.
   Hunt, J.

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

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 order in effect determines the action and prevents 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 prejudice the plaintiff 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 future 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 sum 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 he performed. The amount of the present tax yet uncollected is trifling compared with the amount which will he 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, and are, therefore, not appealable to this court.

Again, the papers do not show whether the motion was denied upon the ground that the plaintiff 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. (The People v. The N. Y. 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. (Authorities, supra.)

I am of the opinion also, that an injunction cannot legally issue to restrain the collection of a tax, although illegally imposed. (Haywood v. The City of Buffalo, 14 N. Y. 534, 537; Mutual Benefit life Ins. Co. v. The Supervisors of New York, 32 How. 359.) The party must take his 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 their duty, “ to raise by tax, from time to time, 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 or all of the purposes to which the powers and duties of said board extend, as herein after mentioned.” (Laws of 1863, 597.) The evident intent of this act was to limit the power of the board to the sum of $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:

“ Sec. 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, etc., 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 and their appurtenances, or for such other purposes as are included within the powers and duties of the board of education, as herein after 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. Tor 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 are 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 buildings 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. Neither 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. The City of Buffalo (14 N. Y. 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 school-houses, and other contingent expenses, and to pay arrears for the same purpose, for which they were indebted. These were legitimately and properly within their control.

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

Appeals dismissed. .  