
    
      In re Petition of Lewis H. Clark, a Taxpayer, etc., App’lt, v. Andrew F. Sheldon, as County Treasurer, etc., Resp’t.
    
      (Court of Appeals,
    
    
      Filed June 7, 1887.)
    
    1. Taxes—Railroads—Laws op 1869, chap. 907, § 4—Construction op— Purchase op bonds by county treasurer.
    Laws of 1869, chapter 907, section 4, as amended in 1871, chapter 383, direct that “all taxes, except school and road taxes. * * * in any town or village or city, on the assessed valuation of any railroad * * * for which it has issued bonds to aid in the construction of said railroad, shall be paid over to the treasurer of the county, etc.,” and he must purchase bonds, to “be held by said county treasurer as a sinking fund for the redemption of the bonds to be issued * * * in the construction of' said railroad, etc.” If he refuses to do so, any taxpayer may apply to the county judge for an order compelling him to do so. Held, that the act obviously means all the taxes of every description, including town, village,, city, county and state taxes, except school and road taxes, and the authorities have no right to direct or appropriate these taxes to other purposes.
    3. Same.
    The taxes are to be levied the same as other taxes, and if a deficiency is caused in funds required for town, village, city, county and state purposes the local authorities must make provision therefor.
    3. Same.
    The provisions of the act apply to any railroad and not merely to the case of railroads constructed under the act of 1869 and the amendments thereto, and to all municipalities bonded in aid of railroads constructed through them.
    4. Same—Act is constitutional.
    The provisions of section 4 are not in conflict with any constitutional provision, as by it the legislature merely devoted all the taxes imposed upon the railroads to town, village or city purposes; which it had a right to do
    5. Same—Constitution, art. 7, § 8.
    It did not violate article 7, section 8 of the constitution, as the fund was. not in the treasury of the state, and never belonged to the state, or to any fund under its management.
    6. Same—Constitution, art. 3, § 30.
    Nor did it violate section 30 of artitle 3 of the constitution, as it simply specifies what may be done with a tax which has been legally imposed.
    7. Same.
    It is no defense in an application by a taxpayer under this act that the petitioner did not pray for a sufficient amount, and that the county treasurer might be taxed with further proceedings to set aside a further amount. If the county judge orders him' to set aside a less sum than he ought to, he cannot complain.
    8. Same.
    Nor can the treasurer answer that if he should set aside these taxes for a sinking fund, there would be a "deficiency in other funds.
    Appeal from an order, supreme court, general term, fifth department, affirming order of the county judge, dismissing the proceeding of petitioner herein.
    
      Z. Welling, for Clark, app’lt; C. H. Roys, for resp’t.
   Earl, J.

This is a special proceeding instituted by a taxpayer of the town of Sodus, Wayne county, in this state, to compel the county treasurer of that county to execute the provisions of section 4 of chapter 907 of the Laws of 1869, as amended by chapter 283 of the Laws of 1871. The material portions of that section are as follows: “All taxes, except school and road taxes, collected for the next thirty years, or so much thereof as may be necessary, in any town, village or city, on the assessed valuation of any railroad in said town, village, or city, for which said town, village or city has issued or shall issue bonds to aid in the construction of said railroad, shall be paid over to the treasurer of the county in which said town, city, or village lies. It shall be the duty of said treasurer, with the money arising from taxes levied and collected as aforesaid, which has heretofore been or shall hereafter be paid to him, including the interest thereon, to purchase ” bonds mentioned, to “ be held by said county treasurer as a sinking fund for the redemption and payment of the bonds issued or to be issued by said town, village or city to aid in the construction of said railroad or railroads. In case any county treasurer shall unreasonably refuse or neglect to comply with the provisions of this act, any taxpayer in any town, village or city theretofore having issued bonds in aid of the construction of any railroad or railroads, is hereby authorized to apply to the county judge, on petition, for an order compelling said treasurer to execute the provisions of this act. And it shall be the duty of said county judge, upon a proper case being made, to issue an order directing said county, treasurer to execute the provisions of this act.5-’ Our main duty upon this appeal is to construe this section. It has several times been under consideration in the courts, and the views of judges in reference to it have not been in entire harmony.

■ All taxes, except school and road taxes, imposed upon the railroads mentioned, are required to be paid over to the county treasurer; and this obviously means all the taxes of every description, including town, village, city, county, and state taxes, except school and road taxes. The sums thus paid to the county treasurer are to constitute a sinking fund for the payment and redemption of the municipal bonds. There is nothing impractical in the scheme of this section. It is easy for the officers imposing the taxes to ascertain their amount, after deducting school and road taxes; and the amount to be paid to the county treasurer, and held by him for a sinking fund, can be specified in the warrant issued to the collector. People v. Brown, 55 N. Y., 180. But, if not so specified, it must always be easy for the collector to make the proper deduction of school and road taxes, and then, in obedience to command of the statute, to pay the balance to the county treasurer. If the duty of making the separation of the school and road taxes from the other taxes has not been discharged before payment of the taxes to the county treasurer, it will rarely, if ever, be difficult for him to make such separation; and it will be his duty to make it, and invest the proper amount as directed by the statute. The authorities of towns, villages, cities and counties have no right to divert or appropriate these taxes for other purposes. Bridges v. Supervisors of Sullivan Co., 92 N. Y., 570. They never came into the hands of the county treasurer for any other purpose than that mentioned in the section, and they are devoted by law to the benefit of the municipality in which they are collected, and must be held and invested in the mode directed for its benefit. The taxes which are to be paid into and constitute the sinking fund need not be specially levied, but they are to be levied in the same way as other taxes; and all the taxes thus levied are to be devoted to the purposes mentioned. It is quite true that a deficiency may thus be caused in funds required for town, village, city, county and state purposes, but the local authorities must in some way make provision for such deficiency, and there is ample power in the statutes to do so.

The provisions of this section are applicable to any municipality which has bonds outstanding, issued under any act in aid of the construction of any railroad within its borders. The statute speaks of taxes upon the assessed valuation of “any” railroad for which the municipality has issued or shall issue bonds to aid in the construction of such road. And it authorizes any taxpayer in any town, village or city which has issued bonds in aid of the construction “of any railroad or railroads ” to petition to the county judge for an order compelling the county treasurer to execute the provisions of the act. It is not correct, therefore to say that these provisions are to be executed only in the case of railroads constructed under the act of 1869, and the amendments thereto. The provisions are broad, comprehensive, and general, and were intended for the benefit of all municipalities bonded in aid of railroads constructed in or through them. It makes no difference, as to the duty of the county treasurer, that the taxes thus to constitute the sinking fund were not expressly collected or paid over to him for that. purpose. The statute appropriates the taxes, and makes it his duty to separate and set them apart for the sinking fund.

We do not perceive that these provision of section 4 are in conflict with any constitutional provision. They do not impose a tax on property in other towns of the county of Wayne, as claimed by the respondent, for the benefit of the town of Sodus. They simply deprive other portions of the county of the benefit to be derived from the taxation of the railroad property within the town of Sodus. As to' other portions of the county, it is practically the same as if the railroad property was exempt from taxation. It would be perfectly competent for the legislature to exempt all the railroads from taxation in the towns bonded to aid in their construction; and, in making such exemption, no constitutional provision would be violated. So, too, the legislature could devote all the taxes imposed upon such railroads to town, village or city purposes; and this is what it has. done. These provisions cannot even be charged with any great injustice. The railroad property thus to be taxed was in the main created by the municipalities bonded for their construction; and until they have been either reimbursed for their expenses which they have thus incurred, or have been able otherwise to pay their bonds, it is certainly not very unjust that they should have the benefit of the taxes imposed upon the property which they have thus created.

These provisions are not in conflict with section 8 of article 7 of the constitution, which provides that “no moneys shall ever be paid out of the treasury of this state, or any of the funds under its management, except in pursuance of an appropriation by law.; nor unless such payment be made within two years next after the passage of such appropriation act; and every such law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated, and the object to which it is to be applied; and it shall not be sufficient for such law to-refer to any other law to fix such sum.” This fund was not in the treasury of the state, and never belonged to the state, or to any fund under its management. Hence that section of the constitution has no application to this case.

It is also clear that these provisions do not violate section 20 of article 3 of the constitution, which provides that “every law which imposes, continues or revives a tax shall distinctly state the tax, and the object to which it is to be applied, and it shall not be sufficient to refer to any othei», law to fix such tax or object.” The law we are considering simply specifies what may be done with a tax which has been legally imposed. The constitutional provision referred to can have no application to such a case as this. Succession Tax Case, 104 N. Y., —. We are therefore of opinion that the provisions of section 4 are not in conflict with the constitution; that their meaning is'reasonably plain; and that it is practicable to execute them. It therefore only remains for us to inquire whether there is anything peculiar to this case which justifies the county treasurer in his refusal to ■execute these provisions.

What we have already said is a sufficient answer to most of the other objections made. It appears quite clearly from the petition and answer, and the evidence upon the hearing before the county judge, that the taxes imposed upon these two roads for the year 1881, after making deductions for school and road taxes, were much more than $437.69. But the petition alleges that that was the sum over and above school and road taxes which was paid to the county treasurer as the railroad taxes of that year; and, upon the hearing before the county judge, the county treasurer admitted that the amount of all taxes collected upon the assessed valuation of the railroads in the town of Sodus for the year 1881, and paid to him, was the sum of $2,603.09, of which sum $427.69 was the portion of the railroad taxes other than school and road taxes. And it was that sum which the petitioner prayed that the county treasurer be compelled to pay, invest or set apart as a sinking fund under the fourth section. It is probably true, upon all the facts appearing in in the case, that the county treasurer ought to have set aside a larger sum in the execution of his duties under the act. But it is no defense that the petitioner has not prayed for a sufficient amount, and that possibly the county treasurer could be vexed with further proceedings requiring him to ■set aside a further amount. It is his duty to set aside and invest as a sinking fund all the taxes paid to him, and appropriated by section 4 for that purpose. But, if the county judge should make an order requiring him to set aside a less sum than he ought to, certainly he cannot complain of such an order. Upon the hearing of this case before the county judge, notwithstanding the prayer of the petition, the county treasurer could be compelled to set aside for a sinking fund all the taxes which may appear to have been paid to him, and were devoted by the statute to that purpose; •and there is ample power conferred upon the county judge to ascertain the amount, and make an order accordingly.

It is no answer for the treasurer to say that, if he should ■set aside these taxes for a sinking fund, there would be a deficiency in other funds, and that he may not have money ■enough to pay the obligations of the county to the state, ■ and to the county officials and county creditors. He has no right to use the money produced by these taxes to discharge any of these obligations. The law has appropriated it for a specific purpose, and it is his duty to apply it to that purpose. There are no subsequent statutes which in any way interfere with these provisions of section 4. The general laws of the state for the imposition and collection of taxes ■do not interfere, and were not intended to interfere, with this section. These taxes were devoted to a special purpose by section 4; and all prior laws in conflict with that section, or requiring a different disposition of taxes thus collected, are so far modified or repealed. And our attention has been called to no subsequent statute which has any bearing whatever upon the questions here involved.

We are therefore of opinion that the orders of the general term and of the county judge should be reversed, and the proceedings remitted to the county judge for a further hearing upon the petition, and that the appellant recover costs against the respondent in this court and in the supreme court.

All concur.  