
    Hill against The Board of Supervisors of Livingston County.
    At common law, the duty of repairing public bridges rested upon the county, where no person or other body was specially charged therewith; and in England, the statute (22 Henry VIII., ch. 5) affirmed the rule of the common law in this particular. Per Johnson, J.
    This rule does not prevail in this state. The general system enacted by out statutes makes the towns primarily liable for the maintenance of highways and bridges. Per Johnson, J.
    The act of 1838 (ch. 314) authorizes the board of supervisors of the county to raise money by taxation to aid in the reparation of bridges, and to apportion the tax among the towns of the county as to the board appears equitable.
    Whether or not the board can, in apportioning a tax to be levied under this act, entirely exonerate any of the towns, quere. Per Johnson, J.
    Where the board of supervisors caused a portion of the money expended under its supervision in repairing a public bridge which crossed a stream dividing two towns to be levied upon the whole county, and the residue upon the tyro toras; Held, that the tax upon the two towns was legally imposed.
    A person can recover, from a county, money collected from him for a tax illegally levied and caused to be collected by the board of supervisors and paid to the county treasurer, as money had and received by the county to his use. Per Allen, J.
    In a suit against a county, the board of supervisors should be named as defendant ; the individual supervisors should not be named. Per Allen, J,
    Assumpsit commenced in 1847 to recover $3.69, as money had and received by the county of Livingston to the plaintiff’s use.
    The cause was tried in 1849, at the Livingston .county circuit, and the jury found a special verdict stating the following facts : In 1817, one Churchill and others, his associates, erected a bridge over the Genesee river, at an expense of about. §18,000, by virtue of an act of the legislature. (Laws of 1817, ch. 104.) The act required the parties erecting it to keep the bridge in repair, and authorized them to collect tolls, for the use thereof, during twenty years from the passage of the act, and declared that after the expiration of the twenty years the bridge should be “a public bridge and free of toll.” The bridge was erected on a highway, at a point where the Genesee river constituted the boundary between the towns of Avon and Caledonia, and the counties of Ontario and Genesee. In 1821, these two towns and the bridge were incorporated in the county of Livingston, which was then created. The company which built the bridge left it in good repair in 1837, when the right to take tolls expired, and from that time it became and was used as a public free bridge. In 1845 the bridge required a large expenditure for its repair ; and in November of that year the board of Supervisors of the county of Livingston, by resolution, ordered $900 to be levied upon the county for the purpose of aiding the towns of Avon and Caledonia in repairing the bridge, and directed the amount to be paid, in equal portions, to the respective commissioners of highways of these towns, to be used in mating the repairs. Neither the towns or commissioners having taken any measures for repairing the bridge, in June, 1846, the board of supervisors passed a resolution declaring that they recognized the bridge as county property, and to be built and kept in repair by the county, according to the provisions of subdivisions 1 and 2 of § 1 of ch. 314 of the Laws of 1838, and by which the sum of $1000 was ordered to be raised to repair the bridge, in addition to the amount theretofore appropriated for that purpose. They also rescinded so much of the resolution of November, 1845, as authorized the money raised under it to be paid tr« the commissioners of highways of the towns of Avon said Caledonia, and, by resolution, appointed George Smith commissioner to superintend the repairs of the bridge and the expenditure of the money thereon, and authorized him, as commissioner, to draw on the county treasurer for the $900 ordered to be levied by the resolution of November, 1845, and also for the $1000 ordered to b« levied by the resolution of June, in such sums and at such tunes as the same should be needed. The commissioner, in the summer and fall of 1846, caused the bridge to be repaired, and in so doing, drew and expended the $900, and, in addition thereto, expended a sum which, with interest, amounted to $692. This last mentioned sum the board of supervisors, in Nov., 1846, directed to be assessed and levied on the towns of Avon and Caledonia, $355 thereof on the former, and $337 thereof on the latter town; and in making out the tax roll for 1846, these sums were added, by the board of supervisors, to the amounts to be levied upon said towns, and were, in due form of law, collected of the taxable inhabitants thereof respectively. The plaintiff was a taxable inhabitant of Avon in 1846, and paid a tax in that year, including his proportion of the $692, of $36.25. If the amount of $692, levied for repairing the bridge, had been assessed on all the taxable inhabitants of the county, instead of upon the two towns named, the plaintiff would have been required to pay, as a tax, $3.69 less than he was, in fact, compelled to pay that year.
    The supreme court, sitting in the 8th district, gave judgment upon the special verdict in favor of the plaintiff for the $3.69 and costs. The defendants appealed to this court.
    
      L. C. Peck, for the appellants.
    I. The action cannot be maintained in the form adopted in this case. It should have been brought against the supervisors by name, with the addition of their name of office. (2 R. S., 473, §§ 95, 96 and 92; 4 Hill, 136; 5 Hill, 
      215.) II. All the acts of the defendants, complained of, were either legislative or judicial, and hence no action can be maintained against them, even if they erred. (11 J. R., 114; 8 Cow., 178; 8 Wend., 462; 11 ib., 545; 1 Hill, 279; 1 Denio, 589; ib., 595; 1 R. S., 524, §§ 119, 120; ib., 341, § 10; Laws of 1838, 314; 21 Wend., 552; 15 Wend., 198.) III. The bridge in question was a public bridge, subject to the general law found in 1 R. S., 501, et seq.
    
    By a reference to the resolution of June, it will be seen that the board did not assume the responsibility or expense of maintaining the bridge as a county charge; and to the contrary thereof, that they merely recognize the liability of the county to build and keep the same in repair, according to the provisions of the 1st and 2d subdivisions of § 1 of the act of 1838, above cited.
    In November, 1845, the board of supervisors, under the provision contained in 1 R. S., 524, § 119, raised the sum of $900 for the repair of the bridge in question.
    In June, 1846, they determined that the bridge should be repaired, and that they would raise the means for repairing the same by appropriating the $900 already in the treasury of the county, and which had been raised by a tax on the county, and by raising at their next annual meeting in November, pursuant to §1 of the act of 1838, such further sum, not exceeding $1000, as the repairs should cost over and above the $900. The $692. were directed to be levied on the towns, under the provisions of the act of 1838. The apportionment .was made according to the spirit and letter of this act. IV. The supreme court erred in deciding that the law of 1841 has been violated in this proceeding. This question was not raised on the argument in the supreme court, and it is believed has no application to any of the questions involved in this case. The act referred to (Laws of 1841, 207) does no more than define the rights and duties of certain towns, and of the commissioners of highways of the same, under the provisions of the Revised Statutes and the act of 1838; and besides, if the construction of the supreme court shall be adopted, it necessarily excludes all bridges over streams dividing towns from the provisions of the act of 1838, and also from the provisions of 1 R. S., 524, above cited.
    
      A. Dann, for respondent.
    I. At common law, which was only affirmed by the statute (22 H. VIII), the making and repair of the bridges was a duty devolving on the county. It is so in' England now. (17 Johns., 452, 453, by the Chancellor; 7 Wend., 477, by Nelson, Justice; 2 East, 342, 356, 12—192; 5 Burr., 2595.) Unless the duty of building or repairing a bridge can be shown to rest somewhere, the county must repair. (2 W. Black., 685 ; Loft, 238; 5 Harr. Dig., 6616, and the cases above cited.)
    
    II. The statute books, from 1798 to 1848, show that about 30 statutes have been passed for the erection or for aiding in the erection of bridges over this very river; when erected, their repairs have been within the power of the counties, and have nowhere fallen on the towns, except by the mere exercise of arbitrary power, as in the case in 1 Hill, 50, and in this case.. The general and special statutes, and the cases.cited, show that there is a class of bridges, whose erection and repair do not belong to the towns, and which the sovereign should cause to be erected, and, until other provision is made, counties must repair.
    . III. The board of supervisors, of its own volition, repaired . the bridge in question. There can be no pretext that they acted, in so doing, under the provisions of the Revised Statutes and the law of 1838. (1 R. S., 502, § 4; Laws of 1838, 314.)
    IV. The board of supervisors having created a debt, illegally assessed the amount of it upon the towns of Avon and Caledonia, and collected it of the taxable inhabitants. The plaintiff is entitled to recover back the amount illegally collected from him. (13 J. R., 444; id., 152; 11 J. R., 444; 7 Wend., 89; 11 Pick., 396; 5 Pick., 498; 13 Mass., 272; 15 Pick., 44; 7 Conn., 550; 21 Pick., 64; 3 Greenleaf, 131; 15 Wend., 321; 4 Cowen, 454.)
   Johnson, J.

Before the statute 22 H. VIII, ch. 5, the duty of repairing bridges rested upon the county, where no private person or other body was specially charged with that duty. The charge was upon the whole county, because bridges were regarded as for the common good and ease of the whole county. (2 Inst., 700, 1.) The statute cited affirmed the common law rule in this point, adding certain provisions for its better enforcement. But neither this statute nor the rule of the common law was ever adopted in this state. As early as 1784 (1 Greenleaf, 105), the care and reparation of highways, including bridges, was committed to town officers. Ch. 186 of the Laws of 1801 (1 W. and S., 588) amends and improves the same system, and section 26 of that act (p. 599) contains in substance the provisions which, again reenacted in the revision of 1813 (2 R. S., 281, § 33), were finally embodied in the Revised Statutes (1 R. S., 524, § 119), and which authorize the board of supervisors of any county, when it shall appear that any of the towns are unreasonably burthened by the duty of erecting or repairing bridges therein, to raise money from the county at large to defray,' wholly or in part, the expense of such erection or repair.

The same view of the law of this state was taken by the chancellor in the court for the correction of errors, in Bartlett v. Crozier (17 J. R., 439). It must, I think, be considered as settled, at least from the time when that case was decided, that the common law responsibility of counties for the repair of bridges never prevailed in this state. Our statutory system introduced the primary responsibility of the towns in respect to the maintenance of highways and bridges; and in many cases, where the burthen was greater than could conveniently be borne by the towns, particular acts of the legislature have provided for the means and method of erecting and keeping in repair the public bridges.

At the time of the. passage of the act of 1838 (Sess. Laws, ch. 314, p. 314), the provisions of the Revised and other statutes in force, upon this subject, were in substance these; The commissioners of highways in the several towns had the care and superintendence of the bridges therein, 'and it was their duty to give directions for the repair of roads and bridges, and to cause highways and bridges over streams intersecting highways to be kept in repair. , (1 R. S., 501, § 1.) The board of supervisors were bound to cause to be levied in any town a sum not exceeding $250 in any year, upon an estimate made for that purpose by the commissioners of highways, for the improvement of roads and bridges. (1 R. S., 502, § 4.) A further sum of $250 or less in any one year might be raised, upon the vote of the town in town meeting for that purpose, by the board of supervisors. (Laws of 1832, ch. 274.) These were all the general provisions in force authorizing a money tax upon the towns for roads and bridges; and these, with the provision before referred to,, authorizing boards of supervisors to relieve overburthened towns by a county tax not exceeding $1000 in any year, for-erecting or repairing bridges, constituted the whole of the-regular system of raising money by tax applicable to the repair of bridges. All these moneys were to pass into the hands of and be expended by the town officers.

The act of 1838, before cited, gave to the boards of supervisors, in addition to the powers which they then possessed, authority (1) “to cause to be levied, collected and paid, to the treasurer of the county, such sum of money as might be necessary to construct and repair bridges therein, and to prescribe upon what plan and in what manner the moneys so to be raised should be expended; and (2) to apportion the tax so to be raised among the several towns and wards of their county, as shall seem to them to be equitable and just.” (§ 1, subds. 1, 2.) They are further authorized, by subd. 5 of the same section, to levy such sum, not exceeding $500 in any year above that theretofore allowed by law to be raised, as a majority in town meeting have voted to be raised upon their town for constructing or repairing roads and bridges in such town.

The first question to be considered in respect to this act is, whether the two first subdivisions relate exclusively to bridges which are a charge upon the whole county. Nothing in the language of the act favors such a construction. By its terms, the only limitation of the subject in respect to which the power is to be exercised is, that the bridges are to be in the county. The number of bridges in the state, which the counties as such are bound to maintain, cannot be large. Such cases are entirely exceptional in their characters, and where they exist have arisen from special statutory provisions ; the general rule being clear, that bridges like highways are to be maintained by the towns.

A very large number of special acts of the legislature had been passed between 1830 and 1838, providing for particular expenditures in the erection and repair of bridges. The greater part of these imposed the burthen upon a single town, and were only necessary on account of the smallness of the sum which, under the general law, could be raised in any town for roads and bridges. Many of these acts, however, imposed the burthen upon two or more towns, sometimes in equal and sometimes in unequal proportions. Some of the acts imposed the whole burthen of the particular erection or repair provided for upon the whole county, while others, again, imposed a part of the expense upon the county at large, and the residue, sometimes in equal and sometimes in unequal proportions, upon two or more of the towns and sometimes upon a single town. About two hundred acts in relation to bridges and bridge companies are to be found in the Session Laws during the period above referred to. Two of these acts, relating to the county of Livingston, will serve to illustrate the preceding observations. Ch. 240, Laws of 1835, authorizes the board of supervisors to levy $3000 for building one bridge and $1000 for another, in such proportions among the several towns in said county as the supervisors may deem equitable and just. One of these bridges was between two towns, the other hi a single town. Ch. 73, Laws of 1833, authorized the board to levy $1500 to build a bridge over the Genesee river, $300 on -the town of York, $200 on the town of Avon, and the residue upon the whole county, including those towns.

These statutes did not change the general law in respect to the liability of the towns for the repair of bridges, but were exceptional in their character. Their whole operation ended with the expenditure of the money authorized to be raised, leaving the bridges, however built, to be afterwards maintained according to the general law of the state.

The general purpose of the provisions, on this subject, of the act of 1838 was to obviate the evil which had rendered necessary so frequent applications to the legislature, by conferring upon the boards of supervisors a further and new discretionary power from time to time, to aid in the construction and reparation of bridges within their respective counties. This general purpose has been effected by removing the limit of expenditure in any one year, and by enabling the board to apportion the tax among the several towns and wards as to them shall seem equitable, as well as by intrusting the board with the power of determining what bridges they will construct or repair.

I do not think it necessary in this case to consider whether the board might entirely exonerate some of the towns in the county from bearing any part of such a tax; viewing the whole action of the board upon this subject at once, we find $900 raised from the county at large and the residue charged upon the towns of Avon and Caledonia. This in any view of the statute is a good exercise of the power of apportionment conferred by the 2d subdivision of §1. I am therefore of opinion that the tax in question was rightfully imposed by the board of supervisors, and that upon the merits, without examining the other objections, the plaintiff must fail

The judgment of the supreme court should be reversed and judgment rendered on the special verdict for the defendant, with costs.

Gardiner, Ch. J., Parker, Selden and Edwards, Js., concurred.

W. F. Allen, J. (Dissenting.)

The equitable action of assumpsit for money had and received lies tó recover money which has come to the hands of the defendant, which he ought not to retain, but which ex cequo et bono belongs to the plaintiff; and whether the recipient of the money be a natural or artificial person, an individual or body corporate, is not material. It is enough that the party sought to be charged is capable of suing and being sued. Corporations may be made liable in this action for moneys which, by the instrumentality of their officers and agents, have come to their use and possession; or been mingled with and become a part of their funds. Actions of tort for the redress of injuries, and especially all such actions as sound in damages and are not brought to recover specific real or personal property, or the avails of such property, appropriated by the corporation, should ordinarily be brought against the individual tort feasor. But actions for specific property or for money had and received should rightfully be brought against the person who has possession of the property, or who has received and detains the money, irrespective of the means or of the agency by which the claimant has been deprived of the possession of his property. The county treasurer was and is the fiscal agent of the county, as a body corporate, and receives and disburses, under the direction of the board of supervisors, all moneys belonging to it; and a receipt of money' by him, to the use of the county, is a receipt by the county in its corporate capacity. The county can only act in such matters by its treasurer, and the money paid into the coimty treasury becomes at once the money of the county, as money paid to a clerk or servant of a natural person, to the use of the master and mingled with his funds, becomes the property of the master, as between him and the clerk or servant. Money realized from taxes, levied and assessed by the board of supervisors without authority of law, and paid into the county treasury to the use of the county, and as a part of the county funds, to be employed for county purposes, is money had and received by the county to and for the use of the person whose money has been thus illegally taken from him. It equitably and honestly belongs to him, and unless a county is, by some law, exempt from the ordinary principles by which the liabilities of natural persons and other corporations are determined, an action will lie against it, as a corporation, for the recovery of such money. Municipal corporations are not exempt from the common law liability to refund moneys illegally levied or inequitably received, which attaches to other civil corporations and to individuals, by- any statute, or for any reason connected with or growing out of their necessities or functions ; and their liability, in such cases, is sustained by authority. (Torrey v. Inhabitants of Millbury, 21 Pick., 64; Joy v. Oxford, 3 Greenl. Rep., 131.) See also Inglee v. Bosworth (5 Pick., 498), as recognizing the general principle that an action will lie for money had and received to recover money illegally assessed or levied against the person or association for whose benefit it was collected.

A county is a body corporate and has capacity to sue and be sued in the manner prescribed by law; and all acts and proceedings by a county, in its corporate capacity, must be in the name of the' board of supervisors. (1 R. S., 364, §§ 1, 3.) The board of supervisors represents and acts for the county, and is distinct from the several supervisors of the county composing it, as the House of Rcoresentatives, acting by a legal quorum and under its proper organization as A recognized body, is distinct from the several representatives who compose the entire body and are individually merged in it. (1 R. S., 366, §§ 1, 4, 5.) The board acts for the county by resolution, as an organized body, and the action of the individual supervisors, although unanimous, would not bind the county. (1 R. S., 364, § 4.)

Provision is made, by law,'for legal proceedings in favor of and against counties, and it is enacted that in all such suits and proceedings the county shall sue in the name of the board of supervisors thereof, except when county officers shall be authorized, by law, to sue in their name of office, for the benefit of the county. (1 R. S., 384, §§ 1, 2.) The action is for or against the board of supervisors as an organized and recognized body having a chairman and clerk, and not for or against the individual supervisors whose individuality is merged in the body; and the exception in the act relates to actions authorized by law in favor of officers for the benefit of the county, but no exception is made affecting actions against or to enforce a liability of a county. The process is to be by summons, as against other corporations, and to be served, not upon the individual members, but upon the officers, the chairman or clerk. (1 R. S., 384, § 3; 2 R. S., 473, § 95.) The statute relied upon by the counsel for the appellants to sustain the position that the individual supervisors should have been named as defendants in the action (2 R. S., 473, § 92, et seq.), does not apply to the case. Sections 92 and 93 relate in terms to actions by public bodies and public officers, and not to actions against them, and section 96 to actions against public officers, as such, and not to actions against the bodies represented by them and the cases cited were all under these provisions and in favor of officers suing for the benefit of their towns. (Supervisor of Galway v. Stimson, 4 Hill, 136; Commissioners of Highways of Cortlandville v. Peck, 5 id., 215.) The suit was properly brought therefore against the county in the name of the board of supervisors, without naming the individuals who, for the time being, were supervisors of the several towns of the comity.

The only remaining question is as to the legality of the tax' which was levied and assessed upon the towns of Avon and Caledonia for the repair of the bridge in question. It is not necessary to determine whether the bridge, when it became public, became a charge upon the town or upon the county, although it would seem that it became a charge upon the towns of Caledonia and Avon, to be maintained at the joint and equal expense of each, there being no statute making this an exception, and taking it out of the general statutory regulations which devolve the care and maintenance of all roads and bridges upon the towns within which they are situated, and imposing the burthen upon the county. (Ch. 225 of Laws of 1841; People v. Board of Supervisors of Dutchess County, 1 Hill, 50; 1 R. S., 501, et seq.) If the care of this bridge would be unreasonably onerous upon the towns, or required the raising of larger sums of money than by law can be raised annually for that purpose, relief must be sought from the legislature. But whether the bridge was a town or county charge, the tax was unauthorized and illegal. No county can levy a tax except in the cases and in the manner prescribed by law. The authority conferred for that purpose must be strictly pursued.

The commissioners of highways of the several towns are charged with the care and superintendence of the highways and bridges of their respective towns, and they are required to deliver to the supervisor of the town, to be by him laid before the board of supervisors, a statement of the improvements necessary to be made on the roads and bridges, together with the probable expense thereof,- and the board of supervisors are required to cause the amount so estimated to be assessed, levied arid collected on such towns in the same manner as other town charges, but the amount so to be raised is limited to two hundred and fifty dollars in any one year. (1 R. S., 502, § 4.) Town charges are limited to sums directed by law to be raised for town purposes, by 1 R. S., 358, § 2. By ch. 314 of the the Laws of 1838, $ 1, subd. 5, the board of supervisors of each county is authorized to cause to be levied, &c., such sum of money, in addition to the $250 before then allowed by law, not exceeding five hundred dollars in anyone year, as a majority of the qualified voters of any town may, at any legal town meeting, have- voted to be raised upon their town for constructing or repairing roads and bridges in such town. The board of supervisors can only assess and levy a tax upon a town, for the repair of roads and bridges within the town, to the amount of $250, upon the estimate and recommendation of the commissioners of highways, and to the amount of $500 in addition, upon the vote of a majority of the qualified voters of the .town, and there is no claim that jurisdiction was given them in this case, either by the action of the commissioners of highways or of the voters of the town, and they had no right to act upon their own motion. If the town or its officers neglected a duty and omitted to construct .or repair the necessary roads and bridges, the board of supervisors could not take their place and perform their duties, or by any act of theirs compel or expedite action on the part of the town officers. The remedy for the mischief was of an entirely different character. Viewing it as a town bridge, as distinguished from a county bridge, the board of supervisors had no authority to act, except in cooperation with the town and the proper town officers, and to decide what amount should be expended or in what manner the bridge should be rebuilt or repaired, and certainly not to proceed and make the repairs by their own agent, and impose a tax for the payment of the expense upon the towns. As well might they assume the entire care of all the roads and bridges in the county, dispensing with the services of the proper town officers, except in the collection of the taxes which they might see fit to impose. (People v. Supervisors of Dutchess Co., supra.

If the bridge is considered as a county bridge and properly chargeable to it, the tax was equally unauthorized, as, being a tax upon only two towns; it was in effect .charging them with its entire support and maintenance, thus shifting the burthen from the county to these two towns without authority of law.

. The act of 1838, before cited, confers upon the board of supervisors power to cause to be levied, &c., and paid to the treasurer of the county such sums of money as may be necessary to construct and repair bridges therein, and to prescribe upon what plan and in what manner the moneys so to be raised shall be expended, and to apportion the tax so to be raised among the several towns and wards of their county as shall seem to be equitable and- just. An assessment of the entire tax upon one or two towns, thus making a bridge in fact a charge upon these towns instead of the county, cannot, in any just sense, be said to be an apportionment of the tax among the several towns of 'the county. A bare statement of the proposition, in my view, shows its absurdity so clearly as to render argument unnecessary. It can only be looked upon as an attempt to evade the statute for the benefit of the many at the expense of a few. The several towns, mean all the towns in the county; and to apportion among them, is to divide among the towns and allot or assign to each and every of them a just proportion. The levy of the tax was in any yiew entirely unauthorized and void, and as the amount paid by the plaintiff is found by the special verdict, he was entitled to recover it in this action. No question was. made upon the trial, so far as appears, nor was any made upon the argument of this appeal, whether the payment, by the plaintiff, was voluntary in that sense, which would deprive him of a remedy by action, and therefore, alt hough considered by Judge Sill in his opinion in the supreme court, it is not considered here.

The judgment of the supreme court should be affirmed, with costs.

Denio, J., was in favor of affirming the judgment.

Ruggles, J., took no part in the decision.

Judgment reversed, and judgment rendered in favor of the defendants on the special verdict.  