
    The Village of Oneida, Resp’t, v. The Board of Supervisors of Madison Co., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed December 20, 1892.)
    
    Town bonds—Sinking fund—Villages.
    A village is a municipality and comes directly within both the language and purpose of chap. 398 of Laws of 1868, as amended by chap. 396 of the Laws of 1874, and where it has issued bonds ‘for a railroad, the fact that it also forms a portion of a town does not affect the question of its right to benefit by said act.
    Appeal from judgment of the supreme court, general term, fourth department, in favor of plaintiff upon submission of controversy.
    . John Jü. Smith and Charles A. Hitchcoclc, for app’lt; B. A. Hansom, for resp’t.
    
      
       Affirming 40 St. Rep., 985.
    
   Peckham, J.

The village of Oneida is a municipal corporation created under the laws of this state and forms a part of the town of Lenox in Madison county. It is averred in the statement of facts agreed upon that commissioners were duly appointed for the village by the county judge in 1868, pursuant to the provisions of chap. 398 of the Laws of 1866, and they or their successors in office, duly appointed, have continued in office from that time. On or about July 1, 1868, the commissioners borrowed upon the faith and credit of the village $31,000, and duly executed bonds therefor as provided by § 2 of the above cited act, and the money thus borrowed was paid by the commissioners to the officers of the Few York & Oswego Midland Railroad Cómpany and was by them used in the construction of the railroad.

These bonds are still outstanding. Prior to the passage of the act, chap. 296 of the Laws of 1874, the property of the railroad company was exempt from taxation. The first section of that act repealed all laws exempting such property from taxation and enacted that all the real and personal property of the corporation should thereafter be subject to taxation.

The second and third sections of the act of 1874, read as follows:

Sec. 2. “All moneys to be collected upon the real and personal property of- the said corporation, and upon said real property now or hereafter used or held, or which may hereafter be used or held by any receiver, or successor of said corporation, for county taxes in any of the towns or municipalities by which bonds have been issued in aid of the construction of the Few York & Oswego Midland railroad, are hereby appropriated to said towns or municipalities, respectively, and shall be paid over to the commissioners of such towns or municipalities, appointed pursuant to an act entitled ‘An act to facilitate the construction of the Few York & Oswego Midland railroad, and to authorize towns to subscribe to the capital stock thereof, passed April fifth, one thousand eight hundred and sixty-six,’ or any act supplemental thereto or amendatory thereof, and the said moneys shall be by said commissioners expended for and applied to the payment of the interest on said bonds, or to the principal thereof.”

Sec. 3. “ It shall be the duty of the collector of taxes of each such town or municipality to pay over to the said commissioners of his town or municipality the amounts of the county taxes collected by him from the said corporation, or the real and personal property thereof, within five days from the time the same is collected ; and the said commissioners shall give to the said collectors a receipt for the amount of county taxes so received, which said receipt shall be returned to the treasurer of the county in which the said collector shall reside.”

The case also contains the statement, in substance, that from the year 1882 to the year 1889, both inclusive, the board of supervisors of Madison county levied upon the town of Lenox for county purposes a certain named sum in each year as a tax, which was duly collected by the town collector from the taxable inhabitants and property of the town and by him paid over to the county treasurer, and that of the said tax, and being a part thereof, there was in each year levied and collected from that part of the railroad running through the village of Oneida a certain named sum which was paid by the collector of said town to the county treasurer, and no part thereof was ever paid to the commissioners of the village, but it was paid out by the treasurer for general county purposes on the first day of June in each year, respectively, commencing with the first of June, 1883, for the tax of 1882, and ending with the first of June, 1890, for the tax of 1889.

The question is whether the village of Oneida is entitled to these moneys under the provisions of §§ 2 and 3 of the act of 1871. The supreme court has held that the village is entitled to such'moneys excepting that portion which was paid out by the county treasurer in 1883 and 1881, more than six years prior to submitting this case for decision, and as to that portion the court held the village was barred from a recovery by the statute of limitations. The .plaintiff has not appealed from the judgment and the question of the bar of the statute does not enter into the controversy.

The defendant objects to the recovery on the ground that no tax for county purposes was ever levied upon the village of Oneida as a distinct municipality, for the reason that the village is a part of the town of Lenox, and has no separate relation to the county treasurer in the payment of county taxes. It is urged that it is the town that pays such taxes, and no municipality as such which is within the town and forms a part thereof pays any county tax other than as a part of such town.

We think the purpose of the act is entirely clear. It was enacted in order that any municipality that had issued bonds in aid of the railroad therein mentioned should have the benefit of the taxes arising upon the property of the company situated within such municipality for the payment to the extent of such taxes of the interest and principal of such bonds. No reason can be imagined why a village which had issued such bonds should not have the benefit of these taxes. It is a municipality, and it, therefore, comes directly within both the language and purpose of the act, and the fact that it also forms a portion of a town does not in this instance in the least affect the question. It is true that the village does not as a village pay a county tax, but a proportionate amount of money for such tax is raised upon the property of the railroad company therein and forms part of the amount paid in the town for county taxes.

The objection of the defendant goes more to the method or means of carrying out the plain intention and purpose of the act than it does to its construction.

In this particular case it is, as we think, fully obviated by the facts agreed upon, which show the specific sums actually paid in each year by the railroad company upon its property within the village, and hence the exact sum thus paid may be directed to be repaid.

In any event, however, we think the objection does not form an insuperable obstacle to the enforcement of the act even in a case where the municipality, as such, makes no separate payment of county taxes apart from the town of which it forms a portion. 1

In this case the parties have arrived by, some method at the exact sum which the railroad company has paid for county taxes upon its property within the village, and we have no doubt such fact can always be arrived at with reasonable certainty. There are the assessors’ books of the town, and from them it is probably not at all difficult to ascertain what property of the company was situated in the village, and how much it was assessed for, and what proportion such assessment bore to the total assessment upon the property of the company within the town which included the village, and from these and other data readily obtainable the exact amount could be easily ascertained. This amount being once determined, the other provisions of the act may be readily carried out in the case of this village as well as if it were the case of a town alone.

We are disposed to construe the act liberally with a view to carry out its object, which is plainly manifest by the language actually used, and we ought not to permit such object to fail in the case of any municipality because the act does not specifically point out the method of procedure, so long as the facts to be ascertained are capable of ascertainment without any violation of the letter or spirit of the enactment.

It is asked which municipality should obtain the benefit of the act in case the town of Lenox and the village had each issued bonds. The question does not arise here, and that fact is enough upon which to base a refusal to decide it.

Even if a case might be imagined where it would be difficult, if not impossible, to carry out the provisions of the act, such case forms no reason for our refusal to enforce the act in those cases where no such trouble exists and where its provisions are sufficiently plain and explicit to admit of its being fully executed.

The defendant raises the question that the bonds of the village were not authorized to be issued.

The case admits that they were duly issued by commissioners duly appointed. It is no business of the county to raise any such' objection. The village keeps its faith and makes no intimation of the invalidity of its bonds and pays its interest thereon. We see no reason for holding them invalid. The legislature would seem to have recognized the validity thereof and provided a means for forming a fund for their payment.

The only other question made is one in regard to parties.

We think the village had the right to maintain the action against the defendant and the judgment must, therefore, be affirmed, with costs.

All concur.  