
    Van Antwerp et al. v. Devol et al.
    
    
      (Supreme Court, General Term, Third Department.
    
    December 31,1888.)
    "Taxation—Wrongful Levy—Authority of Supervisors.
    Under Laws N. Y. 1884, c. 141, § 1, authorizing the board of supervisors of a county to legalize, by a two-thirds vote of all the members elected, the informal acts of a town meeting in raising money for a legal purpose, to correct an erroneous assessment, and to refund to any person taxes illegally assessed against and collected from him, an allowance of a claim for taxes wrongfully collected, unless voted for by two-thirds of the members elected, is void.
    Appeal from special term, Albany county.
    Action by William Van Antwerp and Marcus T. Hun, who sue as well for themselves as other tax-payers of Albany county, against Henry Kelly, treasurer of said county, and Charles Devol, to restrain the payment of an order issued to said Devol by direction of the board of supervisors of said county. Complaint dismissed, and plaintiffs appeal.
    Argued before LearnBd, P. J., and Landon and Ingalls, JJ.
    
      Tracey & Cooper, (Marcus T. Him, of counsel,) for appellants. Edward .Newcomb, for respondents.
   Landon, J.

The appellants urge, and as we think properly, that, assuming the board of supervisors had the power to allow the claim of the defend.ant Devol, they did not do it, for the reason that the resolution for its allowance needed for its passage a two-thirds vote of all the members of the board, being 20 out of 30, whereas it only received 12 out of the 22 present and voting. It was stipulated by the parties that the case should be decided un■der chapter 141 of the Laws of 1884. This is as follows: “Section JL. Section five of chapter eight hundred and fifty-five of the Laws of 1869, entitled ‘An act to extend the powers of boards of supervisors, except in the counties of Hew York and Kings,’ as amended by chapter six hundred and ninety-five •of the Laws of 1871, is hereby amended to read as follows: ‘ Sec. 5. The board •of supervisors of any county, except Hew York and Kings, may, by a vote of ■two-thirds of all the members elected thereto, legalize the informal acts of ■any town meeting in raising money for any purpose for which such money is authorized to be raised by law, and by a like vote to legalize the irregular acts of any town officer performed in good faith, and within the scope of his authority; and also to correct any manifest clerical or other error in any assessments or returns made by any town officer to such board of supervisors, or which shall properly come before such board for their action, confirmation, or review; and it may refund to any person the amount collected from him of any tax illegally or improperly assessed or levied. In raising the amount so refunded, such board shall adjust and apportion the same upon the property of the several towns and wards of the county as shall be just, taking into consideration the portion of state, county, town, and ward tax included therein, and the extent to which each town or ward has been benefited thereby.’ ”

A careful reading of section 5 shows that its first sentence, ending with the first period, was intended to be a recital of the several things which the board of supervisors may do by a two-thirds vote of all the members elected thereto; that is to say: “ The board of supervisors * * * may, by a two-thirds vote of all the members elected thereto,” (1) “legalize the informal acts,” etc.; (2) “ legalize the irregular acts, ” etc.; (3) “ correct any manifest clerical error,” etc.; (4) “refund to any person the amount collected from him of any tax illegally or improperly assessed or levied.” The fourth clause is just as dependent upon the first as is the second. The clearness of the whole sentence, and the dependence of the parts which we have numbered first, second, third, and fourth, upon the commencing clause, are obscured by the improper insertion of the word “to,” which we have distinguished by italics in the unabbreviated section; thus making the sentence, in effect, improperly read: “The board of supervisors * * * may, to legalize, * * * may, to correct, ” etc. We cannot construe such a jargon of words except by striking out those which are meaningless as they stand, and were obviously carelessly inserted. Stricken out, the language is plain, and its meaning as above indicated. When the board of supervisors refund any tax illegally assessed upon and collected from a person, they in effect correct the illegal assessment. They award to the claimant the money wrongfully exacted from him, and the-act quoted requires them properly to apportion the amount upon the other-property in the several wards and towns. In this case the only way in which the error in assessment was corrected was by the award to the claimant. It is difficult to see why the act requiring a two-thirds vote to correct an illegal assessment should not be observed, whether the correction is made indirectly, by refunding the tax, or directly, by correcting the rolls. It follows that the-judgment should be reversed, and the injunction awarded. All concur.  