
    William M. Van Antwerp and M. T. Hun, App’lts, v. Charles Devol, Impleaded With Henry Kelly, County Treasurer, Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 31, 1888.)
    
    1. Taxes and Assessments—Statute—Construction oe—Laws oe 1884, chap. 141, § 1.
    Laws of 1884, chapter 141, section 1, should be read, “the board of supervisors” * * * “ may, by a two-thirds vote of all the members elected thereto,” (1) “ legalize the informal acts,” etc., (3) “legalize irregular acts,” etc., (3) “correct any manifest clerical errors,” etc., (4) “refund to any person the amount collected from him of any tax illegally or improperly assessed or levied,” etc. The fourth clause is just as dependent upon the first as is the second.
    2. Same—Refunding ah illegal tax is a correction of ah illegal ASSESSMENT.
    When a board of supervisors refund any tax illegally assessed upon and collected from a person, they in fact correct the illegal assessment, and the act quoted requires them properly to apportion the amount upon the other property in the several wards and. towns.
    5. Same—When the act hot complied with.
    In the case in question, the only way in which the error in the assessment was corrected was by an award to the claimant. Held, that it required a two-thirds vote. That it was in fact a correction of the illegal assessment.
    Appeal from a judgment vacating an injunction restraining the county treasurer of Albany county from paying a. claim of the defendant, Charles Devol, alleged to have been audited and allowed by the board of supervisors of Albany county in his favor for erroneous taxation, and dismissing the complaint herein.
    The plaintiffs claim that the board did not audit, and had not jurisdiction to audit or allow the claim, while the defendant Devol claims'that the board duly allowed it and had jurisdiction so to do.
    The claim was made by Devol for the repayment to him of taxes paid on an assessment made of property in the city of Albany, for each year between the years 1857 and 1879, both inclusive, during which time the defendant Devol claims to have been a clergyman, and to have been, as such, entitled to an exemption from taxation to the amount of $1,500, under subdivision 8 of section 4 of title 1 of chapter 13 of part 1 of the Bevised Statutes. This exemption he claims not to have received the benefit of in the assessment of the property. It is for the repayment of the tax, paid on this $1,500 of alleged over-valuation during these years, that this claim was presented to the board of supervisors.
    The plaintiffs maintain that the claimant was not entitled to an/ exemption"; that if he was, he has received it.
    This action was brought under chapter 435 of the Laws "of 1880. . ,
    
      Edward Newcomb, for app’lts; Tracey & Cooper, for resp’ts.
   Landon, J.—The

appellants urge, and we think properly, that assuming the board" of supervisors had the power to allow the claim of the defendant 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 twenty out of thirty, whereas it only received twelve out of the twenty-two present and voting.

It was stipulated by the parties that the case should be decided under chapter 141 of the Laws of 1884. This is as follows:

Section 1. Section 5 of chapter 855 of the Laws of 1869, entitled “An act to extend the powers of boards of supervisors, except in the counties of New York and Kings,” as amended by chapter 695 of the Laws of 1871, is hereby amended to read as follows:

Section 5. The board of supervisors in any county, except New 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, (first) legalize the informal acts,” etc. (second), “ legalize the irregular acts,” etc. (third), " correct any manifest clerical error,” etc. (fourth), “ refund to any person the amount collected from him of any tax illegally or improperly assessed or levied.”

The fourth class 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.

Learned, P. J., and Ingalls, J., concur.  