
    Charles F. Ackerson, Supervisor, Pl’ff, v. The Board of Supervisors of Niagara County and John J. Arnold, County Treasurer, Def'ts.
    
      (Supreme Court, Special Term, Niagara County,
    
    
      Filed January, 1892.)
    
    1. Town bonds—Railroad taxes—Limitation.
    An action cannot be maintained by a town under the act of 1869 for railroad taxes paid over to the county treasurer more than six years prior' to the commencement of the action.
    2. Same—Defense.
    It is no defense to an action brought under the act of 1869 that the portion of the railroad tax raised for town purposes was paid by the collector directly to the town officers, and a receipt therefor only delivered to the county treasurer, and that the county, in fact, never received the money.
    S. Same—Laws 1880, chap. 286.
    Chapter 286, Laws 1880, providing for the issuing of bonds to take up-bonds whose validity was disputed, and that the supervisor of the town should report to the board the amount thereof falling due, and pay the same from the tax levied and collected for that purpose, is consistent with, the act of 1869, and both may stand together, providing independent means of payment of the bonds.
    Action to recover taxes collected from a railroad for which* plaintiff’s town was bonded and paid to the treasurer.
    
      Cassius C. Davy, for pl’ff; John É. Pound, for def’ts.
   Lambert, J.

The right of a township to have all taxes, except school and road, collected of any railroad for the construction of. which bonds have been issued applied to the payment of the bonded indebtedness, and for a failure upon the part of any county treasurer to so apply or provide for the application of such taxes, a right of action is given by the act of 1869, as amended in 1870 and 1871,. has been settled by numerous authorities in this state. The statute of limitations applicable to a misappropriation of funds has been made applicable to an action under the provisions of the-laws referred to. Strough v. Board of Supervisors, 119 N. Y., 212; 28 St. Rep., 967.

Relying upon the application of the doctrine of this case, the defendants claim in any event the plaintiff ought not to recover for the taxes assessed in the year 1881, as that it was barred at the time of the commencement of the action, March 12, 1888.

• The proof given upon the trial indicated that this item of taxes, $1,515.36, assessed in 1881, was not passed over to the county treasurer until about the 9th of February, 1882. It follows that the statute would not commence to run until after payment to the county treasurer, and the failure on his part to observe the requirements of the statute. The complaint charges-in general terms the collection and payment to the county treasurer of a given sum in each of a given series of years, which includes the year 1881, the sum of $1,515.36, and then alleges that the treasurer of said county wrongfully and unlawfully paid out said moneys for the benefit of the county of Niagara. The defendants in pleading the statute of limitations use- the following terms : “ That the alleged cause of action * * * which accrued prior to and including the year 1881, accrued more than, six years previous to the time of the commencement of this action, and is barred by the statute of limitations.”

' The evidence permits the inference that prior to the 12th day of March, 1882, the item of tax paid by the railroad company to the treasurer was by him mingled with the other taxes-of the county and credited to one or more of the tax funds, and in whole or in part disbursed, so that as matter of fact a right of action for the misappropriation of the item levied in 1881 was barred by the statute of limitations at the time of the commencement of this action. The complaint, as has been mentioned, charged this amount to have been misappropriated in the year 1881, and hot only as charged, but as disclosed by the proof, the same was barred, and the defendants could do no more as matter of pleading than to allege that the cause of action relied on by the plaintiff was barred, and a right of recovery thereon defeated by lapse of time; an amendment of the complaint to conform to the proof was not asked, and had it been secured the defendant could have defeated a recovery by interposing the statute of limitations. This leads to the conclusion that the plaintiff in any event should not recover the item of $1,515.36 alleged to have been misappropriated in the year 1881.

The defendants also contend that of the aggregate sum paid in the years excluded from the operation of the statute of limitations, the sum of $5,729.26 should be deducted for the reason that such sum was raised to defray town expenses, and was by the collector paid directly to the town officers for such use, and delivered a receipt for the same to the treasurer of Niagara county in lieu of the moneys as directed by his warrant The statute provides that all taxes (except school and road) collected, shall be paid over to the treasurer of the county and to be by him applied as therein directed. Because the treasurer accepted vouchers instead of cash for the payment of taxes going to the town officers of the town of Somerset, the county of Niagara asks to be exonerated from liability on the ground that it had never received the taxes in question, and therefore owed no duty under the statutes for which liability would result.

This we believe to be untenable, as its adoption would permit, by indirection, the defeat of the plain provisions of the statute. The defendants insist that, so far as the town of Somerset is concerned, by the acceptance of the provisions of chapter 286 of the Laws of 1880, as amended by chapters 18 and 197 of the Laws •of 1881, it is not entitled to the benefits provided by the act of 1869 as amended. In other words, these enactments, by implication, worked a repeal of the act in 1869, and thereby deprive the town of the benefit of the taxes collected upon the property which it created. The act of 1880 contains no repealing clause, and therefore the act of 1869, as amended, must be treated as in force, unless it is so repugnant to and inconsistent with the statutes under which the bonds were issued that both cannot be treated as applicable to their payment. People v. Jaehne, 103 N. Y., 195; 3 St. Rep., 11; Heckmann v. Pinkney, 81 N. Y., 211; People ex rel. Mason v. McClave, 99 id., 83; In re Kiernan, 62 id., 457; People v. Supervisors, 73 id., 173.

The objects to be attained by the law are proper considerations in determining the hostility of statutes. In brief, the statute of 1869, as amended, provided for the payment to the county treasurer of all taxes, except school and road, collected in any town upon railroads, to aid in construction of which bonds were issued; that such county treasurer, with such moneys, should purchase, when he can do so at or below par, cancel and deposit the same ' with the board of supervisors. In case such bonds could not be purchased at, or below par, he is directed to invest the moneys for the redemption and payment of such bonds when they could be so purchased. By this statute it was intended to provide a system for the. payment of bonds issued in aid of the construction of railroads, so as to give to the towns for a given period of time the benefit of the taxes collected upon the property created by their aid, and, as has been said by the courts of this state, this was to the towns creating a bonded indebtedness for such a purpose a wise and beneficial provision. But it will be observed that such provision did not have the effect to grant complete absolution from the payment of such indebtedness, and only to such extent as the moneys realized in such manner would accomplish; the balance is raised by a tax upon the taxable property of the town, by and under the direction of the board of supervisors.

By the act of 1880, the town of Somerset was permitted to issue bonds to take up and discharge obligations the validity of which were in dispute, and as a part of the scheme it was provided that the supervisor of the town should report to the board of supervisors in each year the number and amount of bonds and coupons falling due within the next year, and then the board of supervisors should cause to be levied and collected of the property of the town, at the same time and manner as other taxes are-levied and collected, such sum or sums of money as shall' be necessary for the payment of principal and interest, and then provides that when the money is thus collected it shall be applied by the collector to the payment of the bonds, principal and interest. The claim is that by the provisions of the act of 1869, as-amended, the county treasurer was required to apply the taxes to the retirement of the bonds; that therefore, the provision of the-•act of 1880, requiring the collector to pay off and cancel the bonds, is inconsistent therewith, and that it is apparent it was the-intention to provide by the act of 1880 the exclusive means and manner of meeting these obligations as they became due, and thereby exclude the town from the benefits provided by the act óf 1869, as amended. To this proposition we do not lend our assent Except the moneys received by the county treasurer from the-railroads from which the town was bonded, the moneys raised to pay the bonded indebtedness, under the provisions of the act of 1869 as amended, and the law applicable to that subject, was levied and collected by and under the direction of the board of supervisors, in the same manner as provided by the act of 1880. Under either provision, it is the duty of the board to levy and authorize to be collected a sum sufficient to ,pay the maturing bonds and accumulated interest annually. And while the language of the act of 1880 requires the supervisor of the town to-report the entire amount falling due for principal and interest, the board is only required to levy and cause to be collected such sum as shall be necessary for the payment of principal and interest The language of the act is particularly significant in that respect^ especially when read in the light of the assumption that the treasurer, by his annual report, gave the board full information of the-bonds retired by him through the medium of taxes paid by theraílroad company.

It will be seen by the report of the supervisor of the town, and the report of the -treasurer of the county, the board of supervisors have full information of the amount of moneys that will be required to meet the maturing bonded obligations of the town, and therefore it may be said, notwithstanding the supervisor is required to report the entire amount falling due for principal and interest, the board is required to raise, and cause to be collected, only .a sum that may be necessary to pay the bonds due or to become-due during the ensuing year. If the bonds due at the time of any annual meeting of the board, or those to become due during the year ensuing, have been paid or cancelled by the treasurer of the county, then the board is not required by the provisions of the act of 1880 to levy and cause to be collected moneys to pay and discharge them, as its duty is limited to providing means for the payment of bonds due or to become due;; and if due and paid, or anticipated by payment, then, within the contemplation of the act, they would not be due at the time of holding the annual meeting of the board, or become due during the ensuing year. The suggestion that the provision of the act of 1880, as amended in 1881, by which the supervisor is required to pay and cancel the bonds falling due, is inconsistent with the performance of that duty by the treasurer under the act of 1869, as ■ amended, is unavailing, as the act only requires that he cancel the bonds paid from the moneys delivered to him by the collector for that purpose.

The effect of § 9 of chapter 13 of the Laws of 1881 is relied on as indicative of the intent of the legislature to repeal the act of 1869 as amended by the act of 1880. If the conclusion. reached that these acts are consistent, and provide independent means of payment of the bonds, is correct, then this position is-without merit.

Judgment is given for the plaintiff for the taxes levied and collected, as stated in the complaint, after the year 1881, with costs of the action.  