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and 114 New York State Reporter provide that no taxes collected from such property (except those that are levied and collected by the local officers in highway and school districts) shall be applied to the purposes of taxation. Beyond all controversy, such act effectually prohibits the taxing of such newmade property for the purpose of raising any part of the sum which the state may ask from the county. Clearly, the provisions of the act of 1869 cannot be observed, if the value of the railroad property is to be included in the valuation of the property in the county which is to pay taxes therein. Under the tax laws, the sums needed for town expenses and for county expenses are to be raised from all property therein liable to taxation. The collection of all taxes in the county, for whatever purpose needed, must be made up on that basis. Therefore an act which prevents the use of any species of property for that purpose in fact operates to exempt such property from taxation, no matter in what language it is phrased. When a statute provides that none of the taxes raised upon such railroad property shall be applied to the payment of taxes, but shall be paid over to a trustee for the benefit of a specified sinking fund, it very effectually exempts such property from that which is, under the general tax laws, required to be placed upon the assessment rolls as property amenable to taxation. True, the statute describes the sum which is to be paid into the sinking fund, as "taxes"; but it is clear that they are not "taxes," nor is that property to pay "taxes,” within the meaning of the general tax laws. The machinery of such laws is by the act of 1869 utilized for the purpose of collecting from the railroad company an annual sum, from which the town bonds may be finally paid; but, by the same act, it is forbidden to use such machinery for the purpose of collecting from such property "taxes, properly so called. No sum may be collected against such property for the purpose of paying governmental expenses, either of town, county, or state.

The situation, then, is this: By its general tax laws the state provides that each county shall pay its quota of the annual state expenses, estimated upon the aggregate valuation of its property appearing upon its assessment rolls. Under the provisions of such laws, none but property liable to taxation is to be placed upon such rolls, and evidently the scheme of such laws is to enable the county to collect by taxation the sum which is so ascertained and demanded by the state from it. Subsequently the state by another act prohibits the county from collecting by taxation against a specified portion of its property any taxes whatever. By the act of 1869 it clearly said to the county of Ulster: "You may not collect from the new railroad property within your limits any portion of the sum which hereafter will be demanded from you as your share of the state's annual expenses.” That such is the effect of the act of 1869 is beyond controversy.

Now, reading all those laws together, is it to be supposed that the state intended to require the county of Ulster to include within its assessment roll the value of the new railroad property, and to report it as a part of the aggregate valuation, upon which its share of the state expense was to be ascertained? Was it the state s intention to make the county value it as a basis of ascertaining the county's liability, but to prohibit it from collecting therefrom anything to assist in discharging that liability? On the contrary, it is clear to me that the act of 1869 can be given a just and intelligent operation only by considering it as exempting such railroad property from the taxable property of the several towns. This provision of the act should be read into the general tax laws of the state, and in making up the assessment rolls of the several bonded towns the railroad property should never have been placed thereon as property liable to taxation. Indeed, this statute has been substantially so construed in Clark v. Sheldon, 106 N. Y. 104, 12 N. E. 341; and it is difficult to understand how the act of 1869 is explicit enough to remove such railroad property from assessment and taxation for town and county purposes, yet not explicit enough to remove it from taxation for the purpose of raising the county's share of the state tax; and more difficult yet is it to understand how it is specific enough to remove such property from taxation for the purpose of satisfying the state's claim, but not clear enough to prevent it from being included in the estimate by which the state's claim is ascertained.

In my judgment, the various amounts claimed in this action were not regularly assessed and collected by the state against the county. They were estimated upon a wrong basis. The board of supervisors of the county erred in including the valuation of the railroads in the amount that it returned to the state comptroller, and the state's claim against the county was, therefore, in each year, too large. Hence it has in fact received a larger sum in such years than it was lawfully entitled to. Much of this money, so overpaid to the state, the county has refunded to the towns. Some of it, as I understand the case, has never been refunded. The act of 1899, under which this proceeding has been instituted, authorizes a recovery by the county if a cause of action is shown against the state, either in behalf of the county or the town, and provides for a proper division of the recovery between them. The state having received moneys to which it was not entitled, it should, ex æquo et bono, refund it; and under the provisions of the act of 1899 that seems to be sufficient to allow a recovery in this proceeding.

In my opinion, the judgment appealed from should be reversed, and a new trial granted.

SMITH, J. (dissenting). By section 264 of the Code of Civil Procedure it is provided that, where jurisdiction to hear and determine a claim is conferred upon the court by a special law, the liability of the state is not thereby implied, but such a claim is subject to defense and counterclaim by the state in the same manner and to the same extent as if presented under a general law. The act which authorizes the consideration of this claim by the court of claims provides that no judgment shall be rendered against the state unless the facts proven shall make out a case against the state which would create a liability were the same established in evidence in a court of law or equity against an individual or corporation. It is apparent, therefore, that this enabling act has given to the claimant no better cause of action than was had

and 114 New York State Reporter before its passage, and I understand the attorney for the appellant claims nothing therefrom.

This action, then, involves the construction of chapter 907 of the Laws of 1869, as amended by chapter 283 of the Laws of 1871. The act in question is entitled "An act to amend an act entitled 'An act to authorize the formation of railroad corporations and to regulate the same,' passed April 2, 1850, so as to permit municipal corporations to aid in the construction of railroads." The act then provides for a petition to the county judge for the right to issue municipal bonds for railroad stock, for the determination by the county judge whether a majority of the taxpayers and taxable property desire the bonding, for the appointment of railroad commissioners, and for the issue of bonds, and then provides :

"All taxes except school and road taxes collected for the next thirty years, or so much thereof as may be necessary, in any town, village or city, on the assessed valuation of any railroad in said town, village or city, for which said town, village or city has issued, or shall issue, bonds to aid in the construction of said railroad, shall be paid orer to the treasurer of the county in which said town, village or city lies, and said money so paid over, including interest collected on bonds held by said treasurer as a sinking fund, shall be invested by said treasurer in state, city, town, county or village bonds, issued pursuant to law of this state, or United States bonds, within sixty days after receiving the same, and sball be held by said county treasurer as a sinking fund for the redemption and payment of the bonds issued or to be issued by said town, village or city, to aid in the construction of said railroad."

These taxes collected upon this railroad property in some instances were not turned over to the treasurer of the county for the purposes stated, but passed with the other taxes to the benefit of the county. The full amount of state taxes assigned to each county were paid by the county to the state. Thereafter the bonded towns, for whose benefit was inserted this provision in the law, sued the county to recover back the amount of taxes so diverted to general purposes, which should, under the law, have been set apart for a sinking fund. In these actions they succeeded. Thereupon the county of Ulster, having paid to the several towns the amount of taxes so diverted, has made this claim against the state to recover back from the state what is claimed to be the amount of these taxes unlawfully diverted, which were received by the state as state taxes. The court of claims nas held that the county was not entitled to recover, and from the judgment entered upon their direction this appeal is taken.

By section 58 of the general tax law it is provided that the clerk of the board of supervisors shall, on or before the second Monday in December, transmit to the comptroller a certificate or return of the aggregate assessed and equalized valuation of the real and personal estate in each tax district as the valuation of such real estate has been corrected by such board, and the amount of taxes assessed thereon for town, city, school, county, and state purposes. This railroad property was clearly property that was assessed within the county. Taxes were paid thereupon, and such taxes as were assessed thereupon for school and road purposes were devoted to such purposes. In the certificate or return of the clerk of the board oi supervisors, made to the comptroller, he was required to include this property according to the very letter of the law. Upon these returns the state board of equalization equalizes the valuations, the same as the county board of equalization equalizes the valuations between the several cities and towns therein. The state tax rate is determined by the legislature from these aggregate valuations, which contain, by the letter of the law, the assessment of this railroad property. The comptroller then certifies to each county the amount of taxes which must be paid by each county. His duty is simply ministerial in applying the tax rate to the equalized valuation of a county, This amount, so certified by the comptroller, is required to be paid to the state from the taxes first collected in the county. The amount must be paid in full, and is subject to no reduction whatever for taxes uncollected or lost. It will thus be seen that the state taxes, a part of which are sought to be recovered back, were assessed and paid in exact accordance with the law. The clerk of the board of supervisors was required to include the valuation of this property as taxable property in his report to the comptroller. The state board of equalization were required to make their equalization upon the valuations returned by the clerks of the boards of supervisors. The comptroller was required to compute his tax upon the valuations made by the state board of equalization. The county treasurer was required to pay from the taxes first collected the full amount certified by the comptroller as the amount due from that county. It would seem to follow that the payment under the requirement of the law of a tax, estimated and computed by the state officers in strict accordance with the law, could furnish no ground, legal or equitable, for an action for the return of the same. If the statute had gone further, and provided that the clerk of the board of supervisors, in certiying to the comptroller the assessable valuation of taxable property, should omit this property, or had provided that the state board of equalization should deduct the value of this railroad property, or had provided that the state comptroller, in determining the amount for which each county should be liable, should deduct any amount on account of the provisions of the act of 1869, the intent of the legislature would have been made plain to compel the state to contribute to the help of these bonded towns as well as the county. But none of these provisions were made, and there is no express provision of law diminishing the contribution of each county to the support of the state by reason of this diversion of certain of the taxes collected as a sinking fund for these bonds. In fact, it is not claimed that the statute is express; but the appellants would find some implied modification of the general statutory law as to the collection of state taxes, so that the county, by reason of the appropriation of these particular taxes to the payment of these bonds, should have allowance therefor in the amount which they contribute to the state.

Those who claim an implied modification of the law are not agreed as to just at what point that law should be impliedly modified. Some argue that, because these taxes collected are devoted to a special purpose, the property is exempt, and that the clerk of the board of supervisors should not, therefore, return to the comptroller this property as part of the assessable property of the county. Others argue that, while the clerk of the board of supervisors is required and 114 New York State Reporter by law to return all the assessable property in a county, the state board of equalization should make allowance therefor in equalizing the valuations of the different counties throughout the state. Others claim that the state comptroller, in computing the amount which the county must contribute to the state taxes, is required to take into consideration this special appropriation of the taxes from this railroad property. Still others claim that the county treasurer need pay to the comptroller only a part of the amount required from each county, deducting the amount which would naturally be assessable to the railroad property. But none of these claims are free from difficulty. If it be claimed that by reason of the appropriation of part of the taxes from the railroad property to pay the bonds of the towns bonded for their construction the property had become exempt, it may be answered that it is assessed generally for school and road purposes, and it is clearly not exempt property, although part of the taxes paid thereon is diverted from the purposes of general taxation. The claim that the state board of equalization or the comptroller should make allowance for these taxes so diverted, either in the equalization, or in the estimate, or in the computation of the amount of taxes due from a county, would seem to fall by reason of the fact that neither the comptroller nor the state board of equalization have before them what part of the assessed property was railroad property. The statute requires the certification of the aggregate valuation of the assessed property only, and nowhere is the clerk of the board of supervisors directed to return to the comptroller what part of that property was railroad property subject to the provisions of the act of 1869. The remaining claim, that the county treasurer should deduct from the taxes demanded the proper amount, would find a practical difficulty in the explicit command of the statute that he shall pay this amount from the moneys first collected, and also from the fact that the amount had been estimated from the valuation equalized by the state assessors, and not necessarily from the valuation certified by the clerk of the board of supervisors. This would also result in a deficiency in the amount estimated as necessary to pay the expenses of the state, against which the law will clearly presume.

These difficulties are suggested, not for the purpose of holding that they are insurmountable, if the intent of the legislature were clear that the state should bear its share of the contribution for the help of the bonded towns, but as cogent evidence that it was never intended by the legislature that any contribution should be made by the state at large. Is the legislature presumed to have passed a law which would result every year in a deficiency of moneys necessary to be raised for the state expenses? Appellant has argued that the state has power to make its tax rate what it will, and can make allowance for this deficiency by a slightly increased state rate. The answer to this argument lies in the fact that no state department has knowledge of facts from which can be determined what the deficiency will be for which allowance could be made. The county board of supervisors, who alone have this knowledge, are not required to certify the amount of assessed railroad property. This argument and

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