City of Rochester v. . Town of Rush

Banforth, J. The property assessed forms part of a system of water-works, imposed upon the city of Rochester by direct legislative enactment. (Laws of 1872, chap. 387; Laws of 1875, chap. 563.) It ivas constructed under the direction of a board of commissioners, who derived their authority exclusively from the Legislature, and whose duty it was to ascertain the best aud most expedient plan for supplying that- city “with a sufficient quantity of pure and wholesome water, for the use of its inhabitants, and the extinguishment of fires;” and that having been ascertained, they were to proceed and execute it. To pay the expenses of this undertaking, they were authorized to borrow upon the credit of the city, upon bonds issued in its name, money, not exceeding the amount stated in their estimates of its cost; and by the terms of the act “the credit of the city is pledged for payment of the same.” To make this promise effectual, the common council was directed “ to raise from- *307 time to time by tax upon, the estates, real and personal, subject to tax in said city, the.sum or sums of money which may be required to pay the interest on said bonds, and to redeem them at maturity.” The commissioners under this authority, and as part of the plan adopted by them, obtained the land in question, erected upon it a reservoir which it is conceded is used in the system of water-works, and is a necessary part thereof, for the purpose of storing water to be thence conveyed in pipes to the city. The act under which these proceedings where taken could be valid only because its direct object was the promotion of the health and safety of the property of the citizens who were required to provide by taxation the means for carrying it on (People ex rel. Dun., W. and P. R. R. Co. v. Bachellor, 53 N. Y., 128; People v. Flagg, 46 id., 401); and the work undertaken in pursuance of its directions must be regarded as executed for the public good, and the property therefore held for public purposes. (Brewster v. City of Syracuse, 19 N. Y., 116; Town of Guilford v. Supervisors, 13 id., 143; Darlington v. Mayor, etc., 31 id., 164.) It is itself the" result or product of taxation. It stands in place of the money so raised, and therefore cannot be taken or diminished by taxation. This is clearly so upon principle, but it is also well settled by authority. United States v. Railroad Co., 17 Wall., 322; Worcester Co. v. Mayor of Worcester, 116 Mass., 193; Inhabitants of Wayland v. Commissioners, etc., 4 Gray, 500; People v. Doe, 36 Cal., 220; Town of West Hartford v. Hartford, 44 Conn., 360.) The precise question has not been before this court, but analogous cases have been determined by it, upon reasons which control the one before us. (Darlington v. The Mayor, 31 N. Y., 164; Leonard v. The City of Brooklyn, 71 id., 498.) In the first case it was held that such estate, real or personal, as may by law be devoted to public use, such as the public edifices, or the public parks or grounds, cannot be taken, to satisfy a judgment against the corporation; for, says Denio, J., 1 these are public property, devoted to specific public uses, *308 in the same sense as similar subjects in ths use of the State government.” In the other case it was sought to enforce, a mechanic’s lien, for 'labor and materials furnished in the •erection of a fire-bell tower in the city of Brooklyn, and the .right to do so was denied, because “ it would interfere with the practical workings of the municipal government in the . discharge of its legitimate functions;” and the remarks of Dehio, J., above quoted, are approved. This principle must apply here. A bell-tower, from which the alarm of fire may .bo sounded, cannot be considered more necessary in the scheme of municipal affairs and good government than water-works, which will furnish the means of extinguishing :the fire when its existence is announced. If this tax is valid it may be enforced by sale of the property taxed, and it can make no difference whether the .sale is under an execution upon a judgment, or a decree in equity, on a tax warrant. In either event the purpose of .the Legislature would be defeated. In the absence of an express declaration to that effect we cannot suppose that the Legislature intended that the works thus imposed upon the ■city should be- subjected to taxation in the towns and villages through or in which the work was to be constructed. The cost of the work was to be estimated; the amount of the ■estimate. is named as the measure of liability, and taxation is directed for principal and interest, but no provision is made for a burden, the extent of which could not be estimated, and the weight of which would be felt with increasing severity at annually recurring periods. I have not omitted the examination of the various authorities to which our attention has been called by the learned and ingenious counsel for the appellant, or which have been cited in the printed briefs. The English cases (5 A. & E., 1; 14 East, 609; 1 E. & E., 516; 10 A. & E., 259; 13 id. [N. S.], 116; 6 id., 187), stand to some extent upon statutory regulations, or local ordinances, unlike any which concern us, but even in those cases, a distinction is recognized, between property and works used exclusively for the public benefit, *309 and those from which a private benefit or profit is derived.. So far therefore as any principle can be deduced from them, - it does not favor the appellant. In the case of The King v. The Commissioners, etc. (4 T. R., 730),.the commissioners of navigation were author- ', ized to take certain tolls, the whole of which were directed to be applied to public purposes, and it was held that they t were not ratable to the poor. In The King v. The Inhabitants of Liverpool (7 B. & C., 61), it was argued that although the public was benefited by the docks, yet that was no ground for exempting property from poor rates, because there was also a private benefit, but the court held otherwise upon the ground stated in Rex v. The Commissioners. (supra). In Reg. v. Shee (4 A. & E. [N. S.], 2), the court approve and follow the language of Lord Ellex-borough in Rex v. Terrott (3 East, 506), saying it settled this branch of the law, viz : “ the principle to be collected from.all the cases on the subject, is that if the party vested, have the use of the building or other subject of the rates as a mere servant of the Crown, or of any public body, and have. no beneficial occupation of, or emolument resulting from it-in any personal and private respect, then he is not ratable,”- and so it was held in Reg. v. Exminster (12 A. & E., 12), although the property in respect to which the rate was-imposed was locally situated out of the borough to be benefited. No case has been cited’ to the . effect that property wholly devoted to public use, either by the manner of occupation, or the statutory direction as to the application of, revenues, can be taxed. The latter is the case before us. The statute (Laws of 1875, chap. 563, § 2) authorizes the water commissioners to adjust the prices and rents which shall be paid for the use of water supplied by the waterworks and collect the same as other city taxes are collected, but requires that they shall be “deposited with the treasurer of the city, and be reserved and used by him exclusively for payment of operating expenses, salaries, repairs, maintenance and extensions of said works, of the interest upon *310 the water-bonds issued for their construction, or for further extension of the same, or for a sinking fund for payment of the principal of said water-bonds, but for no other purpose whatever.” This statute excludes the idea that the property is taxable, else the fund raised under its authority would be diminished or misapplied, or the means óf payment must be derived from other taxation, or the property which is the result of taxation be sold to satisfy a tax upon it. The argument of the appellant that the property in questian would properly be exempt from a city tax, as it was procured by a tax upon property within the city, but not from a county tax, because the people of the county were not taxed to procure it, would apply with equal force to the city hall, and engine-houses, and machines and equipments, which make those houses necessary, and if sound would subject them to the hazard of sale under a treasurer’s warrant for the enforcement of a county tax. I am unable to perceive that in any sense the water-works can be regarded as the private property of the city as distinguished from property held by it for public use. These considerations lead to the opinion that the property was not taxable, and that the proceedings on the part of the assessors of the town of Rush in regard thereto, cannot be sustained. It is however contended by the appellant, that even if the tax was illegal and void, an action would not lie against the town to recover back the money paid in consequence 'of it. The question was not presented in the Supreme Court, but it is in the case submitted, and as it could not have been obviated in that court, the appellant is entitled to raise it upon this appeal. The case states, that “ the plaintiff paid the amount of the tax to the collector, who held a warrant for its enforcement, and it was by him paid over to the treasurer of the county of Monroe, who paid fifty-five dollars thereof to the authorities of the town of Rush in payment of the expenses of said town, and a portion of the balance to the proper officers of the State, and retained and used the residue for county purposes according to law, in the same manner as other taxes col *311 lected. and assessed in said town.” Upon the assumption that the town may be liable for money had and received, the recovery could not exceed the above sum of fifty-five dollars, but although the names of office of the persons to whom that was paid are not given, we know that it could legally have been paid only to the supervisor, commissioners of highways, or overseers of the poor. They do not represent the town. Their functions are prescribed by statute, and the money they receive is to be expended in the performance of official duty. The town has no treasury, and therefore the cases cited by the learned counsel for the respondent, viz.: Chapman v. The City of Brooklyn (40 N. Y., 372); National Bank of Chemung v. Elmira (53 id., 49); Newman v. Supervisors of Livingston (45 id., 676), have no application, for as is said in the latter case, “ a county has a treasury and a treasurer, and money may be paid not only for its use, but may be received directly for it into its treasury, and from thence paid out by it for its own use.” So" was it in the other cases ; the city had its treasury and its treasurer. The town has neither. On the other hand Lorillard v. The Town of Monroe (11 N. Y., 392), and People ex rel. Van Keuren v. Board of Town Auditors (74 id., 311), clearly establish that an action cannot be sustained against a town upon the facts disclosed in this record. But the plaintiff is not remediless. Without reference to other modes of relief, it would seem that upon the stated facts, and the legal conclusion applicable thereto, the case may be within the provisions of the statute of 1869 (chap. 855, as amended by the statute of 1871; chap. 695 § 5), which requires the board of supervisors, upon the order of the county court, to refund the amount of any tax illegally or improperly assessed or levied, and at the same time prevents injustice to the town, by requiring the sum so refunded to be raised from the several towns of the county in such proportion as shall be jtist, taking into consideration the State, county and town tax included therein. The judgment must therefore be reversed, and judgment *312 ordered for the defendant, but as the point which makes this result necessary was not raised in the Supreme Court, it should be without costs. All concur. Judgment reversed.