Hasbrook v. Kingston Board of Education , 3 Keyes 480 ( 1867 )

Hunt, J.

—The objection is made, that the orders in question are not appealable to this court. I think the objection is well taken.

It is claimed that the appeal is sustainable under subdivision 2 of section 11 of the Code, which gives such appeal from “an order affecting a substantial right . . .

when such an order in effect determines the action, and prevents a judgment from which an appeal might be taken,” or discontinues the action, or grants or refuses a new trial. The order in question does not determine the action or prevent a judgment from which an appeal might be taken. It may possibly prejudice the plaintiffs to the extent of that portion of the tax of 1866 yet uncollected ; but the action remains, with the question to be decided by it, for future years, and with the power of appeal from the judgment to be rendered. If it shall be held, ultimately, that the plaintiffs are right, then the defendants, in their levies, will be restricted to §5,000 a year, or be limited to the specific items admitted by the plaintiffs to be properly within their jurisdiction.

If the defendants’ view is sustained by the courts, they will be at liberty the next year, and so long hereafter as the law shall remain .unrepealed, to levy such sums as they may determine to be necessary and proper for the purposes specified in the act. There is evidently much the most important duty of the action yet to be performed.

The amount of the present tax, yet uncollected, is trifling compared with the amount which will be determined by the judgment yet to be rendered. The orders in question do not, in effect, determine the action, "or prevent a judgment from which an appeal can be taken, arid are therefore not appealable to this court.

Again. The papers- do not show whether the motion was denied upon the ground that the plaintiffs could ultimately have no relief, or because a temporary interference was not advisable. In the latter case, the motion below was addressed to the discretion of the court; and the general term having acted, we cannot review their determination (People v. New York Central R. R. Co., 29 N. Y., 418 ; Clark v. City of Rochester, 34 Id., 355). Whether the interests of the individuals who had not yet paid their tax should command the interposition of that tribunal, or whether the interests of education were the more important in the particular case, were matters for the discretion and judgment of the court below. In such cases we require them to act, but we do not assume to determine what their action shall be (See cases above cited).

I am of the opinion, also, that an injunction cannot legally issue to restrain the collection of a tax, although illegally imposed (Haywood v. City of Buffalo, 14 N. Y. [4 Kern.], 534, 537 ; Mutual Benefit Life Ins. Co. v. Supervisors of N. Y., 32 How. Pr., 359).

The party must take Ms remedy by action for the damages he has sustained. (Id.).

Upon the merits, I am also of the opinion that the action of the board was legal. Section thirteen of the act in question, as originally passed, authorized the Board, and made it tlieir duty “ to raise, from time to time, by tax, . . . . such sum, not exceeding in all $5,000 in any one year, as they-..may determine to be necessary and proper, and such additional sum as the taxable inhabitants at an annual meeting may direct to be raised, not exceeding the like amount of $5,000 as aforesaid, for any and all of the purposes to which the powers and duties of the said Board extend, as hereinafter mentioned” (Laws of 1863, 597).

The evident intent of this act was to limit the power of the Board to the sum $5,000 as the amount authorized to be raised on their own discretion in any one year.

If, however, the taxable inhabitants should think ¡proper to order the raising of an additional sum of the like amount, then it became the duty of the Board to raise that amount also ; all of which sums were to be applied indiscriminately to the purposes to which the powers of the Board extended.

In 1864 (ch. 40, § 1), the section in question was amended, so that it read as follows: “§ 13. The said Board of Education shall have power, and it shall be their duty to raise, from time to time, by tax, to be levied,” &c., “ such sums as they may determine to be necessary and proper for the payment of the salaries of the superintendent and teachers in the public schools under their charge, repairs of school-houses, fences, out-buildings, and grounds belonging thereto, and all other necessary and contingent expenses for establishing and maintaining the said public schools, and the necessary and contingent expenses of the Board of Education. And they may also raise such additional sum, not exceeding $5,000 in any one year, as the taxable inhabitants of said Kingston School District may at any meeting, regularly called, authorize or direct, for the purchase of school-houses, lots or sites for school-houses, and to defray the expenses of the erection, altering, and improving school-houses, out-houses, and their appurtenances, or for such other purposes as are included within the powers and duties of the Board of Education as hereinafter mentioned.” .

Although there may be difficulty in giving an accurate grammatical or technical reading to'this language, there is but little difficulty in ascertaining its .meaning.

For the ordinary current expenses of maintaining the school system organized by the act, such as teachers’ salaries, repairs of buildings, and contingent expenses, the Board was authorized to raise money in their discretion, and without limit as to the amount.

If it was desired to purchase school-houses, or lots on which to erect school-houses, or to alter or improve in a permanent manner the school biddings in use, permission or authority was to be obtained from the taxable inhabitants duly assembled. The fact that such meeting might direct the raising of moneys for other purposes included within the powers of the Board, does not interfere with this construction. It was simply superfluous. The Board already had the power.

Heither do I see any difficulty to arise if it should be held that a like power was intended to be given to the citizens when regularly assembled as directed by the act.

Under the decision in Ketchum v. City of Buffalo (14 N. Y. [4 Kern.], 361), the power “ to establish and maintain schools” is very comprehensive, and, if needed for that purpose, would give large powers to the Board in question. There is no evidence in the present case that the Board have attempted to raise money for any other than legitimate purposes.

The adoption of the statement set forth in the complaint as the ground.of their levy is expressly denied, and it is averred that the proposed levy was made for the purpose of providing for the payment of the salaries of the superintendent and teachers, repairs to the schoolhouses, and other contingent expenses, and to pay arrears for the same purpose, for which they were indebted. These were properly and legitimately within their control.

Both upon the form and upon the merits, I am of the opinion that the appeals should be dismissed, with costs.

All the judges concurred.

Weight and Portee, JJ., not voting.

Appeals dismissed.