Squire v. Cartwright , 67 Hun 218 ( 1893 )

MERWIN, J.

The questions in this case are (1) whether the board of trustees had any authority to levy the tax in question at the time it was levied, and, if not, then (2) whether the tax has been made valid by any ratification, so as to affect the rights of the plaintiff. Of the items making up the amount of the tax the sum of $300 for hose, and the sum of $121.54 for lighting streets and other necessary expenses, were within the class of ordinary expenditures as defined by the statute applicable to the village. Chapter 291, Laws 1870, tit. 4, § 2. The annual meeting of the village was on March 18, 1890, and those items were not in the statement furnished by the trustees to that meeting. The statute (section 11, tit. 3, of the act above referred to) required that statement to contain “the estimated ordinary expenditures of such village for the ensuing year, to meet which taxes may be lawfully raised.” In the assessment, which the trustees were required to make within 60 days after the annual meeting, (title 6, § 1, as amended by chapter 246, Laws 1889,) they could include “such sum as they deem necessary, besides funds received and estimated to be received from other sources, to defray the ordinary expenditures of the village for the current year, not to exceed the amount fixed for that purpose in the detailed statement of the trustees presented at the annual meeting.” The amount which the trustees did fix in their statement was fully raised in the annual assessment, and tax thereafter levied. We are shown no authority for the trustees subsequently levying a special tax for other items of ordinary expenditures, unless the case is brought within the provisions of chapter 504 of the Laws of 1887, and that is not claimed with reference to these items. Very evidently the intent of the statute of 1870 was to limit the ordinary expenses for the current year to the amounts fixed by the trustees in their report to the village, and to require all that was raised for that purpose to be raised in the annual tax. Of the item of $200 for water rents the sum of $125 was for six months’ water rent under the contract of May 13,1890. It is conceded that this contract is valid under the provisions of section 5 of chapter 737 of the Laws of 1873, as amended by chapter 422, Laws of 1885. It did not run for more than five years, and the amount to be paid did not exceed the sum of 2-1- mills for every dollar of taxable property per annum. The taxable property was $103,590, and the annual rental was $250. That statute, however, provides that “the amount of such contract agreed to be paid shall be annually raised as a part of the expenses of such villáge, and shall be levied, assessed, and collected in the same manner as other expenses of such village are raised.” Very evidently the intention was to include the entire annual rental in the annual tax, and there was no authority to the trustees to divide it, and raise a part in a special tax. The balance of the $200 item was six months’ rent under the contract of August 15, 1890, and its consideration involves the validity of that contract. The defendants seek to justify it. under the provisions of chapter 504 of the Laws of 1887. That act provides that, whenever it shall be desired by any village to raise moneys additional to the amount permitted to be raised by its charter or by the general law for the purpose of building a bridge, constructing a sewer, or carrying out some other proper village object, the trustees may call a special election, and submit the question of raising such moneys, and, if there is a majority vote in favor of the matter, the trustees are authorized to raise the same “in the same manner as other village taxes are raised and collected,” and the trustees, in anticipation of the tax, may temporarily borrow the amount, and use it for the purpose desired. If, however, “the amount desired to be raised for any of the purposes aforesaid shall not exceed in the aggregate the sum of five hundred dollars,” the trustees, by a unanimous vote, could proceed and raise the amount without submitting the question to the electors. By the second section of the act it is provided that the powers conferred by the act are “in addition and supplementary to and independent of all other powers possessed by villages, either under any special act or under the general act for the incorporation of villages.” It is somewhat doubtful whether this act was intended to include a case like the present. There was here no temporary emergency. The moneys were only desired to be raised in order to perform the contract, so that the question of the validity of the contract would need to be determined before reaching the benefit of the act. Goncededly the contract was not authorized by the act of 1873, above referred to, which regulates the manner in which said contracts should be made. Besides, the object sought to be accomplished was the obtaining of the use of the necessary hydrants for the protection of the village, and this included the hydrants of the first contract. It was all executory; none had yet been furnished by the water company. The purpose was substantially a single one, and, in order to ascertain whether the amount exceeded “in the aggregate” the sum of $500, and therefore beyond.the power of the trustees, it may with considerable force be said that the amount of the first contract should be included. If so, the trustees could not act without submitting the question to the electors. Be this as it may, the fact that the other items were improperly included in the special tax would make the tax invalid. It was but one tax. See, Welty, Assessm. § 232; Smith v. Cramer, 14 Wkly. Dig. 107; Hassan v. City of Rochester, 67 N. Y. 529.

2. The effect of the confirmatory resolutions of September 14,1891, remains to be considered. One of these assumed to confirm as an entirety the tax and warrant of October 11, 1890. Still the electors could not by way or ratification do any more than they could have done at the time, and they, in October, 1890, had no right to say that certain items of expenditure might be raised by special tax, in violation of the provisions of the statute, which required them to be raised, if at all, by the annual tax, and after certain formalities. The language of Judge Denio in Peterson v. Mayor, 17 N. Y. 449, is applicable. At page 454 he says:

“No sort of ratification can make good an act without the scope of the corporate authority. So, where the charter or a statute binding upon the corporation has committed a class of acts to particular officers or agents other than the general governing body, or where it has prescribed certain formalities as conditions to the performance of any description of corporate business, the proper functionaries must act, and the designated forms must be observed, and generally no act of recognition can supply a defect in these respects.” 1

Whether the electors could adopt the contract of August 15, 1890, is another question. They had refused to authorize it at the election, August 9, 1890. After that the hydrants were put in, and were ready for use on November 1st following, and from that time forward to the election in September, 1891, were used by the village, and presumptively their necessity was demonstrated. That being the situation, the fact of the refusal in August, 1890, should not prevent the electors from again acting upon the subject in September, 1891. In this view, I think that the adoption in September, 1891, should be deemed operative, and that the contract should be treated in force and valid from that time. The statute of 1873 as to the approval by the electors was substantially complied with. This, however, would not interfere with the, rights of the plaintiff. The act of 1873 provided that the amount payable under such a contract should be annually raised as other expenses of the village. It follows that the special term was correct in restraining the collection of the special tax in question. It is, however, suggested by the appellants that the findings and judgment are sufficiently broad to prevent any future enforcement of the contract of August 15, 1890, as adopted in September, 1891. It is not clear that this is so, but to avoid any question upon the subject the judgment should be modified so as to be without prejudice to any proceeding taken as authorized by law to enforce that contract, based upon the adoption referred to, and, as modified, affirmed, with costs. All concur.