Saratoga Lake Bridge Co. v. Walbridge — 140 A.D. 817

Majority

p. 817

In the Matter of the Petition of the Saratoga Lake Bridge Company, Appellant, for a Peremptory Writ of Mandamus against John K. Walbridge, as County Treasurer of Saratoga County, Respondent.

Third Department,

November 16, 1910.

Headnote

Highway—purchase of Saratoga Lake bridge under authority of chapter 25 of the Laws of 1907 — powers of supervisors — apportionment of cost between towns—mandamus to compel payment of audit by county treasurer — supervisors cannot rescind audit of former board.

Where the board of supervisors of Saratoga county, pursuant to the authority given by chapter 25 of the Laws of 1907, by a two-thirds vote adopted the report of a committee appointed by it which recommended the purchase of the property and franchises of the Saratoga Lake Bridge Company for a certain sum, and, pursuant to a resolution, accepted a deed of the bridge property and audited the claim of the grantor with the recommendation that it should be paid by assessing to each town its proportionate share of the purchase price on the basis of the equalized valuation of said towns, and the tax has been levied and collected on that basis, the county treasurer will he compelled by mandamus to pay the audit to the bridge company.

The resolution to acquire said bridge passed pursuant to said statute did not have to be in any particular form, and even if it be assumed that the resolution should have complied with section 17 of the County Law requiring a title and enacting clause and a publication, the county, after having become seized of the bridge property, must pay the purchase price.

As the bridge was bought for the benefit of the county at large it was proper for the board of supervisors to levy the cost thereof upon all the towns of the county according to their equalized assessment rather than upon the two towns connected by the bridge.

The payment for such bridge acquired under said statute is not governed by chapter 594 of the Laws of 1899, as amended, hut even if payment were made under that act, the cost could be apportioned between all the towns of the county if the board of supervisors saw fit to do so.

After the audit of the claim of the grantor by the board of supervisors their successor in office had no authority to qualify the former audit by apportioning the cost between the two towns connected by the bridge by authorizing the issue of town bonds to pay therefor, and by directing that the former assessment be paid hack to the towns by the county treasurer.

Mandamus compelling the county treasurer to pay the audit of .the supervisors will not be denied merely because he has credited back the assessment to the various towns, that being merely a matter of bookkeeping where the money is still in his custody.

p. 818

Appeal by the petitioner, the Saratoga Lake Bridge Company, from an order of the Supreme Court, made at the Washington Special Term and entered in the office of the clerk of the county of Saratoga on the 1st day of July, 1910, denying the petitioner’s application for a peremptory writ of mandamus.

John L. Henning, for the appellant.

Hiram C. Todd, for the respondent.

By chapter 25 of the Laws of 1907 the Legislature authorized the board of supervisors of the county of Saratoga, by. resolution, to determine to acquire the real property, rights and franchise of the Saratoga Lake Bridge Company by condemnation -or agreement with the owners, and after the passage of such resolution to acquire the same by condemnation or purchase.

At a session of the board of supervisors of that county held January 13, 1908, by an affirmative vote of all the members of the board the following resolution was passed:

“Resolved, That the real property rights and franchises of the Saratoga Lake Bridge Company, if a satisfactory agreement can be made, be purchased for the purpose of making and maintaining a free bridge, at a price not to exceed Two thousand dollars ($2,000). And be it further

“ Resolved, That the supervisors of Saratoga Springs, the supervisor of Saratoga and the chairman of this board be a committee to carry into effect the terms of this resolution, provided the said committee and bridge company are able to agree upon a sum for the purchase of said bridge, not exceeding $2,000, as herein provided.”

At a session held in December following the committee appointed by the above resolution reported that they had examined into the matter and were of the opinion that the bridge should' be a free bridge, and recommended its purchase for the sum of $4,000. The adoption of the report was moved and it was carried by a two-thirds vote of the board.

At a session in January, 1909, the following resolution was passed by an affirmative vote of all the members:

p. 819

“ Whereas, The Saratoga Lake Bridge Company has accepted the ofíer of this board for the purchase of all its rights, title and franchise in said bridge for the sum of $4,000.00, and

“Whereas, a proper deed of conveyance has been received by the chairman of this board; therefore, be it

“ Resolved, That this board accept said deed, and that the clerk of this board have the same duly recorded in the office of the clerk of the county of Saratoga.”

Following this resolution the bridge company directed its toll-taker to cease taking toll and formally surrendered control over the bridge. In the following December, at a regular session of the board, the bridge company presented a duly verified claim for the $4,000, with interest from the time of the surrender of possession of the bridge, as had been agreed, in all amounting to $4,241.58, which claim was referred to the committee on roads and bridges accounts, reported as due in full, with a recommendation that instead of its being paid as a county audit it be paid by assessing to each town its proportionate share thereof on the basis of the equalized value of said towns for the year 1909, and that the law and finance committee of the board be instructed to make such division in the county budget as presented by them. This report was duly adopted and the law and finance committee reported that it had apportioned the purchase price of the bridge upon all the towns of the county in the proportion directed specifying- the amount with which each town was chargeable. This report was adopted by the whole board in accordance with its rules, as were the other reports enumerated, and the tax was levied on that basis and the warrants placed in the hands of the various town collectors, and county scrip was issued directing the defendant as county treasurer, on and after February 1, 1910, to pay to the bridge company the amount so audited in its favor.

In January, 1910, after all or a large part of the money had been paid by the various collectors to the defendant, as county treasurer, he sent a communication to a new board of supervisors, who had taken office the first of January previous, to the effect that he would be unable to pay the audit to the bridge company if presented, because he had decided the audit had not been legally made and the bridge not legally acquired for the reason-that a proper resolu

p. 820

tion to acquire the bridge had not been adopted, and that if he was mistaken in that conclusion the audit was improper in that the claim had been levied upon the county at large, whereas the cost of the bridge should have been imposed upon the two towns which it connected. Thereupon this new board passed another resolution to the effect that the county of Saratoga should purchase the bridge for the sum of $4,241, and that the cost be apportioned between the two towns which the bridge connected in a proportion specified, and authorizing such towns to issue bonds for the payment if they so desired. By a further resolution the defendant was directed to credit the sums raised to pay the audit to the bridge company back to the various towns. The audit was thereafter formally presented to the defendant and he refused payment, and this proceeding was taken to procure a mandamus compelling the defendant to pay the same, and from the order denying such relief the relator appeals:

We are of opinion the mandamus should have been granted. The action of the board of supervisors was in effect the passing of a resolution determining to acquire the real property rights and franchises of the Saratoga Lake Bridge Oompany. The first resolution restricted the price to $2,000, but a committee was appointed to confer with the company and it reported that the property could not be purchased for that price, but that it could be purchased for the sum of $4,000. The board by a two-thirds vote adopted such report and resolved to accept a deed and pay that amount. The deed was delivered and accepted and a claim for the purchase price audited.

The board of supervisors acted under the authority conferred upon them by the act of 1907, and made a bargain with the owners to purchase the bridge at a certain price as that act permitted them to do. The resolution determining to acquire the bridge was not required by the act to be in any particular form. If it be assumed, however, that it was such an act or resolution as is contemplated by section 17 of the County Law (Laws of 1892, chap. 686) requiring a title and an enacting clause and publication within six weeks,after the close of the session, still the board of supervisors in behalf of the county having made a bargain to purchase the bridge, and the deed thereof having been delivered and accepted, it was incumbent upon the county to pay the agreed price. After the county had

p. 821

become seized of the property the board could not refuse to pay the purchase price, and audit of the claim, therefor was not only proper but a necessity.

Nor was it improper for the board to levy the cost of the bridge upon all the towns of the county according to their equalized assessment. The board bought the bridge for the county at large, and the county at least in the first instance was obligated to pay the purchase price. Provision for payment was not governed by chapter 594 of the Laws of 1899, as amended by chapter 168 of the Laws of 1901,.chapters 111.and 456 of the Laws of 1904, chapter 120 of the Laws of 1905 and chapter 104 of the Laws of 1907, which was revised into section 298 et seq. of the Highway Law (Laws of 1908, chap. 330), and re-enacted in section 338 et seq. of the present Highway Law (Consol. Laws, chap. 25; Laws of 1909, chap. 30) and section 139 of the Transportation Corporations Law (Consol. Laws, chap. 63; Laws of 1909, chap. 219). That act, when chapter 25 of the Laws of 1907 was passed, related to bridges over unnavigable streams and the bridge in question was over navigable waters, which was the reason for the enactment of the special law of 1907. • But even if the board was governed in paying for the bridge by the general law still it had the right to apportion the cost of the bridge on all the towns of the county if it saw fit. That act provides that the amount of bonds, in whole or in part, issued for the acquiring of any toll bridge or toll road may be apportioned by the board upon the towns, cities and villages constituting separate highway districts in which such road or bridge is located in such proportions as the board may deem just. No bonds were issued in the present case, but assuming that money raised for the purchase should be apportioned in the same manner as bonds, the history of the amendment of the law of 1899 shows that the Legislature did" not intend to compel a board of supervisors" to impose- all the cost of the bridge or toll road upon the towns in which it was situated. As the act originally read it compelled the board to impose the entire cost upon the towns. The law was first amended so as to except certain counties, and provided that in those counties the cost should be assessed upon the entire county. A later amendment (Laws of 1904, chap. 456) substituted “ may be apportioned ” for the words “ shall be apportioned ” and added the words “ in whole or in part.” It is

p. 822

manifest, therefore, that the Legislature did not intend to make it obligatory upon the board to impose the cost upon the towns in which the bridge or road was situated, but so amended the law that the board might pay the cost by tax upon the county at large, which in the present case- the board determined to do.

The objections raised' by the defendant, therefore, to paying over •to the relator the moneys which the board of supervisors had raised by taxation and placed in his hands for that purpose were not well founded. The new board of supervisors did not have authority to qualify the audit which the preceding board' had legally made. (Osterhoudt v. Rigney, 98 N. Y. 222 ; People ex rel. Smith v. Clarke, 174 id. 259, 263 .) It is true, as was held in People ex rel. Hotchkiss v. Supervisors ( 65 N. Y. 222 ), that a board of supervisors may rescind its action in auditing an account because it has made a mistake in so doing. In such case the' action on the rescission becomes the final action. One board of supervisors, however, having finally acted upon a claim the succeeding board cannot rescind such action to the detriment of the claimant.

Mor is it any objection to the granting of a mandamus that the defendant has credited back to the various towns the money which each contributed to the payment of relator’s claim. Such crediting is a mere matter of bookkeeping and the money is still in the custody of the defendant.

The order should be reversed, with costs and disbursements, and the peremptory mandamus granted, with twenty-five dollars costs.

All concurred.

Final order reversed, with costs, and application for peremptory writ of mandamus granted, with twenty-five dollars costs.

Cases cited

Osterhoudt v. Rigney 98 N. Y. 222 N.Y. 1885-03-03 p. 822
People ex rel. Hotchkiss v. Board of Supervisors 65 N. Y. 222 N.Y. Comm'n App. p. 822