Van Tassell v. Derrenbacher — 31 N.Y. St. Rep. 312

Majority

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In the Matter of the petition of William T. Van Tassell, Resp’t, v. John Derrenbacher, County Treasurer of Ulster County, App’lt.

(Supreme Court, General Term, Third Department,

Filed May 26, 1890.)

Headnote

1. Town bonds—Sinking fund—Laws 1869, chap. 907.

The provisions of § 4 of chap. 907, Laws 1869, providing for the investment of railroad taxes as a sinking fund for the payment of town bonds, include bonds issued in renewal of those originally issued in aid of the railroad.

2. Same.

. The taxes assessed and collected from the railroad are applicable to the sinking fund, although the title to it or its name has been changed.

3. Same.

The security given by § 4 of the act of 1869, has not been superseded by the amendmént of 1870 of § 7 of chap. 880, Laws 1866. The acts are consistent with each other and the bonds in question are included in the general act.

Appeal from an order made by the county judge of Ulster county commanding the county treasurer to apply the sum of .$1,453.03, being the amount of taxes (except road and school taxes) levied and collected, and paid to the treasurer on the assessed valuation of the Wallkill Valley railroad in the town of Eosendale, in Ulster county, for the year 1887, towards the redemption of the bonds issued by said town to aid in the construction of said railroad.

By chap. 880, Laws 1866, amended by chap. 311, Laws 1868, certain towns, including the town of Eosendale, were authorized upon complying with the provisions of said acts to take stock and issue bonds therefor in aid of the construction of the Wallkill Yalley railway. The town of Eosendale did comply with such provisions, and such proceedings were had under said acts as resulted in the subscriptions in behalf of the town for the stock of the railway company and the issue of the bonds of the town in the sum of $92,800, the bonds bearing date April 1, 1869. The railroad was built through the town and the proceeds of the bonds applied in aid of its construction.

Section 4 of chapter 907, Laws 1869, amended by chapter 283,' Laws 1871, provides that: “All taxes, except school and road taxes, collected for the next thirty years, or as 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 over to the treasurer of the county,” the same to be applied by him in the manner prescribed in said section for the redemption of such bonds issued by the town.

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In case of the failure of the county treasurer to comply with the provisions of the act any taxpayer of the town may apply on petition to the county judge, who may make an order directing compliance by the county treasurer.

Of the original bonds issued by the town of Eosendale, at the time of the commencement of this proceeding $8,000 of the principal sum remains outstanding; new bonds to the amount of $8,400 have been issued to refund to that amount the original bonds as they fell due. The balance has been paid.

The county treasurer refused to apply to the sinking fund the taxes aforesaid for the year 1887, and now appeals from the order of the county judge directing his application thereof.

A. T. Clearwater, for app’lt; Linson & Van Burén, for resp’t.

Nearly every question presented in this class of cases has been decided adversely to the county treasurer. Clark v. Sheldon, 106 N. Y., 104 ; 8 N. Y. State Rep., 537; Strough v. Supervisors, 28 N. Y. State Rep., 967; Bridges v. Supervisors, 92 N. Y., 570 ; Vinton v. Supervisors, 18 N. Y. State Rep., 435; Hand v. Supervisors, 31 Hun, 531 .

The following only are now urged :

First. Does § 4 of chapter 907, Laws 1869, include the renewal bonds ? So long as there are outstanding sufficient of the original bonds to absorb the taxes, the question is not material. But if materia], the renewal bonds renew the original debt in effect, though probably not in form. For thirty years the taxes upon the railroad are applicable to the payment of the debt. Such was the intention of the legislature. We should give it effect, and regard the substance rather than the letter, to the end that the intent of the legislature may not be defeated.

Second. The Wallkill Valley Railway Company defaulted upon its mortgage, the mortgage was foreclosed, the railroad sold, and became the property of the Wallkill Valley Railroad Company. But the railroad remains, and the taxes applicable to the sinking fund are those collected upon “the assessed valuation of the railroad.” Change of title, or of name, or of both, does not change the property from which the taxes are derived.

Third. Chapter 880, Laws of 1866, under which the original railroad company was organized, contains provisions looking towards the liquidation of the bonds issued by the several towns in aid of the construction of the railroad.

Thus, the dividends upon the stock, and the stock itself, were devoted to this purpose, and taxation was authorized after ten years to the amount of five per cent of the principal of the bonds, to the end that the bonds might be paid within thirty years from their date.

Section 7 of the act of 1866 was amended by chapter 762, Laws 1870, so as to require a sinking fund to be provided by taxation every year, after ten years from the date of the bonds, sufficient to provide for their payment at maturity. The act of 1866, thus amended in 1870, relates solely to the Wallkill Valley

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railroad. It is urged that special provision being made by the act of 1866 for the bonds to be issued in aid of the construction of this railroad, the general provision made by the act of 1869 did not extend to these bonds, and that if the act of 1869 did apply before the act of 1870, amendatory of the seventh section of the act of 1866, the amendment was the latest special provision for the protection of the Wallkill Valley railroad town bonds, and must be deemed to have superseded the provision made by the general act of 1869. But the general and special acts are consistent with each other, and the general act by its general terms includes the bonds in question.

The object of all the acts was to provide security and means for the payment of the bonds. The creditor was by the special act of 1866 and the general act of 1869 given different securities. If the amendment of 1870 increased the security under the special act of 1866 it could not, certainly in the absence of express language to that effect, take away any security the creditor already held under the general act of 1869, The creditor was at liberty to accept any security tendered him, and the legislature could not without impairing the obligation of the contract deprive him of any security he already held, unless the pledge of the new security was given and accepted upon condition of a release of the old. These acts providing securities for payment are in the nature of contracts between debtor and creditor, and the legislature cannot, as in the case of ordinary legislation, supersede at will the earlier by the later act, unless the later act provides a full equivalent. We discover no intention to supersede the security given by § 4 of the act of 1869 by the amendment in 1870 of the seventh section of the act of 1866.

Order affirmed, with costs.

Learned, P. J., and Mayham, J., concur.