In re the Rockaway Park Improvement Co. — 63 N.Y. St. Rep. 801

Majority

p. 801

In the Matter of the Rockaway Park Improvement Company, Limited.

(Supreme Court, General Term, Second Department,

Filed December 10, 1894.)

Headnote

Supervisors—Validity op action.

Where the hoard of supervisors have full power to do what it did, its action is not rendered illegal by a mistake in the recitation of the source of its power.

Application for repayment of a tax, alleged to have been illegally and improperly assessed and levied.

William J. Kelly, for app’lt; A. N. Weller, for resp’t.

While it is true that the law under which the board claim to have acted had been repealed by the county law of 1892, chapter 686, and the recital of the source of power in the resolution was erroneous, yet, by § 37 of the county law, the same powers were conferred upon the board of supervisors, almost in the same language, namely: “ The board has power to create the fire districts outside of incorporated villages, and authorize such district to procure supplies, or water, purchase apparatus for the extinguishment of fires therein, and rent or purchase suitable buildings for the keeping and storing of the same and provide forth e assessment, levy or collection of the costs thereof on such district, in the same manner, at the same time and by the same officers as the taxes of the town or towns in which such districts are located are assessed, levied and collected, upon the written verified petition of more than one-half of the taxable inhabitants of the proposed fire district.”

So far, therefore, as the powers of the board of supervisors are concerned, they are the same in the county law as under the laws, stated by the board, and this county law was in existence and in full force at the time of the action of the board. If the board thus had full power to do what they did, their action was not rendered illegal by a mistake in the recitation of the source of its power. It is true that § 37 of the county’law requires the legal voter’s of the district to elect fire commissioners, to have title to, and hold in trust for the district, all property acquired by it for fire purposes, and to make all contracts for the purposes herein-contemplated and within the appropriations voted by the resident taxpayers of the district, and also to elect a treasurer, to have the custody of the funds, and to pay out the same. It is not, however, necessary that the acts therein required should precede the acts of the board of supervisors, nor are the acts of the board of supervisors creating a fire district, authorizing the purchase of fire equipment and apparatus, and directing the levying and collecting of the costs thereof upon the district required to be based upon the action of the legal voters of such district. Evidently the election of fire commissioners and the treasurer, and the purchasing of property and the taking of title, thereto, must follow, and not precede, the act of the board of supervisors creating the district, and authorizing the procurement of the water supplies, and the purchasing of apparatus. The addition to the law of this paragraph and § 37 relate solely to the regulation of the care and custody of the property, and conduct of the internal affairs of the-district, after the board of supervisors has acted.

The petition does not show nor claim that the legal voters of the district have not strictly complied with the requirements of the additional part of the section, and, in the absence of any such allegation or proof, the presumption is that all of those conditions have been performed by the legal voters of the district. But it is claimed that the clause giving power to the fire commissioners to make all contracts for the purpose herein contemplated, and ■ within the appropriations voted by the resident taxpayers of the district, in some way requires a vote of the district to precede the

p. 803

act pf the board of supervisors creating the district and authorizing the purchase of apparatus. That clause docs not in terms nor by implication declare it must precede the acts of the board of supervisors, and clearly, from the whole context of the section, it relates to future appropriations which may be necessary to maintain the district after it shall have been first created and organized. It is claimed that the resolution No. 17 does not create a fire district at Bockaway, but only authorizes the expenditure of $10,000 to acquire a supply of water, purchase apparatus, fire equipments, etc., and that is true. But the petition shows that the district had been created in April, 1887, and all that was necessary to be done after that was to authorize the procuring of a water supply, and the purchase of fire equipments, etc. This is all the resolutions. undertake to do. The fire district has been created, and the water supply and fire apparatus acquired at considerable expense. Its territory contains a large proportion and many inflammable buildings of value, and a fire department is necessary therein. To set aside the tax, therefore, and reverse the action of the board of supervisors, would create confusion in the district.

Our conclusion is that the acts of the board of supervisors are sustained by law, and should be upheld by the court, and that the order of the county court sustaining the acts of the board should be affirmed, with costs.