Argued April 22, 1887
Decided May 10, 1887
Francis M. Scott for appellant. H.E. Sickels for respondent.
The act of 1881 (chap. 531), expressly authorizes a taxpayer to maintain an action for the prevention and restraint of "any illegal official act" on the part of the officers of any county, town, or municipal corporation; and if the intended and threatened act of the defendant, as county treasurer, is illegal, the plaintiff is entitled to sue and to prevent the meditated violation of law, irrespective of the consequences of such violation. The statute assumes that any illegal official act is or may be injurious to the corporation when done by its servant, and allows him to be restrained simply because of the illegality. The complaint here is, that the county treasurer has been in the habit of paying himself out of the trust funds in his possession the fees allowed by law upon sales of land for unpaid taxes, without previous audit of his claim, and alone determining the amount of the debt due from himself as trustee to himself as officer. He stands here upon his right; not denying his past habit or future purpose, but insisting that his conduct is not illegal, and so his action should not be restrained.
The sale of lands for unpaid taxes in the county of Queens is the subject of a special statute. (Laws of 1877, chap. 268; Laws of 1878, chap. 226.) Under its provisions the receivers and collectors of taxes are required to report to the county treasurer all such taxes; the latter is directed to examine the list, and, having rejected therefrom such as cannot be lawfully enforced by reason of imperfect description or otherwise, to advertise them for sale. Pending the notice, owners or parties in interest may pay the taxes with charges and expenses, and the lands thus freed from liability must be withdrawn from the proceedings. The balance are to be sold by the treasurer at public auction for the shortest term of years for which any person will take the premises and pay the taxes with percentage, interest and expenses. In case no bids are made the treasurer is commanded to strike off the land to the town in which it lies for a term of 1,000 years, and in all cases of sales is to execute and deliver the proper leases. The act allows the county treasurer as fees for his service $1 for every lot or parcel assessed which has been released by payment before sale; in case of sale $1.50 for each separate lot and parcel assessed and sold; where a lease is given $1 to be paid by the person receiving it, and for making and certifying a search $3. There is no difficulty and no dispute about these fees when actually paid by purchasers other than the town. Such fees belong to the treasurer and may be received by him and appropriated to his own use. They never become town or county funds, or a part of the trust money in the officer's hands. But the situation is quite different where he strikes off the land to a town. In that event no money is paid or received, and the taxes and fees become purely matters of account. The statute provides that in such case the fees and expenses of publication "shall be a charge against said town." They become a debt due to the treasurer, and are, when earned and expended, a claim in his favor against the town. Until it pays the charge the fees and expenses do not come to him as such or become his money. If he takes their amount from the trust funds in his custody without audit or direction, he simply collects his own debt against the town out of moneys already devoted to other specific purposes, and fixes for himself the amount of the debt which he assumes to collect. The statute provides that all claims against the town must be audited by the town board (Laws of 1840, chap. 305), and for that purpose must be presented in items and verified by the oath of the creditor. (Laws of 1847, chap 490, § 2.) The officer repudiates the need of this audit. But the act is broad and general, and admits of no exception unless as the product of some special legislation. Such exception cannot fairly be reasoned out of the act of 1878. Its permission that the treasurer may "charge and receive" the fees allowed implies that somebody is to pay, and is satisfied by an application to the cases in which the fees are paid as such. It is said there is no need of an audit because the amount is fixed. But the number of sales may be incorrectly asserted, or the expenses unduly increased, and the auditing board have a right to be satisfied that the fees claimed have all been earned.
It is suggested that the treasurer must collect his fees at once in order to correctly perform his duties, since on a sale he must make a certificate stating the amount of tax, with interest and expenses added, so that one coming to redeem may know what to pay; and since the town may assign its certificate for the amount of bid, expenses and treasurer's fees, with twelve per cent interest from the date of sale. In each case the fees of the treasurer are fixed, though he is not paid, and his duty is easily and may be correctly performed. Whether the town assigns or does not, is its own concern, and does not affect its liability to the treasurer for the fees that he has earned. It is added that his accounts are annually subjected to the examination of the board of supervisors, but, when they are, his voucher for a claim against the town should be the audit of its board. The act of 1884 (chap. 484) now specifically requires such audit and makes certain for the future what was disputed in the past. It is easy to see the evils which might result from a contrary rule, and we deem it our duty to hold that the act of 1878 did not authorize the treasurer to collect from the trust funds the fees in question, without the audit of the town board.
The judgment should be reversed and a new trial granted, costs to abide event.