This is a taxpayer's action. (General Municipal Law [Cons. Laws, ch. 24], § 51.) Defendant *Page 178 was the supervisor of the town of Brookhaven in the county of Suffolk. Plaintiffs sue to recover charges, alleged to be illegal, collected by defendant in connection with the assessment rolls of the town for the years 1910, 1911 and 1912.
The County Law [Cons. Laws, ch. 11], section 23, as it then read, provided for a charge by the supervisor against the county for copying the assessment roll of "three cents for each written line for the first one hundred lines, two cents per line for the second hundred written lines, and one cent per line for all written lines in excess of two hundred, and one cent for each line of the tax roll actually extended by him." The assessment roll, as described in the Tax Law, consists of nine separate columns, including on one line in the first column the names of the taxable persons in the town, in the second a description of the real estate taxable to each person, in the third the assessed value of the real property, in the fourth the value of the taxable personal property, in the fifth the taxable rents, in the sixth the value of special franchises, in the seventh the total value of the property which is included in an incorporated village, in the eighth the amount of the tax levied against each person, in the ninth the date of payment of the tax. (Tax Law [Cons. Laws, ch. 60], § 21.) Only one general tax is provided for, but the same roll is used with extra columns on which are extended on the same line the local taxes, such as road tax and water tax. A separate column in each line contains the total tax. Separate lines contain the totals on a page. These column totals are unnecessary and not authorized by statute. The recapitulations are summaries of the entire tax. They are not a part of the assessment roll. The computation of the tax is made by multiplying the assessed valuation by the rate of taxation. The setting down of the tax in the proper column is the extension. Each page has a heading to the effect that it is the assessment roll *Page 179 for the town. No fee was provided for the computation of the separate taxes. The defendant submitted bills to the board of supervisors, which were audited, allowed and paid, which included under a general charge — i.e., not itemized — for so many lines copied, page headings and recapitulations, and for so many lines extended, each tax extended as a separate line, and also the computation and entry of footings and totals. He also made a charge for a second copy of the roll.
The trial court, with a finding that there was no fraud or collusion in the presentation and audit of this claim, and without findings to sustain the conclusion that there was lack of jurisdiction, preceeded to re-audit the defendant's claim and to disallow the charges, not only for the second copy but also so much of the bill as was for the computation and entry of footings and totals, under the head of lines extended, and for the copying of the headings of the assessment rolls. For the year 1910 this resulted in the disallowance of 254,345 lines extended and 35,733 lines copied, and corresponding sums for the other two years. Judgment was ordered for restitution of the amount of illegal charges in the sum of $13,470.81.
The defendant asserts that the court below erred in making any reduction from the amount allowed by the board from the claim for copying and extending lines, because there was neither fraud nor lack of jurisdiction. (Osterhoudt v. Rigney, 98 N.Y. 222,230.) The bill was legal in form. It was for lines copied and lines extended and it did not disclose the different kinds of lines which went to make up the total. In determining the question of jurisdiction the distinction is sometimes made between charges legal on their face and charges illegal on their face (People v. Sutherland, 207 N.Y. 22, 28), but the people, or the plaintiff in their right, may, notwithstanding the audit, recover back "charges illegal upon their face or charges clearlyprohibited by law." (People *Page 180 v. Sutherland, 207 N.Y. 22, 27.) Fraud practiced by defendant upon the board of supervisors, in the sense of a willful misstatement; the presentation of a false and excessive voucher, with intent to cheat and deceive, cannot be said to exist (Nichols v. Pinner, 18 N.Y. 295, 299), nor can it be said that the board of supervisors intended to cheat the county. But neither can it be said conclusively that there was a mere mistake in counting the lines, in deciding a mere question of fact, such as was held to preclude the court from reviewing the printer's bill in People ex rel. Smith v. Clarke (174 N.Y. 259). The difference is not in the counting of the lines, but in respect to what a line is. The question of the legality of these charges had been before the court in Pearsall v. Brower (120 App. Div. 584) and it had been held legal to charge for the extension of each tax as the extension of a separate line, on the theory that each tax might have been set out on a separate line. Thus each line was constructively divided into several lines. Out of this decision had grown the theory that the number of actual lines necessarily on the assessment roll could be enlarged so as to include many times the number of rows of figures forming the roll. Both the board of supervisors and the trial court accepted the ruling in the Pearsall case. The plaintiff has not appealed, the law had been amended to conform to the construction claimed for it, excepting, however, Suffolk county, where special provision is made (County Law, § 23, subds. 11, 13), and with the question there presented we have not at present directly to do. But we can readily understand how such a decision might give rise to sincere speculation as to the legal meaning of "a line copied" or "a line extended" and to a generous broadening of the liberal rule made by the court. While we may not take judicial notice of the fact that the supervisors knew that the general item included the *Page 181 several items into which it has now been broken, to hear that these questions had not been a topic of discussion among the members of the board would strain our credulity. The board had no jurisdiction knowingly to allow charges clearly prohibited by law, even though they were not illegal upon their face. To hold the contrary would be to open a wide avenue of escape from official responsibility. If the claimant knew and the board knew the truth as to the nature of such charges, no jurisdiction to audit them existed, and the presentation of the claim and the audit would be a breach of legal duty although good faith existed on both sides. If the bill had been itemized, the audit of any illegal charges would have been no protection. (People v.Sutherland, supra; Wadsworth v. Board of Supervisors,Livingston Co., 217 N.Y. 484.) The fact that the bill was not itemized is relevant but not controlling on the question of jurisdiction. The board had jurisdiction to make an honest mistake in counting lines, which would be final. It had no jurisdiction finally to determine, as a question of law, whether or not the law allowed a stated fee for a stated service. If it actually made such a determination, it was without jurisdiction if its determination was erroneous. (People ex rel. Smith v.Clarke, supra.) To decide this case as dependent upon mistake, which precludes judicial review, or fraud, which permits it, seems to ignore facts as they may have appeared to one on the ground when the audit was made. The number of lines charged for, something like a million in each year, suggests the explanation. A board of supervisors is a body of men consisting of supervisors. They audit their own claims. The fair inference is that in a matter like this they know something about the parts that go to make up the whole of a lump charge. If they are acting in good faith under legal advice and judicial decision, we may absolve them of fraud in its ordinary *Page 182 if not in its broadest sense, but that does not confer jurisdiction impregnable against collateral attack. If the charge had been for 600 days' work in the year 1910, the implication of constructive days charged for would have been clear. It is almost as clear here that constructive lines were charged for and that no one was deceived by the generality of the charges.
The determination of a question of fact, not passed upon by the trial court, is essential to uphold a recovery by the plaintiffs. The trial court, as we have seen, found for the defendant on the question of fraud and collusion in the presentation and audit of the claim, but made no finding to sustain the judgment against him. It found merely that a certain number of the lines charged for were illegal charges. That was nothing more than a re-audit, as consistent with an original audit based on error as with an illegal audit. The case should be disposed of as it now stands on the question whether the charge, though legal on its face, was made and approved with knowledge that it embraced items which we hold to be illegal. It matters little whether such an audit is branded as fraudulent or as without jurisdiction. It is illegal with either brand. If the board was deceived, there should have been a finding of fraud; if it was not deceived, the fact of knowledge should have been found. The illegal portions of the claim, so far as this appeal presents them, include the lines representing the recapitulations, the footings and the totals. The headings of the pages were probably "lines copied," although, strictly speaking, they were no part of the assessment roll.
As a new trial must be had, it may be suggested that a line in a tax roll means the same as a line elsewhere. It is a straight row of words and figures between the margins of the page, as we say "thirty lines to the page." When one is paid by the line one ought not to put in a single line what might with propriety be put in two or *Page 183 more lines and then complain because some one insists on counting the lines as they were written. Unnecessary additions to the assessment roll, such as totals of columns, recapitulations and totals of items, are not parts of it. Parts of lines and superfluous lines may not be lawfully charged for as such.
The judgment should be reversed and a new trial granted, with costs to abide the event.