The total amount of taxes levied for town purposes was $913,379.65, of which $569,878.69 was for interest and principal on bonds lawfully issued by the town and $343,500.96 for other town purposes. At the time of the trial $708,238.24 had been received by the town collector and paid over by him to the supervisor, thus leaving a deficit in the taxes collected by the town and payable to the supervisor of $205,141.41. An additional $124,984.90 had been collected by the County Treasurer from voluntary payments by taxpayers and $6,292.64 also had been realized at the tax sale conducted by the County Treasurer. Pursuant to section 4 of the Erie county special act, the town is now entitled to all this money so collected. Therefore, financial requirements are met for all ordinary town operations and a surplus remains applicable to payment of principal and interest on the bonds. The sum requisite to discharge accrued bonded indebtedness fell short, at the time of the trial, by $73,863.87. This deficit is only about eight per cent of the total amount of taxes to which the town is entitled. Must the county immediately borrow that sum and pay it to the town for the purpose of discharging indebtedness incurred by the town on paving, sewer, lighting and sidewalk bonds?
The specific question is whether sufficient grounds exist which warrant courts in reaching the conclusion, in the absence of express statute, that the Legislature intended, by section 15 of the Erie county special tax law or by any other statutory provision, that the county should, prior to actual collection of money or complete vesting of title in the county to delinquent tax lands, supply funds to replenish the town budget for uncollected taxes.
By this decision we are holding that from the facts in this case and from various statutory provisions such a legislative intent is necessarily implied. Our decision resulting from an investigation of the legislative mind and a search for a legislative purpose is far reaching. It bears intimate relationship to the administration of the *Page 379 affairs of most, if not nearly all, the towns and counties in the State. Our conclusion is reached not only in the absence of express statute but also in the absence of judicial precedent, proof of custom or practical construction. We are requiring a thing to be done which no statute says must be done and which is not shown ever before to have been done. The result is out of line with the cases most nearly similar in other States wherein statutes closely resembling our own have been interpreted. (Townof Iron River v. Bayfield County, 106 Wis. 587; State v.Ada County, 7 Ida. 261; City of Anthony v. Cutler,114 Kan. 510.) It is not supported by any decision in any other State. Practical emergency does not evoke it. Considerations such as protection of property or prevention of fiscal chaos or the suspension of the operations of town government do not demand it. A full statutory scheme is effective by which the town can function and creditors can obtain their due.
The first consideration which impresses one with the belief that the Legislature never harbored the purpose attributed to it is its failure ever to have made such a declaration. The existence of statutes which in the clearest terms do manifest an intent to impose such a liability upon counties in respect to the State, to school districts and to villages is also most impressive. The absence of any such statute applicable to towns is significant and, as I think, controlling. In plain English the Legislature has decreed that counties must make good the deficits in school districts, even though moneys have not been received by the County Treasurer (Education Law, § 435) and that every county outside the Forest Preserve must on definite dates pay to the State certain specified proportions of the State tax even though it may then be uncollected and the county must borrow. (Tax Law, § 91.) Erie county especially is commanded to do the same in respect to uncollected State taxes. (Laws 1884, ch. 135, § 11.) The purpose expressed in section 126-d of the Village Law to compel a county *Page 380 to pay a village its uncollected taxes is not obscured by the fact that that purpose cannot constitutionally be effected. (Village of Kenmore v. County of Erie, 252 N.Y. 437.) In placing responsibility on counties in tax matters, the Legislature has covered an extensive field. The subject-matter of this litigation is not included within that field. Towns and cities are not mentioned. The omission of appropriate language for the purpose of displaying a purpose in respect to payment by the county of deficits in a town budget certainly cannot be deemed evidence of mere oversight and the specific mention of the State, of school districts and of villages cannot be regarded as equivalent to an intent to include towns and cities, or even towns alone, in the same category with those governmental entities expressly mentioned. Discovery of any general State policy in respect to towns, except a policy of exclusion, is difficult. To me it seems impossible. Courts cannot by construction cure a casus omissus to supply an omitted provision. (McKuskie v. Hendrickson, 128 N.Y. 555, 558.) The law must to that extent be considered defective. (Furey v.Town of Gravesend, 104 N.Y. 405, 410.) Prior to the amendment of section 435 of the Education Law in its present form, in a proceeding instituted by trustees of a school district against a County Treasurer to compel payment to them of uncollected school taxes, this court gave utterance to these words which are truly germane to the issue whether a County Treasurer is bound, before receipt of tax moneys, to pay town charges: "We know of no rule of law or statute which imposes upon the treasurer the duty to pay claims presented before moneys have been received by him." (People ex rel. Burbank v. Robinson, 76 N.Y. 422, 425.) The necessary implication of legislative intent as exhibited by all statutes now existing seems clearly to impose upon a county no obligation to pay the debts of a town until such a time, at least, as the county may have actually collected the tax. *Page 381
A county's liability in tax matters is wholly statutory. If legislative command is lacking, so is liability. The Senate and Assembly are now in session and have full power to express their will. We have no right to do the things which some of us may think the Legislature ought to do or should have done. In very recent times this court, in considering the question whether a certain power had been granted to a rating organization, thus expressed our view against a policy perilously near to judicial legislation: "The legislative authority should be explicit in terms and the court should not smuggle such a grant into the law under the guise of liberal construction." (Matter of Importers Exporters Ins. Co. v. Rhoades, 239 N.Y. 420, 426.)
The town, no less than the county, is authorized at any time after the annual estimate is adopted and before the revenues are received to borrow money in anticipation of the receipt of taxes and revenues and to issue certificates of indebtedness or revenue bonds. (Town Law, § 149.) It is also empowered to audit claims for interest and principal on the bonds issued for local improvement and in the succeeding year to issue bonds for their payment. (§§ 141, 149.) If judgment should be obtained against the town growing out of default in payment of interest or principal for the improvement bonds, amounts sufficient to pay such judgments may lawfully be inserted in the town budget for the succeeding year. (Town Law, § 148.) The town will not be prostrated by its failure at the time of the trial to collect no more than ninety-two per cent of its taxes. It is not the helpless creature that respondent would have us believe.
The County Treasurer is a secondary collecting agent. He acts in the second instance for the public in the same capacity as does the town receiver in the first instance. His collection is not complete until such a time as he receives the delinquent tax money or the county acquires full title to the delinquent lands. The argument resting upon the assertion that the county, being "deemed" *Page 382 to have purchased the delinquent lands at the tax sale, owns the unpaid taxes and is, therefore, substituted for all purposes in place of the delinquent taxpayer is contrary to the decisions in all States where the question has arisen. (Warner v. Hinshaw,105 Kan. 724, 726; Muskogee Times-Democrat v. Board ofCommissioners, 76 Okla. 188, 190, 191; 37 Cyc. 1335, 1336; 26 Ruling Case Law, 417.) This argument is based not only on the provisions of section 15 of the Erie county act but also upon the fact that the County Treasurer has noted the words, "tax sold by treasurer," against all delinquent parcels and the additional fact that the county carries those parcels as an "asset." That asset, however, apparently comprises nothing more than a lien. (Whaley v. County of Monroe, 235 App. Div. 334.) The county's interest in the land upon which taxes remain unpaid is, prior to foreclosure, merely inchoate. It may never acquire title. The owner has the right of redemption within two years (§ 20) and in effect remains the actual owner subject only to the tax lien. The position of the county in respect to the tax certificate which is delivered to it by the County Treasurer by reason of its legally assumed purchase and which is subject to redemption by the owner of the land (§ 15) is not the same as that respecting the certificate issued to individuals in return for payment of real money (§ 16). The tax is in reality sold to the individual for money. The sale to the county is fictitious or constructive. The property is "deemed" to be sold to the county only as a link in the chain for collection, in order to enable the county to acquire a lien which it can either sell (§ 15) or use as the basis for a foreclosure (§ 32-a), whereby the county can eventually acquire a clear title to the land in payment for the money due on the tax. Such money when obtained belongs to the town (§ 4) and must be paid over by the County Treasurer to the supervisor. The scheme for reducing this bookkeeping asset of the county to actual ownership with an *Page 383 absolute title by means of foreclosure after five years is described in article 7-A of the general Tax Law (See Whaley v.County of Monroe, supra) and in a similar mode in section 32-a of the Erie county act. The question of the rights of the county and the town might arise if on the foreclosure of the county's lien, the county should acquire title to land worth less than the amount of the tax. In respect to this question which may never arise, the Legislature is silent. Is it not for that body, rather than the courts, to speak? Matters of governmental policy affecting nearly all the towns and counties in the State are peculiarly legislative rather than judicial.
I, therefore, vote to modify this judgment against the county by awarding to the town only the moneys voluntarily paid by taxpayers to and actually received by the County Treasurer, amounting to $124,984.90, together with the moneys realized by the County Treasurer on the tax sale, amounting to $6,292.64, which aggregate the sum of $131,277.54.
POUND, Ch. J., CRANE, LEHMAN, KELLOGG and CROUCH, JJ., concur with HUBBS, J.; O'BRIEN, J. dissents in opinion.
Judgment affirmed.