I cannot concur with the theory adopted by the court below, that the State did not intend to itself bear any of the burden which the bonds issued for the purpose of constructing-the. new railroad's in the several towns imposed upon those towns; nor do I agree that *281chapter 907 of the Laws of 1869 does not change “ the action of the Board of Supervisors or the duties of the Comptroller in determining the amount of the State tax chargeable to each county ” in which such newly-created property exists.
The argument to sustain such theory is that no amendment is made to the general tax laws of the State; that, under such laws, the supervisors must still return to the Comptroller the total assessed valuation, as it appears upon the tax rolls of the county; that, upon such valuation, the Comptroller estimates the amount which is the county’s share of the whole State tax, and that, when the county is notified of that amount, it is its duty to pay to the State that amount, even though it for any reason fails to collect it; that such amount, under the general tax laws, becomes a debt from the county to the State, and that so long as those laws remain unchanged, such method of levying the State tax must be followed, and the county does in each year become liable to the State for the amount so fixed; that the act of 1869, itself, does not make any change in this method, and that none should be inferred therefrom unless it appears in plain and distinct language; that, hence, the amount which the State has annually received from the county of Ulster was in all respects regularly levied, and was no more than it was entitled to receive.
To this I answer that no question of sharing a burden can arise in the casé. The railroad property affected by the act of 1869 was new property, created by the bonded towns, and for the construction of which it issued the bonds. By omitting to place this new property upon the assessment roll of the county the total valuation of the county’s property would not be at all diminished. By appropriating the taxes raised from it to a purpose other than the expenses of government no less taxes would be available for that purpose than were raised before.
The statute of 1869, therefore, imposed no burden upon either town, county or State. It simply left matters as they stood before. It operated to prevent an increase of the assessment roll and of the taxes collected, but it diminished nothing.
It is true that no change was made in the method of ascertaining the amount which a county was to pay of the State taxes, nor are there any specific.directions in the act of 1869, or elsewhere, which *282change the method of making up the return to the Comptroller of the aggregate valuation of the assessment rolls of the county, nor does the act of 1869, in terms, provide that such railroad property shall not be included in the assessment rolls ; but it does in clear and explicit terms provide that no taxes collected from such property (except those that are levied and collected by the local officers in highway and school districts) shall be applied to the purposes of taxation. Beyond all controversy, such act effectually prohibits the taxing of such new made property for the purpose of raising any part of the sum which the State may ask from the county.. Clearly, the provisions of the act of 1869 cannot be observed if the value of the railroad property is to be included in the valuation of the property in the county which is to pay taxes therein. Under the tax laws the sums needed for town expenses and for county expenses are to he raised from all property therein liable to taxation. The collection of all taxes in the county, for whatever purpose needed, must be made up on that basis. Therefore, an act which prevents the use of any species of property for that purpose in fact operates to exempt such property from taxation no matter in what langtiage it is phrased. When a statute provides that none of the taxes raised upon such railroad property shall be applied to the payment of taxes, but shall be paid over to a trustee for the benefit of a specified sinking fund, it very effectually exempts such property from that which is, under the general tax laws, required to be placed upon the assessment rolls as property amenable to taxation. True the statute describes the sum which is to be paid into the sinking fund as “ taxes,” but it is clear that they are not “ taxes,” nor is that property to pay “ taxes ” within the meaning of the general tax laws. The machinery of such laws is, ■ by the act of 1869, utilized for the purpose of collecting from the railroad company an annual sum from which the town bonds may be finally paid; but, by the same act, it is forbidden to use such machinery for the purpose of collecting from such property, taxes, properly so called. No sum may be collected against such property for the purpose of paying governmental expenses, either of town, county or State.
The situation then is this: By its general tax laws the State provides that each county shall pay its quota of the annual State expenses, estimated upon the aggregate valuation of its property *283appearing upon its assessment rolls. .Under the provisions of such laws none but property liable to taxation is to be placed upon such rolls, and evidently the scheme of such laws is to enable the county to collect by taxation the sum which is so ascertained and demanded by the State from it. Subsequently the State, by another act, prohibits the county from collecting by taxation against a specified portion of its property any taxes whatever. By the act of 1869 it clearly said to the county of Ulster, you may not collect from the new railroad property within your limits any portion of the sum which hereafter will be demanded from you as your share of the State’s annual expenses. That such is the effect of the act of 1869 is beyond controversy.
Now, reading all these together, is it to be supposed that the State intended to require the county of Ulster to include within its assessment roll the value of the new railroad property, and to report it as a part of the aggregate valuation, upon which its share of the State expense was to be ascertained? Was it the State’s intention to make the county value it as a basis of ascertaining the' county’s liability, but to prohibit it from collecting therefrom anything to assist in discharging that liability ? On the contrary, it is clear to me, that the act of 1869 can be given a just and intelligent operation only by considering it as exempting such railroad property from the taxable property of the several towns. This provision of the act should be read into the general tax laws of the State, and in making up the assessment rolls of the several bonded towns the railroad property should never have been placed thereon as property liable to taxation. Indeed, this statute has been substantially so construed in Matter of Clark v. Sheldon (106 N. Y. 104). And it is difficult to understand how the act of 1869 is explicit enough to remove such railroad property from assessment and taxation for town and county purposes, yet not explicit enough to remove it from taxation for the purpose of raising the county’s share of the State tax. And more difficult yet-is it to understand how it is specific enough to remove such property from taxation for the purpose of satisfying the State’s claim, but not clear enough to prevent it from being included in the estimate by which the State’s claim is ascertained.
In my judgment the various amounts claimed in this action were *284not regularly assessed and collected by the State against the county They were estimated upon a wrong basis. The board of supervisors of the county erred in including the valuation of the railroads in the amount that it returned to the State Comptroller^ and the State’s claim against the county was, therefore, in each year too large. Hence it has, in fact, received a larger sum in such years than it was lawfully entitled to. Much of this money, so overpaid to the State, the county has refunded to the towns. Some of it, as I understand the case, has never been refunded. The act of 1899 (Chap. 336), under which this proceeding has been instituted, authorizes a recovery by the county if a cause of action is shown against the State, either in behalf of the county or the town, and provides for a proper division of the recovery between them. The State having received moneys to which it was not entitled, it should ex cequo et bono refund it, and, under the provisions of the act of 1899, that seems to be sufficient to allow a recovery in this proceeding.
In my opinion, the judgment appealed from should be reversed and a new trial granted.