By section 264 of the Code of Civil Procedure it is provided that where jurisdiction to hear and determine a claim is conferred upon the court by a special law, the liability of the State is not thereby implied, but such a claim is subject to defense and counterclaim by the State in the same manner and to the same extent as if presented under a general law. The act which authorizes the - consideration of this claim by the Court of Claims provides that no judgment shall be rendered against the State unless the facts proven shall make out a case against the State which would create a liability were the same established in evidence in a court of law or equity against an individual or corporation. (Laws of 1899, chap. 336, § 3.} It is apparent, therefore, that this enabling act has given to the claimant no better cause of action than existed before its passage, and I understand the attorney for the appellant claims nothing-therefrom.
This action, then, involves the construction of - chapter 907 of the Laws of 1869, as amended by chapter 283 of the Laws of 1871 and revised in section 12 of chapter 685 of the Laws of 1892 *285and amended by chapter 466 of the Laws of 1893. The act in question is entitled, “ An act to amend an act entitled ‘ An act to authorize the formation of railroad corporations and to regulate the same,’ passed April second, eighteen hundred and fifty, so as to permit municipal corporations to aid in the construction of railroads.” The act, then provides for a petition to the county judge for the right to issue municipal bonds for railroad stock; for the determination by the county judge whether a majority of the taxpayers and taxable property desire the bonding; for the appointment of railroad commissioners; for the issue of bonds, and then provides (§ 4): “ All taxes except school and road taxes collected for the next thirty years, or so much thereof as may be necessary, in any town, village or city, on the assessed valuation of any railroad in said town, village or city for which said town, village or city has issued, or shall issue, bonds to aid in the construction of said railroad, shall be paid over to the treasurer of the county in which said town, village or city lies, and said money so paid over, including interest collected on bonds held by said treasurer as a sinking fund, shall be invested by said treasurer in State, city, town, county or village bonds, issued pursuant to law of this State, on* United States bonds, within sixty days after receiving the same, and shall be held by said county treasurer as a sinking fund for the redemption and payment of the bonds issued or to be issued by said town, village or city, to aid in the construction of said railroad.” The provision quoted was substantially re-enacted in the statutes cited sufra. . These taxes collected upon this railroad property in. some instances were not turned over to the treasurer of the county for the purposes stated, but passed with the other taxes to the benefit of the county. The full amount of State taxes assigned to each county were paid by the county to the State. Thereafter, the bonded towns, for whose benefit was inserted this provision in the law, sued the county to recover back the amount of taxes so diverted to general purposes which should, under the law, have been set apart for a sinking fund. In these actions they succeeded. Thereupon the county of Ulster, having paid to the several towns the amount, of taxes so diverted,, has made this .claim against the State to recover back from the State what is claimed to *286be the amount of these taxes unlawfully diverted, which were received by the State as State taxes. The Court of Claims has held that the county was not entitled to recover, and from the judgment entered upon their direction this appeal is taken.
By section 58 of the General Tax Law it is provided that the clerk of the board of supervisors shall, on or before the second Monday in December, transmit to the Comptroller a certificate or return of the aggregate assessed and equalized valuation of the real and personal estate in each tax district as the valuation of such real estate has been corrected by such board, and the amount of taxes assessed thereon for town, city, school1, county and State purposes. . This railroad property was clearly property that was assessed within the county. Taxes were paid thereupon, and such taxes as were assessed thereupon for school and road purposes were devoted to such purposes. In the certificate or return of the clerk of .the board of supervisors made to the Comptroller he was required to include this property according to the very letter of the law. Upon these returns, the State Board of Equalization equalizes the valuations the same as the county board of equalization equalizes the valuations between the several cities and towns therein. The State tax rate is determined by the Legislature from these aggregate valuations, which contain, by the letter of the law, the assessment of this railroad property.' The Comptroller then certifies to each county the amount of taxes which must be paid by each county. His duty is simply ministerial in applying the tax rate to the equalized valuation of a county. This amount, so certified by the Comptroller, is required fo be paid to the State from the taxes first collected in the county. The amount must be paid in full and is subject to no reduction whatever for taxes uncollected-or lost. It will thus be seen that the State taxes, a part of which are sought to be recovered back, were assessed and paid in exact accordance with the law. The clerk of the board of supervisors was required to include the valuation of this property as taxable property in his report to the Comptroller. The State Board of Equalization were required to make their equalization upon the valuations returned by the clerks of the boards of supervisors. The Comptroller was required to compute his tax upon the valuations made by the State Board of Equalization. The county treasurer was required to pay from the taxes first collected the full *287amount certified by the Comptroller as the amount due from that county. It would seem to follow that the payment under the requirement of the law of a tax, estimated and computed by the State officers in strict accordance with the law, could furnish no ground, legal or equitable, for an action for the return of the same. If the statute had gone further and provided that the clerk of the board of supervisors, in certifying to the Comptroller the assessable valuation of taxable property, ■ should omit this property, or had provided that the State Board of Equalization should deduct the value of this railroad property, or had provided that the State Comptroller, in determining the amount for which each county should be liable, should deduct any amount on account of the provisions of the act of 1869, as amended, the intent of the Legislature would have been made plain to compel the State to contribute to the help of these bonded towns as well as the county. But none of these provisions were made, and there is no express provision of law diminishing the contribution of each county to the support of the State by reason of this diversion of certain of the taxes collected as a sinking fund for these bonds. In fact, it is not claimed that the statute is express, but the appellants would find some implied modification ■ of the general statutory law as to the collection of State taxes, so that the county, by reason of the appropriation of these particular taxes to. the payment of these bonds, should have allowance therefor in the amount which they contribute to the State. Those who claim an implied modification of the law are not agreed as to just at what point that law should be impliedly modified. Some argue that because these taxes collected are devoted to a special purpose, that the property is exempt, and that the clerk of the board of supervisors should not, therefore, return to the Comptroller this property as part of the assessable property of the county. Others argue that while the clerk of the board of supervisors is required by law to return all the assessable property in a county, the State Board of Equalization should make allowance therefor in equalizing the valuations of the different counties throughout the State. Others claim that the State Comptroller, in computing the amount which the county must contribute to the State taxes, is required to take into consideration this special appropriation of the taxes from this railroad property. ■ Still others claim that *288the county treasurer need pay to the Comptroller only a part of the amount required from each county, deducting the amount which would naturally be assessable to the railroad property. But none of these claims are free from difficulty. If it be claimed that, by reason of the appropriation of part of the taxes from the railroad property to pay the bonds of the towns bonded for their Construction, the property had become exempt, it may be answered that it is assessed generally for school and road purposes, and it is clearly not exempt property although part of the taxes paid thereon is diverted from the purposes of general taxation. The claim that the State Board of Equalization or the Comptroller should make allowance for "these taxes so diverted, either in the equalization or in the estimate or in the computation of the amount of taxes due from a county, would seem to fall by reason of the fact that neither the Comptroller nor the State Board of Equalization have before them what part of the assessed property was railroad property. The statute requires the certification of the aggregate valuation of the assessed property only,- and nowhere is the clerk of the board of supervisors directed to return to the Comptroller what part of that property was railroad property subject to the provisions of the act of 1869, as amended. The remaining claim that the county treasurer should deduct from the taxes demanded the proper amount would find a practical difficulty in the explicit command of the statute that he shall pay this amount from the moneys first collected; and also from the fact that the amount had been estimated from the valuation equalized by the State Board of Equalization, and not necessarily from the valuation, certified by the clerk of the board of ’supervisors. This would also result in a deficiency in the amount estimated as necessary to pay •the expenses of the State, against which the law will clearly presume. -These difficulties are suggested, not for the purpose of holding that they are insurmountable if the intent of the Legislature were clear that'the State should bear its share of the contribution for the help of the bonded towns, but as cogent evidence that it was never intended by the Legislature that any contribution should be made by the State at large. Is, the Legislature presumed to have passed a law which would result every year in a deficiency of moneys necessary to be raised for the State expenses ? Appellant has argued that the *289State lias power to make its tax rate what it will and can make allowance for this deficiency by a slightly increased State rate. The answer to this argument lies in the fact that no State department has knowledge of facts from which can be determined what the deficiency will be for which allowance could be made. The county board of supervisors who along have this knowledge are not required to certify the amount of assessed railroad property. This argument and its answer only emphasizes respondent’s contention that, if the State had intended to contribute to this burden, some provision could and would have been made in the General Tax Law whereby the State would be protected from a yearly deficiency, which is the inevitable result of the appellant’s construction of the law. Nor can appellant answer that the State may as well suffer the deficiency as the county. In the first place the county always must provide for some deficiency. Under the General Tax Law the tax collectors pay to the localities in full the moneys collected for them and the balance is paid to the county. If then any taxes for any reason are unpaid the loss comes to the county to be made up by the next tax levy. But the county need suffer no deficiency. The board of supervisors have official knowledge of the amounts of railroad property, the taxes from which are to go to this sinking fund. The tax rate fixed in view of this knowledge could lead to no deficiency on account of this diversion of these taxes.
This problem in its final solution comes to the actual intent of the Legislature whether to make both State and county contribute to the help of the bonded towns or to require the county alone to make the contribution. It will not do to say that it was the intent of the statute to make the property which it created pay the debt of the towns by which in part it was created. This railroad property assessed is not property created by the statute. The real property which forms a large proportion in value of the property assessed has, before the incorporation of the railroad, been property assessed within the town and compelled to bear its share of the public expense. It is not unnatural that the statute should compel a county to come to the rescue of an overburdened town within its borders. It might well be assumed that the property within the county is to an extent benefited by the improvements within the *290towns within that county. Upon the same principle not many years ago it was provided that in certain cases a county should bear part of the expense for the construction of bridges which would otherwise be town charges. Is it not much less probable that the Legislature ever intended that'the State at large should contribute to the burdens of these bonded towns ? The benefit to the State at large is too remote upon which to base any such presumption.
. Again, as has been stated, the liability of the State to contribute to the burdens of these towns must be found in some implied modification of the statutory machinery for the collection of State taxes. The .rule of statutory construction has been long settled that the State will never be presumed to have surrendered any- rights and that such surrender must be found in express statutory enactment. In Black on Interpretation of Laws, at page 316, the rule is stated: “ In general, however, the rule is well settled that statutory grants of property, franchises or privileges in which the government has an interest, are to be construed strictly in favor of the public and against the grantee, and nothing will pass except what is granted in clear and explicit terms.” In the same authority, at page 119, the rule is stated: “ General words in a statute do not include nor bind the government by whose authority the statute was enacted, where its sovereignty, rights, prerogatives or interests are involved. It is bound ’only by being expressly named or by necessary implication from the terms and purpose of the act.” The author proceeds: “ If the government is not expressly referred to in a given statute, it is presumed that it was not intended to be affected thereby, and this presumption in any case where the rights or interests of the State would be involved, can be overcome only by clear and irresistible implications from the statute itself. Generally speaking, therefore, the State is not bound by the provisions of any statute, however generally it may be expressed, by which its sovereignty would be derogated from, or any of its prerogatives, rights, titles, or interests would be divested, save where the act is specifically made to extend to the State, or where the legislative ■ intention in that regard is too. plain to be mistaken.” It is the same principle which holds statutes of exemptions to a strict construction. This principle of construction . negatives the intention claimed by the appellant to make the State a joint contributor with the county for the benefit *291of these towns. For the county to recover in this action, it must appear from the law that the State has voluntarily surrendered part of the property from which it derives revenues, thereby increasing the burdens upon other property throughout the State. In my judgment, it does not so appear, and the judgment of the court below should be sustained.
Chester, J., concurred.
Judgment of the Court of Claims reversed, with costs, and new trial before the Court of Claims granted.
Sit6.