I agree with Judge CONWAY'S opinion save in one respect. It seems to me that, as both courts below held, the county, when it makes collections of these returned taxes, should credit the towns with the amounts collected by the county for "penalties". As the referee said: "penalties, in a broad sense, are nothing more than interest at an increased rate". A penalty is, indeed, only interest at a higher rate, and, like all other interest on taxes, it is collected from the taxpayer as damages for delay in payment.
Before the special Monroe County tax statutes here in question were enacted, the county, under the Amherst decision (260 N.Y. 361) had to make up to the towns the difference between the total tax levy and the part thereof actually collected by the town collectors — and that was the end of the matter, so far as the towns were concerned. Under the new Monroe County statutes, although the county makes up such deficits to the towns, the towns must in the end pay those amounts back to the county, the towns meanwhile getting credit from the county for all collections made by the county of the delinquent taxes in question. Thus the finally determined loss on uncollected taxes in the towns, which losses formerly fell on the county, now must be borne by the towns themselves. The county thus gets a great advantage from the change in the statutes and, this being so, it seems to me that doubtful provisions of the new statutes should be construed in favor of the towns to alleviate as much as possible their greatly increased financial burden. If the county credits the towns with "interest" but not with "penalties" collected, the county will be making a profit in the amount of the "penalties".
The judgment should be affirmed without costs.
LOUGHRAN, Ch. J., LEWIS and THACHER, JJ., concur with CONWAY, J.: DESMOND, J., dissents in opinion; DYE, J., taking no part; MEDALIE, J., deceased.
Judgment accordingly. *Page 415