#### Van Tassel *v.*Derrenbacher, County Treasurer.

*(Supreme*Court, *General Term, Third Department.*

May 26, 1890.)

L Towns—Taxation—Railroad Aid.

Laws N. V. 1869, c. 907, § 4, as amended by Laws 1871, c. 283, providing that all taxes, except school and road taxes, collected for the ensuing 30 years by any town, “on the assessed valuation of any railroad, ” for which said town has issued bonds, shall be paid over to the county treasurer to redeem such.bonds, applies to renewal bonds issued to refund the original bonds as they fell due, though the railroad has been sold under a mortgage, and purchased by another company.

2. Sato—General and Special Laws.

By Laws N. Y. 1870, c. 762, amending Laws 1868, c. 311, so as to provide by taxation a sinking fund sufficient to pay at maturity bonds issued in aid of the Wallkill Valley Railroad, it was not the intention of the legislature to supersede the provision made by the general act of 1869, but merely to give an additional fund for the payment of said bonds.

Appeal from Ulster county court.

Petition by William P. Van Tassel against John Derrenbacher, county treasurer, to require him to apply the sum of $1,453.03, being the amount of taxes (except road and school taxes) levied and collected, and paid to the treasurer, on the assessed valuation of the Wallkill Valley Railroad in the town of Rosendale, in Ulster county, for the year 1887, towards the redemption of the bonds issued by said town to aid in the construction of said railroad. By chapter 880, Laws 1866, amended by chapter 311, Laws 1868, certain towns, including the town of Rosendale, were authorized, upon complying with the provisions of said acts, to take stock, and issue bonds therefor, in aid of the construction of the Wallkill Valley Railway. The town of Rosendale did comply with such provisions, and such proceedings were had under said acts as resulted in the subscription in behalf of the town for the stock of the rail*146way company, and the issue of the bonds of the town, in the sum of $92,800; the bonds bearing date April 1, 1869. The railroad was built through the town, and the proceeds of the bonds applied in aid of its construction. Section 4 of chapter 907, Laws 1869, amended by chapter 283, Laws 1871, provides that “ 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,” the same to be applied by him in the manner prescribed in said section for the redemption of such bonds issued by the town. In case of the failure of the county treasurer.to comply with the provisions of the act, any tax-payer of the town may apply on petition to the county judge, who may make an order directing compliance "by the county treasurer. Of the original bonds issued by the town of Bosendale, at the time of the commencement of this proceeding $8,(100 of the principal sum remain outstanding. New bonds to the amount of $8,400 have been issued to refund to that amount the original bonds as they fell due. The balance has been paid. The county treasurer refused to apply to the sinking fund the taxes aforesaid for the year 1887, and now appeals from the order of the county judge directing his application thereof.

Argued before Learned, P. J., and Landon and Mayham, JJ.

*A. T. Clearwater,*for appellant. *Linson & Van Burén,*for respondent.

Landon, J.

Nearly every question presented in this class of cases has been decided adversely to the county treasurer. *Clark*v. *Sheldon,*106 N. Y. 104, 12 N. E. Rep. 341; *Strough*v. *Supervisors,*23 N. E. Rep. 552; *Bridges*v. *Supervisors,*92 N. Y. 570; *Vinton*v. *Supervisors, 2*N. Y. Supp. 367; *Hand*v. *Supervisors,*31 Hun, 531. The following only are now urged:

1. Does section 4 of chapter 907, Laws 1869, include the renewal bonds? So long as there are outstanding sufficient of the original bonds to absorb the taxes, the question is not material; but, if material, the renewal bonds renew the original debt in effect, though probably not in form. Eor 30 years the taxes upon the railroad are applicable to the payment of the debt. Such was the intention of the legislature. We should give it effect, and regard 'the substance, rather than the letter, to the end that the intent of the legislature may not be defeated.

2. The Wallkill Valley Bail way Company defaulted upon its mortgage; the mortgage was foreclosed; the railroad sold, and became the property of the Wallkill Valley Bailroad Company. But the railroad remains, and the taxes applicable to the sinking fund are those collected upon “the assessed valuation of the railroad.” Change of title or of name, or of both, does not change the property from which the taxes are derived.

3. Chapter 880, Laws 1866, under which the original railroad company was organized, contains provisions looking towards the liquidation of the bonds issued by the several towns in aid of the construction of the railroad. Thus the dividends upon the stock, and the stock itself, were devoted to this purpose, and taxation was authorized after 10 years to the amount of 5 per cent, of tlie principal of the bonds, to the end that the bonds might be paid within 30 years from their date. Section 7 of chapter 811, Laws 1868, was amended by chapter 762, Laws 1870, so as to require a sinking fund to be provided by taxation every year after 10 years from the date of the bonds, sufficient to provide for their payment at maturity. The act of 1868, thus amended in 1870, relates solely to the Wallkill Valley Bailroad. It is urged that, special provision being made by the act of 1868 for the bonds to be issued in aid of the construction of this railroad, the general provision made by the act of 1869 did not extend to these bonds; and that if the act of 1869 did apply before *147the act of 1870, amendatory of the seventh section of the act of 1868, the amendment was the latest special provision for the protection of the Wailkill Valley Railroad town bonds, and must be deemed to have superseded the provision made by the general act of 1869. But the general and special acts are consistent with each other; and the general act, by its general terms, includes the bonds in question. The object of all the acts was to provide security and means for the payment of the bonds. The creditor was by the special act of 1866 and the general act of 1869 given different securities. If the amendment of 1870 increased the security under the special act of 1868, it could not, certainly in the absence of express language to that effect, take away any security the creditor already held under the general act of 1869. The creditor was at liberty to accept every security tendered him; and the legislature could not, without impairing the obligation of the contract, deprive him of any security he already held, unless the pledge of the new security was given and accepted upon condition of a release of the old. These acts, providing securities for payment, are in the nature of contracts between debtor and creditor; and the legislature cannot, as in the case of ordinary legislation, supersede at will the earlier by the later act, unless the later act provides a full equivalent. We discover no intention to supersede the security given by section 4 of the act of 1869 by the amendment in 1870 of the seventh section o£ the act of 1866. Order affirmed, with costs. All concur.