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In re Flower

7 N.Y.S. 866 Court N.Y. Gen. Term Decision date 1889-12-10 English

Delivered by Barnard, P. J.

Contents

Majority

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In re Flower. In re Anable, (three cases.) In re Trustees of Union College. In re McMann.
(Supreme Court, General Term, Second Department.
December 10, 1889.)

Headnote

Taxation—Levy—Power of Legislature.
The legislature has the power to levy taxes, and to apportion the burden among the property holders, and may refer to a void assessment for the purpose of fixing the amount of the tax, and the property on which it is levied.
Appeal from special term, Queens county.
Application by Roswell P. Flower to compel the cancellation of certain water-rates and water-rents levied and charged against his property in Long Island City. Frederick W. Bleckwenn, as treasurer, etc., of Long Island City, appeals from an order entered in favor of petitioner. The following cases were submitted to abide the result of this appeal, viz.: In re Rosanna F. Anable, (2 cases;) Application of E. Kott Anable; Application of Trustees of Union College; Application of James D. McMann.
Argued before Barnard, P. J., and Dykman and Pratt, JJ.
W. J. Foster, for appellant. J. Ralph Burnett, (Fliphalet Nott Anable, of counsel,) for respondent. .

By the charter of Long Island City vacant lots were subject to rents for water. Title 10, § 9, subd. 4, c. 461, Laws 1871, seems to refei to lots which had buildings on them. The act (section 12, tit. 10) required the' rents to be assessed upon the building “ or vacant lot” chargeable with water-rent. By chapter 415, Laws 1875, and by chapter 100, Laws 1879,-and by chapter 684, Laws 1881, the water-rents are put upon lots vacant or otherwise. By the charter of 1871, a board of water commissioners was authorized to assess the water-rents, and no notice was provided for to the tax-payers. The list was made out and filed, and notice given to the tax-payers, who were then bound to pay the assessment to the city treasurer. , The tax was invalid. Remsen v. Wheeler, 105 N. Y. 573 , 12 N. E. Rep. 564 . The legislature confirmed the water taxes, and levied them on the several pieces of land on which they were heretofore assessed, or appeared of record to have been so assessed or charged. Chapter 383, Laws 1882, §§ 1, 2; chapter 656, Laws 1886, § 15. The legislature had the power to impose a fax in this way. The question was directly, presented in Re Van Antwerp, 56 N. Y. 261 . The

p. 867
court says: “It is also objected that it is not competent for the legislature to validate a void assessment, and that it could only authorize a reassessment. The answer to this is that the legislature did not attempt to legalize the old assessment, but itself exercised the power of making new assessments. The old assessments are referred to, not for the purpose of adoption, but for the purpose of fixing the specific amount by the proportion specified, and the act expressly levies that amount as a tax.” This doctrine is not touched in the case of Stuart v. Palmer, 74 N. Y. 183 . The power of the legislature to tax is only limited by an apportionment of the burden. It is not denied that the legislature may not only tax, but apportion the burden among the property owners. In Remsen v. Wheeler, 105 N. Y. 573 , 12 N. E. Rep. 564 , there was no act of the legislature validating the void tax. In Spencer v. Merchant, 100 N. Y. 585 , 3 N. E. Rep. 682 , the court of appeals say: “The act of 1881 determines absolutely and conclusively the amount of tax to be raised, and the property to be assessed, and upon which it is to be apportioned. Each of these things was within the power of the legislature, whose action cannot be reviewed in the courts upon the ground that it acted unjustly or without appropriate and adequate reason. * * * The legislature may commit the ascertainment of the sum to be raised and of the benefited district to commissioners, but is not bound to do so, and may settle both questions for itself, and when it does so its action is necessarily conclusive and beyond review.” These remarks were made in a case where the legislature had removed the tax originally imposed under a void law. The order should therefore be reversed, with costs and disbursements.

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