In re the Estate of Chardavoyne

At the times of their respective deaths these were city New York. The former died intestate on June 13, 1885, leaving as his surviving next of kin two sisters and several nephews and

The claim of non-liability rests, as regards both estates alike, upon the contention that that act applies to the estates of such persons and of such persons only as have died since June 30, 1885. Mr. Chardavoyne died on June 13 of that year,, and Mattson on the day following. On June 10, 1885, the bill which now appears as chapter 483 of the statutes of that year, having been duly passed by both houses of the legislature, was presented to the governor and was by him approved. The certificate of his approbation was indorsed thereon, and the bill so indorsed was deliverd to the secretary of state pursuant to article 4, sec. 9 of the constitution of this state, and sec. 4, tit. 4, chap. Y, part 1 of the Revised Statutes (1 Banks [Yth ed.] 432). It was then, pursuant to section 10 of the same title, deposited in the office of the secretary of state, who proceeded as. directed by section 11, to certify and indorse thereon “June 10, 1885,” as the day, month and year, when it. “became a law.”

It is provided by section 12 that “Every law, unless a different time shall be prescribed therein, shall commence and take effect on and not before the twentieth day after its final passage.”

It follows, therefore, that unless chapter 483 prescribes some different date than June 30, 1885, as the date of its-commencement and taking effect, it commenced and took effect on that day and not sooner.

The district attorney of this county, who has appeared in these proceedings in accordance with section 1Y of the act-here in question, contends that the estates of these decedents, which, but for the provisions of that act, would have passed by the statutes of descent and distribution to Mr. Chardavoyne’s heirs and next of kin, and to Mr. Mattson’s legatees and devisees, are liable to the tax by the act imposed, except so far as by its express terms, certain portions-of those estates are exempted from such liability.

First. He insists, in other words, that chapter 483 took effect from the date of its enactment, and not from the-twentieth day thereafter.

The first section of the act is in these words:

“After the passage of this act, all property which shall pass by will or by the intestate laws of this state from any person who may die seized or possessed of the same while-

being a resident of the state, or which property shall be within this state * * * to any person or persons or to a body politic or corporate, in trust or otherwise * other than to or for the use of father, mother, husband, wife, children, brother and sister, and lineal descendants bom in lawful wedlock, and the wife or widow of a son and the husband of a daughter, and the societies, corporations and institutions now exempted by law from taxation, shall be and is subject to a tax of five dollars on every $100 of the clear market value of such property, and at and after the same rate for any less amount, to be paid in the city and county of New York to the comptroller thereof for the use of the state.”

The first six words of the section above quoted are admittedly the only words that are calculated to take the act which I am here interpreting from out of the operation of section 12, title 4, chapter 7, part 1, of the Revised Statutes, supra.

Now, in ascertaining and determining whether those six words have the effect which is claimed for them by the district attorney, it must be borne in mind that the constitution of this state puts no restriction whatever upon the authority of the legislature to make immediately effective all statutes which it may lawfully enact.

Counsel who are contending for the non-liability of these two estates under the so-called collateral inheritance act, must certainly concede, that but for the existence upon the statute book of section 12, supra, that act would have gone into operation on the date of its approval by the governor, and that, too, even though the first six words of its first section formed no part of its provisions.

Prior to the enactment in Great Britain in 1793 of the act of 33, George III, chapter 13, entitled “An act to prevent acts of parliament from taking effect prior to the passing thereof," statutes became operative by relation from the first day of the parliament that had enacted them. 4 Coke Inst., 25; Panter v. The Attorney General, 6 Bro. Par. Rep., 486; Latless v. Holmes, 4 T. R., 660.

This doctrine, which, according to the express avowal of the act of 1793, had been productive of “gross and manifest injustice," had sprung from the fact that in the rolls of parliament made up after its adjournment, it had not been' the custom to name any date except the date when that parliament had assembled, and that, in fixing the time when statutes took effect, the courts had been furnished with no other guide than those rolls afforded. The statute of 1793 provided that there should thereafter be indorsed upon every act the day, month and year, when the same should “pass and receive the royal assent," and that such indorse

As regards the separate states of the American union there has been great diversity of action. In some of them there are constitutional restraints more or less stringent upon legislative authority. In Maryland no law takes effect until the first day of June next after the session at which it has passed, “unless it be otherwise expressly declared therein. Const. 1867, art. 3, § 31.

There are similar, provisions in the constitution of Michigan (Const, of 1850, art. 4, § 20), and of West Virginia (Const. 1872, art. 6, § 30).

In Illinois a law is inoperative until the first day of July next after its passage, “unless in case of emergency, which emergency shall be expressed in the preamble or body of the act, the general assembly shall otherwise direct. Const. 1870, art 4, § 13.

Similar restrictions are found in the fundamental laws of Colorado (Const. 1876, art. 5, § 19); of Missouri (Const. 1875, art. 4, § 36); of Nebraska (Const. 1875, art. 3, § 24); of Oregon (Const. 1857, art. 4, § 28); of Tennessee (Const. 1870, art. 2, § 20), and of Texas (Const. 1876, art. 3, § 39).

By the constitution of Iowa, no law passed at a regular session takes effect until the fourth day of July next after its passage, unless the general assembly “shall deem the law of immediate importance,” in which event they may “provide for its taking effect t>y publication.” Const, of Iowa, 1857, art. 3, § 26.

In Indiana no act can become operative until it has been “published and circulated by authority except in case of emergency, which emergency shall be declared in the preamble or the body of the law.” Const, of Ind., 1851, art. 4, § 28.

In Kansas and in Wisconsin no law of a general nature goes into effect until it has been published. Const, of Kan., 1859, art. 2, § 19; Const, of Wis., 1848, art. 7, § 21.

In several of the the states there is no constitutional restriction and no general legislative provision in the premises. Massachusetts, Maine, Connecticut, California, Minnesota, Nevada, New Jersey, New Hampshire, Georgia, North Carolina, Ohio, Rhode Island, Vermont and Virginia,

Now, since section 12, supra, came upon the statute book, it has been a frequent and well-nigh universal custom of the legislature to signify its intention that a law should go into immediate operation by a special section so declaring in express terms. Of the 557 statutes enacted in 1855, over 500 contain a section of that character. It must nevertheless be kept in mind that the legislature, unfettered as it is by constitutional restraints, is not bound to adopt this particular mode for making its laws effective from the date of their passage, but may accomplish that result by adopting any form of words satisfactorily evincing that such is its purpose.

Some of the counsel in this proceeding lay great stress upon the word “prescribed" in section 12, supra, as if the legislature which enacted the Revised Statutes had by the use of that term put its successors under some species of restraint. But a legislative act cannot be insured against repeal, not even against repeal by implication.

“The later Parliament" says Lord Coke, 1 Inst., 42, 43, “hath ever power to abrogate, suspend, qualify, explain or make void the former, in the whole or any part thereof, notwithstanding any words of restraint, prohibition or penalty."

Whether the collateral inheritance law took effect on the day when it was approved by the governor, or did not take effect until a later period, is purely a question of the intention of the legislature which enacted it, as that intention can be gathered from its language. If that language fairly construed discovers a purpose of the law-makers that the act should become immediately operative, there is an end of the matter.

Now, what is the fair construction of the expression, “After the passing of this act," which stands at the very threshold of chapter 483? If that expression is considered quite apart from any supposed aid to its interpretation that may be afforded by reference to section 12, ante, it cannot be even plausibly contended that it means anything else than this: After the enactment of this bill into a law— after this bill shall have become a statute of the state, in some one of the modes established by the constitution.

2. One who claims that “the passing of this act" as used in section 1, is equivalent in meaning to " the going into operation of this act" must resort of course to the

The force of the word “passage,” under these surroundings is quite unmistakable. And it is equally; unmistakable that the meaning which must there be assigned to it is of necessity the very meaning which it has in chapter 483. The contestants’ argument ends, therefore, in a reductio ad absurdum.

I see no room for doubting that the first section of chapter 483 must be interpreted precisely as if there appeared therein in place of the words “after the passing of the act” the words “after June 10, 1885.”

Second. But it is claimed that section 1, even as thus paraphrased, fails to indicate an intention on the part of the legislature that the act of which it forms a part should become at once operative.

The word “after,” it is urged, lacks definiteness and exactitude. It does not mean “from and after,” or “immediately after,” or “at all times after;” and there is, therefore, still a necessity of resorting to section 12 of the general law, to find the precise period when the passing of decedent’s estates became taxable under chapter 483.

I have been referred to no reported decisions which seem to me to lend strong support to this contention. The cases relied upon by counsel are Wheeler v. Chubbuck ( 16 Ill, 361 ), Board of Supervisors v. Keady ( 34 Ill., 293 ), Rice v. Ruddiman ( 10 Mich., 125 ), and Charless v. Lamberson (I Clarke [Iowa], 436.

Wheeler v. Chubbuck was an action brought to recover from the defendant a penalty for suffering hogs to run at large, contrary to a statute of Illinois which was passed on January 27, 1853. The statute declared that “from and after the first day of March next, it shall not be lawful, etc.” A verdict was recovered against the defendant in the trial court, after a charge of the presiding justice, that if the defendant had violated the statute at any time after March 1, 1853, the plaintiff could recover. It was claimed by the appellants that the “March next” of the statute must be held to mean March, 1854, in view of article 3, section 3 of the then existing constitution of the state, which declared that “no public act of the general assembly shall take effect or be in force until the expiration of sixty days from the end of the session at which the same may be passed, unless in case of emergency the general assembly shall otherwise direct.” This contention was sustained on appeal, the supreme court holding that the

“Board of Supervisors v. Ready is a reiteration of the same doctrine upon an essentially similar state of facts.

In Bice v. Buddiman, it was held that the legislature of Michigan, by a statute passed February 4, 1859, providing for an election of county officers “ at the annual township meeting to be held in April next,” must be deemed to have intended that such election should take place in April, 1860, in view of the fact that the 1859 session of the legislature continued until May 16, and that the constitution of the state provided that no act, passed, as was the act there in question, by less than a two- thirds vote, could go into operation until ninety days after the close of the legislature that had enacted it.

The suit of Charless v. Lamberson, grew out of the following state of facts:

The act known as the Code of Iowa, was passed in February, 1851. Its 1249th section declared that a homestead might be sold on execution for debts contracted “prior to the passage of this law.” It was held by the supreme court that the section applied to debts contracted in April, 1851, or contracted at any subsequent period prior to July 1, 1851, the day on which the Code took effect.

At first blush this decision seems opposite to the present situation.

But the conclusion of me court was mainly based upon these two considerations, which are foreign to the case at bar: First. The state constitution provided that no general law should take effect until it had first been published and circulated by authority, and the legislature, in pursuance of that provision, had caused publication to be made declaring that the Code should become operative on July 1, 1851, and not sooner. Second. One of the sections of the Code expressly provided that the terms “heretofore” and “hereafter,” wherever they might appear, should be treated as relating to the time when the statute should take effect. Under these circumstances the court was of the opinion that the term “ prior to the passage of this act,” was substantially equivalent to the term “heretofore,” and covered all periods of time preceding July 1,1851, the date on which the act become operativo. *

While the cases upon which I have above commented can, as it seems to me, be readily and clearly distinguished from the case at bar, the claim that the expression “ after the passage of this act,” is not sufficiently definite tc estabEsh the very day of the act’s passing as the day of its go

Suppose it to be conceded that the words in controversy do not have the effect claimed for them by the district attorney, it by no means follows that those words are meaningless, nor indeed that, for the practical purposes of this proceeding, they may not be utterly fatal to the contestants’ claim of exemption.

Why has the legislature made use of them ? They are surely not to be tossed aside as mere surplusage, if upon any fair and reasonable construction of the statute, they are found to serve an intelligent purpose.

According to the contestants they have no force or value whatever. Strike them from the statute, and its meaning is not altered a whit. Now, I cannot assent to this view. The preposition “after” expresses the relation between the word “passage” and some other word in the sentence wherein it appears. What is that word ? Manifestly it is either the word “pass” or the word “die.” The tax for which the first section of the act provides, is imposed upon all property which shall pass after the passage of this act from a person who may die, etc., or upon all property which shall pass from any person who may die after the passage of this act. The two propositions are in substance the same.

Now let it be admitted that this law did not “commence and take effect” until June 30, 1887. Not until that date, upon this assumption, could the surrogate appoint appraisers; not until then could he exercise the jurisdiction granted by section 13; not until then could he issue the citation for which section 16 makes provision.

But the question still remains: To what estate was the act found to be applicable when it finally became operative?

To the estates, it seems to me, of all persons who had died at any time after its passage, being “seized or possessed,” etc., as specified in the statute.

This reading clears up the obscurity of the phraseology, assigns an intelligible and important meaning to words which the contestants can only deal with by pronouncing them surplusage, and is in accord with a recent well considered decision of the English court of appeal in Ex parte Rashleigh (L. R., 2 Ch. Div.,. 9), a decision which is so pertinent to the present situation that it seems proper to state in some detail the circumstances under which it was rendered.

The “bankruptcy act, 1861,” by which non-traders were first made liable to the bankruptcy laws of England, pro

It was held by the court below that a debt contracted in September, 1861 (i. e., between the date when the act of 1861 received the approval of the sovereign and the date when that act went into operation), must be held to have been contracted before and not after its passage—in other words, that the term “the passing of the act," as used in section 118, should be construed as meaning “the taking effect of the act." This judgment was reversed by the court of appeal with the concurrence of the four sitting judges, each of whom pronounced an opinion. It was held that the words “passing of the bankruptcy act, 1861,” in section 118 (supra)1 referred to the time when that act received the royal assent and not to the time when it went into operation.

Said James, L. J.; “I am of opinion that the words the date of the passing of the bankruptcy act, 1861,” mean what they say. They arc English words, common words and words which have a fixed meaning in our language and law. They mean the time when the royal assent is given to a bill which has passed both houses of parliament. That is the meaning of the words, and no court ought to depart from the plain meaning of plain English words unless coerced to do so by some very serious injustice."

Melush, L. J., said; “I am of the same opinion. The 118th section appears to me a perfectly easy section to construe, and the words must be taken in their natural sense.

* * * The 232d section says that the act shall commence and take effect from and after the 11th day of October, 1861. That means that nothing which is authorized to be done under that act can be done till after the eleventh of October; but that is all it says. It follows that the 90th section is so far modified that no creditor could present his petition until after the 11th of October, 1861, neither could a judgment debtors' summons be taken out until after the 11th of October, 1861, because the presenting

Bagalley, J., and Brett, J., each announced his full concurrence in the views of his assocates. The latter said among other things: “I think the canon of construction here is that you must construe the 118th section according to its ordinary grammatical terms, unless such construction would produce either an absurdity or a great injustice, so that it must be inferred that the legislature did not mean to use the words in the ordinary sense.”

It seems to me that the facts of the case just cited were . much more favorable to the unsuccessful parties than are the facts in the present case to these objectors. The two cases would be more nearly parallel, if, in our act of 1885, there had been inserted, for example, a concluding section in these words: “ This act shall take effect on the twentieth day after its passage.” Even in that event it would seem to have been necessary, in order to give any effect whatever to the first six words of the statute, to hold the property of persons dying between June tenth and June thirtieth, no less than the property of persons dying after the latter date, subject to the burdens by the statute imposed.

My conclusion is that the estates of both these decedents are fiable to the tax Let a decree be entered accordingly.