Jones v. Chamberlain — 14 N.Y. St. Rep. 778

Majority

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Griffith Jones, Resp’t, v. Henry W. Chamberlain, et al., App’lts.^[1]

(Court of Appeals,

Filed April 10, 1888.)

Headnote

1. Taxation—Bounty tax laws op 1863, chaps. 15, 184 and 393—Laws 1864, chaps. 8, 73—Laws 1865, chaps. 39, 336 and 617 — Construction op.

The bounty acts passed in 1863, 1864 and 1865, provided "that all provisions of law” existing “at the time of the passage of the act in question for the assessment, levying, enforcement and collection of taxes, and for paying over and disbursing the money collected, shall apply to the . taxes provided for by the act so far as the same are consistent with its provisions.” Held, that the effect of these words was to incorporate into the statutes relating to taxation for bounties, every provision of the then existing laws relating to the assessment and enforcement of other taxes, and'gave them the same operation as if repeated in detail in each statute.

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2. Same—Effect of—Authority to assessors to levy and collect.

The authority to assessors to levy and collect involves every agency theretofore provided, and every step in the proceeding which justifies the designated officer in enforcing by sale, if necessary, the collection of the tax imposed.

3. Same—What subject to said tax.

The general law makes all lands, as well as personal property, liable to taxation. Under the provisions in said acts it was not necessary, in order to make the land chargeable with their payment, or the subject of sale, to declare it in the act.

4. Same—Laws constitutional—Application of constitution, art. 7,

§ 13.

The provisions of section 13, article 7, of the constitution, apply only to a general tax upon all the property of the state, and was not intended to be a local tax upon a particular section.

5. Same—Local taxes under chap. 18, of Laws 1863.

The bounty taxes under chapter 15, Laws 1863, were not general, but local ; they were not imposed by the legislature, through the acts referred to, but authorized by the citizens of the town in public meeting assembled, and are neither within the title or spirit of the constitutional provision referred to.

Appeal from a judgment of the supreme court; general term, fifth department, ordering a judgment in favor of plaintiff upon a verdict rendered by a jury at the circuit, where the exceptions were ordered heard in the first instance at the general term.

Mr. Waring, for app’lts; J. F. Parkhurst, for res’pt.

The plaintiff sought by this action to recover 359 acres of land situate in the town of Alleghany, Cattaraugus county, known as lot 3, section 1, township 1, range 5, in the Holland Company survey, and for accounting for oil taken therefrom by the defendants, and pending the action an injunction and receiver.

The defendant, The Bradford Oü Company, answered, setting up a general denial of the allegations of the complaint. The other defendants, Fay and Chamberlain, put in a similar, answer. The issues were brought to trial before a jury, who by their verdict found “that the plaintiff is owner in fee of the lands described m the complaint, and entitled to recover the possession thereof.” Exceptions taken upon the trial were ordered to be heard in the first instance at the general term.

Upon argument in that court the exceptions were overruled and judgment ordered upon the verdict, and “that plaintiff also recover of said defendants his damages for withholding the same, and that defendant’s account'to the plaintiff for the rents, issues and profits of said lands and the oil and other valuable products taken therefrom, and for the value thereof, such accounting to be had before a referee to be appointed by the court.”

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It also appointed a receiver of all the said property involved in this action, and of the rents, issues and profits and products thereof, and of the damages for withholding the same, with the usual powers and duties.

It was also ordered and adjudged that the defendants assign, transfer and deliver to said Campbell, as such receiver, all the said real and personal property involved in this action, and all the rents, issues and profits, oil and products therefrom and the damage for withholding same, .and all oil certificates or other papers, books and writings relating thereto, and said receiver is hereby authorized and empowered to sue for, collect, and receive the same, and continué the business of oil producing, and upon notice to the plaintiff’s attorney sell the oil or any part thereof.

No appeal was taken by the Bradford Oil Company, but Hónery W. Chamberlain, Louis G-. Chamberlain and Ella Y. Gleason, devisees and executors of George Chamberlain, deceased, and Frederick Fay, appealed from so much of the judgment “as awarded the possession of the premises m dispute to .the plaintiff..” The plaintiff claimed title under a,deed.'fíomThe comptroller of the state, dated January 22, 1874' and'proved that the defendents were in possession of the premises at the time of the commencement of the action. On the part of the defendant it was made to appear that the sale of lot 3, in pursuance of which the comptroller’s deed was executed, was made on the 23d day of September, 1871, for the following unpaid taxes, viz.: 1863, state and county tax, $8.95; 1863, highway tax, $2.96; 1864, state and county tax, $10.94; 1864, highway tax, $2.31; 1864, bounty tax, $23.68; 1865, state and county tax, $12.79; 1865, highway tax, $5.80; 1865, school tax, $12.22; 1865, bounty tax, $16.11.

It was urged as a defense to the action, first, that the proceedings prior to the sale and conveyance were illegal and insufficient to show compliance with the statutes in regard to such, .matters, and second, that if those proceedings were in every respect regular, the plaintiff failed to consúmate his title by not serving the statutory notice to redeem upon one Hill, who, the defendants claim, was in the actual occupancy of the premises at the time specified in the statute for the serving of such notice. But the question raised by the second of these propositions' was submitted to the jury with direction that in case they “ found from the evidence that Hill was. not in the actual, occupancy of the land, or some part,of Jt,.on that day, then their verdict should be for the plaintiff; .but that in case they found he was in the actual occupation of the whole or part of the lot on that day, they should .render a verdict for the defendants.” There was evidence from both parties upon this question. That Hill

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■did not live upon the lot, but resided elsewhere with his family, was a conceded fact. He resided upon lot 1, and the argument of the appellant is to show that as lot 1 adjoined lot 3 (the lot in dispute), the two lots were to be regarded, not separately, but as one. Such might be the inference under certain circumstances.

Land may be in the possession or occupancy of a person, within the meaning of a statute, although he resides elsewhere. But there was evidence showing not only that Hill did not live on lot three, but also that he in no sense ■occupied or possessed it. Such property as he at one time had upon it, he removed, and there was not only an actual abandonment of any possession which-he before had, but there was an intent to abandon and altogether quit and forsake it. Indeed, the case states that the testimony given tended to show that Hill, before the 23d of September, 1873, in anticipation of the conveyance by the comptroller, entirely abandoned the property. If there was evidence tending to any different conclusion, it was not uncontroverted, and we think the learned trial judge committed no error in submitting the question to the jury. Such was the opinion of the learned court at general term, and concurring in that conclusion the verdict of the jury must be deemed conclusive upon that point in favor of the plaintiff.

Under the other proposition, it is argued by the learned ■counsel for the appellant, that there was no authority for the return of the lot in question for the bounty taxes of the year 1864 or 1865 by the county treasurer to the comptroller, •or for the sale or conveyance by the comptroller for the default in payment.

This question was presented to the trial court upon a motion for nonsuit, but does not appear to have been brought to the attention of the general term. We think the point is not well taken. The acts referred to by the learned counsel for the appellant (chapters 15, 184, 393, of the Laws of 1863; chapters 8, 72, of the Laws of 1864; chapters 29, 226, 617, of the Laws of 1865), as embracing the taxes in question, respectively provide in substance “that all provisions of law,” “ existing” at the time of the passage of the act in question, for the assessment, levying, ■enforcement and collection of taxes and for paying over and disbursing the money collected, shall apply to the taxes provided for by “the” act, so far as the same are consistent with “its” provisions.”

The effect of these words was to incorporate into the statutes relating to taxation for bounties every provision •of the then existing laws relating to the assessment and ■enforcement of other taxes, and gave them the same ■operation as if repeated in detail in each statute. People

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ex rel. Commissioners v. Banks, 67 N. Y., 575 . The authority to assessors to levy and to collect, involves every agency theretofore provided, and every step in the proceedings which justifies the designated officer in enforcing by sale if necessary the collection of the tax imposed. A small portion only of the methods provided for would be set in motion if the effort at collection was to be confined to “the collecter,” whose duty is prescribed and limited by the warrant. The provisions of the general law are made applicable “to the taxes provided for” by the bounty acts. Not merely to a single act, or to a single officer whose duty connects him with their enforcement; they embrace all persons and officers who have to deal with those taxes in any way, until they are satisfied in the mode prescribed by law. They require, therefore, a “return to the” comptroller of the taxes unpaid, as other taxes are returned, and an enforcement by sale as other taxes are enforced. The taxes in question were duly imposed by the legislature. The general law makes all lands as well as personal property liable to taxation, and when in reference to the taxes in question it was provided that all provisions of law “for the assessment, levying, enforcing and collection of taxes,” should apply to those especially authorized, it was unnecessary to declare that land should be chargeable with their payment or that they should be the subject of sale.

It is also contended by the appellant that every one of the acts providing for taxes for bounties and kindred purposes is void as being in contravention of section 13, article 7, of the constitution of this state, which provided as follows: “Every law which imposes, continues or revives a tax shall distinctly state the tax and the object to which it is to be applied, and it shall not be sufficient to refer to any other law to fix such tax or object.”

It is well settled that this provision applies only to a general tax upon all the property of' the state, and was not intended to apply to a local tax upon a particular section. Matter of McPherson, 104 N. Y., 306 ; 5 N. Y. State Rep., 680.

The bounty taxes, under chapter 15 of the Laws of 1863r if any, were not general, but local, nor were they imposed by the legislature through the acts referred to, but authorized by the citizens of the town in public meeting assembled, and so are neither within the title or spirit of the constitutional provision referred to.

A different case is said to be presented by the act of 1863 •(chap. 184, § 6; chap. 393, § 4; chap. 226, § 3 of the Laws of 1865).

By the first it is enacted that “there shall be imposed for

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the fiscal year, commencing on the 1st day of October, 1863, a state tax for such sum as the comptroller shall deem necessary to meet the expenses hereby authorized, not to exceed two mills on each dollar of the valuation,” etc.

By the second, that “ there shall be imposed a state tax ■of two mills, or such part of that amount as in the judgment of the comptroller may be necessary on each dollar of the valuation, ‘’ etc.

By the third, that “there shall be imposed a tax of two per cent upon the assessed value of the real and personal property in the state of New York, or so much thereof as may be necessary to provide,” etc.

Several answers to the appellant’s contention concerning these statutes are suggested, but it is enough to say that it does not appear that any tax imposed under either entered into the consideration on which the plaintiff’s deed stands. If it did it was the duty of the defendant to show that fact when attacking the plaintiff’s title, and, moreover, upon the motion for non-suit, or at some other time during the trial, call the attention of the court and opposite party to the supposed defect. This was not done, and the proposition advanced by the appellant is not before us.

The other questions argued were discussed by the learned court at general term, and we find in appellant’s argument no answer to the views expressed in the opinion pronounced by them.

We see no ground on which the judgment can be reversed. The conveyance by the comptroller is made by statute presumptive evidence, that he had authority to sell and convey the land described in it for arrears of taxes charged thereon; and that all proceedings, things and notices required by law to be had, done or given prior to its execution, have been had, done and given as required bylaw. That effect was given on the trial to the deed produced by the plaintiff. It was not overcome by the defendant, nor was the statutory presumption rebutted by any legal evidence.

We think, therefore, that the judgment appealed from should be affirmed.

All concur.