Terrel v. Wheeler — 33 N.Y. St. Rep. 404

Majority

p. 404

Lucy Maria Terrel, Resp’t, v. Nancy B. Wheeler et al., App’lts.^[1]

(Court of Appeals,

Filed October 7, 1890.)

Headnote

1. Taxes—Constitutional law—Laws 1883, chap. 114.

Chap. 114, Laws of 1883, commonly called the arrearage act, is constitutional and valid.

3. Same.

The legislature had power to give to the board of assessors of Brooklyn, a local board, jurisdiction to determine how much of the arrearages of taxes, assessments, etc., ought, in fairness and justice, to be laid, assessed, and charged upon and collected from land upon which it had been levied, or attempted to be levied, and to enact that the amounts thus determined should be imposed on the land as taxes.

The notice by publication provided for by the act, requiring owners of land affected by any arrears of taxes, etc., to present their objections in writing, is adequate notice of invalid taxes “attempted to be levied or imposed,” as the legislature was dealing with the whole body of taxes, some of which were valid and some invalid.

4. Same—Sale—Deed.

The legislature had power to authorize the giving of a deed in fee simple absolute on a sale for the taxes so imposed: It was a matter of legislative discretion whether the purchaser at the tax sale should have an absolute title or a life estate.

Appeal from, judgment of the supreme court, general term, ■second department, overruling defendant's exceptions and ordering judgment for plaintiff on verdict.

Action for the recovery of real property in the city of Brooklyn, which had been purchased by plaintiff at a sale for taxes levied under the arrearage act, Laws 1883, chap. 114.

Wm. C. De Witt and 'John J. Townsend, for app’lts; James Troy, for resp’t; Almet F. Jenlcs, corporation counsel, for the city •of Brooklyn.

After our decision in the case of Brevoort v. City of Brooklyn, 89 N. Y., 128 , holding that certain tax impositions were void on account of defective verifications of the assessment rolls by the assessors, the legislature passed the act, chap. 363 of the Laws of 1882, confirming the taxes therebefore imposed ; and thereafter no tax in Kings county assessed before the passage of that act could be assailed on account of any irregularity. The taxes were not invalid for want of jurisdiction to impose them, nor because any constitutional right of the taxpayer had been disregarded or violated; but they were invalid because the law had not been strictly pursued in their imposition, and hence there was legislative competency to cure the defects and to confirm them. Clementi v. Jackson, 92 N. Y., 591 ; Ensign v. Barse, 107 id., 329; 12 N. Y. State Rep., 39; Williams v. City of Albany, 122 U. S., 154 .

But that act did not entirely relieve the city of Brooklyn from its difficulties. There was a large amount of taxes, assessments

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and water rates unpaid, and they were so excessive that it was found difficult, if not absolutely impossible, to collect them. They were very burdensome and oppressive to the taxpayers, and hence legislative relief was granted to both the city and the taxpayers by the act, chap. 114 of the Laws of 1883, commonly called the arrearage act The difficulties which confronted both the city and the taxpayers are set forth in the preamble of the act as follows: “Arrears of unpaid taxes, assessments and water rates in the city of Brooklyn have accumulated to an amount exceeding ten millions of dollars, and in some instances said arrears exceed in amount the assessed value of the land affected thereby; and the validity of some of such unpaid taxes, assessments and water rates has been, or may be, called in question by reason of some irregularity, omission or defect in the proceedings instituting, levying or imposing the same; and the city of Brooklyn has issued and sold its tax certificates to a large amount on account of the arrears of unpaid taxes, and has issued and sold its bonds for the money paid for the improvements for which the assessments so in arrears were imposed, and the said improvements have been completed and the property assessed therefor has been benefited thereby.”

The first section of the act provides that the board of assessors of the city of Brooklyn shall have power and jurisdiction, and are directed and required in all cases “ where any tax, assessment or water rate levied or imposed, or attempted to be levied or imposed” on any land in the city prior to the 1st day of July, 1882, remains unpaid and in arrears, to examine into and fix, adjust and determine as to each parcel of land how much of the arrearages ought in the way of tax, assessment and water rate, in fairness and justice, now presently to be laid, assessed and charged against and actually collected from the land by reason of any and all the matters and things covered or attempted or intended to be covered or done in the laying and assessing such taxes, assessments or water rates so in arrears; and the board in dealing with the arrearages as matters of fact, Recording to their judgment of what shall be fair and just, shall treat the same without regard to any supposed want of jurisdiction, irregularity or defect in any of the proceedings had for the levying, imposing or confirming any of the taxes, assessments or water rates so in arrears; that the board shall within thirty days after the passage of the act publish in the corporation newspapers a general notice requiring the owner or owners of all land in the city affected by any arrearages of taxes, assessments or water rates, and all other persons having any interest in or lien upon such lands, to present in writing to the board within ninety days after the passage of the act their objections to any tax, assessment or water rate so in arrears, and any reason why any part of such arrearages should be reduced or remitted; that such notice shall be signed by the president of the board, and shall be published at least three times each week for four weeks next succeeding the first publication thereof; that it shall be the duty of such owners, or persons having any interest in or lien on lands affected by

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the arrearages, and making such objections, to present in writing to' the hoard within the time specified in the notice a brief and. concise statement of such ohjections to the arrearages, and their reasons why the saíne, or any part thereof, should be reduced or remitted, and to serve a duplicate copy of such statement on the corporation counsel within the time specified; that any person who shall file and serve such statement and objections within the time specified shall be heard before the board in person, or by counsel, if he demand such hearing; that the board may call before them and examine witnesses under oath in relation to all matters concerning taxes, assessments or water rates; that any member of the board may administer oaths or take the affidavits or depositions of any person to be used before the board, and the board may appoint committees of their number to examine premises in such cases as they may think an examination useful for the determination of their,value.

It was the clear purpose of this section to bring within the operation of the act and the jurisdiction of the board of assessors all the taxes, assessments and water rates which were unpaid and in arrears, whether they were valid or by reason of some irregularity or even want of jurisdiction in their imposition invalid. The words “ attempted to he levied or imposed ” clearly have reference to taxes, assessments and water rates which had in form been levied or imposed, but which nevertheless were illegal and invalid.

Could the legislature devolve upon the board of assessors the jurisdiction specified in the section ? Why not? It was a local board, one of the departments of the city government charged by the city charter with the general duty of making assessments for the purposes of taxation. Its members represented the city and the people of the Locality, and it was the appropriate tribunal for the exercise of the jurisdiction conferred. The jurisdiction was not conferred upon the assessors then in office as individuals, but it was conferred upon them as members of the board to be exercised by them only so long as they should be members thereof, and the jurisdiction remained in the board whoever its members might at any time be. We can therefore see no possible objection to the tribunal or officials who were to exercise the jurisdiction conferred

The board under the act could not impose any new taxes (using the word “ taxes ” as also embracing assessments and water rates), nor could they increase the taxes. The only change they could make in the taxes was to decrease them. The legislature by the two acts mentioned, so far as it was competent to do so, cured any defects and irregularities in the imposition of the taxes, and by the latter act simply provided for a re-adjustment and reapportionment of the taxes upon equitable and just principles, and this it could do through any appropriate agency it saw fit to adopt. Matter of Zborowski 68 N. Y, 88 ; Genet v. City of Brooklyn, 99 id, 296.

It was not necessary for the legislature to fix the amount of the impositions. Such legislation is not unusual in principle. All

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the expenses of municipal corporations are determined by local boards of officers, and are then imposed as taxes under general laws; and the same is true as to the expenses of local improvements. In the city of Hew York the legislature allowed application to be made to the courts by aggrieved property owners for the reduction or revision of assessments; and by the act, chapter 550 of the Laws of 1880, it appointed a special board of commissioners to vacate, modify and revise assessments in the city of Hew York, and while the act has frequently been under consideration in the courts its constitutionality has never been doubted.

Ample provision is made in the act of 1883 for notice and hearing, and the constitutional rights of property owners are thus as effectually guarded as they well could be under any practical system of taxation. Stuart v. Palmer, 74 N. Y., 183 .

The board of assessors were to take these taxes and investigate them and all the facts connected with their imposition, and after hearing the persons interested determine how much of them in fairness and justice should rest upon each parcel of land, and the amounts thus determined were to rest upon the parcels of land as taxes. Hother could be fairer or more just, and it is difficult to see how any just complaint could be made to such a system.

The taxing power is not delegated to the board of assessors. They are simply to adjust the amounts of the taxes upon the several parcels of land, and then the amounts thus determined are imposed as taxes by the legislature, and this certainly is not an unusual proceeding, but is more or less incident to all systems of taxation.

It is said that the notice required to be given is inadequate, because it is only a notice to persons “ affected by any arrears of taxes, assessments or water rates,” and therefore is no notice to any person of invalid taxes “ attempted to be levied or imposed.” But the legislature was dealing with this whole body of taxes, some of which were valid and some invalid. Whether valid or invalid, they were 'all formally imposed, and were in form tax impositions, and the notice was plainly intended to cover both kinds, and would undoubtedly be so understood by every one. The hearing before the board was intended to be as to both kinds, and the notice was intended to reach and must be supposed adequate to reach all persons affected by both kinds.

The act provides (§ 4) for a sale of the lands for the taxes finally imposed thereon under the act by the register of arrears, and that he shall give a deed thereof in fee simple absolute to the purchaser on proof by him of service of notice of the sale upon the owner or mortgagee of the land, after the expiration of one year from, the service of such notice, of which said deed shall be presumptive evidence. It is objected that the legislature could not thus authorize a deed in fee simple absolute. It was a matter of legislative discretion whether the purchaser at the tax sale should have an absolute title or a life estate. It is the general rule in such cases to give the purchaser after failure to redeem within a time allowed an absolute title. Such is and always has

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been .the rule in this state as to tax titles upon sales for default in the payment of the usual taxes imposed for the support of the state and local governments.

Several objections are made to the procedure under the act. We have carefully examined and considered them all, and are satisfied that they are clearly unfounded and need no particular attention here.

Our conclusion is that the judgment, should be affirmed, with costs.

All concur.