Chegaray v. Jenkins — 5 N.Y. Super. Ct. 409

Majority

p. 409

Chegaray v. Jenkins.

Headnote

The act of April 6, 1825, respecting the collection of taxes in the city of New York, which declared or limited the meaning of the act for the assessment and collection of taxes, passed on the 23d of April, 1823, by providing that “ the exemption from taxation of any building for public worship, or any school, under and by virtue of the third section of the act of 23d of April, 1823, shall not extend or apply to any such building or premises in the said city, unless the same shall be exclusively used for such purposes, and exclusively the property of a religious society or the New York Free School Society,” is still in force, and was not affected by the general repealing act (3 Rev. St. 165, § 398.)

Premises in the city of New York, occupied by the lessee as a boarding and day-school for young ladies, are liable to taxation, and are not exempted therefrom by the provisions of the revised statutes, (1 Rev. St. 387, § 4.)

The usual, if not the universal, mode of repealing statutes is to distinguish them by their name or title. And it would not be safe to admit of a less degree of certainty in an express repealing statute; uile-s possibly in a case where something in the nature, object, or spirit of the subject matter shows a clear intent.

(Before Oakley, Ch. J., and Paine, J.)

Jan. 18;

Feb. 9, 1850.

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This was an action to recover damages for the talcing and conversion of personal property belonging to the plaintiff, by the defendant, under a warrant for the collection of taxes imposed by the supervisors of the city and county of Hew York. The pleadings were under the code.

At the trial in October, 1849, it appeared that the plaintiff was the lessee of the premises 14, 16, and 18 Union Place, in the city of Hew York, occupied by her as a boarding and day-school for young ladies. That the premises were originally planned for three separate houses; but by an arrangement between the plaintiff and the owner during their erection, were altered so as • to be connected together, for the purpose of a school. The premises were assessed for taxes as follows: Upon Ho. 14, the sum of $55 ; on Ho. 16, $125 51; and on Ho. 18, the sum of $57, being in all $237 SI. The assessment was duly confirmed by the board of supervisors, and a warrant issued to the receiver of taxes for their collection. The taxes not being paid, a warrant was issued by the receiver to the defendant, who was a constable of the city, under which he levied upon the property of the defendant, and took the same into his possession. It appeared by the circular of the plaintiff, which was read in evidence by the defendant’s counsel, that the premises in question were used for the purpose of a boarding-house for the pupils in connexion with the school, and that various charges were made for fuel, washing, &c., irresjiective of tuition. It was admitted by the defendant’s counsel that the premises in question were occupied by the defendant in accordance with the terms expressed in the circular, and for the purposes therein mentioned; also that Columbia College and the Hew York University buildings had been and were used for the purpose of dwelling-houses for professors, and lodgings for students, and that portions of these buildings had been at times let out for purposes unconnected with education.

A verdict was taken for the plaintiff, by consent, under the charge of the judge made jto formé, for six cents damages and six cents costs; and judgment was entered in favor of the plaintiff for that sum, and the defendant appealed.

T. W. Tuclcer, for the plaintiff.

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I. The premises occupied by the plaintiff at the time of the distress, were specially exempted from taxation by the revised statutes, having been erected for and exclusively used as a seminary of learning, and being, in their present form, useless for any other purpose. (1 Rev. St. 441, 3d ed.) They were erected by her under the sanction of an act of the legislature, which was intended, at the time of its passage, to incite individual enterprise in the cause of education, and it is so to be construed. It was never intended by the framers of the act in question, nor of any preceding act in relation to taxes, that a seminary of learning should be construed to mean a public institution, as distinguished from one owned by private citizens.

II. The legislature have repeatedly affirmed this construction of the statute; inasmuch as the act of April 23d, 1823, for the assessment and collection of taxes, (Laws of 1823, p. 390,) exempts every college, incorporated academy, and every building used for a school-house, and all the real and personal property belonging thereto. And the subsequent act of April 6, 1825, § 19, which limited this exemption, continued the exemption so 'far as related to school-houses owned by religious societies and the public school society. And in the general revision of the laws of the state, the general repealing act, § 398, repealed the act of April 23d, 1823, and all acts amendatory thereof, (including that 19th section,) and the act at present in force was substituted in place of all previous existing laws, (1 R. S. 442, 3d ed.) by which every building erected for the use of a college, incorporated academy, or other seminary of learning, are exempted from taxation.

ITT. The legislature has exempted from taxation, buildings which undeniably are the production and property, in whole or in part, of private enterprise, and have also exempted from taxation buildings that are not exclusively occupied for educational purposes ; such as the colleges mentioned in the case.

The plaintiff, therefore, has a right to ask the court for a construction of the statute allowing an exemption in favor of private seminaries, although in part occupied as dormitories and refectories. (Dwarris on Statutes, 608,162,190 ; Smith’s Commentaries, 620, 630, 635.)

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The words, “ seminary of learning,” have a definite, well authenticated meaning, and the court cannot give judgment against the plaintiff, without assuming the duties which properly belong to the legislature.

H. E. Ernies, (corporation counsel,) for the defendant.

I. The premises occupied by the plaintiff at the time of the' assessment, were used for a school house and boarding house. The-act^ of April 23, 1823, (Laws of 1823, p. 390,) exempts from taxation the real estate “ belonging to” any college or incorporated academy, or any building for public worship, school house, court house-, &c. This provision is re-enacted in the revision of 1830. (See 1 Rev. St. 388, § 4, sub. 3.)

The act of April 6, 1825, entitled “an act respecting the collection of taxes in the city of Hew York,” declares that the above exemption of any building for public worship, or any school, shall not extend or apply to any such buildings or premises in the said city, unless the same shall be exclusively used for such purposes, and exclusively the property of a religious society, or of the Hew York Eree School Society. This law remains in full force and unrepealed. (3 R. S. 641.)

II. The premises in question cannot be regarded solely as a school house. The circular of the plaintiff shows that they were occupied as a boarding house; that the plaintiff derived profit for such use, independent of the occupancy of them for a school.

HI. The tax was legally imposed, and the plaintiff is liable to pay the same. If otherwise, the plaintiff having omitted to take the step pointed out by the statute for a correction of the assessment, the regularity of it cannot be impeached collaterally.

This was an action against the defendant, who was a city constable, to recover damages for the seizure and sale of goods under a warrant of the collector of taxes, upon a house and lot in the city of Hew York, imposed by the supervisors.

The plaintiff insists that her house is exempt from, taxation, under the statutes of the state, because it was erected for and is

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used as a seminary of learning. It appears that the building was, in fact, finished for a young ladies’ boarding and day-school, and has been occupied for that purpose ever since its erection. It covers three lots, and consists of three ordinary large-sized dwelling-houses thrown into one, and is principally used for the accommodation of boarders.

The plaintiff relies for the exemption claimed by her, upon the eighth chapter of the first part of the revised statutes, which provides for the “ assessment and collection of taxes.” The fourth section of the first title, in enumerating the kinds of property exempt from taxation, provides that “ Every building erected for the use of a college, incorporated academy, or other seminary of learning; every building for public worship; every school-house, court-house, and jail; and the several lots whereon such buildings are situated, and the furniture belonging to each of them,” shall be exempt from taxation.

It is urged on behalf of the plaintiff, that the premises are a seminary of learning, within the meaning of this statute. It is very questionable, however, to say the least, whether upon a just construction of it, boarding-schools of this description are comprehended within its letter or spirit. This school was established by private enterprise, is under no legal or public control, and is no more of a public character than any boarding-house or other private property used for the accommodation of the public. On the other hand, the institutions among which seminaries of learning are classed in this statute, are not merely of a public character, and under the management and control of the public, but are incorporated and endowed by the state. The clause is, “ Every building erected for the use of a college, incorporated academy,-or other seminary of learning.” The maxim nosoit-wr a sogUs appears ‘to be applicable here, and to limit the exemption from taxation to such seminaries alone as are incorporated. The expression was, no doubt, intended to cover such incorporated institutions of this description, as might not be properly called colleges or academies.

Neither does it appear to us that the school in question is any more within the spirit than the letter of the statute. We certainly do not mean to detract from the great responsibility and

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usefulness of this and similar schools; but taxation is designed to be an equal burden upon all; and if any inequality is allowed to exist, it is supposed to be in favor of the poor rather than of the rich. Boarding-schools, however, are not within the reach- of the poor. Their children live in such accommodations as can be provided for them at home, and are taught at schools which are common to all, and which are expressly exempted from taxation. If boarding-schools, therefore, were exempted from taxation, it would be exclusively for the benefit of the rich.

The exemption claimed would seem, too, to be as impolitic as it would be unequal and unjust. The law, while it exempts public property, seeks to subject all private property, or property devoted to private benefit, to taxation. How boarding schools do not merely furnish a place for the instruction of their pupils ; that is but a small part of the use to which they are devoted; they also provide accommodations for considerable portions of the families of the rich. If the children of the rich are kept at boarding schools, as they often are, for a great 'part of their childhood and youth, it is quite -obvious, that their parents, by being freed from the necessity of supporting them, and providing apartments for them at home, are to the same extent, if they choose to be, relieved from taxation.

But whatever doubt there may have been upon this question, appears to have been removed by legislative construction. The chapter which I have cited from the revised statutes, is a reenactment with some alterations of “ an act for the assessment and collection of taxes,” jjassed April 23, 1823. (Laws of 1823, p. 391, § 3.) This act provides, that “ no college or incorporated academy, nor any building for public worship, school house,” &c., shall be liable to taxation. The plaintiff’s boarding school could not have been comprehended in this act, except under the word “ school house.” The legislature, by the act of April 6, 1825, entitled “ an act respecting the collection of taxes in the City of Hew York,” (Laws of 1825, p. 129, § 3,) have declared or limited the meaning of the act of 1823 in this particular, by providing, that “ the exemption from taxation of any building for public worship, or any school under and by virtue of the third section of the act of 23d April, 1823, shall not extend or

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apply to any such, building or premises in the said city, unless the'same shall be exclusively rised for such purposes, and exclusively the property of a religious society, or the ISTew York Free School Society.”

It was admitted, on the argument, by the counsel of both parties, that if the act of 1825 was still in force, it settled the question; but the plaintiff’s counsel contended that that act had been repealed by the general repealing act of the revised statutes, and that the question was unaffected except by the chapter which I have cited from the revised statutes. And he contended that the act of 1825 was repealed in this manner : The general repealing act (3 R. S. 165, § 398) repeals the act of 1823, and “ all acts amending the same.” And he insists that as the act of 1825 amends the act of 1823, the act of 1825 is repealed.

Perhaps the act of 1825 does, in this single particular, in effect, amend the act of 1823 ; but it does not purport to be, and is not entitled, an amendatory act. We do not think, therefore, that it comes within the repealing statute. It is not to bo supposed, that in framing the repealing statute, the legislature intended to describe the acts repealed by their contents, various, promiscuous, and unrelated as the contents of some of those numerous acts were. The usual, if not the universal, mode of repealing statutes is, to distinguish them by their name or title. And it would not be safe to admit of a less degree of certainty, in an express repealing statute; unless possibly in a case where something in the nature, object, or spirit of the subject matter showed a clear intent. Such is not the case here. And I think an examination of the repealing statute, will show that the rule we have adverted to was uniformly acted upon by the legislature in framing that act.

Besides, the list of acts not repealed by the revision, published in the third volume of the first edition of the revised statutes, (3 R. S. 660,) contains this act; and the revisers in their preface to that volume say, that that and the other lists published in that volume, were inserted in compliance with the directions of the legislature.

The judgment in favor of the plaintiff, at the special term, must be reversed, and judgment entered for the defendant.