Lead Opinion
Plaintiff here seeks to recover from defendant the sum of $1,702.40 paid as the city tax for 1901, with interest thereupon from November 21, 1901. It is agreed that this tax was paid under duress, and that plaintiff is entitled to the judgment asked, provided the exaction of the tax was unwarranted by law. Plaintiff claims exemption from said tax under chapter 132, Laws 1901. This act-amends the general tax laws of the state, and requires every trust company organized under the laws of the state to pay annually “for the privilege of exercising its corporate franchise or carrying on its business in such corporate or organized capacity an annual tax which shall be equal to one per centum on the amount of its capital stock, surplus and undivided profits.” This tax is made payable on or before the 1st day of September of each year, and it is further provided that such trust companies “shall be exempt from assessment and taxation for all other purposes.” This exemption is conditioned upon
In People v. Commissioners of Taxes & Assessments,
“The judicial functions of the tax commissioners terminate upon the 1st day of May, and thereafter the duties are of a clerical nature. But it is indisputable that the legislature may release property which has been.*519 assessed for taxation. The power over the subject is unlimited, and can be exercised in any way and at any time during the proceedings for taxation. If it is claimed that a legislative enactment has arrested those proceedings at a stage when by the general law the tax books are closed, and the assessable character of the property has been fixed beyond the power of the taxing officers to alter, the language must be very explicit to warrant them in thereafter remitting the tax. In the Colored Orphan Asylum Case,104 N. Y. 581 ,12 N. E. 279 , the property for which exemption was claimed was acquired on July 31st, and its claim was refused upon the ground that as with the closing of the record, on the 1st day of May, the power of amendment or alteration had ended, the exemption given in the Revised Statutes must be regarded as prospective in its operation. In the present case, however, we have the command of the legislature, to exempt the relator, given at a time when the records or tax books are recognized by the general law to be open for correction. The implication from the statutory direction that they shall be open is that up to the date for their closing no basis is absolutely fixed for the subsequent proceedings for extending the amount of the tax upon the assessment rolls. We feel constrained to hold that, the act having been given immediate operation at a time when the tax books were directed by law to be open, the effect was to withdraw the property affected from all liability to taxation, and that the tax commissioners actually had a warrant in law for the correction of the tax books by removing therefrom the entry of the property in question.”
In the case cited it will be borne in mind that the statute construed was a statute of exemption, purely. Such statutes receive strict construction. In Suth. St. Const. § 364, the rule is thus stated:
“Legislation which is claimed to relieve any species of property from its due proportion of the general burdens of government should be so clear that there can be neither reasonable doubt nor controversy about its terms. The language must be such as leaves no room for discussion. Doubts must be resolved against the exemption.”
The case cited recognizes, however, the power of the legislature to relieve property even from a tax assessed, if the intent be manifest. The power to strike from the roll was there found not merely because of the power left in the commissioners to correct the roll, but also because at the time of the passage of the act the assessment was incomplete and, “no basis [was] absolutely fixed for the subsequent proceedings for extending the amount of the tax upon the assessment roll.”
The statute here for construction is not a statute of exemption, as such. No property is here seeking to be relieved “from its due proportion of the general burdens of government.” The rule of taxation, simply, is changed. Moreover, if defendant’s contention prevail, the plaintiff will be subject to double tax for the year 1901,—will be forced to make double contribution to the expenses of government. Against such an intent the law most strongly presumes. In People v. Home Ins. Co.,
“In the construction of the effect and meaning of laws imposing taxes, it would undoubtedly be the duty of the court to so construe them, if possible, as to avoid unequal and double taxation.”
In People v. Coleman,
“The Revised Statutes neither exempt the bank nor the depositors therein. But there could not be double taxation. If that had been attempted, some way would have been found to defeat it, as that would be against public policy, the purpose of the lavra, and natural justice. Whether the legisla*520 turc may constitutionally impose double taxation, its purpose to do so can never be inferred, but must plainly appear.”
In Re Swift,
“We should incline against a construction which might lead to double taxation.”
Can there be found, then, any indication of an intent to exempt the plaintiff from the city tax for 1901 ? The act became a law upon March 21st of 1901. By its terms it is provided that it shall take effect immediately, and trust companies are thereby exempted from assessment and taxation for all other purposes. The creation of a new liability is presumably in lieu of the old liability. At the time when the act became effective the revised assessment roll was not completed. At the April meeting of the assessors, power was given them to transfer property upon the roll, and to add to the roll property which had been omitted. The ratio of tax which each taxpayer was to pay could be and was at that meeting changed. Until after that meeting the revised roll upon which the city tax is laid was subject to correction. Until then “no basis is absolutely fixed for the subsequent proceedings for extending the amount of tax upon the assessment roll.” Having in mind the distinction between the rule of construction of a statute purely of exemption, and the rule of construction of a statute not of exemption, but which is claimed to impose upon the taxpayer a double burden, we think there is clearly manifest an intent in the legislature to make the act effective as of the date of its passage, and to relieve the relator from payment of all taxes thereafter, save those provided in the act itself. The statute itself gave to the assessors their warrant to strike this property from the revised roll upon which the city tax was laid, and such city tax for the year 1901 was unlawfully exacted of plaintiff.
I am referred to no authority which to my mind holds a contrary rule of law. All of the cases cited in defendant’s brief are, with one exception, cases in which are construed statutes of exemption, as such. In the case of Ætna Ins. Co. v. City of New York,
The plaintiff should have judgment.
Judgment ordered for the plaintiff for the sum of $1,702,40, with interest from November 21, 1901, with costs of this action. AH' concur, except PARKER, P. J., who dissents.
Dissenting Opinion
(dissenting). The plaintiff claims exemption from a tax assessed and collected against it for the year 1901 by the city of Binghamton under the general provisions of the city charter. The exemption is claimed by reason of section 4 of chapter 132 of the Laws of 1901. By such last-named act, section 187 of chapter 908 of the Laws of 1896, known as the “General Tax Law,” is amended so as to provide that every trust company shall pay upon its franchise an annual tax to the state, which is therein specified; and such fourth
The method of levying taxes prescribed by the charter of the city of Binghamton is substantially as follows: In July and August of each year the city assessors assess all the property in the city, by ascertaining and valuing it in the usual way; and on or before the 1st day of September in each year such assessments must be entered alphabetically in at least four separate books, to be known, collectively, as the “Assessment Roll of the City of Binghamton.” Immediately upon the completion of such roll, the assessors must deposit it with the city clerk for examination and inspection by all persons interested. They must then give notice that for 10 days they will sit to hear objections, etc., and to review and correct the rolls, and upon such days such proceedings are taken as are usually taken upon what are known as “grievance days”; and during that time the assessors are given powers of correction as are given to, and are controlled by the provision of law applicable to, the town assessors throughout the state. On or before the 1st day of October in each year the assessors must make and file in the office of the clerk “the correct and complete assessment roll,” identifying each volume, except the last, by signing it, and to the last volume they must attach the oath required by law; and thereupon they must give the notice which fixes and limits the time within which any person aggrieved may review by certiorari the assessment against him. The supervisor of the city then causes a copy of such “completed roll” to be made for the use of the board of supervisors of the county of Broome, and from such roll the property within the city is taxed for the state and county tax. It is further provided by such charter that the assessors, after giving 10 days’ notice, shall attend for 10 days, commencing on the first Tuesday in April of each year, at their office, to transfer the assessment of any property sold since the perfecting of such assessment roll, from the person to whom it was then assessed to the person to whom it has since been sold, in all cases where they had acquired
This plaintiff was assessed prior to September i, 1900, $100,000, and its name appears on the assessment roll which was filed with the city clerk on October 1, 1900, as liable for that amount. Such roll was verified and sworn to by the assessors, and the notice which fixed the limit within which this plaintiff could have reviewed such assessment by certiorari was duly published, and the tax against tins plaintiff for its share of the state and county taxes for the year 1900 was fixed by the board of supervisors from the assessment appearing thereon, and was subsequently paid by it. On the first Tuesday of April, 1901, the assessors met and performed the duties required from them as above stated, but made no change whatever in the assessment of $100,000 against this plaintiff. They declined to take such assessment from the roll, notwithstanding the act of March 21, 1901, had then become a law. And thus the real question between the parties is presented,—whether under such proceedings this plaintiff had been so assessed prior to March 21, 1901, that the exemption given by such statute should apply to such assessment. It is apparent that under such a method of assessment the assessment roll upon which the city tax was to be extended was not on March 21, 1901, entirely completed. The assessors had the power at their meeting in April to increase the total amount of property on the roll by adding thereto such property as they ascertained had been omitted in the previous September; and thus their action in April might affect the assessment against.this plaintiff as it stood on October 1, 1900, so that its proportion to the whole property assessed might be slightly diminished. It is equally apparent, however, that, as to the assessment itself, the assessors after October 1, 1900, were utterly powerless to in any manner change it. After that date they had no power to increase or diminish its valuation, nor to strike it from the roll. After October 1st the plaintiff’s grievance day had passed, and its liability to pay a tax upon its personal property, to the extent of $100,000, was fixed, so far as the assessors were concerned.
The plaintiff argues that the assessors in April had the power to
The plaintiff claims that because the assessors did not lose this .right to so affect that ratio until after March 21, 1901, the assessment against the plaintiff was incomplete. Its counsel argues that so long as the assessors have control of the roll, and the power to act judicially in any manner concerning it, so long the assessment against every person thereon is incomplete; and he claims that a careful examination of the cases above cited will show that such was the principle upon which they were decided. Each of those cases concerns the taxation of property in New York City. The method of assessment and taxation there adopted is substantially as follows: Between September and the second Monday of January all the property in the city is listed and valued for taxation by the deputy tax commissioners, and entered upon books which are known as the “Annual Record of the Assessed Valuation of Real and Personal Estate.” Such record is on the second Tuesday of Januar)' delivered by them to the tax commissioners, and by them kept open at their ■office for inspection and correction, and remains so until the 1st day of May. During this period parties aggrieved by the assessed valuation of their property thereon may, upon application to the commissioners, have it corrected. On May 1st the books are closed, and between then and the first Monday of July the commissioners prepare from such corrected books the assessment rolls for the several wards of the city, and transmit them to the aldermen, by whom the tax against each assessment thereon is extended on or before the following September. Under this system the cases above cited have settled the following propositions: Property appearing upon the annual records, etc., upon the second Monday of January, is so far assessed for the current year that it is not entitled to exemption, although thereafter, and before May 1st, it is transferred to a party whose property is totally exempt from taxation in such city. Sisters of Poor of St. Francis v. Mayor, etc., of New York,
“While the legislature commanflecl that its act should have immediate effect, we should not, and we need not here, infer any intention to discharge or release a tax. if, under the general tax laws, the proceedings for taxation have arrived at that stage when the assessment was an unalterable fact, and beyond the power of the taxing officers to change.”
Again, on page 351, 142 N. Y., and page 117, 37 N. E., it is said:
“If it is claimed that a legislative enactment has arrested these proceedings at a stage when, by the general law, the tax books are closed, and the-assessable character of the property has been fixed beyond the power of the taxing officers to alter, the language must be very clear and explicit to-warrant them in thereafter remitting the tax.”
Again, on page 350, 142 N. Y., and page 117, 37 N. E., it is said:
“It must be regarded as settled that the assessable character of property is fixed on the second Monday of January.”
The opinion then concludes that the power to correct the tax books*, with respect to valuations, being open until May 1st, the assessment could not be deemed completed, and the property was therefore subject to the provisions of the exempting act.
In the Ætna Ins. Co. Case,
It is urged that we should not construe this act so as to inflict •double taxation against the plaintiff. But there is no question of construction before us. The plaintiff claims exemption by reason of the act. The city replies that, inasmuch as there is no provision in the act giving it a retroactive application, it does not affect the assessment in question. The plaintiff does not claim that there is any such provision, or attempt at any such provision, in the act, and so no •question of its construction arises. It is settled law that such a statute will not be held applicable to an assessment that is completed prior to the statute’s taking effect, and the sole question is whether the assessment against the plaintiff is such an assessment. That calls for a construction of the decisions in the court of appeals, but not for a construction of any statute. As held in those cases, a statute should not be given a retroactive effect when no such intent appears in the act itself, and that is so even though the statute works a double taxation when it first goes into operation. That is a matter for the. legislature, to provide against; and, clearly, if there is no attempt to
I am forced to the conclusion that the statute under which the plaintiff claims exemption in this case is not operative upon the assessment of which it complains. The tax which it here seeks to recover back from the city was well levied and collected, and hence judgment should go against the plaintiff and in favor of the defendant for costs.