In re the City of New York for a Writ of Certiorari Directed to Deyo

143 N.Y.S. 334 | N.Y. App. Div. | 1913

Lyon, J.:

The important question at issue upon this appeal is whether the aqueduct constructed by the city of New York to convey water from the Ashokan reservoir in the county of Ulster to the city of New York is exempt from taxation pursuant to the provisions of chapter 724 of the Laws of 1905.

Said city has acquired title to a continuous strip of land extending from said reservoir to said city. The portion thereof extending through the town of Gardiner, Ulster county, is about two hundred feet wide and seven miles long and contains about 160 acres. Throughout the length of the strip in said town said city has laid a concrete tube or aqueduct upwards of seventeen feet inside diameter through which the water is to be conveyed. The city has also acquired title to about 28 acres of adjoining land upon which it has constructed a concrete tube about seven feet in diameter leading from the aqueduct to W allkill creek, termed a blow off, through which the water in the aqueduct may be drawn off and discharged into the creek. Upon both said strip and parcel of land are other structures erected by the city, the nature of which is not disclosed and is perhaps immaterial upon this appeal.

The respondents assessed said strip and parcel of land at $61,000, and in their return to the writ of certiorari state that in determining the value thereof they considered the cost and value of the aqueduct, blow off and buildings, and the uses for which they were designed, but did not fix a separate value upon either, but considered them with and as a part of the entire property and fixed the value of the land accordingly. The matter was submitted to the Special Term upon the petition and return. The court dismissed the writ upon the ground that the aqueduct and blow off were taxable. This, we think, was error.

Section 480 of the Greater New York charter (Laws of 1901, chap. 466) provided that lands theretofore taken or to be taken for constructions necessary for furnishing a water supply to the city “shall be assessed and taxed in the counties in which they are or may be located, in the manner prescribed by law, exclusive of the aqueducts.” The respondents contend that this provision was repealed by chapters 598 and 724 of the Laws of 1905, and also by the General Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62). Neither act expressly repeals the provision in question, nor can either be said to repeal it by implication.

Furthermore, the acts of 1905 were special acts. The General Tax Law of 1909 (§§ 3, 4, subd. 3) provided that all the property of a municipal corporation situated outside the corporate limits should be subject to taxation. Respondents’ counsel cite as authority for their contention that the provisions above cited of section 480 of the Greater New York charter was repealed by implication by the General Tax Law, Matter of City of New York v. Mitchell (183 N. Y. 245). In that case the court reviewed the various statutes from 1840 to and including chapter 466 of the Laws of 1901, relating to exemption from taxation of the city of New York for property belonging to it situate outside the municipal limits, and held that the General Tax Law of 1896 took away the exemption which had theretofore existed in favor of said city as to such property; that in 1897 (Chap. 378) the Legislature restored to the city such exemption from taxation as it had previously enjoyed under special legislation, and that by chapter 466 of the Laws of 1901 it withdrew the exemptions and left the municipal property not within the corporation subject to assessment and taxation, exclusive only of the aqueducts. Section 1 of chapter 596 of the Laws of 1909 provided that “all special laws in force at the time of the enactment of such consolidated laws shall be of the same force and effect as they were before the enactment of such consolidated laws.” However, the respondents contend that the Greater New York charter is not a special law, but was a “public act” and hence was not saved by the provision above quoted, apparently assuming that the terms “ general law ” and ‘ ‘ public act ” are synonymous. Such, however, is not always the case. While a general law is necessarily a public law, every public law is not necessarily a general law. A general law operates throughout the State upon all the people, or upon all of a class, while the application of an act which is restricted to a single municipality, as the Greater New York charter, is a special law. A special law may be and frequently is by the act itself made a public law, and thereby becomes an act which need not be specifically pleaded and of which the court takes judicial notice, but which does not thereby become á general law.

Section 2 of article 12 of the State Constitution provides that “Laws relating to the property, affairs or government of cities, and the several departments thereof, are divided into general .and special city laws; general city, laws are those which relate to all the cities of one or more classes; special city, laws are those which relate to a single city, or to less than all the cities of a class.”

We conclude that the portion of the Greater New York charter of 1901 which excluded the aqueduct from assessment and taxation has not been repealed and that the respondents should not have taken the aqueduct into consideration in fixing the assessment. As to the discharge pipe, terméd the blow off, the record is devoid of evidence as to its nature, but if the same constitutés an essential part of the aqueduct and was necessary to its operation, it would seem to be a part of the aqueduct and exempt from taxation and assessment.

The order of the Special Term should be reversed and the said assessment of the relator stricken from the roll as illegal, with costs to the relator.

All concurred; Howard, J., not sitting.

Order of Special Term reversed and assessment of relator stricken from the roll as illegal, with ten dollars costs and disbursements to the relator.