40 N.J. Eq. 46 | New York Court of Chancery | 1885
This suit is brought to quiet the title to land in the city of New Brunswick, owned by the complainant, and of which he has
The complainant insists that the lien for the taxes expired in two years from the first Tuesday of September in the year in which the taxes were respectively levied.
By the charter of the city, approved March 18th, 1863 (P. L. of 1863 p. 371), entitled “An act to revise and amend the charter of the city of New BrunsAvick,” it was provided (paragraph 62) as follows:
“That any assessment of taxes hereafter made in the city of New Brunswick, against any person or persons, shall be and remain a lien on all the lands and real estate of such person or persons within the said city, for the amount of such assessment, with interest thereon at the rate of twelve per cent, per annum, and all costs and fees, for the space of two years from the twentieth day of December of the year in which said assessment shall be made; and any assessment of taxes hereafter made upon any lands and real estate within the said city, shall be and remain a lien upon such lands and real estate, with
By a supplement to the general tax law, which supplement was approved March 25th, 1875 (P. L. of 1875 p. 384), it was, among other things, provided (paragraph 3) that all taxes thereafter assessed in the city of New Brunswick should become due and payable on the first Tuesday in September of each and every year. By another act, approved April 9th, 1875 (P. L. of 1875 p. 634), and entitled an act to amend that supplement, it was provided that the third section (just quoted) of the supplement should be amended so as to read as follows :
“That all taxes hereafter assessed in the said city of New Brunswick shall become due and payable on the first Tuesday in September in each and every year, and shall be and remain liens, with interest thereon at the rate of fifteen per centum per annum, and all legal costs and fees for two years thereafter upon the lands and in the manner provided in the sixty-second section of an act to revise and amend the charter of the city of New Brunswick, approved March thirteenth, eighteen hundred and sixty-three, and said liens may be enforced and said moneys collected in the manner in said act and supplements thereto provided.”
And it was thereby also enacted that the fourth section of the supplement be changed and amended so as to read as follows:
“ That whenever, in said act to revise and amend the charter of the city of New Brunswick, the words ‘ twentieth day of December’ occur, the said words be and are hereby changed, and the said act amended to read, ‘ the first Tuesday in September ;’ and whenever, in said act, the words ‘ first day of March ’ occur, the said words be and hereby are changed, and the said act amended to read, ‘ the fifteenth day of December.’ ”
By the next section it was provided that all acts and parts of acts inconsistent with the provisions of the supplement at the
The bill is brought to a test by a general demurrer, filed, as before mentioned, by the association. It will have been seen that the charter provides that the taxes assessed upon land shall be a lien upon the land for the space of two years from the 20th day of December in the year in which the assessment shall be made. By the act of April 9th, 1875, the charter was so amended as to provide that the taxes shall be payable on the first Tuesday in September in the year in which they are assessed, and shall be and remain a lien thereon for two years from that time. It is urged, on behalf of the demurrant, that that act is not a valid amendment to the charter, and that if it were, the lien did not, as between the owner of the property and the city, expire with the two years, but continued as between them until payment of the tax. Or, in other words, if the tax was not paid within the two years, the lien still continued after that time, until payment of the tax, excépt as against a bona fide purchaser for value or a bona fide encumbrancer, as to whom it would expire with the period limited.
The ground for the first proposition, viz., that the act is not a valid amendment, is the claim that the act was in contravention of that clause of the constitution of this state which provides that to avoid improper influences which may result from intermixing, in one and the same act, such things as have no proper relation-to each other, every law shall embrace but one object, and that shall be expressed in the title. Const, art. IV. ¶ 7 § 4. And it is also argued that the act, if valid when passed, was repealed by the operation of the amendment to the constitution which provides that property shall be assessed for taxes under general laws and by uniform rules, according to its true value. Const, art. IV. ¶ 7 § 12.
The act of March 25th, 1875, is entitled “A further supplement to an act entitled ‘An act concerning taxes/ approved April
“That all taxes hereafter assessed in the said city of New Brunswick shall become due and payable on the first Tuesday in September in each and every year, and shall be and remain liens, with interest thereon at the rate of fifteen per centum per annum, and all legal costs and fees, for two years thereafter, upon the lands, and in the manner provided in the sixty-second section of ‘An act to revise and amend the charter of the city of New Brunswick,’ approved March thirteenth, eighteen hundred and sixty-three; and that said liens may be enforced and said moneys collected in the manner in said act and supplements thereto provided.”
“ That whenever, in said ‘Act to revise and amend the charter of the city of New Brunswick,’ the words ‘ twentieth day of December ’ occur, the said words be and they are hereby changed, and the said act amended to read, the ‘first Tuesday in September;’ and whenever, in said act, the words ‘the first day of March ’ occur, the said words be and they are hereby changed, and the said act amended to read, ‘ the fifteenth day of December.’ ”
By its'third section, it repeals all acts and parts of acts inconsistent with the provisions of the act amended, at the time of the approval thereof, and made the act amended a public one; and it also repealed all acts and parts of acts inconsistent with its own provisions. The act of March 25th has reference only to the time of making and finishing the assessment of taxes of the townships, towns, wards, boroughs and- cities of Middlesex county and to taxes in New Brunswick. The other act is an amendment of it. The act of March has reference to taxes, and only to taxes. It is local and special, but the amendments to the constitution, one of which forbids that any general law embrace any provision of a private, special or local character, had not been adopted when the acts under consideration took effect. They both went into operation immediately. The amendments to the constitution were not adopted until the 28th of September following. The act of April has reference to taxes only in New Brunswick. The sole subject of the act of March was taxation in Middlesex county. There was no intermixing, in either act, of things that have no proper relation to each other. The law embraced but one object — taxation—and that was expressed in its title. The unity of the object is to be sought in the end which the legislative act purposes to accomplish, and not in the details provided to reach that end, and the degree of particularity to be used in the title of the act rests in the discretion of the legislature. Walter v. Union, 4 Vr. 350.
Nor are these acts in contravention of the constitutional provision that property shall be assessed for taxes under general laws and by uniform rules, according to its true value. In
To consider, now, the proposition as to the duration of the lien: The lien is wholly a creation of the legislature. It exists only by virtue of the enactment. If the legislature, in creating it, has given it a merely limited existence, it will not continue beyond the period fixed. If the lien has expired by limitation, the municipal authorities cannot revive it. Nor can it be revived without consent, except by legislative enactment. The municipal authorities cannot extend it merely by their delay in enforcing it. The contrary doctrine is laid down in some of the text-books on the subject of taxation, but the only cases adduced in support of it are those of Holden v. Eaton, 7 Pick. 15, and Swan v. Knoxville, 11 Plumph. 130. In the former case it was held that a sale of land for tax under a law of congress giving a lien upon the land for tax for two years, was valid, although made after the expiration of that period, provided the owner had not aliened nor encumbered the land. The ground of the
It is, however, enough to say that the lien for the tax exists only by virtue of the legislative enactment, and its existence is limited by the terms of the provision by which it is created. To extend it further would be judicial legislation. The legislature has not given an unlimited lien, saving the right of certain persons after the period of two years, but it has given a lien for two years, and only for that period, and has provided that it shall be paramount not only to all encumbrances &c. created during that .period, but to all previously existing ones. Trustees v. Trenton; Paterson v. O'Neill, ubi supra. If, I repeat, it is valid against the owner after the expiration of the two years, it must, by the same reasoning, be equally good as against such encumbrancers until the tax be in fact paid, although it be after that period of time, for it is to be observed that the provision is not that the tax shall be a lien for two years only, against devisees, heirs, purchasers and encumbrancers, but that it shall exist for two years, notwithstanding the claims of such persons. The intention was to create a lien for two years only, and the provision against devisees, heirs, purchasers and encumbrancers was intended to make it a paramount lien, and subordinate the right and claims of such persons to it during that period, with all the consequences of the enforcement of it. The tax is not upon the owner, but upon the land, and, under the provisions of the charter, it is not necessary to give the name of the owner correctly nor at all. The charter declares that the tax upon the land shall be and remain a lien thereon for two years, notwithstanding any mistake in the name or names of the owner or owners. From this, too, it will be seen that if the lien be extended by construction against the owner, it must be so equally against the encumbrancer. It cannot be extended against either. It is a paramount statutory lien given upon land for tax levied upon the land. Existing only by virtue of the statute which limits its duration, its existence cannot, without consent, be extended, except by the legislature, beyond the period fixed. As the municipal authorities could not create it
But in Trustees v. Trenton, 3 Stew. Eq. 667, it was, as before stated, held that the tax was a paramount lien to prior encumbrances &c., and that if the land be sold for the tax within the period fixed for the continuance of the lien, the purchaser will take it free from such encumbrances &c. If it be held that the legislature intended that the land should be liable, to sale after the expiration of the time limited for the lien, it must also be hold that sale after that period will, equally with sale before the expiration of that time, convey a title free from all encumbrances &c. existing prior to the assessment of the tax. Such was not the intention of the legislature. In State v. Van Horn, which was decided in 1883, the tax was assessed in 1879 against the land of Agnes Berry, who then owned the property. She sold the property in 1880. The tax-warrant was issued in 1881. That case was followed by State v. Qugel, decided on similar
The demurrer will be overruled.