163 Misc. 192 | N.Y. Sup. Ct. | 1937
This is the return to an order of certiorari to review and cancel an assessment made by defendants upon such real property of the relator as lies within the city of Buffalo.
No testimony was taken upon this hearing. There are no statements of fact in the petition controverted by the return and the decision herein calls only for a determination of questions of law. The order in which the legal questions are raised in the briefs of counsel will not be followed by the court. It is self-evident that the determination of certain questions may eliminate the necessity for answering others.
The defendants suggest that the relator should have proceeded by order of mandamus and not by certiorari. On the contrary, certiorari is the proper proceeding to review and cancel an illegal assessment. The relator does not seek action by the defendants nor question their right to act as assessors. Relator does claim that the defendants acted illegally and wrongfully in violation of the statute in assessing relator’s real property. “ It [Laws of 1880, chap. 269, now chap. 60 of the Consolidated Laws, known as the Tax Law] applies only to cases where there is a valid assessment roll in which some person has for some reason been illegally assessed, or where the assessment is excessive or unjust.” (Van Deventer v. Long Island City, 139 N. Y. 133, at p. 137, citing People ex rel. D. & H. C. Co. v. Parker, 117 id. 86; Tax Law, §§ 290 and 291; National Bank of Chemung v. City of Elmira, 53 id. 49; People ex rel. Powder Co. v. Feitner, 41 App. Div. 544; People ex rel. Nash v. Loughman, 220 id. 549, 551.)
The defendants occupy a unique position by reason of their arbitrary and unreasonable conduct. By definite unequivocal language the Legislature of the State has declared that relator’s property shall be exempt from taxes and assessments by the State of New York or any municipality or municipal subdivision thereof and the bonds shall be exempt from taxation except for transfer, estate and inheritance taxes (Laws of 1933, chap. 824, § 23). In the face of that statute, the defendants placed upon the assessment
The placing of the real property of relator upon the assessment roll of the city of Buffalo in violation of a statute which specifically exempts it was an illegal, unlawful act and the assessment is void.
The relator, Buffalo and Fort Erie Public Bridge Authority, came into being by virtue of chapter 824 of the Laws of 1933. In the light of the plain, concise and unequivocal language of section 23 of the statute which exempts relator’s property from taxation the sole excuse for defendants’ act in violation thereof must of necessity be based upon a claim that the law, both in its entirety and in certain portions, is violative of the Constitution of the State of New York.
Defendants also claim that the law in question violates paragraph 12 of section 18 of article 3 of the State Constitution in that it is a local and private bill which grants to a corporation an exemption from taxation on real property.
Defendants also claim that the law in question violates section 16 of article 3 of the State Constitution in that it is a local and private bill which embraces more than one subject and that shall be expressed in the title.
There is perhaps no better established principle of law than that the constitutionality of a statute may be attacked only by one whose rights have been affected by the operation of the statute. (12 C. J., Constitutional Law, § 177, p. 760; Brown v. Smart, 145 U. S. 454, 459; Walsh v. Columbus, etc., R. R. Co., 176 id. 469; Smiley v. Kansas, 196 id. 457; Stewart v. Kansas City, 239 id. 14; People v. Booth, 32 N. Y. 397; People v. Lowe, 117 id. 175, 191; People v. Turner, Id. 227; Matter of Keeney, 194 id. 281; affd., 222 U. S. 525; Matter of Lent, 47 App. Div. 349, 357; Board of Education v. Board of Education, 76 id. 355; Duffy v. Shirden, 139 id. 755, 757; Marvin Realty Co. v. Barre, 142 id. 4; Vroman v. Fish, 181 id. 502, 509; People ex rel. Lewis v. Graves, 219 id. 233, 235; People ex rel. Ferris v. Horton, 239 id. 610, 612; Haag v. City of New York, 222 N. Y. Supp. 682.)
There can be no successful contention that the defendants have any personal or property interest in the constitutionality of the law in question nor that the statute invades their property rights. By the statute they are not required to perform an illegal act but are forbidden to place upon the assessment rolls of the city as taxable the real property of the relator which is within the limits of the city of Buffalo. Saving no personal or property interest in the constitutionality of the law, they cannot avail themselves of that plea in justification of their illegal act. It follows that relator is entitled to the relief sought. In the light of this decision other questions presented upon this proceeding are immaterial.
Order granted striking the assessment of relator’s real property from the assessment roll of the city of Buffalo.