172 Misc. 791 | N.Y. Sup. Ct. | 1939
Powott Corporation Case.
Respondents move to quash the writ upon the grounds that the relator failed to apply to the board of assessment review and to the city council to correct its assessment, and that the petition insufficiently alleges the filing of objections with the city
The apparent powers of the board of assessment review are affected by the inconsistency in the time schedule provided for the board by the city charter. Following grievance days, the assessor has until October first in which to decide upon complaints, whereas appeals to the board of assessment review must be taken not later than September twelfth. The effect is to make the right to appeal conditional upon the time when the assessor renders his decision. That denies the equal protection of the laws. The time during which the assessor may decide is not specifically stated, but an examination of the provisions of the charter shows that it is intended
On the other hand, the time to appeal to the board of assessment review is limited to the twelfth day of September. If the assessor decides a complaint before September twelfth, the taxpayer aggrieved has an opportunity to appeal. On the contrary, if the assessor fails to decide until after that date, as must be the case in the majority of instances, the taxpayer is deprived of review by the board. When the assessor rendered his decision in this case does not appear, unless it be assumed to have been announced in thé usual manner by filing the amended roll with the city clerk for public inspection on October first. An affidavit is submitted by the assessor in support of the motion to quash, yet he fails to state that the relator was notified of his decision at any earlier date or in any different manner.
If the assessor’s decision was promulgated on October first, the relator could not have appealed from it by September twelfth. Even-if the decision of the assessor was announced prior to September twelfth, it would be intolerable to hold that it imposed a condition precedent to court review not applicable to taxpayers whose cases were decided later. In construing a statute (or local law) for the purpose of determining its constitutionality, regard must be had to what can be done under it rather than to what has occurred in a particular instance. (Stuart v. Palmer, 74 N. Y. 183, 188; Matter of Richardson, 247 id. 401, 421.) A charter provision cannot be upheld which permits an appeal to one suitor but denies it to another similarly situated according to the date when the decision is rendered which is under review, which is set by the assessor without regard to the merits or propriety of an appeal in one case rather than in another. Such a power of election in the assessor is without regard to discretion in the legal sense of the word and is unconstitutional. (U. S. Const, art. 14, § 1; N. Y. Const, art. 1, §§ 1, 11, adopted Nov. 8, 1938; Yick Wo v. Hopkins, 118 U. S. 356.) The rule is “ that no person or class of persons ” shall be denied the same protection of the laws which is enjoyed by other persons
Respondents do not contend that the assessor is required to decide upon complaints before the time has expired in which to apply to the board of assessment review. Their position is that appeals to the board lie from the tentative valuations placed by the assessor upon the roll prior to grievance day. In one of the briefs their counsel states: “No one can deny that the appeal would be good if filed prior to September 12th, whether the assessor had made his [final] decision or not.” Such reasoning is fallacious. The board has no power to review tentative assessments. If such a power existed, then it would run concurrently with that of the assessor, and the one whose aid is first invoked would exercise jurisdiction to the exclusion of the other. (Schuehle v. Reiman, 86 N. Y. 270.) In that event the board could not have acted in this case inasmuch as the petition alleges that the relator applied to the assessor upon grievance day. Application to the assessor is made a condition precedent to redress by the board of assessment review (Rochester Charter, § 263, being § 183, Local Laws of 1925 [Rochester], No. 4; Local Laws of 1938 [Rochester], No. 14), which is inconsistent with concurrent jurisdiction. Neither was it the intention to make the application to the assessor a mere formality, with his power to decide subject to being superseded at any time by the taking of an appeal to the board of assessment review. Curiously enough the period provided by the charter for appealing to the board begins
The truth is that the jurisdiction of the board of assessment review is designed to be appellate only and not concurrent with that of the assessor. It is expressly provided that “ no appeal to the board of assessment review shall be considered unless application for relief shall have been previously presented to the assessor (Rochester Charter, § 265), and the decisions of the assessor which the board is to consider and determine are those final decisions rendered by him upon the applications for relief that were presented during the grievance period.
Appeals to the board of assessment review were attempted by the relators in all the other above-entitled certiorari proceedings, but these were, in any event, premature, if taken before the assessor’s decision was announced. Relators appear to have acted from excess caution rather than from any clear idea of how they were to proceed under the charter.
It follows that the explanation made on behalf of the city does not obviate the constitutional objection hereinbefore stated, and that no application to the board of assessment review was a prerequisite in any case to the maintenance of certiorari proceedings. The question being discussed is solely one of law; no suggestion has been made in the arguments that the assessor has used his powers for the purpose of arbitrarily permitting appeals to the board of assessment review in some cases but not in others, and nothing before the court points to such a conclusion. Nor does it appear that any thought of that nature was in the minds of those who prepared this portion of the charter. The point is simply that such a power cannot reside in any public officer without going beyond constitutional limitations. This decision does not determine that any portion of the city charter is unconstitutional except the part relating to the board of assessment review, and, even as to. that part, it is not necessary to go farther for present purposes tl:an to hold for the reasons aforesaid that appeals to the board are not conditions precedent to court review. Another caveat may be stated. No defect in the powers of the board of assessment review, even where it has attempted to
No application to the board of assessment review having been made or required, it was unnecessary to join the board as a party.
The question whether application to the city council to correct the assessment is a condition precedent to the maintenance of this proceeding, is considered in the discussion of the Greater Eochester Properties, Inc., and 171 East Ave., Inc., cases which immediately follow. It is decided in the negative, inasmuch as the council, although empowered to modify the assessed valuation, was under no obligation imposed by law to hear the relator if a complaint had been made.
The form of the allegation in the petition with reference to the statement of objections filed with the assessor is the same as that in the Laura S. Ellwanger case, which is discussed later. It is held that the petition complies with the statute in this respect.
The motion to quash the writ is denied, with ten dollars costs, and the respondents granted twenty days in which to file their return.
Greater Eochester Properties, Inc., and 171 East Ave., Inc., Cases.
The motions to quash in these proceedings are based upon the grounds that the writs are directed to the board of assessment review and the council of the city of Eochester under their official names without enumerating the members; that the petition fails to allege that any objection was made to the city council, and that it insufficiently alleges the filing of objections with the city assessor. It is also contended that the city treasurer is a necessary party. The question relating to the board of assessment review need not be discussed for the reasons stated in the Powott Corporation case. The city council is a necessary party inasmuch as it confirmed the tax rolls. (People ex rel. N. Y. C. R. R. Co. v. Gilson, 239 App. Div. 108; affd., 265 N. Y. 457; People ex rel. Union Bag & Paper Corp. v. Gilbert, 143 Misc. 287; People ex rel. Western N. Y. & P. R. Co. v. Woodbury, 133 App. Div. 503; affd., 201 N. Y. 532; People ex rel. Benedict v. Roe, 25 App. Div. 107.) Formerly it would not have been enough to join the council under its official name. (People
The next point concerns whether the petitions are deficient in falling to allege that the relators made their objections to the city council as well as to the assessor. Section 290 of the Tax Law-requires that the petition shall show that “ the application has: been made in due time to the proper officers to correct such assessment.” It has been held in the Powott Corporation case that application to the city council is a condition precedent provided, that the council was required to hear the relators, but relators cannot
The ground of objection that the petitions fail to allege sufficiently that statements of the objections were filed with the assessor is overruled, as in the Powott Corporation case, for the reasons hereinafter stated in People ex rel. Ellwanger v. Rapp (decided herein).
The motions to quash the writs are denied, with ten dollars costs in each case, and the respondents granted twenty days in which to file their returns.
Bonded Municipal Corporation Case,
The grounds of the motion to quash in this proceeding have been disposed of in connection with the foregoing cases and the case of People ex rel. Laura S. Ellwanger, which follows. The motion to quash the writ is denied, with ten dollars costs, and the respondents are granted twenty days in which to file their return.
Ontario Finance Corporation Case.
In this proceeding the motion to quash is based upon grounds which have already been considered, and upon the further point that the statement of objections filed with the assessor is insufficiently pleaded, and that there is a failure to allege that the relator is or will be injured by overvaluation of its property. The allegations upon the first subject differ in form from those in the other cases. The petition sets forth a sufficient statement of grounds of objection to the assessor, viz., that the property was assessed at a sum greater than its value and at a higher proportion or ratio of full value than that of other real property in the assessment roll. Although the extent of the overvaluation is not stated, and the instances of inequality are not expressly referred to, objections filed with an assessor need not be expressed with the same particularity which is required of a petition by section 290 of the Tax Law. (People ex rel. N. Y., O. & W. R. Co. v. Wakeman, No. 3, 143 App. Div. 816.) Even where the sufficiency of allegations in a petition is involved, such a statement of inequality is adequate inasmuch as the remaining properties on the roll are inferentially named as instances. (Matter of Allen Square Co. v. Krieger, 217 App. Div. 123.)
The objection that it is not set forth that the relator is or will be injured by the overvaluation is untenable. It is so alleged, in substance, at the end of paragraph seven. Moreover, under section 290 of the Tax Law, such an allegation is not required in
The motion to quash the writ is denied, with ten dollars costs, and the respondents granted twenty days in which to file a return.
Laura S. Ellwanger Case.
The grounds of the motion in this case are insufficiency of the petition with reference to the objections filed with the assessor, and absence of an allegation specifically stating that the relator is or will be injured by her assessment. The latter ground was disposed of under the Ontario Finance Corporation case. It is essential in a proceeding of this nature to show that application was made to the assessor for a reduction upon the same grounds as those presented by the petition; that is to say, any ground set forth in the petition which is otherwise tenable must have been presented to the assessor during the grievance period. (People ex rel. Champlin v. Gray, 185 N. Y. 196, 200; People ex rel. W. S. R. R. Co. v. Adams, 125 id. 471.) That does not mean that the statement filed with the assessor specifying the respects in which the assessment complained of is incorrect must be as detailed as the petition. (People ex rel. N. Y., O. & W. R. Co. v. Wakeman, No. 3, 143 App. Div. 816.) It means, for example, that if the petition charges that an assessment was erroneous by reason of overvaluation, it must show to the court that the ' same ground for correction was brought to the consideration of the
Reference has been made to this portion of the opinion as a basis for the holding in the Powott Corporation, Greater Rochester Properties, Inc., 171 East Ave., Inc., and Bonded Municipal Corporation cases. The language in the petitions of Powott Corporation, Greater Rochester Properties, Inc., and 171 East Ave., Inc., is substantially the same as that of the Ellwanger petition. The Bonded Municipal Corporation petition varies slightly from these in that it is stated: “ That written application was duly made for the correction of said assessment and valuation of your petitioner’s real property and written allegations and objections were duly filed on behalf of your petitioner with the said assessor.” The
The motion to quash the writ is denied, with ten dollars costs, and the respondents granted twenty days in which to file their return.
The allegations of illegality in some of the petitions, while referred to in the notices of motion, have been little discussed upon the argument and in the briefs, and, with the exception of the Powott Corporation case, where the alleged illegalities are specified, the use of the term is not construed to denote anything other than overvaluation or inequality.
Questions have been raised by the respondents in some of the proceedings concerning the scope of the writs. It is said that some of them require more to be returned than is called for by law. Most of respondents’ objections to the form of the writs are covered by this decision. If any remain, they may be disposed of when the orders are signed.