10 How. Pr. 138 | N.Y. Sup. Ct. | 1854
The statute, in relation to the assessment and collection of taxes, (1 R. S. 388,) declares that every building for public worship, and the several lots whereon such buildings are situated, shall be exempt from taxation; and the question is, whether certain lots of ground, between Hudson, he Roy and 01 arkson-streets, thirteén in number, belonging to the- corporation of Trinity Church, come - within the terms of the exemption.
This simple statement, it seems to me, disposes of the first branch of the claim. It is too clear for argument, that a contemplated structure, resting merely in imagination, no stone of which has ever been laid, or even extracted from its primitive quarry, is not such a building for public worship as an assessor is bound to see. • When actually erected,- it will be time enough for the officer of the law to notice it. As yet, it is merely a spiritual manifestation—“ situated ” no where—certainly not on the nine “ lots,” and visible only to the eye of the mind, if indeed it be visible distinctly even to that. The law, to warrant the claim of privilege, requires an-actual building—a house .made with hands—not eternal in the heavens, but temporal, situated on tetñporal “ lots,” resting not on intention, however pious or praiseworthy, but on solid, sublunary earth.
As to the other four lots, as I understand the complaint, they are actually devoted to the purposes of a cemetery. -Now cemeteriesj as such, except in the case of cemetery associations, formed under the general law, are not exempt. Does, then, the mére erection on them of a burial chapel confer the privilege 1
Such a building,’ it is obvious, is a mere incident to the cemetery. It is erected, not, in the sense of the statute, as a place of lc public worship,” but, in the very language of this complaint, “ for religious services-at-interments.” All religious services, no doubt, móre or less, partake of the nature of religious worship; but all, are notcc public worship.” A building for public worship is an edifice devoted primarily,' if not exclusively, to church services generally. Upon any other interpre
By the words of the statute, it will be observed, that the lots, forming the situation of the church, are exempted as, and solely because they are, an appurtenance to the building: whereas, by the interpretation contended for- by counsel, the building in the present case, called a chapel, is sought to be exempted, although, like the keeper’s lodge, a mere appurtenance to the lots which form the cemetery. The argument, while it admits that the cemetery, as a principal, is not exempt, virtually asserts that the cemetery chapel, the mere incident, is exempt, and by force of its exemption carries with it the cemetery also. Such a mode of reasoning, as it seems to me, is unsound in itself, and clearly at variance also with the policy of the statute.
At all events the assessors, with whom the taxation in question originated, had jurisdiction of the subject. The property assessed was real estate within their ward. It was prima facie at all events, the proper subject of assessment; and having inserted it on their rolls, and given due notice calling for objections, they had a right to expect and to require, that if any special exemption was claimed, it should be presented and proved, to enable them to pass upon its truth and legality. The assessors, in such cases, are made by law the tribunal of first instance, with an appeal to the tax commissioners, and then to the supervisors of the county, and perhaps also, by certiorari, to the supreme court. Although possessed of only
Besides, statutes of exemption, conferring special privileges on the few, however deserving, at the expence of the many and to the prejudice of the equal rights of the general tax-payer, are to be construed strictly. They are not to be extended either by implication or by liberal construction.
My conclusion is, that the taxes in question were properly levied—that, at all events, having been assessed without objection or appeal, although paid subsequently under protest, they cannot be recovered back; and that, as a consequence, the demurrer of the corporation to the plaintiffs’ complaint is well taken, and should be allowed.
Judgment for defendants.