
    The People ex rel. Stephen L. Vanderveer, App’lt, v. Thomas A. Wilson et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed January 20, 1891.)
    
    1. Taxation—Lands divided by town ob county line—Whebe assessable.
    Under the provisions of Laws 1886, chap. 315, a farm in Kings county, consisting of a single tract, a portion of which is in the town of Flatlands, a portion in the town of Matbush, and a portion in the 36th ward of the city of Brooklyn, on which latter portion the owner resides, is assessable by the city of Brooklyn.
    3. Same.
    Chapter 411, Laws 1885, which provides that all lands in coufities of a certain size shall be practically assessable as norwesident lards, is not in conflict with chap. 315, Laws 1886, providing that occupied farms or lots lying in two or more towns, wherever situated, should be assessable in the town where the owner resides. The one determines the particular ward or town which is entitled to the benefit of the taxes from the particular farm or lot, and the other the mode governing the collection of the tax after levy.
    3. Same—“Hon-besident”—“Unoccupied.”
    When a statute speaks of unoccupied lands it does not include all nonresident lands, nor does the term non-resident lands necessarily include the subject of unoccupied lands.
    Appeal from judgment of tlie supreme court, general term, second dejiartment, affirming judgment and order of special term in favor of d.efendants, in proceedings by certiorari to review an assessment by the board of assessors of the city of Brooklyn of the lands of the relator for general taxes for year 1888.
    
      John H. Kemble, for app’lt; Almet F. Jenks, for resp’ts.
    
      
       Affirming 34 N. Y. State Rep., 893.
    
   Ruger, Ch. J.

This case arises upon the following facts: Previous to the year 1886 the relator was the owner of a farm in Kings county containing 109 acres of land, lying in a compact or connected form in the several adjoining towns of Kew Lots, Flat-lands and Flatbush, of which about thirty acres lay in the. town of Kew Lots, In that year the town of New Lots was, by chapter 335 of the Laws of that session, annexed to and made a part of the city of Brooklyn and constituted its twenty-sixth ward. The farm was occupied by the relator and he resided on that part lying in the town of Hew Lots, and the question relates to the place where it is assessable. The only provision in said act affecting the taxabilitjr of real estate is the following: “For the purposes of taxation the real estate included in the territory hereby annexed, shall be assessed at the value of the land for agricutural purposes.” This affected only the fate of assessment. The assessors of Brooklyn in the year 1888 assessed the whole farm in that city, and this proceeding was instituted to review such assessment, the relator claiming that such assessors had no authority to assess that portion of the farm lying outside of the limits of the city. The courts below have held that the whole farm was assessable in Brooklyn, and it is conceded by the relator’s counsel that unless chapter 315 of the Laws of 1886 repeals, amends, or controls chapter 411 of the act of 1885, the order is correct.

We are of the opinion that chapter 315 furnishes the correct rule on the subject, and if the law of 1885 is in any respect inconsistent with, or tends to render the act of 1886 inoperative, it is repealed by that act. By the law of 1886, article 1, title 2, chapter 13, part 1, of the Revised Statutes, was amended by adding thereto this section: “ Sec. 4. When the line between two towns, wards or counties, divides a farm, the same shall be taxed, if occupied, in the town, ward or county where the occupant resides. If unoccupied, each part shall be assessed in the town, ward, village or county where the same shall lie.” “ Sec. 2. All acts or parts of acts inconsistent with this act are hereby repealed.”

This is the latest act on the subject, and must necessarily control all prior acts inconsistent therewith.

The relator attempts to support this appeal by claiming that there is an inconsistency in the system of assessment provided by the respective Laws of 1885 and 1886, and that the act of 1886 ought not to be construed to repeal any part of the act of 1885. The argument, so far as we understand it, is that there is no distinction between the phrases “ non-resident ” and “ unoccupied lands,” as used in the statutes, and inasmuch as the act of 1885 has made a special rule and abolished the distinction between resident and non-resident lands in counties having over 300,000 inhabitants, that the act of 1886 was not intended to affect the rule of assessment applicable to such counties.

We are quite unable to see any conflict between these acts. The act of 1885 substantially provided that all lands in counties of a certain size should be practically assessable as non-resident lands, and the act of 1886 provided that occupied farms or lots lying in two or more towns, wherever situated, should be assessable in the town where the owner resided. Both acts can be enforced with unrestricted operation. The act of 1885 makes the land assessable as non-resident land, whether occupied or not, and that of 1886 makes it assessable, if occupied, in the city or town where the occupant resides, and both laws have a legitimate and harmonious operation. The one determines the particular ward or town which is entitled to the benefit of the taxes from the particular farm or lot, and the other the mode governing the collection of the tax after levy.

The taxes on this land, whether assessed in one town or another, would be collected in the same way, because each town lies in a county having the requisite population to make its taxes • collectible as upon non-resident lands, and the mode of collection will be the same wherever it is assessed.

Our views are confirmed by a consideration of the essential distinctions existing between the terms “unoccupied” and “ nonresident ” lands, as used in popular phraseology. ' There is not only an essential distinction between them, but the statutes relating to assessment and taxation have uniformly recognized this difference.

This very clearly appears by the first four sections of art. 1, tit. 2, chap. 13, pt. 1 of the R. S., p. 989, 7th ed., reading as follows : “ Sec. 1. Every person shall be assessed in the town or ward where he resides when the assessment is made for all lands then owned by him within such town or ward and occupied by him or wholly unoccupied.” Section 2. “Lands occupied by a person other than the owner may be assessed to the occupant as lands of non-residents, or if the owner resides in the county in which such lands are located, to such owner." This was amended by chap. 152 of the Laws of 1878, to read as above. Section 3. “ Unoccupied lands not owned by a person residing in the ward or town where the same are situated shall be denominated ‘lands of non-residents.’” Section 4. “When the line between two towns or wards divides a farm or lot the same shall be taxed, if occupied, in the town or ward where the occupant resides, if unoccupied each part shall be assessed in the town in which the same shall lie, and this whether such division line be a town line only or be also a county line. ” This section was slightly amended by chap. 287 of the Laws of 1871, and that law was repealed by chap. 355 of the Laws of 1872, thus leaving the act in question without a § 4 until the act of 1886 substantially restored the original law of 1871.

Chapter 427, Laws of 1855, as amended by chap. 101, Laws of 1876, provides for the collection of taxes on land assessed to a resident which are returned as unpaid on account of the premises becoming vacant by the removal of an occupant, by authorizing the re assessment of the same in the subsequent year as non-resident lands. It is apparent from these provisions that lands may be occupied by an owner and assessed as non-resident- lands although occupied and cultivated. Non-resident lands may be occupied or not occupied, according to circumstances, while occupied lands may belong to non-resident owners and yet be assessable as resident lands in>the several towns wherein they lie. It is clear 'therefore that when a statute speaks of unoccupied lands we have no warrant for supposing it was intended to include all non-resident lands, and neither does the term non-resident lands necessarily include the subject of unoccupied lands.

With this understanding the statutes governing the disposition of this case are clear and consistent. The act of 1885 does not assume to lay down any rule as to the place of assessment of occupied lands divided by town, ward or county lines, and the act of 1886 does in express terms lay down the rule governing that subject and its language is broad and unrestricted.

We think the order of the court below is right and should be ■affirmed.

Order affirmed, with costs.

All concur.  