
    (33 Misc. Rep. 170.)
    PEOPLE ex rel. ATKINS v. CITY OF BUFFALO et al.
    (Supreme Court, Special Term, Erie County.
    November, 1900.)
    1. Taxes—Tax Certificate—Tax Deeds—Redemption from Subsequent Sale by City.
    In 1897 plaintiff paid the taxes and received a tax certificate on premises in the city of Buffalo, and no redemption was made within the time allowed bv statute. For several years prior to 1897 the property had been sold for taxes, and had been bid in by the city, but the title had never been perfected. Laws 1891, c. 105, § 110, requires the city comptroller to bid at a tax sale at least the amount of taxes on the property, if no other bidder will bid that amount. Section 115 provides that on the failure to redeem the property in the specified manner the purchaser is-entitled to a conveyance of a title in fee. Held, that the prior tax claims of the city were not extinguished by the sale to plaintiff, since the city is not required to redeem from its own tax sale.
    2. Same—Mandamus—Prior Tax Lien—City Lien.
    Laws 1898, c. 280, § 6, amended the charter of the city of Buffalo so as to require a purchaser at a tax sale to pay for and have assigned to him, before perfecting title, all outstanding tax claims, and by express provision the act applied to the tax sale of 1897. Plaintiff had paid, before the passage of this act, the taxes, and received a certificate, on certain property which had been sold for a number of years to the city for taxes, but the title had never been perfected in the city. Plaintiff did not pay the prior tax claims of the city on the property. Held, in mandamus to compel the city to issue a tax deed, that Laws 1898, c. 280, was not unconstitutional, as impairing the obligation of a contract, since the subsequent sale did not extinguish the liens of the city, and a purchaser of land takes it subject to the unpaid tax claims.
    Application by the people, on the relation of Charles Atkins, against the city of Buffalo and others, for a peremptory mandamus to compel the issuance of a tax deed.
    Writ denied.
    Parker & Miller, for relator.
    William H. Guddeback and William S. Jackson, for defendants.
   KRUSE, J.

At the annual tax sale in May, 1897, the defendant comptroller sold the lands, respecting which this controversy arises, for the taxes levied the preceding year. They were bid in by the relator for $10.28, the amount of the taxes and additions thereto. The comptroller issued to the relator his certificate of sale, as required by the charter of the city of Buffalo (Laws 1891, c. 105), under the provisions of which the sale was made, and thereafter a notice to redeem was served, as required by the charter; and, no redemption having been made within the time required by law, the relator surrendered his certificate of sale, and filed his statement and papers, showing a compliance with the charter, as he claims, so as to entitle him to a conveyance of the lands and premises so sold. The defendant officers, against whom the writ is sought, challenge the right of the relator, and deny that he has complied with the provisions of the act under which they are authorized and directed to perform the official acts, the performance of which the relator seeks to compel. The specific objections will be stated presently. It appears by the opposing papers that for a series of years prior to this tax sale these lands were sold annually for taxes, aggregating the sum of $3,600.98, and were bid in by the city, but the city never perfected title thereto. So far as the papers show, nothing was done by the city to extinguish the right of redemption after the sale, and the city continued to assess the lands after each sale as before. Subsequent to the sale made to the relator in 1897, the legislature amended the charter of the city of Buffalo, under which this sale was made, by making the additional requirement for obtaining a conveyance under a tax' sale that the purchaser should take and pay for an assignment of all outstanding prior tax liens held by the city upon the premises (Laws 1898, c. 280), and specifically provided that the amendatory act should apply to the tax sale at which the relator purchased these lands. Id. § 6. The relator refuses to comply with this additional requirement, and the defendant officers urge that they are prohibited by the express terms of the act under which they derive their authority from executing this conveyance without the relator taking and paying for an assignment of these prior tax liens held by the city upon these premises. The relator demands the execution and delivery of the conveyance to him without payment of these prior tax liens, contending that he bid off these lands at this tax sale, and advanced the money so bid by him under the then existing provisions of law, and that the provisions of this amendatory act, so far as made applicable to this sale, which was made prior to its enactment, is an attempted impairment of a contract, and is therefore unconstitutional and void.

It is a general rule that the property of a municipality, used for public purposes, is exempt from taxation; and whether a distinction exists between property acquired for a public purpose, and such as is not strictly so held, was discussed, but not decided, in People v. Board of Assessors of City of Brooklyn, 111 N. Y. 505, 19 N. E. 90. While the tax law now subjects to taxation the property of a municipal corporation not within its territorial limits (People v. Hess, 157 N. Y. 42, 51 N. E. 410), yet no good reason exists for taxing its own property to pay a tax to itself; and the rule would seem to apply with equal force, as regards such a tax, to all property rights of the municipality, for no useful purpose would ordinarily be accomplished by such a course of procedure. And so it would seem equally abortive to require a municipal corporation, holding a prior tax lien or claim to property, to redeem from its own sales. Such a course would result in returning the tax which the tax sale proceeding was intended to collect, together with interest and other charges and additions thereto. While it would undoubtedly be competent for the legislature to provide for the taxation of public property, such presumption will not be indulged in unless explicitly so provided. As was said by Judge O’Brien in Re Hamilton, 148 N. Y. 310, 42 N. E. 717:

“The end-and object of all taxation Is to raise revenue for the purpose of defraying the expenses of government, and since no revenue could be raised by imposing taxes on property owned by the state itself, or by any of its political divisions, such property is in no just or practical sense the subject of taxation. It is never supposed to be included in the terms of any law providing for the imposition of taxes, however general it may be, not because it is exempt, in the sense in which that term is generally understood, but for the reason that in the nature of things it never was and never can be taxable. The power of taxation applies to the property of persons, either natural or corporate, within the jurisdiction of the government, and not to the government itself. Public property is nontaxable, not upon the theory of exemption, but for the obvious reason that there is no law, and practically never can be a law, making it taxable. Of course, a statute might be enacted including it within the operation of tax laws; but, since the government would have to pay the tax itself, such a law would be utterly useless.”

In Trustees of Public Schools v. Inhabitants of City of Trenton, 30 N. J. Eq. 667, it appeared that the charter of the city of Trenton contained a provision preferring the lien for taxes over prior mortgages and other incumbrances, and it was held not applicable to mortgages made to the state to secure funds of the state invested in the mortgages. At page 681 the court says:

“The immunity of the property of the state, and of its political subdivisions, from taxation, does not result from a want of power in the legislature to subject such property to taxation. The state may, if it sees fit, subject its property, and the property owned by its municipal divisions, to taxation, in common with other property within its territory. But inasmuch as taxation of public property would necessarily involve other taxation for the payment of the taxes so laid, and thus the public would be taxing itself in order to raise money to pay over to itself, the inference of law is that the general language of statutes prescribing the property which shall be taxable is not applicable to property of the state or its municipalities. Such property is, therefore, by implication, excluded from the operation of laws imposing taxation, unless there is a clear expression of intent to include it.”

The late Justice Daniels reached the same conclusion, under the provisions of the former charter of the city of Buffalo, which was superseded by the present charter, respecting the lien of a mortgage owned by the city against certain lands sold for taxes, levied subsequent to the mortgage, holding that the lien of the mortgage was not extinguished by the tax sale, notwithstanding the provision contained in the former charter that the grantee should hold and enjoy the premises sold for taxes, during the term for which they were granted, free and clear of all claims of owner and occupant, and of all persons interested therein. Tifft v. City of Buffalo (Sup.) 9 N. Y. Supp. 920, note.

Under the former city charter the lands were sold for the shortest term for which any one would take them and pay the tax, while now they are sold in fee to the highest bidder, with a right of redemption to the owners or parties interested. Provision is made in the present city charter requiring the comptroller to bid at least the amount of the taxes for which the land is to be sold, if no other bidder will bid that amount. Bev. Charter (Laws 1891, c. 105) § 110. But no express provision is made for redeeming by the city from a tax sale of premises upon which it holds a prior tax lien, or other claim, although the charter provides that, upon a failure to redeem as therein provided, the purchaser is entitled to a conveyance which shall vest in the grantee absolute title in fee. Section 115. Notwithstanding this general provision for vesting in the grantee an absolute estate in fee, in view of the general rule excluding public property rights from taxation, and the general scope of the present revised charter regarding the raising of revenue and taxation of property,. I think the prior tax claims held by the city have not been extinguished by the subsequent unredeemed sale, but that they are still liens upon these premises. The relator himself alleges in his petition that these tax liens are still outstanding and liens upon the premises, although it is now claimed otherwise on his behalf.

I am of the opinion that the taxable right in lands within the city of "Buffalo, undér its present city charter, does not include prior tax liens held by the city, or other claims belonging to it, and that the city is not required to redeem from its own tax sale to prevent the extinguishment of such a lien or claim while held by it. If I am right in this conclusion that the claim of the city for these prior taxes was not affected by the sale made for the tax subsequently levied, I think it was competent for the legislature to make the additional requirement to effect the payment of its prior taxes, and apply such a provision to sales made prior to the enactment of this provision. A purchaser of lands, "whether at tax sale or otherwise, which are subject to unpaid tax claims, takes his title subject thereto; and the changing of the method of collection thereof, even to the substitution of an entirely new remedy for the enforcement of the payment thereof, does not necessarily contravene any constitutional inhibition. This amendment only makes more effective the remedy for the enforcement of a pre-existing right, without impairing the relator’s claim, and statutes of that character have been uniformly upheld. Butler v. Palmer, 1 Hill, 324; Curtis v. Whitney, 13 Wall. 68, 20 L. Ed. 513; Hosmer v. People, 96 Ill. 58; In re City of Elizabeth Com’rs, 49 N. J. Law, 488, 10 Atl. 363.

The relator’s right is in no way substantially impaired by the amendment to the city chartér requiring the payment of the city’s unpaid tax liens as a condition of the execution and delivery of the deed of conveyance by the city to him; for the city could have proceeded at any time under its tax liens and perfected its title to the lands, and cut off the relator’s inchoate right acquired by him under the tax sales, as that right was subject to the prior tax claims held by the city; and, besides, as between him and the owner of the private right, it seems he is entitled to the possession of the lands, and no deed is necessary if the proper notice has been given and the relator has complied with all the requirements of law so as to extinguish the private right in these lands. Rev. Charter, § 111. But, even if the deed is necessary to enable the relator purchaser to maintain his right of possession against the owner and tax debtor, I think the legislature might lawfully direct the withholding tif the deed until the payment to the city of the unpaid tax liens upon the premises; and such requirement would not be unconstitutional, even as to persons who acquired the tax debtor’s right and the entire private interest in the lands after the tax sale and before the law was enacted creating this additional method for collection of its tax and the enforcement of the tax lien against the land. The remedy may be summary, but, as is said by Judge Cooley in his book on the Law of Taxation (page 423), “various summary remedies have been allowed in every age and country for the collection by the government of its revenues. They have been considered a matter of state necessity.” While ordinarily taxes are collected of the persons taxed, or enforced against the property in respect to which they are imposed, yet the state is not limited to these remedies. It may have the means in its own hands of enforcing the tax without calling upon any one, or enforce payment of a tax by the restriction of rights, such as prohibiting the recording of instruments until the tax has been paid upon transactions evidenced by the instruments, and may even, for nonpayment of taxes, forfeit the property entirely; and so in our own state the legislature has substantially provided that no claim of property by any one shall be available to prevent a sale of personal property in possession of tax debtor levied on for the enforcement of a paymént of the tax. Tax Law, § 71; Railroad Co. v. Roach, 80 N. Y. 339. These methods are summary, and in many instances quite drastic, and yet the courts have uniformly upheld methods of this character for the collection of taxes. I have reached the conclusion that the application for a writ of peremptory mandamus against these officers should not prevail, and accordingly the motion is denied.Motion denied.  