
    Austin E. Prentice, as County Treasurer, etc., Resp’t, v. Abijah Weston et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed November 27, 1888.)
    
    Constitutional Law—Taxes—Laws on 1884, chapter 153, as amended by Laws on 1885, chapter 215, and Laws op 1886, chapter 102, constitutional.
    Laws of 1884, chapter 153, entitled “An act to enforce the collection of taxes levied in the county of Lewis, as amended by Laws 1885, chapter 215, and Laws of 1886, chapter 102,” among its other provisions, contains one forbidding the owner of land in said county, upon which taxes had been assessed and returned to the comptroller or treasurer, as unpaid, to peel bark or cut timber upon such land, or permit others to do such work, until the taxes are paid, and lays a penalty of $500 for each infringement of the law. Held, that this law was constitutional; that such an enactment did not transcend the legislature’s power, or unwarrantably restrain the citizen’s use of his own property.
    Appeal from a judgment of the supreme court, general term, fourth department, affirming an interlocutory judgment entered upon a special term order overruling a demurrer to the complaint.
    The facts will be found in the report of the general term, opinion in 16 N. Y. State Rep., 541.
    
      V. P. Abbott, for app’lts; C. S. Mereness, for resp’t.
    
      
       Affirming 16 N. Y. State Rep., 541.
    
   Finch, J.

Most of the objections to the judgment appealed from have been fully and satisfactorily met by the opinion of the general term, with which we agree, and to which we refer rather than repeat the ^discussion. One question, however, has been argued before us which, perhaps, was little pressed at the general term, and as to which some further expression of opinion seems needed.

The constitutionality of the law under which the judgment against the defendants was rendered, is now assailed upon the ground that it is an arbitrary interference with rights of property; and the proposition is maintained that the legislature has no power to make the use of a citizen’s •property by its owner in his own way a penal or criminal offense. That is too broad a statement. It does not take into account the duty which the citizen owes to his neighbor and to the state. He may not use his own property so as needlessly to injure or annoy another, and there are numerous cases which forbid an occupation, lawful in itself, because of the injury it inflicts. One may sell and transfer his property freely,- but if he transfers it in fraud of his creditors, and with intent, to hinder, delay and defraud them, he is guilty of a misdemeanor and amenable to the criminal law. In like manner, as between mortgagor and mortgagee, the latter may restrain by injunction, and enforce, if need be, by the peril of fine and imprisonment, any destruction of timber or stripping of the land when by the act his security is menaced -or destroyed.

Something akin to that is the purpose and operation of the Lewis county tax law. Under that the county pays to the state its entire tax for state purposes, taking upon itself the burden and the risk of so much as may be uncollected, and assuming the sole responsibility of all collections. There are in the county areas of land whose principal and chief value lies in the, bark and timber of the hemlock forests. If those trees are felled and stripped of their bark, the substantial value of the land is gone. When the tax is assessed it becomes a lien on the land, and the law provides that when such taxes have been assessed, and have been returned to the comptroller or treasurer as unpaid, it shall cease to be lawful for the owner to peel bark or cut timber upon the land, or permit others to do such work, until the taxes are paid, and a serious penalty is annexed for any infraction of the command. Practically, this is no more than saying that one who holds his land subject to a lawful lien, shall not imperil that lien by removing the bark and timber, which constitute its chief and principal value, and leave the tax uncollected and incapable of collection, it having been demonstrated by the return to the treasurer that the land has become the only source or means of payment. The law, therefore, is not an unwarrantable interference with rights of property, but simply enforces, by an adequate penalty, the performance of a duty which is due to the county acting in behalf of the state. It is to be noted that the prohibition and the penalty relate only to such lands as under the tax laws can become subject to be returned to the comptroller, or in his stead to the county treasurer for non-payment of taxes, and attach only where such return has been made. That return is somewhat analogous to the return of an execution unsatisfied, and marks the period when ordinary remedies have failed. The return to the comptroller lays a foundation for the sale of the lands for taxes in arrears. Up to that time the owner may freely cut his timber and peel his bark, and use the proceeds to pay his taxes, but if he does not pay, and the collector is unable to find any personal property out of which to collect them, and so returns them to the treasurer as unpaid, the proceedings have reached a point where the sale of the lands is the sole remaining resource ; and at that point it is competent for the legislature to restrain acts which would strip the land of its sole or chief value and tend to make unavailing the final remedy. Such an enactment does not transcend the legislative power, or unwarrantably restrain the citizen’s use of his own property.

The judgment should be affirmed, with costs, but with leave to the defendants, upon payment of all costs in the courts below'and of this appeal, to serve an answer herein, such costs to be paid and the answer served, within twenty days after service upon them of the order herein, affirming the judgment.

All concur, except Buger, Ch. J., not voting.  