
    In the Matter of The Attorney-General, Resp’t, v. Theodore W. Myers, Comptroller, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November 28, 1890.)
    
    1. Taxes—Mandamus lies to compel comptroller op New York to issue BONDS.
    
      Mandamus lies to compel the comptroller of the city of New York to issue and negotiate revenue bonds to pay the taxes due from said city and county to the state. The provision of the charter in relation to issuing such bonds is specific, and cannot be affected by any action of the board of estimate and apportionment.
    2. Same—Constitutional law—Title op act.
    The title of an act imposing a tax which states that it is for the general fund “ and for those claims-and demands which shall constitute a lawful charge on that fund,” etc., sufficiently states the object to which the tax is to be applied.
    3. Same.
    Failure of the legislature to appropriate all of the moneys which it may be supposed will be thereby raised will not make the law imposing the tax void wholly or fractionally.
    
      Appeal by Theodore W. Myers, comptroller, from order of special term directing the issue of writs of mandamus.
    
    
      David, J. Dean, for app’lt; William A. Poste, for resp’t
   Learned, P. J.

This is a proceeding for a mandamus to compel the comptroller of New York city to issue and negotiate revenue bonds in order that from the avails thereof he may pay to the treasurer of the state §5,685,660.41 alleged to be owing for .state taxes from said city for taxes imposed in 1889. Chaps. 809, 311, 335.

Of this sum it appears that the sum of $4,519,641.83 is not disputed, and it was conceded on the argument before the special term that this sum would be immediately paid The brief of the defendant on this appeal states that since then it has been paid.

The residue may be conveniently divided into two sums, since the grounds on which payment of these sums is resisted are different: 1st. The sum of $359,839.65 is the proportion of the state tax imposed on $119,425,063, which is the amount added by the board of equalization 1889 to the assessed valuation of the city of New York. 2d. The sum of $818,767.41 is claimed to be the proportion of the state tax which was imposed by reason of certain items which were in the supply bill as it passed the legislature, but which were vetoed by the governor, and, therefore, never became valid.

The decision of the special term as to the first of these sums was that the affidavits of the defendant have put in issue the regularity of the proceedings of the board of equalization and that a peremptory writ of mandamus would not issue. An alternate writ was ordered.

As to the second, the special term ordered a peremptory mandamus. The comptroller appeals from the whole of the order, but the argument has been directed to that part which ordered peremptory mandamus.

Chapter 309 above-mentioned imposes a tax of 23-100 of a mill for canal purposes.

Chapter 311 imposes a tax of one mill and 81-100 of a mill for the general fund, 3-10 of a mill for canal purposes, and 97-100 of a mill for school fund.

Chapter 335 imposes a tax of 21-100 of a mill for the canal sinking fund.

These make an aggregate of three mills and 52-100 'of a mill.

This required a levy of state tax on the city of New York for the fiscal year beginning October 1, 1889, of $5,885,600.41.

When the board of estimate and apportionment acted in December 31, 1889, instead of including the above amount in their estimate, they deducted two sums, viz.: that proportion of the tax which was imposed on the sum of $119,425,063, the amount added by the state board of equalization to the assessed value of real estate on New York, making $359,839.65; and also that proportion of the state tax which is alleged to have been imposed on account of several items in the state appropriation bill which did not become valid because vetoed by the governor. See chap. ter, 569, 570 of the year 1889. Those items are stated to amount to $808,550.13, for which the tax would be $818,767.41.

The state tax is by law payable, one-half on the 15th of April, and the other half on the first of May. That is, the taxes now in question would be payable in those days in 1890.

In the city of Hew York, however, as appears by chapter 410, Laws of 1883, §§ 814, 817, 833, etc., the assessment rolls are delivered to the receiver of taxes the first of September, and taxes are then payable.

Such rolls, therefore, cannot include the state tax to be levied for the fiscal year beginning with October 1st next succeeding. Hence it is that practically the payment of the state tax is, in Hew York city, about a year behind. For the purpose of meeting this difficulty it is provided by the law last cited in § 153, that to enable the city to make payment of its quota of the state tax at the proper time, the comptroller of the city shall issue revenue bonds and from the proceeds pay this tax, and the amount thus paid shall be levied in the then next annual levy.

One point urged by the appellant is, that the comptroller cannot be compelled to issue revenue bonds and pay the state tax for any amount in excess of the sum which has been appropriated by the board of estimate and apportionment and levied for that purpose, but the statement abo ve made shows that this cannot be correct. This state tax was to be paid on or before May 1, 1890. And tho duty of the comptroller to issue bonds for- that purpose arose before that day. The appropriation by the board of estimate and apportionment in respect to that tax could not lawfully change the amount certified by the comptroller of the state. For the board is to include the amount necessary to pay the state tax. § 189. Section 154 gives a general authority to the comptroller of the city to anticipate its revenues to meet expenditures under the appropriation. But § 153 is specific; and it not only authorizes, but it requires the comptroller to issue revenue bonds and from the proceeds to pay the state tax.

It is true that by the refusal of the board of estimate and apportionment to put in their final estimate the proper amount there will not be raised “ in their next annual levy,” enough to meet these revenue bonds, but we think that the neglect of certain officials to do their duty should not prevent the comptroller of the city from doing his. If the board of estimate and apportionment had a discretionary power to determine how much should be paid to the state for its tax, the question would be very different. But that determination belongs to the comptroller of the state. Laws 1859, chap. 312, §§ 8, 9, as amended by chap. 351, Laws of 1874.

It is undoubtedly true as urged by appellant that if the state tax could be paid only from money already collected and in the hands of the comptroller of the city, and if such money had not been collected, mandamus would not lie. But in the present case the comptroller of the city has the power to raise the money and the statute requires him to do so. Therefore payment is in his power.

The appellant urges that by § 9, last cited, the remedy of the-comptroller of the state is by mandamus against the board of estimate and apportionment to compel them to make a new assessment. That would probably be his remedy if it were not for the peculiar provision authorizing the comptroller of New York city to issue revenue bonds and from their avails to pay the tax. If it is his duty to do this, then it will be for the board of estimate and apportionment under § 190 to provide for the payment of these obligations of the city. We think, therefore, that this first objection against the mandamus is no? valid.

The next point is that the legislature had no constitutional power to raise money by tax for items in the supply bill which were subsequently vetoed by the governor.

This argument assumes as its basis that the tax of 1 mill and 81-100 of a mill, for the general fund and for those claims and demands which shall constitute a lawful charge upon that fund, imposed by chapter 811, would raise exactly the amount after-wards appropriated from the general fund by chapters 569 and 570 as they passed the legislature; and, therefore, would raise more than enough to meet the appropriations of those acts as they finally became laws. This was assumed by the board of estimate and apportionment, but we see no proof. It may be that a calculation of the amount which would be produced by this tax would show it to be in excess of the total of appropriations made in those bills. But as there is no evidence as to the condition of the bills when they passed the two houses of the legislature, we cannot assume that this tax would have produced exactly the amount of the appropriations then contained in those bills. Nor is there ever any evidence as to the amount of appropriations vetoed by the governor.

But passing this difficulty we come to appellant’s argument. He urges that by aft 3, § 20 of the constitution every law imposing a tax shall distinctly state the tax and the object to which it is to be applied. The tax in question states that it is for the general fund and for those claims and demands which shall constitute a lawful charge on that fund during the fiscal year,” etc.

The only question is whether that states the object to which the tax is to be applied. That is settled in the affirmative in People ex rel. Burrows v. Supervisors of Orange, 17 N. Y., 235. That decision and the subsequent constant practice of the legislature must be deemed conclusive. A contrary construction would produce great embarrassment, as is well pointed out in the opinion then delivered.

Now if this law is valid under the constitution its validity is not impaired by the failure of the legislature subsequently to appropriate, all of the money which would probably be received under the tax. Yet that is the appellant’s argument. He urges that because the legislature did not by a valid law appropriate all the money which (as he says) this tax will raise, therefore the law imposing the tax is invalid. Or rather, he says that the city of New York may compute how much of the law imposing the tax is valid and how much is invalid.

For the city does not object to paying a part of the amount imposed by this chapter 311 for the general fund. That is to say, the. city of ¡New York may determine that the tax of 1 mill and 81'-100 is valid only to the rate of about 1 mill and 31-100 of a mill.

This is the position of the appellant. Because he proposes to reduce the tax which the city is to pay, on this ground (exclusive of the other proposed reduction), to what would be produced by a tax for the general fund of about 1 mill and 31-100 of a mill in addition to the tax for schools and canals. It seems to us that this evidently cannot be done. The legislature must be permitted to levy such tax for the general fund as it determines to be necessary.

And though it fails to appropriate a part of the money which may be supposed will be thereby raised, such failure does not make the law imposing the tax void wholly or fractionally.

It may be noticed that the session of 1889 ended May 16th, and that all the bills which have been above referred to were approved by the governor subsequently to that date. But this does not affect the argument as to the constitutionality of the act imposing a tax.

The order is affirmed, with fifty dollars costs and disbursements.

Landon and Mayham, JJ., concur.  