
    Terrill v. Wheeler et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    June 25, 1888.)
    CONSTITUTIONAL LAW—DELEGATION OE LEGISLATIVE POWERS—TAXATION.
    Laws N. Y. 1883, o. 114, conferring on the board of assessors of the city of Brooklyn, such board being a city agency in respect to taxation, power and authority to determine what proportion of the taxes, assessments, etc., assessed on any lands therein prior to July 1,1882, and in arrear, should be justly and fairly charged against and presently collected from said lands, and making their determination a valid tax and lien thereon, in lieu of said arrearages, is constitutional. The arrear, thus ascertained, not being a new tax, but an abatement of the old, the objection that the legislature cannot delegate the power of taxation, within an incorporated city, to a commission newly created by itself, is irrelevant.
    On exceptions from circuit court, Kings county; Cullen, Justice.
    Action by Lucy Maria Terrell against Haney B. Wheeler and others to recover the possession of a lot or parcel of land situate in the city of Brooklyn, sold for taxes assessed in lieu of arrearages of taxes thereon, under chapter 114, Laws N. Y. 1883, and bought by plaintiff, and, not having been redeemed within one year, conveyed to her by the registrar of arrears of said city. The act of March 16, 1883, (chapter 114, Laws N. Y. 1883,) entitled “An act concerning the settlement and collection of arrearages of unpaid taxes, assessments, and water-rates in the city of Brooklyn, and imposing and levying a tax, assessment, and lien in lieu and instead of such arrearages, and to enforce the payment thereof,” provides that “whereas, arrears of unpaid taxes, assessments, and water-rates in the city of Brooklyn have accumulated to an amount exceeding ten millions of dollars, and in some instances said arrears exceed in amount the assessed value of the lands affected thereby; and whereas, the validity of some of such unpaid taxes, assessments, and water-rates has been or may be called in question by reason of some irregularity, omission, or defect in the procedure instituting, laying, or imposing the same; and whereas, the city of Brooklyn has issued and sold its tax certificates, to a large amount, on account of the arrears of unpaid taxes, and has issued and sold its bonds for the money paid for the improvements for which the assessments so in arrears were imposed, and the said improvements have been completed, and the property assessed therefor has been benefited thereby; now, therefore, the people of the state of 2few York, represented in senate and assembly, do enact as follows: Section 1. The board of assessors of the city of Brooklyn shall have power and jurisdiction, and they are hereby directed and required, in all cases where any tax, assessment, or water-rate levied or imposed, or attempted to be levied or imposed, on any land in said city prior to the 1st day of July, 1882, remains unpaid and in arrears, except as is hereinafter otherwise provided, to examine into, and fix, adjust, and determine, as to each parcel of land, how much of said arrearages ought, in the way of tax, assessment, and water-rate, in fairness and justice now presently to be laid, assessed, and charged against and actually collected from said land, by reason of any and all the matters and things covered or attempted or intended to be covered, or done or attempted or intended to be done, in the laying and assessing the said taxes, assessments, or water-rates so in arrears as aforesaid; and the said board, in dealing with said arrearages as matters of fact, according to their judgment of what shall be fair and just, as hereinbefore directed, shall treat the same without regard to any supposed want of jurisdiction, irregularity, or defect in any of the proceedings had for the levying, imposing, or confirming any of said taxes, assessments, or water-rates so in arrears. * * * Sec. 2. The said board shall keep a record of their proceedings under this act, in which shall be entered their determination as to the amount to be charged and assessed upon and against each parcel of land as aforesaid, designating the same by the block and lot numbers on the assessment maps in their office, and shall certify, under the signatures of a majority of said board, the said amount to the registrar of arrears and to the comptroller of the said city, and their determination in respect thereof shall be final and conclusive upon all persons owning or having any interest in or lien upon said lands, and against all persons whomsoever, and the amount so fixed, determined, and certified by them in each case shall thereupon become and be a valid and binding tax, assessment, and lien on the lands so designated, in lieu and instead of all outstanding claims of the city of Brooklyn for arrearages of taxes, assessments, or water-rates levied or confirmed, or attempted to be levied or confirmed, prior to the said 1st day of July, 1882, and shall be a valid lien on said lands, having priority over all other liens, claims, or demands whatsoever, except taxes, water-rates, or assessments levied after said date; and the proceeds thereof, when collected, shall be applied to the payment of the expenses of carrying out the provisions of this act, and to the discharge of any of the obligations of the city of Brooklyn arising upon tax certificates, and bonds and certificates issued on account of local improvements, and bonds issued to meet deficiencies on such bonds or certificates. ” The trial resulted in a verdict for plaintiff by direction of the court. Defendant took exceptions to the general term, alleging that the act was unconstitutional.
    
      
      James & Thomas H. Troy, for plaintiff. James Stikeman, (John J. Townsend, of counsel,) for defendants.
    
      John J. Townsend, for defendants, in support of the exceptions.
    Persons taxed in towns for general purposes either tax themselves, or choose their taxing officers. Persons taxed in cities cannot be constitutionally subjected to a different kind of government. Towns and cities are corporate bodies, but their corporate character has no more political influence than the corporate character of a private corporation. Abroad, the corporate character of cities has been exalted and exaggerated until cities, as corporate bodies, and frequently as chartered corporate bodies have become tyrannical and oppressive, disregarding and working an atrophy of the rights of the citizen. Here the inhabitants of cities are, equally with the inhabitants of towns, entitled to the protection of the constitution. Cities are towns no longer meeting in a popular assembly, but meeting in select committee in some form chosen by the people,-as a common council. In Brooklyn the wards of the city are by statute declared to be towns of the county of Kings. Chapter 863, Laws 1873, tits. 2, 3.. If it is unconstitutional to tax persons in the towns and counties by legislative commission, it is unconstitutional to tax them in the city of Brooklyn by legislative commission. There is no warrant, express or implied, for the delegation of the absolute power of taxation for expenses incurred in executing the powers inherent in a city, except to the city as a community, or the county board of supervisors. If delegated to the city, such delegated absolute authority must be exercised by the mayor, aldermen, and commonalty in common council convened, or by some similar board chosen by the citizens. There is no warrant, express or implied, for the' delegation of the power of absolute taxation for general town, county, or city purposes to a commission appointed by the legislature. Any other construction of the constitution permits the legislature to destroy the county organization for fiscal purposes in every county. It would permit the arbitrary construction and reconstruction of schemes of local government, and their establishment in Brooklyn, or in any part of the state, under the pretense of organizing a city. In People v. Acton, 48 Barb. 524, it was decided that the legislature cannot create a commission with power to enact a municipal by-law. A fortiori, the legislature cannot invest a commission with an absolute power of taxation.
   Barnard,P. J.

The argument against the constitutionality of the arrears law of Brooklyn rests principally upon the lack of power in the legislature to delegate the right of taxation to a board of commissioners. The legislative power of taxation is very great, and the right to delegate it to towns, villages, and municipal agencies is constantly practiced and recognized, and has been for many years. The assessors of the city of Brooklyn are a city agency in respect to taxation, and I do not understand the appellant to question the legality of a tax imposed upon real property through the regular action of this board of assessors. If the arrears of taxes are legally imposed, then the delegation of the authority to remit a portion of the tax so in arrears can in no proper sense be' deemed an imposition of the tax. The tax was imposed and was unpaid, and the land-owner is in no position to object to the reduction of a legal tax. The law apparently is for his benefit, and is designed to collect a less sum in lieu of a greater one legally existing against the land. The arrear is not a new tax, but an abatement of the old; and the argument that the legislature cannot delegate the power of taxation to a commission has no relevancy or force. Ho additional obligation could be imposed by the commission. The law is not liable to objections in other respects. It provides for a hearing even when the proposal is to reduce the amount to be paid by the land. The right to sell follows the right to tax at all. It provides for a list of the conclusions of the commission, and for its delivery to all applicants, and it provides for redemption, after sale, for 12 months. It requires a notice of the sale, to be given to every record owner, or person interested in the title by mortgage thereon. A great indebtedness of the city of Brooklyn, occasioned by the default of those who were assessed for their property, could not be met by a more humane law, both in its justice and in the provisions for its execution. Judgment should therefore be affirmed, with costs.

Pratt, J., concurs.  