Слике страница



We present in this number of the Gazette, a very important report, made by the Hon. MYNDERT VAN SCHAICK, of the city of New-York, Chairman of the Committee on Finance of the Senate of this State in 1835, in relation to Taxation. This report speaks for itself; it is able, and just such a report as we should look for from a practical business man like Mr. Van Schaick. During the recent session of the Legislature, this report was frequently referred to in the debates had upon the Tax Bill, a copy of which we present, and which follows Mr. VAN SCHAICK'S REPORT. STATE OF NEW-YORK.

[blocks in formation]
[ocr errors]

Resolved, That the committee on finance be instructed to inquire whether ground rents, extra rents, incomes from quarter sales, and interests in unlocated and undefined water-right reservations, are subject to taxation; and if they are not assessed and taxed in proportion to other property now_by law subject to assessment and taxation, whether they ought not to be."

Mr. Van Schaick, from the committee on finance, to whom the foregoing resolution was referred, accompanied by sundry petitions from cititzens residing in the counties of Rensselaer and Albany, complaining of the exemption from taxation of the property described in the resolution,


That in accordance to the terms of the resolution, they have confined their investigations to two points: 1st. Whether the property named is exempted from taxation:

2d. And if exempted, whether it should not be subjected to assessment and taxation:

The reservations contained in the leases which have been put into the hands of your committee, they describe as follows:

"Ground rents" are the sums and produce stipu-
lated to be annually paid by the tenant.
"Extra rents." By this condition of the lease, the
lessor reserves the right to purchase the property
at the price proposed by the tenant; but if the
landlord refuses to purchase, and the tenant sells
to another, the estate is subject to one year's rent.
"Incomes from quarter sales." The same right to
purchase being reserved by the lessor as in the
preceding case; if he refuses, and the tenant sells
to another, the landlord may claim a part of the
price. This is understood to be usually fixed at
one-quarter part of the purchase money, but it is
seldom exacted.

"Water-right reservations." The leases reserve
all mines, minerals, kills, creeks, streams and runs
of water, with the land under water, which the
landlord may reclaim and occupy or sell; and
they also reserve the land which may be over-
flowed by water when it shall be dammed up;
and they provide, as a compensation to the tenant
for the land which may be occupied and em-
ployed for building mills, &c. an abatement of a
reasonable and proportionate share of the rent re-

From this view of the conditions contained in the lease from which the explanation is taken, it will be seen that the rents reserved may all be classed under the simple denomination of income. Revenue or income from ground rent has the same character of personal property, as rents derived from the annual lettings of houses and stores. There is no reason for any distinction between them. Houses, stores and lands are assessed as real estate. The rent or income which they afford, becomes personal property as soon as it is received by the landlord, and as such, is liable to taxation, in the same manner as personal property of any other description is assessed and taxed, which is not specifically pointed out by law, and assessed upon its own amount, separate from the bulk of the personal estate to which it belongs.

It has been represented, that in consequence of the construction given to those sections of the Revised Statutes which treat of the taxation of personal estates, assessors have not felt authorised to include the annual rents which a citizen may receive, in the estimate of the amount of his personal property. The consequence is said to be, that many persons who possess large rent-rolls, and no other personal property, escape taxation altogether; and in other instances, their annual receipts from rents being disposed of before the arrival of assessment day, landlords are not obliged to pay any tax upon this portion of their personal estate.

Your committee conceive the instances must be unfrequent, in which, if assessors discharge their duty, individuals can escape the taxation of any considerable portion of their personal estate, whether it consists exclusively, or only partially, of annual income. And though there must be exceptions to all general inferences deduced from complicated legal enactments; yet they advance this opinion as particularly applicable to extensive and numerous possessions under lease, and which form a heavy aggregate amount of income belonging to one person. Thus considering rents as liable to assessment, only when they shall have become an annual acquisition to a personal estate, your committee believe that assessors may estimate the amount of rents which may have been received by a citizen during the year preceding their valuation, and may call it so much personal property, in addition to the sum at which he had been rated at the previous assessment. This method of proceeding, though it might not reach every known or supposable greviance, would obviate the most serious of the complaints which have been advanced, that ground rents entirely escape taxation. In what other way can assessors follow the increase of a personal estate derived from rents?

But your committee are inclined to indulge the opinion that rents arising on leases duly executed, may be assessed as debts due from solvent debtors on contract. That taxation of rents in this form would fall upon the tenant by virtue of the condition of his lease, as appeared to be apprehended by the Senator who introduced the resolution, may constitute a good reason, in the judgment of the Senate, for refraining from any legislation for the purpose of explaining and enforcing the statute. But as we are engaged in the investigation of a question unusually important and difficult, it may be worth while to ascertain how far this position can be substantiated.

By the Revised Statutes, vol. 1, page 387, chap. 13, property is made liable to taxation only in two characters, those of real and personal estates. In the third section of this chapter, 44 chattels, debts due from solvent debtors, whether on account, contract, note, bond or mortgage, &c." are enumerated among the subjects of taxation which are declared to be included in the terms personal property or es


Income and rents are not specified: but is
not a lease a contract in law? and is not the rent
annually accruing a debt due from a solvent debtor
on that contract? The language of the statute bears
out this construction; and it appears to be confirmed
by the manner in which the Revisers treat this
branch of the subject of taxation in their notes.
The Revisers speak of "debts due for rents of
lands," as "debts due from solvent debtors;" and
they suggest to the Legislature that certain of these
rents ought to be excepted from assessment, because
they are cases of double taxation. In this conclu-
sion, which they put in the form of a question, the
Legislature did not agree; for that body enacted the
1st title of the 13th chapter, without making the al-
teration which the Revisers suggested. To furnish

a perfect view of the argument which may be drawn
from the notes, it is necessary to transcribe those
parts of them to which allusion is made.

The Revisers say, "But they cannot refrain from
submitting the inquiry, whether, in the taxation of
debts and mortgages, the following should not be ex-

"I. Debts due for the purchase money of lands sold, where the vendee is in possession, but where the title has not been conveyed, and there is no personal or other security for the debt.

"2. Mortgages, where the land is the only security for the mortgage money.

"3. Debts due for rents of lands, where the land.

lord has a right to re-enter on default of payment, but has no other security.

"In each of these cases, the occupant will be taxed for the full value of the land as if the title were absolute and as the land itself furnishes in each case a security for the amount due to the vendor, mortgagee or landlord, they will be taxed as for debts due from solvent debtors, to the whole amount of such debts, if the land is sufficient security for the whole, and if not, then to the extent of its value. If there is no other security, there will be cases of double taxation."

From this it appears that the Revisers supposed that by the terms of the law as they reported it, and the Legislature passed it, landlords would be taxed on "debts due for rents of lands," as for "debts due from solvent debtors," to the whole amount of such debts, "if the land is sufficient security for the whole, &c."

Now it is well known that the first and second exemptions proposed by the revisers are not excepted, but are included in assessments of personal property, by the construction universally given to the law; and as the revisers argue their third proposition under the conviction that debts due for rents of lands, are debts due from solvent debtors, and as the third section of the statute includes debts due from solvent debtors on contract, in the enumeration of items which compose taxable personal estates, and as no exception whatever was made by the Legislature, it inevitably follows that the framers and enacters of the law intended that debts due for rents of lands should be assessed as personal property.

The revisers say in their third proposition, "when the landlord has a right to re-enter on default of payment, but has no other security;" then in cases where the landlord has other security, it was not even proposed to make an exception. But these cases are very few. Recovery by distress is usually the only, and is a sufficient security in regard to the rents that may be due on farms, because of the improvements made upon them; and a warrant of distress is a certain reliance where expensive buildings are erected on lots held under long leases. No other security is known to be asked or given except it may occasionally occur in cities where the lease includes the tenement as well as the ground; because in this case the tenant can remove his furniture or other property. The restriction, therefore, to a particular class of debts due for rents of lands, by which the revisers intended to confine their third proposed exemption, can have but little application to rents arising from lands under lease: And as the whole recommendation is entirely disregarded in the statute, we must infer that the Legislatuae intended that all debts due for rents of lands should be assessed, in the same manner as the items of personal property included in the two first proposed exceptions of the Revisers is now by that law assessed and taxed, viz: "debts due for the purchase money of lands sold," &c., and "mortgages where the land is the only security for the mortgage money." Are not those kinds of property both the subjects of taxation? If they are, how can debts due for rents of lands escape? Certainly not by force of the statute; for the three cases all stand in the same predicament in the third section, and the argument or construction that shall release one of them from assessment and taxation, must release the whole; for debts due on contract for rents of land are debts due from solvent debtors, in the eye of the law, and are equally the subjects of taxation, as debts due for the purchase money of lands sold, or as mortgages are.

If a lease duly executed is a contract of the description intended by the third section, then it must be taxable the same as a mortgage given for land sold, and then it would, by a parity of reasoning, fall on the principal, if the principal of a debt existed in the body of a lease.

But this is not the opinion entertained by the Revisers, for they speak not of contracts of lease or the principal of a debt, but of rents as being debts due from solvent debtors. The assessment must therefore be on the amounts of annual rents which are due, and not on a capital of which the annual rents shall represent the interest.

If this reasoning is not sufficient to establish the fact, that assessors in the towns and wards where lessors reside, may assess rents as debts due from solvent debtors, it is presumed to be at least suffi

cient to justify assessors in making a computation of the annual rents received by landlords on contracts of lease, and to include such computation in the general estimate of their personal estates. Perhaps the statute requires some explanation, for it must be inferred from the tenor of the law, and the notes of the Revisers, that it was not intended by the Legislature that a vast amount of personal property, under the denomination of rents, should escape taxation. The above process will, however, cure all defective valuations of personal estates connected with lands under lease. No legal objection can be made to the operation, and its equity cannot be disputed. Landlords who duly appreciate their advantages will not object to their being taxed in this manner to the full extent of their yearly income, in addition to their other personal estate in possession, as all parties have the right of reducing excessive assessments under the provisions of the 15th section of the 2d article of the chapter before referred to.

But from the justice and equity of charging a lease with taxation upon a capital, of which the annual rent represents the interest, your committee entirely dissent, not only for the reason already assigned from the notes of the Revisers, but because there is no analagous case or provision of law to support the doctrine. The only case in which it is pretended that a precedent exists, is that of a mortgage. It is said that $5,000 of annual rents are as valuable as $5,000 of interest on a bond. There is no similarity between a capital raised and created by calculation, and the capital of a bond and mortgage; because, though a mortgage is a lien upon the land, and it may be admitted that a lease constitutes a lien of no less force and efficacy, yet an essential distinction exists in their character and products. Upon a foreclosure, the means to pay a mortgage are procured by a sale of the land, and the capital remains entire ; whereas a lease in the event of non-payment of the rent, reverts back to the landlord. In this condition the computed capital is extinguished; the rent that may remain unpaid, must be satisfied by distress. In most cases, it becomes necessary to negotiate a new lease before the foundation can be laid on which to compute a new capital. But the dissimilarity between those two descriptions of property is obvious in this, that the money payable on a lease bears no interest; it is therefore not capital, while it exists as unpaid rent, while interest accumulates upon a bond and mortgage, and like rent is payable at fixed days. In this respect, rent is equivalent to the interest on a bond and mortgage. but not to its principal. A mortgage has the land, a principal and interest attached to it. A lease has the land and rent; the principal is wanting.

It may be further remarked, that rent arising upon the lease of a farm, must, in numerous instances, be earned from the soil by the labor of the tenant before it has existence as property. You would not tax as capital what does not exist as rent. The principal of a mortgage represents the land itself; the rent on a lease represents the produce of the land; can a capital, having no existence, and bearing no interest, be created out of unearned rent, or is a lease a substantive chattel or estate, like a mortgage which is given most usually in consideration of money loaned, or of a debt for which value has been received by the mortgagor. The argument is not extended to the case of a mortgage given in part payment of the purchase money of land, because here the mortgage is destitute of a consideration independent of the land, and it appears to be a decided case of double taxation; but in reality, the mortgagor may set off his debt on the mortgage against his personal tax, and if he possesses personal property to the amount of his debt, there is no double taxation.

The foundation principle of the law of taxation is, that all property shall contribute in proportion to its value. The exemptions which the statute allows, are in favor of specified items of property belonging to the institutions of learning, charity, religion, &c. But in regard to estates not exempted, the legislalation of this State has admitted inevitable exceptions only to the general rule of equal taxation, and these are not exemptions, but cases of double taxation. Our laws have not established double taxation as a principle. The case of debts owing, on contracts for the sale of lands belonging to non-residents, (Laws, session of 1833, chapter 250,) furnishes the only instance of direct legislation on the subject, and

is an exception to the general rule. This law grew out of a peculiar state of affairs in a section of the country in which lands, and contracts for the sale of lands, are owned by foreigners. The Connecticut School Fund, which is understood to be principally loaned in this State, was exempted from its operation in the session of 1834. This, therefore, is not an example applicable to ourselves, for in all cases of double taxation on the property of citizens, it is incidental, not designed; a consequence of the complication of business and of the defects of human institutions, and not a principle sanctioned by the deliberate judgment and direction of enlightened legis


We have seen that the Revisers endeavored to get rid of double taxation in three specified cases. Their proposition did not succeed, evidently because the cases of double taxation could not be separated from those of single taxation, as in a bond and mortgage. How, in the management of assessments, can dis criminations be made between mortgages for money loaned and those given as a part of the price of land sold? In the first case, the tax on both is single as to each, because the consideration existed independent of the land. In the other, the mortgage is a debt created on the sale of the land, and both the mortgage and the land being taxed for their full value, the taxation on the land is double for the amount of the mortgage. In justice, the amount of the mortgage should be deducted from the valuation of the land unless the purchaser possesses personal property. In this event, he may deduct the debt he owes on the mortgage from the amount of personal property at which he is assessed, and then there will be no double taxation even in the case proposed. But should his personal property be less than the debt, his taxation will be double on the difference between them. Inequalities in taxation then, are incident to the business of life, and are not sought to be imposed by our system of law.

Is there in reality any evil in long or perpetual leases; and if mischief lurks beneath their folds, is the evil of such magnitude as to require that the principle of double taxation should now first be introduced into our statute book, and a capital be raised by computation of the rent of a lease for the purpose of imposing the tax? If any doubt remains on the mind of the Senate as to the correctness of that construction of the Revised Statutes which permits the taxation of rents as debts due from solvent debtors on contract, or by estimating, in the manner suggested, their annual amount; and if it should appear to be just and necessary to make a distinction between long and short leases and annual incomes from rent, and to impose taxation exclusively on leases having twenty-one years or more to run from the date of their execution, or on the capital thereof, in conformity with the views entertained by the Senator who moved the resolution, a bill might be brought in to accomplish that object.

However confidently your committee might be inclined to maintain the construction which they have given to the statute, they are aware that it may be assailed both in regard to its accuracy and as to its sufficiency in reaching the object desired;* they will therefore proceed to observe, that if it were proposed to levy a general income tax, the questions to be discussed would not be difficult of solution. But your committee have no reason to suppose, that it was the design of the Senate that the subject should be presented in that form, though it is the undisputed mode in which a tax on ground rents receivable on long or perpetual leases can be imposed with safety to the interest of the tenant, and with justice to the landlord. A general income tax would include not only long and short leases, and the annual lettings of all tenements and farms on shares, but also a great variety of incomes received for services rendered. A measure so odious was not contemplated by the resolution or by the petitioners. The object appears to be limited to the procurement of a law, the provisions of which shall be directed against a certain class of leases and estates.

As the proposed tax is not intended to apply to all leases, those having from one to twenty-one years to run, as well as to such as are given on lives or without limitation of time. it would be necessary to define and fix a period by law within which contracts

*NOTE.-On a careful revision of this argument, it is believed to be impossible to deny its conclusiveness.

of lease shall be exempt from assessment, and beyond which they shall be subject to assessment and taxation. Out of such a law a question would arise of deep importance to all tenants holding under that class of long leases which are guarded by strong and comprehensive covenants for the payment of taxes.

The bill to be brought in with the intention to tax the computed capital of leases, would be drawn as suggested to your committee by the mover of the resolution, in this form.

"All income upon ground rent reserved upon permanent leases, or leases having twenty-one years or more to run from the date of their execution, shall be denominated personal property, and be liable to assessment and taxation, in the same manner that money secured by bond and mortgage is assessed and taxed."

This description would probably include all the cases to which the petitioners call the attention of the Legislature. But if such a law should be passed, it would still remain a question who is bound to pay the tax, the landlord or the tenant. It will be seen, from the transcripts of the covenants which your committee now furnish, from two leases belonging to that particular class of contracts against which the law is desired to operate, that the covenants are unusually comprehensive, inasmuch as they provide against legislative enactments, whether they are directed against the property in possession of the tenant or against the lessors in their individual char


In the Van Rensselaer leases the covenants declare, that "the tenant will also well and truly discharge and pay all taxes, charges and assessments, ordinary and extraordinary, taxed, charged or assessed, and which may hereafter be taxed, charged or assessed to or upon the said hereby granted premises, or upon any part or parcel thereof, or upon the said Stephen Van Rensselaer, his heirs, executors, administrators or assigns, by any act of the Legislature or any legal authority for and in respect of the said premises, or any part thereof: and indemnify the said Stephen Van Rensselaer, his heirs, executors, administrators and assigns, against any damages, costs and charges which he or they, or any part of them, may sustain or be put to, by reason of any neglect in the due and punctual discharge and payment of the said taxes, charges and assessments."

Your committee have also been furnished with an extract, in pencil, from a Livingston manor lease, in which the covenant for the payment of the taxes runs as follows: "which rent is to be paid without any deduction or abatement of or for any manner of taxes, charges, assessments or impositions whatsoever, that have been or shall be taxed, charged, assessed or imposed upon the hereby demised premi ses, or any part thereof, or upon the party aforesaid of the second part, his heirs or assigns, for or in respect thereof, by any power or authority whatsoever."

The expressions in both these covenants, intended as it is certain they were to protect the landlord against legislative action, in regard to the imposition of taxes upon his reserved rights, by covenanting in this peculiar manner with the tenant, would appear to be sufficient for that purpose, if by a special law those rights were clearly indicated as the objects of taxation."

The question to be propounded would be whether a tax on a capital raised by computation from the income of the land, and levied on the landlord, would be a tax "for or in respect of the said premises or any part thereof," for which, and for any damages resulting therefrom, indemnity is to be made by the


It might be argued that a tax laid on a capital, of which the annual rent represented the interest, was imposed either upon a fictitious capital or upon an agregation of rents sufficient to form the capital. A fiction can not be taxable, and an assessment founded upon the proceeds which are to be derived at some future period from the cultivation of the soil or from the use of a tenement can scarcely be considered in any other light than an imposition for or in respect of the premises. Does not a capital so collected together, the existence of which is anticipated, in reality reside in the land? If it have existence, where can it be found? Not in the lease, nor in the coffers of the lessor! It must be in the land.

Until the legal interpretation of the convenants

shall have been discussed and carefullyi examined, it is not probable that any member of the body would be willing and ready to pronounce a definite judgment as to the extent of their operation; or to legislate upon a subject connected with them, while his mind remained in a state of uncertainty. If it should be finally decided, that by the terms of the leases referred to, tenants are not bound to pay the tax proposed to be levied upon the landlord, yet the true construction of the covenants involves differences of opinion, which have already appeared, and the settlement of which may require all the acumen of the most sagacious jurists.

With the voluntary contracts of individuals, made according to law, the Legislature have no power to interfere. If the consequence of our legislation, in the manner proposed, should be to throw an unexpected burthen upon the tenant, the design of the resolution would not only be defeated, but the act would recoil upon the petitioners themselves.

For these reasons, your committee do not feel prepared to assume the responsibility of proposing a measure which they might not possess the ability to advocate or defend." But if they shall be instructed by the commands of the Senate, they will cheerfully bring in a bill conformably to the views which may be entertained by a majority of its members.

In regard to the operation of a tax law, such as the petitioners seem to apply for, upon contracts of lease to be made hereafter, your committee beg leave to observe, that they suppose the tax would in all cases eventually fall upon the land.

The rents arising upon annual lettings or short leases of estates, are as valuable as those which accrue upon perpetual or long leases; and therefore taxation upon both should be equal: There is no reason in nature or justice, why a distinction should be made between them. But it is objected to this, that if you tax annual rents, or those accruing upon short leases, the lessor will make a covenant with the tenant, that the latter shall pay the tax. Will not the same consequences ensue in relation to long leases? And if the bargain or article of agreement is binding in the one case, can its legal force be overthrown by legislation in the other. You may limit the tenure of such leasehold estates as may be created hereafter; but you cannot take away the fee or the possession from the rightful owner; so you may ordain what shall constitute a valid bargain, upon the principles of moral justice, but an agreement made in conformity with law, no power can annul. If this course of reasoning is just, then it must be admitted that a covenant can as well be inserted in a long as in a short lease, which shall throw the tax on rents upon the tenant. And it follows that contracts for the payment of taxes can be agreed upon between upon the lessor and lessee, which shall encumber the tenant with the taxation on the rents of the land, with the same certainty that they oblige him to pay the taxes on the land itself. The necessary deduction from this position must be, that in regard to contracts of lease to be made after the passage of a law taxing rents arising on long or perpetual leases, covenants will be contrived to suit the provisions of the law, and the tenant will then as now, make his bargain in the best way he can, taking into consideration the rent and taxes he agrees to pay on the one hand, and the benefits he may acquire from the undisturbed possession of the land on the other. It is therefore not perceived that any advantage whatever is to be gained for the general weal, by the proposed alteration in the principle of taxation, as it is laid down in the Revised Statutes, in so far as the law to be enacted may operate upon contracts of lease to be made after its passage. An increase of taxation, whoever paid by, is in fact only an increase of burthen upon the productive labor of the country. Free trade, small expenditures and universally light taxation, must be the leading principles of every government which truly consults the best interests of the greatest number of people. But equality in taxation, though it is clearly impossible to accomplish it in all cases, is really just and desirable; and your committee are not indisposed to accede to any proposal calculated to produce this effect wherever inequality exists. Landlords and tenants are already liable to taxation upon their personal as well as real estates. If the whole of those estates are not included in assessments, it must be the fault of the assessors. If it is intended to lay a special

tax upon the landlord, under the conviction that he is allowed to escape his just portion of the public burthens; and if it is known, that in the cases to which the petitioners allude, this tax will not fall upon the tenant, those who possess clear and satisfactory views of the case, have the the right to propose such measures as they may deem necessary and suitable.

Mill streams and unlocated water rights are represented as possessing a value above that slight interest which the tenant may have acquired, according to the terms and reservations contained in his lease. As the landlord may claim restoration of all mill streams, and appropriate them to his own use, or sell them to another, the tenure by which they are held is considered in effect, that of sufferance merely. Your committee are informed, that assessments on this description of property are made on the same rates as to its value, as are made on the other parts of the estate covered by the lease, and that the practice of estimating a mill stream as possessing no higher value than the adjoining lands has generally obtained in the county of Rensselaer. This valuation of a mill stream is supposed to be too low compared with its intrinsic worth. It is said that the practice appears to have taken its rise from the consideration that the tenant having possession merely, but no higher interest in a water right, should not be taxed for any more than the whole estate included within the boundaries given in the lease, is worth, upon estimation of it as if the territory was all land, and no mill stream existed. In this way, the actual and existing difference in the value between the rates at which mill streams and water rights are now assessed, and the sums they would sell for to pay the just debt of a solvent debtor, escapes taxation. This difference is supposed to be an estate existing in the lessor, and not in the tenant, and it is inferred that it should be assessed as real estate belonging to the lessor.

The division of one piece of property into two kinds of estate, each taxable for its relative proportion of the value of the whole, would require almost too nice a discrimination to be applicable to the practical affairs of life. But the Revised Statutes ordain "that all lands and personal estate within this State shall be liable to taxation." Vol. 1, page 387, § 1. And on page 389, 2d section, it is declared that the land may be assessed in the name of the owner or occupant; and at page 393, 17th section, it is ordered "that all real and personal estate liable to taxation, &c. shall be estimated by the assessors at its full value, as they would appraise the same in payment of a just debt due from a solvent debtor."

These provisions would seem to render further legislation on this point unnecessary, as there is ample power to assess all real estate upon the tenant, if the possession is in him, or upon the landlord, if the reservations excepted out of the grant, which the lease purports to convey, are so broad and conclusive as to leave not even a possessory right in the tenant, but retain in the landlord an exclusive and absolute estate in the premises excepted.

To adjudicate upon points so complicated and important as these, it would be necessary to inquire whether the grant by the boundaries, conveyed pos session of the parts excepted, including of course the water rights, and whether the tenant could maintain an action of trespass against an intruder on those rights. Besides these, other questions of law would arise which could be decided with due discretion only after an impartial hearing by the proper tribunal.

Whether, therefore, the owner is liable to taxation on the reservations in the first instance, or whether the occupant is liable, or whether if liable as occupant, he has redress back upon the owner, are also questions of law to be determined by the judicial tribunals. The judgment to be rendered would be governed by the construction to be given to the covenants for the payment of taxes. It would be proper to consider the import of the language, the intention of the parties, and the character of the clauses which specify and except certain reservations out of the grant, as it is described and conferred by the boundaries. But as the statute has made provision for the assessment and taxation of every description of real estate, there can be no necessity for any further legislation on this branch of the subject.

To the complaint that estates under lease are as

sessed at a low rate, it may be answered that the statute contemplates no distinction between leasehold and freehold estates in the valuations at which

they are to be assessed and charged with taxation. Your committee are informed that the practice in the city of New-York corresponds with this opinion, and that no distinction is there made between estates held under lease or in fee. They are both assessed as if the estate was absolute and the land unincumbered; and such undoubtedly was the intention of the revisers and of the Legislature, for in their notes before quoted the revisers say: "In each of these cases the occupant will be taxed for the full value of the land as if the title were absolute." It is impossible for human ingenuity to exhibit a reason why an estate held under a limited tenure, should be assessed at a diminished rate on that account, if it be admitted as it certainly must be, according to law and the practice of the whole country, that a freehold cannot be appraised at less than its value, because it is subject to a mortgage. As this is the settled and only true construction of the law, assessors can have no right to reduce the value of an estate because it is a leasehold, or held by an uncertain tenure. But as they commit a much less excusable infraction of law very generally throughout the country in regard to estates held in fee, by undervaluing them one-half or two-fifths, there will be no sufficient reason why a new law should be passed to enforce true valuations of lands held under lease, until it be shown that this construction of the statute is erroneous, and that its language does not convey the intention which the revisers have attributed to the section to which their comment relates.

The Revised Statutes contemplate every estate as existing for taxable purposes, either in the name of the owner or occupant, and to be assessed either to the one or the other; and if unoccupied and not owned by a resident of the county in which the estate lies, then it may be assessed to the owner as a non-resident.

Water is not taxable, but a water course suitable for the employment of a mill confers upon the adjoining property a value distinct from the intrinsic worth of the soil. The two values are blended into one. Any tax laid upon this estate can be collected from the owner or from the occupant; and if default be made in its payment, the property can be sold in discharge and satisfaction of the debt which has been thus incurred, by pursuing the course pre scribed in the statute.

Your committee concur in opinion as to the two following propositions: That ground rents may be included in the yearly estimate and assessment of personal estates, the amount of the assessment being subject to reduction by the oath of the owner, as in all other cases of assessments on personal property. That water right reservations are liable to assessment and taxation, like every other real estate, to their full value, to be ascertained in the manner prescribed in the statute, and that no regard is to be paid to the tenure by which they are held, but the valuations must be made upon the property as if the title were absolute.

The policy of prohibiting the creation of estates by the instrumentality of long or perpetual leases having been committed to another committee, the finance committee have not felt at liberty to approach that subject.


An Act to abolish Distress for Rent and for other purposes, passed May 13, 1846. The People of the State of New-York, represented in Senate and Assembly do enact as follows:

1. Distress for rent is hereby abolished. The 12th, 13th, 14th, 15th, 16th and 17th sections of the 4th title of the 1st chapter of the 2d part of the revised statutes are hereby repealed.

3. Whenever the right of re-entry is reserved and given to a grantor or lessor in any grant or lease in default of a sufficiency of goods and chattels wheron to distrain for the satisfaction of any rent due, such re-entry may be made at any time after default in the payment of such rent; provided 15 days previous notice of such intention to re-enter, in writing, be given by such grantor or lessor, or his heirs or assigns, to the grantee or lessee, or his heirs, executors, administrators or assigns, notwithstanding there may be a sufficiency of goods and chattels on the lands, granted or demised

for the satisfaction thereof. The said notice may be served personally on such grantee or lessee, or by leaving it at his dwelling on the premises.


An Act to equalize Taxation.

Passed May 13, 1846. The People of the State of New-York, represented iu Senate and Assembly do enact as follows:

1. It shall be the duty of the assessors in each town and ward, while engaged in ascertaining the taxable property therein, by diligent inquiry to ascertain the amount of rents reserved in any leases in fee, or for one or more lives or for a term of years exceeding twenty-one years, and chargeable upon lands within such town or ward, which rents shall be assessed to the person or persons entitled to receive the same as personal estate, which it is hereby declared to be for the purpose of taxation under this act, at a principal sum, the interest of which at the legal rate per annum shall produce a sum equal to such annual rents; and in case such rents are payable in any other thing except money, the value of such annual rents and in money shall be ascertained by the assessors, the same shall be asssessed in manner aforesaid.

§ 2. The board of supervisors in each county shall assess the taxes to be raised for town county, and state purposes, upon the person or persons entitled to receive such rents within the town or ward where the lands upon which rents are reserved are situated, in the same manner and to the same extent as any personal estate of the inhabitants of such town.

3. If such tax shall not be paid, the collector shall levy the same by distress and sale of the goods and chattels of the person against whom the same is assessed, within the town or ward of such collector, in the same manner as if such person was an inhabitant of such town or ward.

§ 4. When it shall appear by the return of any collector made according to law, to a county treasurer, that any tax imposed upon the provisions of this act remains unpaid, such county treasurer shall issue his warrant to the sheriff of any county where any real or personal estate of the person upon whom such tax is imposed may be found, commanding him to make of the goods and chattels and real estate of such person the amount of such tax, together with one dollar for the expense of issuing such warrant, and to return the said warrant to the treasurer issuing the same, and to pay to him the money which shall be collected by virtue thereof by a certain time therein to be specified, not less than sixty days from the date of such warrant.

5. Such warrant shall be a lien upon and shall bind the real and personal estate of the person against whom the same shall be issued from the time an actual levy shall be made by virtue thereof; and the sheriff to whom such warrant shall be directed, shall proceed upon the same in all respects with the like effect, and the same manner as prescribed by law in respect to executions against property issued by a county clerk upon judgments rendered by a justice of the peace, and shall be entitled to the same fees for his services in executing the same, to be collected in the same manner.

6. In case of the neglect of any sheriff to return such warrant according to the directions therein, or to pay over any money collected by him in pursuance thereof, he shall be proceeded against in the supreme court by attachment, in the same manner, and with like effect, as for similar neglects in reference to nn execution issued out of the supreme court in a civil suit, and the proceedings thereon shall be the same in all respects.

7. If any such warrant shall be returned unsatisfied in whole or in part, the county treasurer, under the direction of the board of supervisors of his county, may file a bill in his name of office in the court of chancery, whatever may be the amount so remaining unsatisfied, against the person against whom such warrant was issued, and any other person having the possession of his property, for the discovery and sequestration of such property. And on the filing of such bill, the court of chancery shall order such part of the property of the person upon whom the tax specified in the said warrant was imposed, as shall be necessary for the purpose of satisfying the taxes in arrear and imposed as aforesaid, with the cost of prosecution, to be sequestered, and may order and direct such other proceeding as may be necessary to compel the payment of such tax and costs.


We call the attention of the State Convention to the following Bill, and also to that portion which is italicized, in the sixth section, and to the necessity of providing in the Constitution that a legislative Bill in its details shall be in accordance with its title. We shall refer to this subject again.


No. 415.


April 10, 1846.

An Act to Amend an Act, entitled "An Act concerning
passengers in vessels coming into the Port of New-
York," passed February 11th, 1824.
The people of the state of New-York, represented
in senate and assembly, do enact as follows:

Section 1. The mayor of the city of New-York
may, in his discretion, in lieu of receiving bonds for
alien passengers arriving at the port of New-York, as
provided in section two of the act hereby amended,
require of every master or commander of any ship
or vessel arriving at the port aforesaid, from any
foreign country, or from any part of the United
States, other than this state, the payment of one dol-
lar for each and every passenger, not being a citizen
of the United States, who shall have landed or been
suffered to land from such ship or vessel, at any place
during such her last voyage, or have been put on board,
or permitted to go on board of any other vessel, with
the intention of proceeding to the said city, to indem-
nify the mayor, aldermen and commonalty, and the
overseer of the poor of the said city, and their suc-
cessors, for all and every expense or charge which
shall or may be incurred by them for the maintenance
and support of every such passenger and for the main-
tainance of the child or children of any such passen-
ger which may be born after such importation, in case
such passenger, or any such child, shall, at any time
within two years from the date of such importation,
become chargeable to the said city; and if any such
master or commander shall refuse or neglect to pay
such amount for each of such passengers, within three
days after such vessel shall have so arrived at the port
of New-York, every master or commander, and the
owner, consignee or consignees of such ship or vessel,
shall severally and respectively, shall be subject to a
penalty of two hundred and fifty dollars for each and
every such person, not being a citizen of the United
States; to be sued for and recovered, as provided in
the act hereby amended, in reference to similar de-
linquencies in the case of bonding such passengers.

2. The mayor, aldermen and commonalty of the
city of New-York, are hereby authorized and empow
ered to regulate the arriving and landing of alien
passengers coming to the port of New-York, and all
matters relating thereto, and to pass such ordinances
in regard to emigrant boarding houses, the lien of the
keepers of such houses on baggage, luggage, or other
articles, as they shall consider advisable.

3. The said mayor, aldermen and commonalty are hereby further authorized and empowered to pass such ordinances in regard to agents and agencies of transportation lines, passenger agents, runners, and all other persons engaged in bringing such alien emigrants to the city of New-York, or in any manner engaged in the transhipment or transportation of said emigrants, and in regard to the licensing of said agents, runners and other persons herein before men tioned, as they shall deem proper.

4. The said mayer, aldermen and commonalty, are also authorized and empowered to affix penalties to the violation of any such ordinance, provided always that such penalties shall in no one instance, exceed imprisonment in the city prison for more than the space of sixty days, or a fine of two hundred and fifty dollars or both such fine and imprisonment.

5. This act shall in no manner impair the quarantine laws of this state.

6. The corporation of the city of New-York, may appropriate a pier or piers in the city of New-York, for the landing of all emigrants arriving at the port of New-York during the quarantine season, or which may be discharged from any vessel at quarantine, and said corporation shall have full power to regulate the rates of wharfage charged upon all goods of vessels discharging in, at or upon any wharf, pier or slip in said city.

87. This act shall take effect immediately.


The act of the Legislature providing for calling a City Convention was passed by the Legislature on the 9th day of May. 1846.

At a meeting of the Board of Aldermen on the 18th of May, 1846, the following proceedings were had: "Communication from the Deputy Secretary of State, transmitting the following acts, recently passed by the legislature, viz :

"An Act for calling a Convention to revise the charter of the City of New-York."

(Also four other acts which are named.)

“All of which were directed to be printed and ordered on file."

In two weeks from that date the election took place -but a very few votes were polled-next to noneonly 22 days between the passage of the act and the election.

The following are the names of the persons said to have been elected.


To frame a Bill for amending the City Charter.

[blocks in formation]



MONDAY, May 11, 1846.

The following message was received by his Honor
the Mayor, returning with his objections the resolu-
tions for opening Albany Street to Broadway.
Ordered to be published and entered at length on
the minutes.
O. S. BARTLES, Clerk.

New-York, May 11, 1846.


To the Hon. the Common Council.
Gentlemen-I return herewith the resolutions
ed by the Aldermen and Assistant Aldermen, on the
27th of April, 1846, directing the Counsel of the
Corporation to adopt the necessary measures for
opening a street through the northerly part of Trinity
Church yard.

The interest excited by the action of the Common Council on this subject, the discussions which it has occasioned, the character of the citizens advocating and opposing the proposed alteration, and the conclusions of the committees by whom this subject has been considered, have led me to reflect even with unusual care on these resolutions. But with a sincere desire to aid in every important public improvement, to which my official sanction may be asked, and an .unfeigned reluctance to impede the legislative action of the Common Council by the exercise of the supervisory power over their proceedings vested by the Charter in the Mayor, I am yet compelled to withhold my approbation from the resolutions above mentioned.

The history of the resolutions is as follows: On the 17th November, 1845, two reports concerning the proposed street were presented from the Committee on Streets to the Board of Assistants. A majority report in favor of the measure, and a minority report against it.

They were severally laid on the table and ordered to be printed. On the first of December, 1845, the majority report was taken up and adopted. On the 8th of December, 1845, the Board of Aldermen referred the report to their committee on streets. On the 29th of December, 1845, that committee reported in favor of concurring with the Board of Assistants, adding a resolution requiring the persons interested in the proposed alteration to indemnify the city against the expenses of the preliminary steps for its effectuation, if it should be defeated in the Supreme Court. This report was on the same day, referred back to the committee with all remonstrances and accompanying papers, for further consideration, the remonstrants not only objecting to what they deemed a desecration of a burying place, but also insisting that the widening of Thames Street would in every view, be more desirable for the ends expected in the project recommended by the committee. On the 27th April, 1846, this committee made a second report, adhering to their former conclusion, but without in any way referring to the suggestion of the remonstrants as to widening Thames Street. The resolutions mentioned in the opening of this communication were then passed by a bare majority in the Board of Aldermen.

From the mass of papers submitted to me in connexion with this matter, it plainly appears that the proposed measure has been very actively contested. The remonstrance of property owners have been presented as well as the objections of those who have ancestors or friends buried in Trinity Church yard.

The opening or alteration of a street in the populous part of the city, is a proceeding which should not in any case be adopted, except for paramount public objects. It obstructs the highways for a time, and involves our citizens in Assessments frequently of a most onerous character. When it is proposed to open a street through the sanctuary of the dead, all the objections to the making of streets under ordinary circumstances are strengthened by the addition of a new one, appealing with almost irresistible force to the finest feelings of our nature. In all ages and conntries the places consecrated to the burial of the dead have been held sacred, and every man shudders

when told that the caprice or the cupidity of the
living is about to open a new avenue for selfishness
through the ashes of his deceased friends. The com-
mittees which have reported the resolutions I am con-
sidering, admit that this feeling should not be lightly
outraged, nor the repose of the dead carlessly invaded,
but they justify the measure in this instance on the
ground of public necessity.

If it be true that public necessity demands, as the
committee have reported, more direct communication
between the East and North Rivers below Liberty
Street than now exists, and if it be satisfactorily shown
that such an avenue cannot be obtained otherwise than
by cutting through a graveyard, then indeed the sensi-
bilities of surviving friends and relatives for the repose
of loved remains should give way to stern necessity.
But I have not ascertained from the reports of the
committees submitted to me, or the action of the
Boards, that the proposition to widen Thames Street
will not accomplish all that the public interests require.
Indeed, my present impression is in favor of this as
the better plan of the two suggested. So far as con-
cerns the disturbance of the grave yard when urged,
as in itself a conclusive objection to the proposed
improvement, it appears the committee have overruled
it after full consideration, and their conclusion has
been approved by the Common Council. I would
not, therefore, on this ground alone reverse or ques-
tion their action in the matter I am considering, but
I regard the special reference to the same committee
of the remonstrances relating to the subject, contain-
ing a suggestion for widening Thames Street instead
of carrying out the measure first proposed, as a declar-
ation by the Board of Aldermen that they were not
willing to disturb the grave yard, until it had been
ascertained that no other mode existed to effect the
desired improvement. Whether this was the case or
not is the exact question referred to the committee,
and upon which no report, meeting the obvious pur-
poses of the reference, has been made. So important
has it been deemed by the Common Council that their
committees should fully inform them of the means
by which they reach the conclusions presented in their
report, that every committee is required, by the rules
of each Board, to accompany their opinion on every
matter referred to them with a statement of the
facts on which such opinion rests.

When the Board of Aldermen treated the remonstrances against opening Albany Street and the suggestion to widen Thames Street as a substitute measure, as worthy of being specially referred, they imposed upon that committee the duty of investigating all the suggestions of the remonstrances. They do not in their report state any facts, nor even give their opinion on the measure last mentioned. although that was one of the strongest points on which the remonstrances rested.

While, therefore, as I have before stated, I defer to the judgment of the Common Council in disregarding the objection to opening Albany Street merely because of its disturbing a burial place, on the ground that, in this respect, any sympathies I might have, must yield to the decision of legislative bodies, acting within the scope of their authority, and upon full investigation of the matter to which the decision relates, I must withhold my approval from their last action on the subject under consideration, because I am unable, from an attentive examination of all the papers counected with that subject to perceive that the practicability or propriety of widening Thames Street, as a measure less objectionable than the other, has been considered by the committee who were expressly charged with its consideration.

I have less hesitation in returning, with my objec-
tions, the resolutions for opening Albany Street than
I would feel if the Common Council did not possess
the power, in disregard of those objections, to confirm
their former action on the subject, if, on second thought,
it appear to be right.

I have no desire to infringe the legitimate authority
of the Common Council, but in a matter so important
as that under consideration, and in reference to a
measure which all admit to be indefensible except on
the ground of public necessity, I deem it requisite
that the reports, and papers upon which the Common
Council act in declaring that necessity, should present
facts sufficient to justify the conclusion at which they


His Honor Mayor Havemeyer, on the last day of his term of office as Chief Magistrate of the city of New-York, honored his good name, honored the office he had so ably filled, honored the city over the government of which he had so successfully presided, in returning to the Board of Assistants a resolution which had originated in that body directing proceedings to be commenced for extending Albany Street through Trinity Church Yard-with an intimation in writing that their proceedings were wrong, and that he could not therefore give them his sanction and approval.

His sleep will be sweeter; his remaining days more blissful; and his last moments more tranquil for this good service which he has rendered to the silent dead, to his fellow creatures yet alive, and to millions yet unborn.

We give in this number of our paper, a copy of the Mayor's Veto Message, which has been kindly furnished us for publication by one of our good citi


The objections to extending Albany Street through Trinity Church Yard is, that it violates the rights of sepulchre, that it is in violation of the laws of nature, that it violates that provision of the fundamental law which guarantees to every citizen specific rights that pertain to matters of conscience.

There are also objections to the proceedings on other grounds, which we will state in their order, as follows:

First. The act of April 9, 1813, under which the proceedings are claimed to be entertained, was repealed and abrogated by Sec. 13 of Art. 7 of the Constitution of 1821, as being repugnant to Sec. 7 of Art. 5, Sec. 7 of Art. 4, and Sec. 13 of the same Art. of the Constitution of this State.

Second. That the act passed by the General Assembly of the Colony of New-York, entitled "An act confirming unto the city of New-York its rights and privileges, passed Oct. 14, 1732, was repealed by the general repealing clause of vol. 3, of the R. Statutes of the State of New-York, which repealed all acts of the Colony of New-York not previously repealed,

Third. That section 177 of the Act of April 9, 1813, pages 408 and 9, of vol. 2, of the Revised Laws, was repealed by sections 7 and 15 of chapter 122 of the laws of 1830.


The following statement and appeal has been issued by the Board of Mayor and Aldermen of the desolated village of Grenada. It was indeed, says the Memphis Eagle, a most terrible visitation, a calamity that in one hour made desolate a beautiful village, sweeping off many of its people, and shrouding its streets in death, and wailing anguish. Surely do these mourning and deeply scourged people deserve not only the sympathies of our hearts, but also that generous sympathy which is calculated in a greater degree to alleviate the want and destitution which the awful calamity has visited upon so many of them.


In consequence of the appalling calamity which has come upon our town, destroying the lives of many of its citizens, leaving houseless and in utter destitution and want a large portion of its inhabitants, we have been appointed by the sufferers, to address a generous and humane community in their behalf.

We feel that a simple statement of the facts will accomplish this object.

On Thursday, the 7th inst. about half past 2 o'clock, P. M., a most fearful and terrific tornado swept through the town, carrying with it ruin and wide spread desolation, presenting a scene of distress and woe, which beggars description.

One hundred and twelve houses (seventeen of which were family residences) have been torn from their foundations, and now lie scattered in ruins. Many of their unfortunate inmates were killed; others were torn and mangled in the most shocking Some of the wounded have since died; others still linger in a hopeless condition.


The Baptist Church, a large brick edifice, the pride. and ornament of the town, has been crushed to the

« ПретходнаНастави »