The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-07-23
LEGAL INTELLIGENCE.


Ission So Alleged DSrss-ous cax~oSn ~n
Demurrer to the Complain.
NEW YORK COMMON PIEAs--is sPsc1aL TERM
july 22.-Ls,cis o. Viisor cs. TIE Mayor.
&C., of the Cftg of yveD York, Harvey Hart
Woonunys j delivered the following opin-
I'm The complaint in this action Is addressed
. this court as q court Of equity, and prsys
perpetual injunction to restrain the collection
Of a tax for the year 1850, imposed upon the de-
fendant as the owner ofpersonal property with
In the city and county of New York, for the
collection Of which a warrant has been issued
by the defendant Hart az Receiver of Taxes for
the city and county OF New York, directed to
the defendant Jenkins, "a constable,) in pur-
suance OF which the latter has distrained GER
tain property of the defendant and is proceed
ing 10 sell the same for the collection Of such
INK. The facts which the plaintiff ayers entitie
him 10 the relief sought are, that he isillagaliy
assessed in this city and county; that the
plaintiff, during the whole Of the year lo5o,
and for eight years last past, has resided IN Nor
walk, in the 5 tate Of Connecticut, has not re-
hided within the State of New York, aud that
o. such resident of Connecticut aud taxable
iDbabitant therein, he has been duly assessed
upon his personal property, and has paid taxes
thereon in that State; that the assessors Of the
oily and county of New York made the assess
ment of the amount authorised by law to be
raised by tax upon the real and personal pro-
perty in the city, and under the pretence that
Me plaintiff az q taxable inhabitant in the said
Oity, Jid, in 1850, assess him az the ow.ter Of
leiroDal property IN the Third ward OF the said
city; that the assessment roll containing such
assessment was Afterwards delivered 10 the tax
commissioners ard 70 the Board Of Supervisors,
ana submitted to their action, and afterwards
the eoiT,I; assessment rolls OF each ward
uere delivered to the Receiver Of Taxes, with
fhe usual warrant to collect the tax add pey the
same to the Chamberlain Of the city; that the
name q the plaintiff was inserted in such roll,
and be was charged therein with 1858 1900,
as a tax npon personal property; that the plain
TIT received no notice, aud did not know that he
was to be assessed, nor that any tax had been
imposed upon him or his property until long
after such assessment roll had been delivered
TO the said receiver that soon after the plaintiff
learned that such tax had been imposed in
May, 1851, he applied by petition, verified by
HE oath, to the Common Council, stating the
fact of his non residence and praying the remis-
sion of the said tax, which they refused; that
previous to this petition, to wit, in JANUARY,
1851, the defendant Hart, (Receiver Of Tayes,)
issued his warrant to the defendant Jenkins,
"a constable,) commanding him to levy the
amount of the said tax, with interest and COSTS
by distress aud sale of the goods and chattels
Of the plaintiff, and such distress has been made,
and sale thereof will be made, unless restrained
by order of the court.
The complainant then AYERS that it will be
The duty CT the defendants, Hart and Jenkins,
10 pay the money, If collected, to the City
Chamberlain; that he has notified Jenkins Of
his non-residence; that Jenkins persists in his
levy; that neither Hart nor jenkins are
of sufficient responsibility to answer for
fhe damages he win sustain by a
sale Of his property under such warrant;
dat the plaintiff cannot have adequate relief
except in a court of equity; that such tax, SO
attempted to be imposed, is illegal and void;
that such illegality does not appear on the face
Of the proceedings, but that the evidence OF the
want Of jurisdiction in such assessors to impose
tbe tax, and of the illegality of such imposi-
ton, must be given out OF the record OF the
proceedings by proof of extrinsic facts, upon
proving which the plaintiff is entitled to have
the assessment declared illegal rs to him, aud
the collection of the tax restrained, NC. The
defendants have interposed separate demurrers
10 the complaint, 'tor that the said complaint
does nor state facts sufficient TO constitute a
cause OF actioH.n IL was insisted by the conn
sci Tor the defendants on the argument OF the
dcmurrtrs herein that the plaintiff is liable to
taNasion in this State in respect to his personal
property found here when the assessment is
made; and that inasmuch rs the plaintiff does not
aver that he had ut that time 10 personal pro-
perty within the city and county of New York,
be has not shown that the assessmen. was either
Illegal or erroneous. The power of the State
70 TAX ali property Nlthiu lis WhctucI
real or personal cannot he denied. Taxation
itself, for the purpose OF maintaining and up
holding the government, is essential to the idea
Of its existence, and the power to impose such
1axation is said to reside in the government as
q part of itself In this State, while the con-
stitution recognizes the existence of the power
70 impose taxes, it leaves its exercise to the
Legislature, and save only by prescribing GER
tain rules regarding the mode OF exacting laws
imposing taxes it has lett the extent OF taxa
Eon and the manner of its apportionment solely
md exclusively to The wisdom and justice of
the Legislature. In one section Of the consti-
tuition Up. 8, art. y, the particular taxes men
Toned for the increase of the sinking fund Of
Abe State are authorized in these terms, viz:
~The Legislature shall by equitable taxes so
Increase the revenues &c. Aud ii may be as
sumed rs within the spirit and meaning OF the
constitution that all taxes should be equitable.
But apprehend that in the apportioament oil
taxes, and the assigning to persons or to pro-
perty the portion which each shall contribute to
khe public burthens, the Legislature have the
sole and exclusive power OF determining what
Is Just and equitable, and upon what descrip-
fion of persons and upon what property within
1he State, and in what ratio, the imposition
ehau be made. {See Prov. Buck vs.. Billings, 4
Peters, 514; McCulloch VS.. Mary land, wheat.
42s; cites the People vs. the Mayor, &c, 4
Eomstock, 42I)
And there Is nothing iuequitable in requiring
Of the owners OF personal property found III this
State, and kept here protected by our laws
II may BE acquiring enhanced value from our
institutions and government, our public works,
the large development of public and private
enterprise within our limits, and various
other circumstances which give value and
usefulness to property. and hold out to
non residents au fnducement 20 bring or
send their property or funds to be used
or sold here, that they may derive enhanced
prices or larger income therefrom to render
10 our government just equiYaleut-to bear
Abe same burthen in respect of such property a.
the citizen himself bears in respect of his own
estate in the like condition.
On the contrary il the question be judged Of
upcn the simple inquiry what Is equitable rs