The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-07-26
The Central Park Appropriation Injunction
Case.
SUPREME coURT-sPECIAL TERN.
Before Hon. Judge Whiting.

SUPREME coURT-sPEcIAL TERN.
Before Hon. Judge Whiting.
July 25.-m the matter Of an duplication for an
injunction agaimst the Board Of Supervisors in re
lation to the 5000 900 Appropriation for Central
PGrk-The Corporation counsel, Mr.. L. B. Shepard
appeared 10 support the injunction. The Board OF
Supervisors was not represented by counsel
Mr.. Shepard said that he had waited until long
after the time appointed, and as nobody appeared
for the Supervisors, he would move on the case.
Judge Whiting said:-You can take default.
Mr.. Shepard-Ina case Of so much public impor
lance do not desire to take default will there
fore state to your honor briefly the grounds upon
which move for a continuance of an injunction In
this case. The power OF taxation is governmental
power. Taxes defined to be burdens or charges
imposed by the legislative power Of the State upon
persons or property, to raise money for public pur-
poses. &c Johns, R 3d. ii. id IT. Bleecker Balou,
Wend, r 1851 The Board of Supervisors has No
authority TO exercise this power without direct
grant from the Legislature. The power to tax must
be governmental from its nature. Revenue Is vital TO
the existence of government. If every county or
city had the unlimited power of taxation (Which is
sontended for on the other side) the State
could not extend that protection TO the liberty
and property OF the citizen for which taxes are
paid az a compensation. In this country and in
England taxes have been regarded from the earliest
Gay Dy sOuuu ldWycIs d6 Tic CIV
OF the peoples hence money bills are required to be
originated in the popular branches Of the English
and American legislatures. Not to cite other sta
tutes the Bill Of Rights Of the citizens OF this State,
adopted in 1857 provides that no tax duty, aid, or
imposition whatsoever shall be taken or levied
within this State without the grant and assent Of
the people Of this State by their representatives in
Senate and Assembly, and that no citizen Of this
State shall be by any means compelled to contribute
to any gift loan tax or like charge not set, laid
imposed by the Legislature Of this State. The same
provision enacted with the Revised Statutes,
excepting only such taxes as might be laid by the
government of the United States, which was estab-
hshed after the Bill Of Rights was adopted. Nor
is it necessary TO rest the argument here. have
caused to be prepared, and submit to your
Honor, an abstract OF the statutes adopted in
reference to taxation in the city OF New
York from the year 1888. Your Honor will
perceive that the power Of taxation has always been
regarded as a governmental power, and that even
where taxes have been required for the slightest
purposes. and 70 the least amounts, the Legislative
power Of the State, or OF the colony, has always
been invoked. Mr.. Shepard hare produced a volum-
abstract Of the statutes referred TO, and made
some remarks upon the mode of taxation under the
Dutch dynasty, and continued 1t is manifest then,
that the Board of Supervisors possessed no power
TO tax. II is equally clear, upon acthorty, that If
they exercise such q power, by Incorporating into
the tax levy illegal and unauthorized tax, il vio
Iates the levy and the whole tax is void. If, there
fore the sum Of 100000 is Illegally incorporated by
the Board of Supervisors into the tax levy of
az 600 600, the whole tax would be illegal. Mr.
shepard cited and commented upon the following
cases Huse v. Merriam, 2 Greenleaf, 3I6 Selsel
v. Shaw, ls3. 339 Thurston V. Little. Mass 42s
stetson ". kemptOn, Ii Mass 272 Bangs Y. Snow,
H., ISL Dillingham; v. Snow, 5 ib., SAT Libbyv.
Burnham, is H., LA Drew '. Davis, 10 verm, SOC;
Torrey vs., Wilbury, y Pick, 81; The Selectmen,
tax ore personally liable for the act Of the Collec-
tor who collects its; and tina Collector him
self is liable for his acts done in the collec-
ton Of tax illegally granted. ! refer to the
cases before cited upon th, point, and to Cadz vs..
Robertson, . N. Hamp., 52i. I admit that where
part OF the tax is valid and part void and the void
part can be distinguished the plaintin, In an action
to recover the tax paid, would only be entitled TO
judgment for the part Illegally levied. But in this
case no person could tell with any degree Of GER
tainty what proportion OF the 100000 he had
been called upon TO pay. The act OF collecting the
tax would be tresspass, for which every personcon
nected With II would be responsible, from the Su.
peryisor who voted for il 10 the Collector who col
lected H. Every sale OF property made by the tax
officers q secure payment OF the tax would be void,
and thus the whole system Of taxation for the present
year would be thrown into inextricable confusion.
II does 20 happen thai the warrant directing the
collection OF taxes In this ci.y, IN practice, shows
upon It's face the purpose Tor which the tax Ia d.
rected TO be laid; and that the officer required to
execute II has in his process full notice OF the He
gality of the act he is required 70 perform
Judge Wiiing.-Upon what ground Is the right
10 lay this tax claimed 10 be exercised!
Mr.. Shepard-The Commissioners Of the Central
Park on the llth Of July, addressed communlca-
ton TO the Board Of Supervisors setting forth that
they required money TO 60 on with the improve
ment Of the Park; and they ask the Board 10 place
in the tax levy OF this year sum sufficient 20 meet
any appropriation which may be made for this pur-
pose The say 1.-The necessity Tor such an addition
Il obvious, and the power 20 do 10 Is ample They
further say:-
ny The arst section Of the tar Law o. thu year j. de-
ciared thaI tie Board 81 Supervisors 81 the city and
county of New York are hereby empo~'ret - SON a.
cnertiy may be aer the passage Of this act 70 or
DER and cause b. raised By tax toe estates, real
exceeding three mlons two hundred and forty seven
thousand hundred and eighty nine dollars. Tor the
subjects and purposes enumerated 10 such SEXTON and
for such other svpen.cs a. the Mayor. Aldermen aud
Commonaly q New York may be pat 70, oy law
Every object and purpose enumerated. except that
for such other expenses a. the Mayor, &c. may be
put 10 by law, has a specific sun placed opposite to
r-for example Aims house Department ex
sl65 OoO-Iands and Places sls,5Oo," and 20 on
The objects and purposes thus enumerated excluding
such other expenses a. the Mayor, &c, may be pu,
10 BY Law, make up The whole amount OF 20 ,AT ,ls9
II any funds sh oud not be required for the purposes
enumerated, do not doubt that they might be ap
piled 20 any expenses 20 which the Mayor, &C., may
he put by law This underst and TO be the construc.
ticn OF that provision. Bat, without considering
that question II il manifest that the Mayor &c, have
not BY Law been put to any expenses in regard 70
improvement o. the Central Park, within the SIC.
MITIGATION Of that canse. The act Of 1856 limits
the right Of the Supervisors TO levy taxes for
Lands and Places to sls500. The Supervisors
propose 10 raise not only $500 for Lands
and Places, bot also s2o0,0 In addition. IL
cannot be argued, where there IL specific grant
Of an amount 70 Lands and Places" that
under the general terms for such other expenses
as the Mayor, &c, may be put TO by law, the right
10 make further levy Of taxes for Lands and Places
ia admissible Nor can II be argued that the Super.
yisors, under q provision Of law empowering them
~ rai~e by tar sum not exceeding s3,241,ls9,
have the right IN raise % 47 ls9;p yet this i the
idea o. the Com missoners and they state that the
power 81 the Board Of Supervisors 70 do 80 l.
ample II the power thus claimed IL exercised
there Is no limit 20 taxation in the city 81 New
York. The property Of every man II liable 70 every
exaction which the Board Of Supervisors see bt -
impose. The credit 81 the city must be impaired,
and sooner or later destroyed. Those who desire 10
DO business in this city must he driven 70 some place
where the taxing power has not assumed 40 danger.
Gus form. In truth, taxes were established 10 pro
ect the people against public plumber, the peculi-
arity Of savage or hflfcivIized nations, la which
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