The New York herald., 1876-09-07

Tho Court Of Appeals has just decided which
Affects the property Of religious ana other corporations
situated IN this city, and involves u large sum OF
money, probably 100000 The Church Of
the Holy sepulchre, Rev. Dr. J. Tute Smith, was
assessed for paving seventy-fourIh street and the
legality Of the contested by Mr.. Elliot
Sandford counsel for the church, the ground
stated III the opinion OF Judge Foger given below.
The case was argued Special Term, before Justice
Lawrence, who granted order 10 vacate the
menL Appeal taken by the city TO the General
Term in this and two other church cases and the
General Term reversed Judge Lawrence IN opinion
written by Judge Daniels and concurred in by Judges
Davis and Brady An appeal then taken by
the church the Court OF Appeals. when
that Court reversed the General Term and
affirmed the order of Judge Lawrence. The
following The opinion of the Court, which
was delivered by Judge Foger THE appellant con
cedes and may DO assumed that It's property was not
by any express provision OF law exempt from an as
sessment OF the nature Of the one in question. II the
manner OF laying the assessment upon that property
In accordance with law the appellant may
escape. Whether It or not depends in the first
place, upon which party to the controversy has the
substantial Affirmative upon it. II tho appellant is
CURED to establish ha, the city has the limit
Of one half the valuation placed upon property by
Is unable do So for where no valuation has been
made any sum assessed cannot in strictness be said
To exceed ouo-hai OF the valuation made But the
substantial aii rmatve is upon the appellant Ii s
rule that the municipality which seeks the
property within It's jurisdiction by taxation proceed
ing IN the nature thereof must produce power
therefor in legislative enactment and must show mat
IN its attempt TO tax 1t has strotly followed all the
legal requirements II seems then that the substan-
tai Affirmative upon the city II does. indeed, upon
the concession ana assumption above noted, tho
abstract power to assess the property OF religious
poraton used for religious purposes, inasmuch II has
the power Tor local mprUyem all properly
benefited thereby which is exempted from assess
menl But there is limit 10 that power in the
10 which II may carry It's assessment Ii may assess
up to half OF the value placed upon the property
by certain OF It's officers 10 justify It's in
this 1t must show that II has kept within that
hmt that IL has not assessed more than one-haf
value 1t cannot show that without showing what
the value by those officers 1his do Tor
value has been placed upon II by them. Practically
IL IS as II The law authorized the city upon
the basis OF PRIOR existing assessment roll and hot
TO exceed In the assessment put upon any piece OF
property amount equal TO one-haif the valuation
placed upon that price in that prior assessment roll
II there be assessment roll at all, roll upon
which appears that piece o property with a valuation
attached TO it, how the city mako II appear that II
has kept within the power gwen to 1t by lswy IL
power gwen with provlso annexed. The demand of
the provso must be answered as prerequsite 10 a
legitimate exercise OF the power The city unable TO
show that demand answered, for the that the
facts d. not exist by which the extent of the demand
may be measured The respondent claims that 1t does
not appear that hero not valuation before the
oi i've years before the trial But it has proven
upon The tacit assumption that there had never been
valuation put upon The lots by the assessors or
by Their successors. In the second place however, If
this Limitation Was not intended apply to such a
case as that OF the appellant thsn liabIty
ment may exist IL is SAID that the provision limiting
the amount oil assessment To one-.alf the valuation
fixed by the tax assessing officers could not have been
meant to apply 10 case IN winch those officers
not required 10y law TO make a valuation. The dia
Guilty asserting TO this idea Is that does
correct notion OF the extent and character of The
power given A proviso grant enact meut Is
something taken back from the power 1rst declared
The grant enactment be read not as II the
larger power was ever glyeB but as II
ever sven than Is contained within the terms of
the bounds OF the provIso. The authority to the city
IN the puryew o the proviso Is no more than to
FOR ocal improvements all property benefited ihero
by when that property has been previously valued
by the general tax assessing officers, and then
not TO an amount greater than half the value named
by them. SAID the Legislature to the city, This and
more you may any piece of property local
improvements one-hal OF the value placed upon by
certain OF your officers A valuation previous to as
alt IL wou be Interpolation IN the act
to insert further declaration II those officers
made no valuation then YOU may assess nj your t,s.
1t would be more than Is found the Ian
guage OF the act, and more than can be iary implied
from H. The correct conclusion 10 that The draughtsm
OF the law overlooked The fact that property by
reason OF exemption rom general taxation would not be
valued at all II Shs read in terns:fhe city may
sess for local improvements AL property which has been
assessed by the Tax COMMISSIONER not to
half the vauas given 10 b. them there could be
no implication therefrom that property not valued
might be assessed Yet the frye Office of the proviso
this act is to reduce the meaning Of the letter TO
whether there ~ other legislation than that already
noticed which Affects the question is not contended
that there is any Affecting the appellant uulcss is
found in the OF 1874 laws OF 1874, chap 3l2 page
306; lbid chap 3I3, page S66 1t Is provided that
assessment or local Improvement shaH be vacated
nrst for the omission Of any ofhcer TO perform any
duty imposed upon him second tor any defect IN the
authority OF any department officer perform any
duty imposed upon him; third, Tor any omission 10
carry out INC detail OF any law ordinance; fourth
for any irrcgnlaTy unlsss The be OF fraud
an assessment lor repairing, and lhat all property
benefited by local improvement shall DO liable
10 an assessment therefor Notwithstanding such
omission, defect Ia authority or irreguiarty. Tue
matter alleged by the applicant Is not rregulariy
IL IS back OF fundamental power, II is not
10 carry out tho details law II IS the total want OF
authorizing law Il Is not detect tue authority
perform duty imposed which supposes oaicai OBJ
hFation without power adequate out II is OF
power given, because no duty ~ imposed II ~ not
omission 70 perform duty imposed, but where,
last said there Ggty created. There rs egs-
lat.ve essus omssUS We have no reason TO sup.
pose that the Legislature would have purposely with
held rom the cay The power such property
Tor such object IL did not however, by the OF
the statute make grant oil lt As the power may
be exercised without express grant. must hold
that the city may not exert %. " The Whole Beqcn
concur, excepting Judges kapalio and Andrews