The evening star and Newark advertiser. [volume] (Newark, N.J.) 1907-1908, 1907-08-05

fOre the rrft day OF October IN earn yea;
whereupon the Stqte Board Of Assessors
shall include in the taxes to be assessed
by II, under the provisions of the act to
which. Ibis Is a supplement, the property
the rate IN each taxing district that is so
as aforesaid certified TO Ii by the local
taxing authorities. and said property shall
not be subject TO any other tax; provided.
that IL the local taxing authorities of any
taxing district shall fail to certify to said
State Board Of Assessors within the time
prescribed by this act THE local rate of
tax as fixed, It shall be the duty of aid
board to allot to the taxing district so In
default an a-pportionment of tax at a
rate not exceeding one per centum upon
the class Of property described In the
first section hereof.
"a. The State Board Of Assessors shall
report to the comptroller Of the State the
assessed valuation and tax levied upon the
property of each railroad aud canal rom
pany In the State, and of the separate
valuation OF the property of such com
panies in HeaehY taxing district, separately
vplned and 9fsessed under provisions Of
Of the act to which this act is q further
supplement, and the entire amount of tax
derived from the assessment OF this lat
ter class Of property shall be allotted to
and paid over to the=local taxing districts
through which said railroads or canals
run, giving TO each such district the total
mount OF tax that may be so derived
from such property of each railroad or
canal company therein
rs we read this act its purpose is plain.
The second-class railroad aud canal prop
erty In each taxing district is first to be
valued by the State Board of Assessors.
In order % aid them in making this valua-
ton returns are to be made by each com
pany.. The State Board is then to certify
toI the local taxing authorities in each of
the several taxing districts the valuation
Of the eec tSn elias properly pert therein rein
may be added to the other taxable rata
bles, and that the local authorities may
thus ascertain the necessary tax rate for
such district.
This local rate is then to be certified
by the local authorities to the State board.
and a tax at that rate is to be imposed by
the State board upon the second-class
property. This tax together with the tax
on main stem. franchise and equipment
provided for by the act of 1889. Is then
to be collected by the comptroller, and
the tax on second-class property Is TO be
allotted to and paid over to the local tax
ing districts. The main purpose of the act
is to subject seeond-class railroad and
canal property to taxation for local pur-
poses at local rates. without limiting this
tax to l per centum as formerly; and to do
away with the, former tax of one-half OF l
per centum upon second-class property,
originally imposed for State purposes and
afterwards allotted to the several taxing
districts by the act of 1897. Another
noticeable point is, that whne under the
former act the local rate was determined
by the other property In the taxing dis-
triet civilians VS.. BEETLE, ~ VI. BIZ
515) under this act the ~second-class rail-
road and canal property is to be taken into
account in fixing the local rate.
1t is argued that the proviso Mn section
3 of the Duffield act gives to the State
Board of Assessors the power to impose
an arbitrary rate upon second-class rail-
road and canal property in those taxing
districts whose local authorities make
default in their duty of certifying the
local rate to. the State board; and that
this renders the operation of the act non
uniform whenever and wherever the local
authorities fail in, the performance of this
duty. We think this argument rests upon
a misinterpretation of the letter and spirit
of the act. The general purpose, clearly
apparent, is to subject second-class prop
erty to the local tax rate. AS a means 70
this end the local rate Is to be certif1ed
by the local taxing authorities to the state
board. But these means are not eSsentiai
to the end. The local tax rate may be
ascertained by the State board from other
public sources of information; or, II need
be, "A certlication may be required by
mandamus. The proviso OF section : is
intended merely to impose a penalty upon
the local taxing district whose officials
may be negligent. 1t limits the amount
of tax to be allotted 10 that taxing dis
trict. but does not either increase or de-
crease the amount of tax that is to pe
levied upon the company. 1t is true that
section 4 goes on to provide that the
entire amount of tax derived from the
assessment of second-class property Is TO
be allotted to and paid over TO the local
taxing district. This Is intended to pro-
vide for the disposition of the money under
the norPnal operation OF the act, and rs
subject ITO the operation of the proviso
in section 8, which has effect In. the event
that tho local taxing authorities fail &C
promptly certify the local rate TO the
State board.
1t will be observed that we construe the
act precisely as if the proviso were ap-
pended to section 4, instead of to section q
In our opinion its letter, as well as its
spirit, requires this construction. Ordi-
narily a proyiso is intended to impose a
qualification or condition upon that which
precedes it. But the language of this pro-
viso shows that 1t cannot perform this
function. Its design, plainly expressed, is
to modify not the tax that is to be Inn
posed, but the allotment or apportionment
of tax to any taxing district whose local
authorities may fail TO promptly perform
their duty. But allotment is NOT provided
for by anything that precedes the proviso;
it Is dealt with by the next section that
follows. 1t is to the latter section, there
fore, that the p~roviso necessarily pertains.
Did. we not adopt this reading, the only
alternative Is that section 4 repeats In 1910
of section 4, which provides for the allot-
ment of the entire amount of the tax
upon second-class property to the local
taxing district, giving to each such dis
be SO derived from such property OF each
railroad or canal company therein is to
be read in an unqualified sense, applying
ms well where the local taxing authorities
have failed to certify the local rate to the
State Board ik due season as where this
duty has been promptly performed. then
the whole force and effect of the proviso
in section 3 is wiped out.
We prefer to conStrue section 4 as modi-
fled by the proviso in section g.. But, in
any event, the proviso has no effect upon
the amount of tax that is to be levied and
collected.
In other respects it seems to us that the
arguments dduced in the effort to show
the Dufield act unconstitutional are dis
posed of. by the decision of this court in
10 Vr. 146.
The subdivision of property used for
railroad purposes into two sorts, one called
main stem and the other called second
class property, equally existed In the
original act of 1884. The imposition of diff
ferent rates OF tax, and taxes for difer.
emit purposes, upon the two classes or
property. likewise obtained in the original
act. BY that act. as by the Duffield act
second-class property was subjected 10
the local rate for local purposes, the only
differences being those already pointed OUT
viz, that In the act of 1884 there was a
limitation of ] per centum upon the tax
that was to be imposed on this account,
while the Duffield act Is without TINS
limitation; under the former act the local
rate was determined by the other prop
erty In the taxing district, while by the
Duf1eld act the ~second-class railroad and
canal property Ia to be taken into account
In determining the local rate, ana under
the former act there was a tax of one-half
of l per centum upon second-class prop
erty for State purposes, which is now
omitted.
The decision in 10 Vroom not only vindl-
Gated the classification of property accord
ing TO Its use. for purpose of taxation, ana