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IMPORTANT REPORT. 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.
April 16, 1835.
lution of the Senate of 9th February last.
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, REPORTED:
That in accordance to the terms of the resolution, they have confined their investigations to two points :
ist. 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 overflowed 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 employed for building mills, &c. an abatement of a reasonable and proportionate share of the rent reserved.
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 Iettings 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 in. clude 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 judginent 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, “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 conclusion, 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 alteration 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 excepted ?
" 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 tazed 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, mort. gagee or landlord, they will be taxed as for dcbis 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 im. provements 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 oceasionally 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 excep. tions 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 tax. ation ? 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 contraot 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
This law grew
cient to justify assessors in making a computation of is an exception to the general rule.
of lease shall be exempt from assessment, and be. the annual rents received by landlords on contracts out of a peculiar state of affairs in a section of the yond which they shall be subject to assessment and of lease, and to include such computation in the country in which lands, and contracts for the sale of taxation. Out of such a law a question would arise general estimate of their personal estates. Perhaps lands, are owned by foreigners. The Connecticut of deep importance to all tenants holding under that the statute requires some explanation, for it must be School Fund, which is understood to be principally class of long leases which are guarded by strong and inferred from the tenor of the law, and the notes of loaned in this State, was exempted from its operation comprehensive covenants for the payment of taxes. the Revibers, that it was not intended by the Legis- in the session of 1834. This, therefore, is not an ex- The bill to be brought in with the intention to tax lature that a vast amount of personal property, under ample applicable to ourselves, for in all cases of the computed capital of leases, would be drawn as the denomination of rents, should escape taxation. double taxation on the property of citizens, it is inci. suggested to your committee by the mover of the The above process will, however, cure all defective dental, not designed; a consequence of the compli- resolution, in this form. valuations of personal estates connected with lands cation of business and of the defects of human in- “All income upon ground rent reserved upon perunder lease. No legal objection can be made to the stitutions, and not a principle sanctioned by the de- manent leases, or leases having twenty-one years or operation, and its equity cannot be disputed. Land- liberate judgment and direction of enlightened legis- more to run from the date of their execution, shall lords who duly appreciate their advantages will not lation.
be denominated personal property, and be liable to object to their being taxed in this manner to the full We have seen that the Revisers endeavored to get assessment and taxation, in the same manner that extent of their yearly income, in addition to their rid of double taxation in three specified cases. Their money secured by bond and mortgage is assessed other personal estate in possession, as all parties have proposition did not succeed, evidently because the and taxed." the right of reducing excessive assessments under the cases of double taxation could not be separated from This description would probably include all the provisions of the 15th section of the 2d article of the those of single taxation, as in a bond and mortgage. cases to which the petitioners call the attention of chapter before referred to.
How, in the management of assessments, can dis- the Legislature. But if such a law should be passed, But from the justice and eqnity of charging a lease criminations be made between mortgages for money it would still remain a question who is bound to pay with taxation upon a capital, of which the annual loaned and those given as a part of the price of land the tax, the landlord or the tenant. It will be seen, rent represents the interest, your committee entirely sold ? In the first case, the tax on both is single as from the transcripts of the covenants which your dissent, not only for the reason already assigned from to each, because the consideration existed independ- committee now furnish, from two leases belonging the notes of the Revisers, but because there is no ent of the land. In the other, the mortgage is a to that particular class of contracts against which the analagous case or provision of law to support the doc- debt created on the sale of the land, and both the law is desired to operate, that the covenants are untrine. The only case in which it is pretended that a mortgage and the land being taxed for their full usually comprehensive, inasmuch as they provide precedent exists, is that of a mortgage. It is said value, the taxation on the land is double for the against legislative enactments, whether they are dithat $5,000 of annual rents are as valuable as $5,000 amount of the mortgage. In justice, the amount of rected against the property in possession of the of interest on a bond. There is no similarity be- the mortgage should be deducted from the valuation tenant or against the lessors in their individual chartween a capital raised and created by calculation, of the land unless the purchaser possesses personal acters. and the capital of a bond and mortgage; because, property. In this event, he may deduct the debt he In the Van Rensselaer leases the covenants declare, though a mortgage is a lien upon the land, and it owes on the mortgage from the amount of personal that “the tenant will also well and truly dismay be admitted that a lease constitutes a lion of no property at which he is assessed, and then there will charge and pay all taxes, charges and assessments, less force and efficacy, yet an essential distinction ex- be no double taxation even in the case proposed. But ordinary and extraordinary, taxed, charged or as. ists in their character and products. Upon a fore- should his personal property be less than the debt, sessed, and which may hereafter be taxed, charged closure, the means to pay a mortgage are procured his taxation will be double on the difference be- or assessed to or upon the said hereby granted preby a sale of the land, and the capital remains entire ; tween them. Inequalities in taxation then, are in- mises, or upon any part or parcel thereof, or upon whereas a lease in the event of non-payment of the cident to the business of life, and are not sought to the said Stephen Van Rensselaer, his heirs, execurent, reverts back to the landlord. In this condition be imposed by our system of law.
tors, administrators or assigns, by any act of the Lethe computed capital is extinguished; the rent that Is there in reality any evil in long or perpetual gislature or any legal authority for and in respect of may remain unpaid, must be satisfied by distress. leases; and if mischief Inrks beneath their folds, is the said premises, or any part thereof: and indemnify In most cases, it becomes necessary to negotiate a the evil of such magnitude as to require that the the said Stephen Van Rensselaer, his heirs, execunew lease before the foundation can be laid on which principle of double taxation should now first be in- tors, administrators and assigns, against any damages, to compute a new capital. But the dissimilarity be- troduced into our statule book, and a capital be costs and charges which he or they, or any part of tween those two descriptions of property is obvious raised by computation of the rent of a lease for the them, may sustain or be put to, by reason of any negin this, that the mouey payable on a lease bears no purpose of imposing the tax ? If any doubt remains lect in the due and punctual discharge and payment interest; it is therefore not capital, while it exists as on the mind of the Senate as to the correctness of of the said taxes, charges and assessments." anpaid rent, while interest accumulates upon a bond that construction of the Revised Statutes which per- Your committee have also been furnished with an and mortgage, and like rent is payable at fixed days. mits the taxation of rents as debts due from solvent extract, in pencil, from a Livingston manor lease, in In this respect, rent is equivalent to the interest on a debtors on contract, or by estimating, in the manner which the covenant for the payment of the taxes runs bond and mortgage. but not to its principal. A mort- suggested, their annual amount; and if it should ap- as follows: “which rent is to be paid without any gage has the land, a principal and interest attached pear to be just and necessary to make a distinction deduction or abatement of or for any manner of to it. A lease has the land and rent; the principal between long and short leases and annual incomes taxes, charges, assessments or impositions whatsois wanting.
from rent, and to impose taxation exclusively on ever, that have been or shall be taxed, charged, asIt may be further remarked, that rent arising upon leases having twenty-one years or more to run from sessed or imposed upon the hereby demised premi the lease of a farm, must, in numerous instances, be the date of their execution, or on the capital thereof, ses, or any part thereof, or upon the party aforesaid earned from the soil by the labor of the tenant be- in conformity with the views entertained by the Sena- of the second part, his heirs or assigns, for or in refore it has existence as property. You would not tor who moved the resolution, a bill might be spect thereof, by any power or authority whatsotax as capital what does not exist as rent. The prin- brought in to accomplish that object.
ever." cipal of a mortgage represents the land itself; the However confidently your committee might be The expressions in both these covenants, intended rent on a lease represents the produce of the land ; inclined to maintain the coustruction which they as it is certain they were to protect the landlord can a capital, having no existence, and bearing no in- have given to the statute, they are aware that it may against legislative action, in regard to the imposition terest, be created out of unearned rent, or is a lease be assailed both in regard to its accuracy and as to its of taxes upon his reserved rights, by covenanting in a substantive chattel or estate, like a mortgage which sufficiency in reaching the object desired ;* they will this peculiar manner with the tenant, would appear is given most usually in consideration of money therefore proceed to observe, that if it were pro- to be sufficient for that purpose, if by a special law loaned, or of a debt for which value has been re- posed to levy a general income tax, the questions to those rights were clearly indicated as the objects of ceived by the mortgagor. The argument is not ex
be discussed would not be difficult of solution. But taxation." tended to the case of a mortgage given in part pay- your committee have no reason to suppose, that it The question to be propounded would be whether ment of the purchase money of land, because here was the design of the Senate that the subject should a tax on a capital raised by computation from the inthe mortgage is destitute of a consideration independ- be presented in that form, though it is the undis- come of the land, and levied on the landlord, would ent of the land, and it appears to be a decided case puted mode in which a tax on ground rents receiv. be a tax “ for or in respect of the said premises or of double taxation ; but in reality, the mortgagor able on long or perpetual leases can be imposed with any part thereof,” for which, and for any damages may set off his debt on the mortgage against his per- safety to the interest of the tenant, and with justice resulting therefrom, indemnity is to be made by the sonal tax, and if he possesses personal property to to the landlord. A general income tax would in- tenant. the amount of his debt, there is no double taxation. clude not only long and short leases, and the annual It might be argued that a tax laid on a capital, of
The foundation principle of the law of taxation is, lettings of all tenements and farms on shares, but which the annual rent represented the interest, was that all property shall contribute in proportion to its also a great variety of incomes received for ser- imposed either upon a fictitious capital or upon an value. The exemptions which the statute allows, vices rendered. A measure so odious was not con- agregation of rents sufficient to form the capital. are in favor of specified items of property belonging templated by the resolution or by the petitioners. A fiction can not be taxable, and an assessment to the institutions of learning, charity, religion, &c. The object appears to be limited to the procurement founded upon the proceeds which are to be derived But in regard to estates not exempted, the legisla- of a law, the provisions of which shall be directed at some future period from the cultivation of the soil lation of this State has admitted inevitable excep- against a certain class of leases and estates.
or from the use of a tenement can scarcely be contions only to the general rule of equal taxation, and As the proposed tax is not intended to apply to all sidered in any other light than an imposition for or these are not exemptions, but cases of double taxa- leases, those having from one to twenty-one years to in respect of the premises. Does not a capital so coltion. Our laws have not established double taxation run, as well as to such as are given on lives or with- lected together, the existence of which is anticipated, as a principle. The case of debts owing, on con
out limitation of time, it would be necessary to de- in reality reside in the land ? If it have existence, tracts for the sale of lands belonging to non-residents, fine and fix a period by law within which contracts where can it be found ? Not in the lease, nor in the (Laws, session of 1833, chapter 250,) furnishes the only instance of direct legislation on the subject, and
* Note.-On a careful revision of this argument, it is believed
coffers of the lessor! It must be in the land. to be impossible to deny its conclusiveness.
Until the legal interpretation of the contenants
shall have been discussed and carefullyi examined, it is not probable that any member of ths 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
sessed at a low rate, it may be answered that the is allowed to escape his just portion of the public statute contemplates no distinction between leaseburthens; and if it is known, that in the cases to hold and freehold estates in the valuations at which which the petitioners allude, this tax will not fall they are to be assessed and charged with taxation. upon the tenant, those who possess clear and satis- Your committee are informed that the practice in factory views of the case, have the the right to pro. the city of New-York corresponds with this opinion, pose such measures as they may deem necessary and and that no distinction is there made between estates suitable.
held under lease or in fee. They are both assessed Mill streams and unlocated water rights are repre- as if the estate was absolute and the land unincumsented as possessing a value above that slight interest bered; and such undoubtedly was the intention of which the tenant may have acquired, according to the revisers and of the Legislature, for in their notes the terms and reservations contained in his lease. before quoted the revisers say : “In each of these As the landlord may claim restoration of all mill cases the occupant will be taxed for the full value of streams, and appropriate them to his own use, or sell the land as if the title were absolute." It is imposthem to another, the tenure by which they are held sible for hnman ingenuity to exhibit a reason why an is considered in effect, that of sufferance merely. estate held under a limited tenure, should be assessed Your committee are informed, that assessments on at a diminished rate on that account, if it be admitted this description of property are made on the same as it certainly must be, according to law and the rates as to its value, as are made on the other parts practice of the whole country, that a freehold canof the estate covered by the lease, and that the prac- not be appraised at less than its value, because it is tice of estimating a mill stream as possessing no subject to a mortgage. As this is the settled and higher value than the adjoining lands has generally only true construction of the law, assessors can have obtained in the county of Rensselaer. This valua- no right to reduce the value of an estate because it tion of a mill stream is supposed to be too low com- is a leasehold, or held by an uncertain tenure. But pared with its intrinsic worth. It is said that the as they commit a much less excusable infraction of practice appears to have taken its rise from the con
law very generally throughout the country in regard sideration that the tenant having possession merely, to estates held in fee, by undervaluing them one-half but no higher interest in a water right, should not be or two-fifths, there will be no sufficient reason why taxed for any more than the whole estate included a new law should be passed to enforce true valuawithin the boundaries given in the lease, is worth, tions of lands held under lease, until it be shown upon estimation of it as if the territory was all land, that this construction of the statute is erroneous, and and no mill stream existed. In this way, the actual that its language does not convey the intention which and existing difference in the value between the the revisers have attributed to the section to which rates at which mill streams and water rights are now their comment relates. assessed, and the sums they would sell for to pay the The Revised Statutes contemplate every estate as just debt of a solvent debtor, escapes taxation. This existing for taxable purposes, either in the name of difference is supposed to be an estate existing in the the owner or occupant, and to be assessed either to lessor, and not in the tenant, and it is inferred that it the one or the other; and if unoccupied and not should be assessed as real estate belonging to the owned by a resident of the county in which the eslessor.
tate lies, then it may be assessed to the owner as a The division of one piece of property into two
non-resident. kinds of estate, each taxable for its relative propor- Water is not taxable, but a water course suitable tion of the value of the whole, would require almost for the employment of a mill confers upon the adtoo nice a discrimination to be applicable to the prac- joining property a value distinct from the intrinsic tical affairs of life. But the Revised Statutes ordain worth of the soil. The two values are blended into " that all lands and personal estate within this State one. Any tax laid upon this estate can be collected shall be liable to taxation." Vol. 1, page 387, 01. from the owner or from the occupant; and if deAnd on page 389, 2d section, it is declared that the fault be made in its payment, the property can be land may be assessed in the name of the owner or *sold in discharge and satisfaction of the debt which occupant; and at page 393, 17th section, it is ordered has been thus incurred, by pursuing the course pre " that all real and personal estate liable to taxation,
scribed in the statute. &c. shall be estimated by the assessors at its full Your committee concur in opinion as to the two value, as they would appraise the same in payment following propositions : That ground rents may be in- . of a just debt due from a solvent debtor."
cluded in the yearly estimate and assessment of perThese provisions would seem to render further sonal estates, the amount of the assessment being legislation on this point unnecessary, as there is subject to reduction by the oath of the owner, as in ample power to assess all real estate upon the tenant, all other cases of assessments on personal property. if the possession is in him, or upon the landlord, if That water right reservations are liable to assessthe reservations excepted out of the grant, wlich ment and taxation, like every other real estate, to the lease purports to convey, are so broad and con
their full value, to be ascertained in the manner preclusive as to leave not even a possessory right in the
scribed in the statute, and that no regard is to be paid tenant, but retain in the landlord an exclusive and to the tenure by which they are held, but the valuaabsolute estate in the premises excepted.
tions must be made upon the property as if the title To adjudicate upon points so complicated and im- were absolute. portant as these, it would be necessary to inquire The policy of prohibiting the creation of estates whether the grant by the boundaries, conveyed pos. by the instrumentality of long or perpetual leases session of the parts excepted, including of course having been committed to another committee, the the water rights, and whether the tenant could main
finance committee have not felt at liberty to aptain an action of trespass against an intruder on those proach that subject. rights. Besides these, other questions of law would arise which could be decided with due discretion
CHAPTER 274. only after an impartial hearing by the proper tribu. An Act to abolish Distress for Rent and for other pur. nal.
poses, passed May 13, 1846. Whether, therefore, the owner is liable to taxation The People of the State of New York, represented on the reservations in the first instance, or whether in Senate and Assembly do enact as follows: the occupant is liable, or whether if liable as occu- V 1. Distress for rent is hereby abolished. pant, he has redress back upon the owner, are also The 12th, 13th, 14th, 15th, 16th and 17th sections questions of law to be determined by the judicial of the 4th title of the 1st chapter of the 2d part of tribunals. The judgment to be rendered would be the revised statutes are hereby repealed. governed by the construction to be given to the co- 3. Whenever the right of re-entry is reserved venants for the payment of taxes. It would be pro- and given to a grantor or lessor in any grant or lease per to consider the import of the language, the in- in default of a sufficiency of goods and chattels wheron tention of the parties, and the character of the to distrain for the satisfaction of any rent due, such clauses which specify and except certain reservations re-entry may be made at any time after default in out of the grant, as it is described and conferred by the boundaries. But as the statute has made provi
the payment of such rent; provided 15 days previous
notice of such intention to re-enter, in writing, be given sion for the assessment and taxation of every descrip- by such grantor or lessor, or his heirs or assigns, to the tion of real estate, there can be no necessity for any grantee or lessee, or his heirs, executors, administrators further legislation on this branch of the subject. or assigns, notwithstanding there may be a sufficiency
To the complaint that estates under lease are as- of goods and chattels on the lands, granted or demised
for the satisfaction thereof. The said notice may be
DANGEROUS LEGISLATION. served personally on such grantee or lessee, or by
We call the attention of the State Convention to leaving it at his dwelling on the premises.
the following Bill, and also to that portion which is CHAPTER 327.
italicized, in the si.cth section, and to the necessity of An Act to equalize Taxation.
providing in the Constitution that a legislative Bill
in its details shall be in accordance with its tille. Passed May 13, 1846.
We shall refer to this subject again. The People of the State of New-York, represented iu Senate and Assembly do enact as follows :
STATE OF NEW-YORK. 01. It shall be the duty of the assessors in each
No. 415. town and ward, while engaged in ascertaining the
IN ASSEMBLY, taxable property therein, by diligent inquiry to ascertain the amount of rents reserved in any leases in fee,
April 10, 1846. or for one or more lives or for a term of years exceed
An Act to Amend an Act, entitled “ An Act concerning ing twenty-one years, and chargeable upon lands within such town or ward, which rents shall be assess
passengers in vessels coming into the Port of New
York," passed February 11th, 1824. ed to the person or persons entitled to receive the
The people of the state of New York, represented eame as personal estate, which it is hereby declared
in senate and assembly, do enact as follows: to be for the purpose of taxation under this act, at a
Section 1. The mayor of the city of New-York principal sum, the interest of which at the legal rate
may, in his discretion, in lieu of receiving bonds for per annum shall produce a sum equal to such annual
alien passengers arriving at the port of New York, as rents; and in case such rents are payable in any other
provided in section two of the act hereby amended, thing except money, the value of such annual rents
require of every master or commander of any ship in money shall be ascertained by the assessors, and
or vessel arriving at the port aforesaid, from any the same shall be asssessed in manner aforesaid.
foreign country, or from any part of the United 02. The board of supervisors in each county shall
States, other than this state, the payment of one dolassess the taxes to be raised for town county, and
lar for each and every passenger, not being a citizen state purposes, upon the person or persons entitled to
of the United States, who shall have landed or been receive such rents within the town or ward where
suffered to land from such ship or vessel, at any place the lands upon which rents are reserved are situated,
during such her last voyage, or have been put on board, in the same manner and to the same extent as any
or permitted to go on board of any other vessel, with personal estate of the inhabitants of such town.
the intention of proceeding to the said city, to indemØ 3. If such tax shall not be paid, the collector
nify the mayor, aldermen and commonalty, and the shall levy the same by distress and sale of the goods
overseer of the poor of the said city, and their sucand chattels of the person against whom the same is
cessors, for all and every expense or charge which assessed, within the town or ward of such collector,
shall or may be incurred by them for the maintenance in the same manner as if such person was an inhabi
and support of every such passenger and for the maintant of such town or ward.
tainance of the child or children of any such passen$ 4. When it shall appear by the return of any
ger which may be born after such importation, in case collector made according to law, to a county treasurer, such passenger, or any such child, shall, at any time that any tax imposed upon the provisions of this act
within two years from the date of such importation, remains unpaid, such county treasurer shall issue his
become chargeable to the said city; and if any such warrant to the sheriff of any county where any real master or commander shall refuse or neglect to pay or personal estate of the person upon whom such tax
such amount for each of such passengers, within three is imposed may be found, commanding him to make
days after such vessel shall have so arrived at the port of the goods and chattels and real estate of such per
of New-York, every master or commander, and the Bon the amount of such tax, together with one dollar
owner, consignee or consignees of such ship or vessel, for the expense of issuing such warrant, and to return
shall severally and respectively, shall be subject to a the said warrant to the treasurer issuing the same, and
penalty of two hundred and fifty dollars for each and to pay to him the money which shall be collected by
every such person, not being a citizen of the United virtue thereof by a certain time therein to be specified,
States; to be sued for and recovered, as provided in not less than sixty days from the date of such warrant.
the act hereby amended, in reference to similar deØ 5. Such warrant shall be a lien upon and shall linquencies in the case of bonding such passengers. bind the real and personal estate of the person against 2. The mayor, aldermen and commonalty of the whom the same shall be issued from the time an
city of New-York, are hereby authorized and empow, actual levy shall be made by virtue thereof; and the
ered to regulate the arriving and landing of alien sheriff to whom such warrant shall be directed, shall
passengers coming to the port of New-York, and all proceed npon the same in all respects with the like
matters relating thereto, and to pass such ordinances effect, and the same manner as prescribed by law in
in regard to emigrant boarding houses, the lien of the respect to executions against property, issued by a keepers of such houses on baggage, luggage, or other county clerk upon judgments rendered by a justice articles,
as they shall consider advisable. of the peace, and shall be entitled to the same fees
Ø 3. The saíd mayor, aldermen and commonalty for his services in executing the same, to be collected are hereby further authorized and empowered to pass in the same manner.
such ordinances in regard to agents and agencies of 0 6. In case of the neglect of any sheriff to return transportation lines, passenger agents, runners, and such warrant according to the directions therein, or
all other persons engaged in bringing such alien emito pay over any money collected by him in pursuance grants to the city of New York, or in any manner thereof, he shall be proceeded against in the supreme engaged in the transhipment or transportation of said court by attachment, in the same manner, and with like effect, as for similar neglects in reference to nn
emigrants, and in regard to the licensing of said execution issued out of the supreme court in a civil
agents, runners and other persons herein before men
tioned, as they shall deem proper. suit, and the proceedings thereon shall be the same ♡ 4. The said mayer, aldermen and commonalty, in all respects.
are also authorized and empowered to affix penalties 07. If any such warrant shall be returned unsatis- to the violation of any such ordinance, provided always fied in whole or in part, the county treasurer, under that such penalties shall in no one instance, exceed the direction of the board of supervisors of his county, imprisonment in the city prison for more than the may file a bill in his name of office in the court of chancery, whatever may be the amount so remaining dollars or both such fine and imprisonment.
space of sixty days, or a fine of two hundred and fifty unsatisfied, against the person against whom such war. 0 5. This act shall in no manner impair the quarrant was issued, and any other person having the antine laws of this state. possession of his property, for the discovery and sequestration of such property. And on the filing of such
06. The corporation of the city of New York, may bill, the court of chancery shall order such part of
appropriate a pier or piers in the city of New-York,
for the landing of all emigrants arriving at the port of the property of the person upon whom the tax speci- New-York during the quarantine season, or which may fied in the said warrant was imposed, as shall be neces- be discharged from any vessel at quarantine, and said sary for the purpose of satisfying the taxes in arrear and imposed as aforesaid, with the cost of prosecution,
corporation shall have full power to regulate the rates to be sequestered, and may order and direct such other
of wharfage charged upon all goods of vessels disproceeding as may be necessary to compel the pay
charging in, at or upon any wharf, pier or slip in
said city. ment of such tax and costs.
97. This act shall take effect immediately.
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
CONVENES JULY 6, 1846.
John W. Avery.
Daniel D. Briggs.
Henry E. Davies.
EIGHTEENTH WARD. George W. Varian, Henry A. Beach.
CITY CONVENTION.-The assembling of a City Convention to frame a charter for New York, while the State Convention have the great subject of relieving the people from the abuses of city monarchies before them seems to be labor lost, and besides the election of June 1st, amounts to next to nothing-it is trifling with an important matter.
THE STRANGER'S GRAVE. when told that the caprice or the cupidity of the
Monday, May 11, 1846. The following message was received by his Honor the Mayor, returning with his objections the resolutions for opening Albany Street to Broadway.
Ordered to be published and entered at length on the minutes.
0. S. BARTLES, Clerk.
EXTENSION OF ALBANY STREET THROUGH
TRINITY CHUCRH YARD. 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. 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 “ Ana 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. Siatutes 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.
living is through the ashes of his deceased friends. The committees which have reported the resolutions I am considering, 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 sensibilities 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 concerns 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 question 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, containing a suggestion for widening Thames Street instead of carrying out the measure first proposed, as a declaration 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 purposes 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 cou. nected 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 objections, 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 tbe conclusion at which they arrive.
W. F. HAVEMEYER.
New-York, May 11, 1846. To the Hon. the Common Council.
Gentlemen-I return herewith the resolutions passed 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 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. 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 passod 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
AWFUL TORNADO AT GRENADA. 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 Meinphis 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.
TO THE PUBLIC.
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