City of Rochester v. Bloss

McLennan, P. J.: The facts are not in dispute. At all times during the year 1902 the defendant was a resident of the city of Rochester. In said year a tax of $182.47 was duly levied, assessed and imposed by the common council of said city against the defendant as and for a part of the general city taxes of said year; afterwards the general tax rolls of said city, containing the tax against the defendant, were delivered to the treasurer of the city, together with a warrant in proper form and duly executed, commanding him to receive and collect such taxes; the treasurer entered upon the performance of such duty as commanded, gave the notices required by law; the defendant neglected and refused to pay the tax of $182.47 levied and assessed against him as aforesaid, together with the percentages imposed by the charter, and after demand duly made therefor this action was brought. The charter of the city of Rochester (Laws of 1880, chap. 14, §§ 89, 91, as amd. by Laws of 1896, chap. 777) in force in the year 1902, at the time the tax in question was levied, provided: “§■89. The city treasurer shall receive the amount of any tax levied in the assessment-rolls during' the month of May, and on all amounts not paid on or before the last day of May succeeding the levying of such tax he shall receive for the contingent fund of said city the following additions as charges for collection, namely: If the same be paid after the last day of May and on or before the last day of J tine then next, lie shall charge and receive an addition of one per centum; if paid after the last day of June and on or before the last day of July then next, an addition of two per centum ; if paid after the last day of July and on or before the fifteenth day of August then next, an addition of three per centum; if paid after the fifteenth day and on or before the last day of said month of August, then an addition of four per centum ; if paid on or before the first day of the month of September then next, and on or before the fifteenth day of the same month, an addition of five per centum ; and if paid at any time after, the fifteenth day of September, such addition of five per centum, and also, interest from that day, at the rate of twelve per centum per annum.” “ § 91. It shall be the duty of the city treasurer upon all taxes remaining unpaid on the fifteenth day of October, next succeeding — 128 — the completion of the said assessment-rolls, to. issue as many warrants as he shall deem proper under his hand, and directed to any person whom he may see fit to appoint a collector of the taxes specified in such warrant, commanding such person, as such collector, to levy the amount of said tax, and an additional amount of five per centum, except that in no case is the amount so added to be less than twenty-five cents, and, also interest at the rate of twelve per ' centum per annum from the preceding fifteenth day of September, and the fees of said collector, by distress and sale of goods and chattels of the person against whom the said warrants shall be issued, or of any goods and chattels in his possession, wheresoever the same shall be found within said city, and to pay the same to the city treasurer, and return such warrant within twenty days after the date thereof; and no claim of property to be made to such goods and chattels so found in possession of the said party, shall' be available to prevent a sale. * * * ” Under those provisions it is plain that at the time this action was .commenced the defendant was liable not only for $182.47, the amount of the tax, but also for the percentages imposed by the sections of the charter adverted to, to wit, five per cent additional upon the tax, and twelve per cent per annum upon such total amount, provided the collection of such taxes and percentages were enforced by the treasurer of the plaintiff in the manner prescribed by the charter. The percentages are designated in the charter “ as charges for collection,” and when collected are credited to the contingent fund of the city. They were in no sense a part of the treasurer’s compensation, and the cost or expense of collection was provided for by additional fees to be paid to a collector appointed by the treasurer. Under the charter when a tax was levied the city was enti. tied to receive its amount, and when the payment of such tax was deferred beyond the time or times specified in the charter, the city was entitled to. receive such tax with the percentages added. All became an asset of the city and it is of ho consequence that the amount of the tax originally levied went into the general fund and the percentages into the contingent fund. The person against whom the assessment was made became obligated to pay both in case payment of the original tax was deferred, and could only be relieved from such obligation by payment. — 129 — It would appear that the city of Rochester experienced difficulty in promptly collecting taxes by the method prescribed in its charter and it was doubted whether an action as for a debt could be maintained to collect the same. At all events, chapter 522 of the Laws of 1903 was passed, which provides that an action at law may be maintained for the collection of delinquent ta-xes. Section 3 of the act reads: “ All taxes heretofore spread upon the assessment rolls of the various wards in the city of Rochester, may be collected by the corporation counsel, either by action or by supplementary proceedings or by foreclosure of tax liens without regard to the date when the said taxes were so spread, and the Statute .of Limitations cannot be interposed as a defense thereto. The remedies herein provided shall be in addition to the other methods provided in the charter of the city of Rochester for the collection of taxes in the said city of Rochester, and not dependent upon them, or any of them. No certificate of the mayor of the said city of Rochester, made by said mayor under section one hundred and four of the charter of said city,* of failure to redeem land sold for taxes, -now or hereafter recorded in the office of the county clerk of Monroe county, shall be discharged until all city taxes which are a lien upon the premises described in said certificate shall have been paid. Notice to redeem from sale for taxes, may be served at any time after the expiration of two years from the date of said sale. Upon the foreclosure of tax liens in actions brought in the Supreme and County Courts, all taxes due the city of Rochester may be included in the action of foreclosure and be satisfied from the proceeds of the sale of the premises. Where several lots or parcels of land are owned by the same person or persons, distinct tax liens upon the separate lots and parcels of land so owned may, at the option of the city of Rochester, be foreclosed in one action, and actions now pending may be consolb dated, in the discretion of the court, upon such facts being shown.” • It is claimed by the respondent that an action like the one at bar can only be maintained under and by virtue of the statute of 1903 referred to, and that such statute does not authorize a recovery for the percentages but only for the “ taxes heretofore ■ spread upon the assessment rolls.” Of course, such preeentages were not and — 130 — could not have been actually spread upon the rolls. We will assume, without deciding, that" the plaintiff, prior to the passage of chapter 522 of the Laws of 1903, did not have the .right to maintain an action as for debt to recover taxes duly assessed by it. It was so held at Trial Term in City of Rochester v. Gleichauf (40 Misc. Rep. 446) and evidently that decision led to the passage of the act in question. If, as we are constrained to hold, that act authorizes á recovery in an action like this, not only for the original tax, but also for the percentages incident to such taxes, for the entire indebtedness of a taxpayer resulting from a particular assessment, what the city was or ivas not authorized to do prior to the passage of such act is purely an academic question.. For tile purposes 'of this appeal we .only deem it" necessary to ascertain the true scope and meaning of the act of 1903, and to that end we may consider not only the language of the act, but also its purpose and what would be the result if the interpretation contended for by the respondent should prevail. • . . ' The act purports .to authorize the plaintiff to employ, means other than those Specified in its charter to enforce payment of taxes. ■ It .provides : “ The remedies herein provided shall be in addition to the other methods provided in the charter of the city of Rochester for the collection of taxes in the said city of Rochester and not dependent upon them or any of them.” If respondent’s contention is correct, such additional remedies are only available for. the purpose of collecting a part of the indebtedness of any delinquent taxpayer. As we have seen,, under the charter, after the fifteenth- day of September in any "year the amount of any unpaid tax becomes absolutely and irrevocably ■ fixed, and is made up of the original assessment, with five per cent thereof added, and that total bears interest at the rate of twelve per cent "per annum until paid. Upon any day," by a. simple mathematical calculation, the amount due to the city from any taxpayer may'be ascertained. No officer of the city has authority to change or vary the amount; no one is clothed with any discretion in the premises. It was the duty of' the plaintiff’s, officers in' any case to collect the exact amount, no more and no less. They were charged with the duty of' collecting the indebtedness, interest as well as principal, and it is difficult to see why an additional remedy should be given for the collection of — 131 — the principal and not of the interest. We think the fact that such interest was not spread upon the assessment rolls does not justify the interpretation contended for. The collection of the percentages might be quite as important to the city as the original tax in case payment was long deferred. The fair meaning of the language of the act of 1903 is that it applies not only to the collection of the taxes spread u'poh the rolls, but also any other sum or sums which are an incident thereto and which by the provisions of the charter the city becomes entitled to by reason of the non-payment of such taxes. We may take judicial notice of the fact that because of the delay in the payment of taxes after they become due and payable under the law, municipalities are compelled to make loans to meet current expenses and are compelled to pay interest thereon, which to that extent adds to the burden of their inhabitants. It would be inequitable for any taxpayer to neglect or refuse to pay his taxes when due and thus add to the burden of others, and escape all liability for such action. To meet just such a condition the Legislature has provided that such delinquent shall be compelled to pay to the municipality certain percentages. Again, if respondent’s contention is correct, it is entirely optional with the corporation counsel whether a delinquent taxpayer shall be compelled to pay his original tax, or such tax with the percentages added. It will not be seriously contended that if in an action like the one at bar a recovery is had for the original tax, that the percentages could be recovered by the city treasurer in a separate action under the provisions of tlie charter. And so, even if the city treasurer was disposed to enforce the payment of the entire amount due and owing to the. city by the delinquent, the corporation counsel could commence an action and demand only the amount of the original tax and thus relieve the delinquent from the payment of the percentages, no matter how long payment had been deferred. We think the Legislature did not intend by the act in question to vest any discretion either in the corporation counsel or city treasurer as to the amount which the delinquent taxpayer should be .compelled to pay, but that the sum was fixed absolutely and irrevocably, and that by the act there was simply another means afforded of collecting, the same, to wit, by an action as for debt which includes the interest and all other incidents necessarily pertaining thereto. — 132 — It is concluded that the past-due interest, the percentages fixed by the statute, are as much a part of the tax as the principal, which, is also past due; that all constitute one indebtedness resulting from a single municipal act and that all may be recovered in this action by méans of the additional remedy given by chapter 522 of the Laws of 1903. Any other construction would be inequitable and unjust, would open the way to fraud and collusion, would permit a corporation counsel to determine whether the citizen who has neglected to pay his taxes when due shall be compelled to pay the entire amount owing to the municipality or only a portion thereof. We conclude that the order appealed from should be reversed, and that judgment should, be ordered for the plaintiff for the relief demanded in his complaint, with costs. All concurred, except Hiscock, J., who in separate opinion concurred in reversal, but not for the- amount for which' judgment is directed. Footnotes [*] Laws of 1880, chap. 14, § 104, as amd. by Laws of 1890, chap. 561.— [Rep.