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The clause in the sixth paragraph, "after all the other legacies herein provided have been paid in full," is very significant, and indicates to a very marked degree what the testator had in mind, and I conclude that the scheme of his will was to pay the legacies under the third and fourth paragraphs from the primary personal estate, so far as it might go, in the balance of the estate to create the life estate of his wife, and upon her death to pay the specified legatees the specified amounts. If there was a deficiency to have those legacies paid pro rata. If there was an excess occasioned in any manner, that the other legacies, meaning the legacies in the third and fourth clauses, should be paid in full, and then the general residuary estate, if any, should pass to Anna Beyrodt and his nephews and nieces.

I so construe the will of the decedent and direct that decree be entered accordingly. Decreed accordingly.

(109 Misc. Rep. 1)

(178 N.Y.S.)

PEOPLE ex rel. FRANKLIN MILLS CO. V. COLLINS et al., Board of

Education.

(Supreme Court, Special Term, Erie County. October 9, 1919.)

1. SCHOOLS AND SCHOOL DISTRICTS 102-EDUCATION LAW CONSTRUED WITH TAX LAW.

Education Law, providing in sections 410-412 for school district tax on personal property "liable for tax," but nowhere defining property that is liable, is not an entirely separate and independent statute, but one to be interpreted and construed in connection with the Tax Law.

2. SCHOOLS AND SCHOOL DISTRICTS102-PROPERTY PAYING INCOME TAX UNDER STATUTE EXEMPT FROM SCHOOL TAX.

Manufacturing corporations, within Emerson Act (adding article 9a to Tax Law) § 208, subd. 3, by payment of income tax under sections 215, 219h are exempt under section 219j, from school district tax provided for by Education Law, §§ 410-412, though Emerson Act does not specifically refer to or repeal any of the provisions of Education Law, since Education Law is to be construed in connection with Tax Law, and property exempted under Tax Law from all taxes in lieu of a percentage of income to be paid is no longer taxable even for school purposes.

3. CONSTITUTIONAL LAW 70(3)-WISDOM OF LAW IS FOR THE LEGISLATURE. Courts have nothing to do with the wisdom of the law; such questions being for the Legislature.

4. STATUTES

188-CONSTRUCTION ACCORDING TO LANGUAGE EMPLOYED.

Statutes must be construed according to language employed, and where no ambiguity exists and the language is apt and the construction plain, courts cannot correct supposed defects, or depart from the language used in deference to supposed intent.

Separate certiorari proceedings by the People of the State of New York, on the relation of the Franklin Mills Company, on the relation of the Wiard Plow Company, on the relation of the Batavia Rubber Company, and on the relation of the Johnston Harvester Company, against Lewis D. Collins and others, as members of and comprising the Board of Education of Union Free School District No. 2, of Batavia, Genesee County, N. Y., to review the action of the Board of Education of Union Free School District No. 2, of Batavia, Genesee County, assessing personal property for school purposes. Relief granted relators.

Edward A. Washburn, of Batavia, for relators.
Bayard J. Stedman, of Batavia, for respondents.

WHEELER, J. The above-entitled proceedings come before this court by virtue of writs of certiorari to review the action of the board of education of Union Free School District No. 2 of Batavia in assessing the relators upon personal property for school tax purposes.

It is conceded the relator in each case is a manufacturing corporation within the definition of the so-called Emerson Act, section 208, subdivision 3, of chapter 726 of the Laws of 1917, adding article 9a to Tax Law (Consol. Laws, c. 60). The relators contend that by virtue of section 219j of that act they are exempted from any assessment on any personal property after the act in question took effect. On the other hand, the respondents contend that the section re

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 178 N.Y.S.-5

ferred to does not operate to withdraw the personal property of manufacturing corporations from the operation of the general Education Law, which provides a method of assessing property and collecting taxes for educational purposes. The cases presented for decision raise purely questions of law, to wit, a judicial interpretation of the force and effect of the Emerson Act as regards the Education Law and the power to tax manufacturing corporations on personal property for school purposes.

The Emerson Act materially changed the system of taxation in the state. This legislation was enacted in furtherance of a report of a committee appointed to examine and report on the general tax situation in the state. This report recommended:

"(1) The abolition of the present tax on personal property; (2) the withdrawal of general business corporations from the provisions of section 182 of the tax law; and (3) the imposition of an income tax on individuals and general business corporations, including manufacturing corporations."

Pursuant to this report a bill was drafted and passed by the Legislature, which became chapter 726 of the Laws of 1917. This act imposes a tax of 3 per cent. on the net income of the corporation (section 215), and provides that from the revenue so received the state comptroller shall pay into the state treasury two-thirds of the amount, and distribute and pay the balance to the treasurers of the several counties where the corporations are located (section 219h).

Section 219j then provides:

"After This Article Takes Effect Manufacturing and Mercantile Corpora

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tions Shall Not be Assessed on Any Personal Property. After this article takes effect manufacturing and mercantile corporations shall not be assessed or taxed upon their capital stock as provided for in section twelve of this chapter, nor shall they be required to pay the franchise tax imposed by section 182 of this chapter."

The language of the section quoted is broad and explicit, exempting manufacturing corporations from all assessment on any of its personal property. The respondents, however, contend that inasmuch as the act of 1917 does not in express terms refer to or repeal any of the provisions of the Education Law, and as the Education Law constitutes a separate and distinct chapter of the statutes of the state, it could not have been the intention of the Legislature by chapter 726 of the Laws of 1917 to in any manner modify or alter the provisions of the Education Law (Consol. Laws, c. 16), and that the personal property of manufacturing and mercantile corporations is still taxable for the purpose of raising revenue for educational purposes. To a certain extent the Education Law does constitute a separate and distinct chapter, but we shall presently see that certain sections of that law must necessarily be read and construed in connection with the Tax Law of the state, of which chapter 726 of the Laws of 1917 forms a part.

Section 410 of the Education Law provides that

"After a tax shall have been voted by a district meeting, for a purpose arising during the current school year, the trustees shall assess it, and make out, the tax list therefor and annex thereto their warrant for its collection."

A

(178 N.Y.S.)

Section 411 of the law provides that

"School district taxes shall be apportioned by the trustees upon real estate within the boundaries of the district which shall not be by law exempt from taxation."

The second subdivision of the section provides that

"The trustees shall also apportion the district taxes upon all persons residing in the district, and upon all corporations liable to taxation therein, for the personal estate owned by them and liable to taxation."

Section 412 provides, for the purpose of ascertaining the valuation of taxable property, the trustees shall ascertain it "so far as possible, from the last assessment roll of the town," etc.

[1] It is to be noted that by the Education Law the assessment against corporations is to be only on "the personal estate owned by them and liable for taxation." The Education Law nowhere undertakes to define what personal property of a corporation is "liable for taxation." It nowhere lists the personal property to be exempt. Consequently, in order to ascertain for what personal property a corporation may be assessed or taxed, we necessarily must consult and read the other statutes of the state, and particularly the general Tax Law of the state declaring the exemptions from taxation. It follows that the Education Law is not an entirely separate and independent statute, but one to be interpreted and construed in connection with the general Tax Law, and if by the general Tax Law certain property is legally exempted from all taxes in lieu of a percentage of income to be paid, then it remains no longer taxable even for school purposes. To illustrate: Real estate mortgages are required to pay a recording tax, and when paid the holder of the mortgage is entitled to exemption from personal tax on that security for the amount represented. We think no one would contend that the trustees of a school district could claim the right to consider such mortgages property "liable for taxation" because the act exempting them from further taxation contained no reference to the Education Law. What we say in reference to mortgages is equally true of real estate purchased by pension money.

[2] We therefore are of the opinion that, in order to limit the jurisdiction of school trustees to assess personal property of manufacturing corporations, it was not necessary for the Legislature to make specific reference to the Education Law; but it was sufficient by appropriate language to enlarge the exemption, and place the personal property of corporations in the list of property exempted. The act of 1917 simply limited the class of property against which school boards could assess taxes for school purposes. This the Legislature has power and authority to do; and the act is just as effective as though it had undertaken to amend the Education Law by an added section to that act itself. Indeed, it is manifest that the method pursued in the Emerson Act was the appropriate method of exempting corporate personal property, not only from general taxation, but from taxation for school purposes as well.

[3,4] We find nothing ambiguous in the act of 1917, so far as the question now under consideration is concerned. It may be that the statute works a hardship on certain school districts. As to the wisdom of the law the courts have nothing to do. The Legislature is the sole judge of those questions.

"All statutes must have a construction according to the language employed, and where no ambiguity exists, courts cannot correct supposed defects." Benton v. Wickwire, 54 N. Y. 226.

Where language is apt, and the construction plain, it cannot be departed from in deference to any supposed intent. Matter of Village of Middletown, 82 N. Y. 196; Matter of Simmons, 151 App. Div. 444, 135 N. Y. Supp. 921; People v. Long Island R. R. Co., 194 N. Y. 130, 87 Ν. Ε. 79.

We are of the opinion the relators are entitled to the relief asked. So ordered.

WHITNEY et al. v. CONSIDINE INVESTING CO. et al.

(Supreme Court, Special Term, Westchester County. September 20, 1919.) 1. ADVERSE POSSESSION 79(3)- POSSESSION UNDER CERTIFICATE OF SALE FOR DRAINAGE ASSESSMENT NOT ADVERSE.

Adverse possession under a claim of title cannot be founded on a mere tax lease, such as a certificate of sale for years for drainage assessment.

2. QUIETING TITLE 12(7)-CONSTRUCTIVE POSSESSION FOLLOWING LEGAL TITLE SUFFICIENT TO SUSTAIN ACTION.

Constructive possession following legal title to fee is sufficient, in absence of hostile possession, for maintenance of action for cancellation, as a cloud on title, of certificate of sale of the land for years for drainage assessment.

3. DRAINS88-ACQUIESCENCE WILL NOT PREVENT OWNER OF FEE FROM ASSAILING TITLE UNDER SALE FOR DRAINAGE ASSESSMENT.

Mere acquiescence will not create an estoppel in pais, and prevent the owner of the fee assailing title or interest under a certificate of sale of land for years for drainage assessment.

4. JUDGMENT 747(1/2) - CONCLUSIVENESS OF ORDER OF CONDEMNATION AS TO

OWNERSHIP OF AWARD.

Final order in condemnation proceeding for part of land sold for years for drainage assessment does not bar action by owner of fee to cancel the certificate of sale for assessment and to determine ownership of award; title not being involved in a condemnation proceeding.

5. LIMITATION OF ACTIONS 60(10)-ACTION FOR REMOVAL OF CLOUD NOT BARRED WHILE OWNER IN POSSESSION.

Right of an owner in possession to maintain action to remove cloud is a continuing one, never barred by statute of limitations, while he remains such owner in possession.

6. DRAINS88-PARTY ATTACKING SALE OF LAND FOR DRAINAGE ASSESSMENT MUST SHOW NONCOMPLIANCE WITH LAW.

Under Laws 1869, с. 888, § 13, declaring a certificate of sale for years for assessment for swamp drainage presumptive evidence of all facts stated, it is not enough for one attacking the certificates as a cloud on title, that the record does not show compliance with requirements of the statute, but he must prove noncompliance.

7. DRAINS35-APPLICATION TO COUNTY JUDGE SUFFICIENT TO GIVE JURISDICTION IN DRAINAGE PROCEEDINGS.

There was no lack of jurisdiction in drainage proceedings because application was to county judge, and order appointing commissioners was

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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