N. Y. Rep.]

Dissenting opinion, per VANN, J.

"The vice of bookmaking consists chiefly in the soliciting and in the inducing the public to take chances in the carefully * * *" figured and planned scheme of the bookmaker

The Constitution forbids bookmaking, without defining it, except by the association of words as a form of gambling, and the statute forbids engaging in bookmaking also without defining it, but making it a distinct and independent offense. A disjunctive conjunction separates the first clause of section 351 of the Penal Code from those that follow and its function is to unite all the clauses grammatically, but to separate them in meaning and application. The effect, so far as the offense of "engaging in bookmaking" is concerned, is the same as if there was nothing in the section except the first clause and the closing words, which pronounce the offender guilty of a misdemeanor and provide the punishment to be inflicted.

In view of the explicit command of the Constitution and the history of legislation upon the subject, as well as the origin of the word "bookmaking" and its meaning in the country from which we borrowed it, I think the statute prohibits engaging in bookmaking with or without the aid of any writing, because writing is not of the substance and need not be resorted to, and, hence, if resorted to, is a mere incident. Engaging in the business of public gambling by quoting and laying insidious odds to a multitude of people was the evil aimed at, not the making of a record of the business which is comparatively innocent. I vote to reverse because, me judice, the information sets forth a criminal offense.

WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur with HAIGHT, J., and CULLEN, Ch. J.; VANN, J., reads dissenting opinion; EDWARD T. BARTLETT, J., not sitting.

Order affirmed.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. AMERICAN EXCHANGE NATIONAL BANK, Appellant, v. LAWSON PURDY et al., as Commissioners of Taxes and Assessments of the City of New York, Respondents.

Tax-bank may institute certiorari proceedings to review assessment of its capital stock - effect of curative act (L. 1909, ch. 74) permitting correction of assessments in New York city invalid because notices were not given.

A bank may institute a proceeding by certiorari on behalf of its stockholders in relation to the assessment and taxation of its shares of stock. The period of limitation prescribed by the Tax Law, within which application must be made for the writ of certiorari, is not set in motion until notice is given by posting and publication that the completed tax roll has been filed. The Supreme Court may, however, in the exercise of its discretion, in the case of long delay, dismiss the writ on account of laches.

Payment under the compulsion of a statute making a tax a direct lien

upon shares of stock in a bank is an involuntary payment as to stockholders.

Chapter 74 of the Laws of 1909 is curative in part, but, as it also provides for the completion of an imperfect assessment duly commenced under a valid statute but not finished because notice had not been given nor an opportunity to be heard afforded, as required by the Tax Law, to this extent it is in the nature of an act authorizing a reassessment. The legislature has power to authorize a reassessment, or the completion of an imperfect assessment, by doing something which should have been done before, but was not done in time, or not done at all.

A curative statute acts directly upon a defective assessment and legalizes it without further procedure by the taxing officers. This may legally be done as to such features of the procedure as might have been omitted in the original statute without affecting its validity. When, however, the new act requires something more to be done by the taxing officers and legalizes the assessment, provided those acts are done, it provides for a reassessment, or the completion of the old assessment. Such legislation is valid, provided the original taxing act was valid and the omission sought to be remedied is not jurisdictional, but an irregularity Hence the act in question is constitutional, both upon principle and authority, except as to one of its provisions.

To the extent that this statute prohibits the court from giving relief in actions or proceedings pending when the act was passed on account of irregularities theretofore existing, it is unconstitutional, because in

effect it legalizes the assessment, even if no opportunity to be heard is given as required by the other provisions of the act. That sentence, however, stands by itself, and is so separated from the rest of the stat ute in purpose and meaning that it may be eliminated without affecting the validity of the remainder. Upon consideration of the peculiar situation arising from the passage of the curative act after the commencement of this proceeding and before its determination, held, that the matter should be remitted to the Special Term with leave to the respondents to there move for leave to file a supplemental return.

People ex rel. Am. Ex. Nat. Bank v. Purdy, 132 App. Div. 931, reversed.

(Argued October 4, 1909; decided November 9, 1909.)

APPEAL from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 28, 1909, which affirmed an order of Special Term dismissing a writ of certiorari to review certain assessments for taxation upon the capital stock of the relator owned by its respective shareholders.

The facts, so far as material, are stated in the opinion.

J. Culbert Palmer and Edwin L. Kalish for appellant. The act does not deprive the court of power in the premises. (Cooley on Const. Lim. 448; Gilman v. Tucker, 128 N. Y. 202; Matter of Trustees of Union College, 129 N. Y. 315; Loomis v. City of Little Falls, 176 N. Y. 34; Downey v. Serb, 185 N. Y. 435; Cromwell v. MacLean, 123 N. Y. 491; City of New York v. Streeter, 91 App. Div. 210; Foster v. Foster, 129 Mass. 561; Meigs v. Roberts, 162 N. Y. 378; Sanders v. Downs, 141 N. Y. 426.) The assessment is void and incurable because made without jurisdiction and without due process of law. (Matter of Douglas v. Bd. of Suprs., 172 N. Y. 315; Howell v. City of Buffalo, 37 N. Y. 274; Cooley on Taxation, 228; People ex rel. B. S. Bank v. Feitner, 191 N. Y. 97; People v. Bd. of Suprs., 36 How. Pr. 547; Trumbull v. Palmer, 104 App. Div. 53; Stuart v. Palmer, 74 N. Y. 191; People ex rel. Moller v. O'Donnell, 183 N. Y. 12.) The proceeding was properly instituted by the relator. (Matter of First Nat. Bank, 182 N. Y. 462;

People ex rel. G. N. Bank v. Comrs. of Taxes, 67 N. Y. 516; People ex rel. T. Nat. Bank v. Comrs. of Taxes, 69 N. Y. 91; Cummings v. Nat. Bank, 101 U. S. 156.) The proceeding was brought in due time. (People ex rel. Thomson v. Feitner, 168 N. Y. 447; People ex rel. R., W. & O. R. R. Co. v. Haupt, 104 N. Y. 381; People ex rel. R., W. & O. R. R. Co. v. Hicks, 105 N. Y. 202; People ex rel. W. The fact that the instituted is imma

S. R. R. Co. v. Adams, 125 N. Y. 484.) tax was paid before the proceeding was terial. (Bruecher v. Vil. of Port Chester, 101 N. Y. 240; Adams v. Bd. of Suprs., 154 N. Y. 626; Cummings v. Nat. Bank, 101 U. S. 156; E. Ins. Co. v. Mayor, etc., 153 N. Y. 333.) The law violates the Constitutions of the United States and of the state of New York. (U. S. Const. 14th amend.; Const. of N. Y. art. 1, § 6; U. S. R. S. § 5219.)

Charles F. Brown, Silas B. Brownell, John O. Heald and John R. Halsey for relators in similar pending proceedings, intervening. The act of 1909 is a confirming act only and not a statute for reassessment. (Hagner v. Hall, 10 App. Div. 581; Matter of Trustees of Union College, 129 N. Y. 308.) These assessments cannot be cured by a confirming act. (City of Rochester v. F. W. Assn., 183 N. Y. 23; Wallace v. Mc Echron, 176 N. Y. 424; Smith v. Buffalo, 159 N. Y. 427; Van Deventer v. Long Island City, 139 N. Y. 133; Matter of Trustees of Union College, 129 N. Y. 308; Cromwell v. MacLean, 123 N. Y. 474; People ex rel. B. S. Bank v. Feitner, 191 N. Y. 88.) The provisions in the act of 1909 for hearing and correction of the assessments after they had been made is insufficient to cure the vice in the method of making them. (People ex rel. B. S. Bank v. Feitner, 120 App. Div. 838.) The provision in the act of 1909 that no court or other tribunal should have the power to grant relief against the illegality of the assessments on account of any irregularity, either in pending or subsequent proceedings, is unconstitutional in so far as it applies to irregularities that are not cured by the act of confirmation. (Wallace v.

MeEchron, 176 N. Y. 424; Matter of Trustees of Union College, 129 N. Y. 308.)

Benjamin G. Paskus and Herman Goldman for relators in similar pending proceedings, intervening. Chapter 74 of the Laws of 1909 is a curative act; it is not an act providing for a reassessment. (Spencer v. Merchant, 100 N. Y. 585; Stuart v. Palmer, 74 N. Y. 183.) The defects in the asses3ments in question were jurisdictional and, therefore, it was not within the power of the legislature to cure them. (Ensign v. Barse, 107 N. Y. 329; Stuart v. Palmer, 74 N. Y. 183; Gray's Lim. on Taxing Power, $$ 1247, 1252; Cromwell v. MacLean, 123 N. Y. 490; Stuart v. Palmer, 74 N. Y. 190; Jewell v. Van Steenburgh, 58 N. Y. 85; People v. Turner, 145 N. Y. 451; Trumbull v. Palmer, 104 App. Div. 51; Matter of Douglas v. Bd. Suprs., 172 N. Y. 315; Hagner v. Hall, 10 App. Div. 581; 159 N. Y. 552.) The curative act (L. 1909, ch. 74) is unconstitutional for the further reason that it attempts to give notice and a hearing after final imposition of the tax. (People v. Turner, 117 N. Y. 238; Stuart v. Palmer, 74 N. Y. 183; Trumbull v. Palmer, 104 App. Div. 51.)

Francis K. Pendleton, Corporation Counsel (William H. King of counsel), for respondents. As chapter 74 of the Laws of 1909 provided for notice and hearing, and it was within the power of the legislature in the first instance to prescribe for notice and hearing after the assessments were made and the tax collected, the act is a bar to the cancellation of any assessment made without prior notice and hearing. (Williams v. Supervisors of Albany, 21 Fed. Rep. 99; 122 U. S. 154; Cromwell v. MacLean, 123 N. Y. 474; Terrel v. Wheeler, 123 N. Y. 76; People v. Turner, 117 N. Y. 227; Ensign v. Barse, 107 N. Y. 329; Cooley on Taxn. [3d ed.] 633; Hagner v. Hall, 10 App. Div. 581; People v. Wemple, 117 N. Y. 85; Spencer v. Merchant, 100 N. Y. 585; 125 U. S. 345.) Chapter 74 of the Laws of 1909 properly applies to pending proceedings,