Opinion
September 18, 1906.
William J. Roche, for the appellant.
Lewis E. Griffith, for the respondent.
No question is made by the respondent as to the form of the remedy sought. The sole question argued is as to the right of the relator under the statute to the publication of these notices.
The county of Rensselaer contains the city of Troy, which is a city of the second class; the city of Rensselaer, a smaller city, not of the second class, and fourteen towns. The Troy Times and the Evening Standard, the papers to which these notices were given by the respondent for publication, were duly appointed as county newspapers pursuant to chapter 512 of the Laws of 1892. By chapter 236 of the Laws of 1860 the county treasurer was required to publish these notices of sale in two of the public newspapers in the city of Troy having the largest circulation. One or two minor amendments to that act were passed which required publication in one or two newspapers outside of said city of Troy and also required the same publication of the notices of redemption. (See Laws of 1866, chap. 321; Laws of 1874, chap. 281.) Chapter 512 of the Laws of 1892 authorizes the board of supervisors at its next meeting after the passage of the act and annually thereafter at its fall session to designate as "county newspapers" two daily newspapers of opposite politics published in the city of Troy, and also two weekly newspapers having the largest circulation therein, and one weekly newspaper published in the town of Hoosick, and one weekly newspaper published in the town of Greenbush, and further provided that after such next meeting "every advertisement chargeable to said county, except the session laws, shall be advertised in the county newspapers which shall be such at its first insertion, and not otherwise." If these statutes were in force as to the notices directed to be published by the county treasurer in 1904 and 1905 the action of the county treasurer was authorized and this mandamus was properly denied.
The relator's contention, however, is that these statutes were not in force; that they had been impliedly repealed as to the notices relative to the city of Troy by chapter 182 of the Laws of 1898, as amended by chapter 581 of the Laws of 1899. This law of 1898 is known as the Second Class Cities Law. It is further claimed that as to the rest of the county they have been impliedly repealed by chapter 908 of the Laws of 1896, which is the general Tax Law.
First, as to the city of Troy: Section 29 of the Second Class Cities Law, as amended by chapter 182 of the Laws of 1903, provides that at the first meeting of the common council after the election of its members it shall designate two daily newspapers published in the city to be the official newspapers of the city. It is conceded that pursuant to this statute the Troy Daily Press was at the time of the publication of these notices one of the official newspapers of the city duly designated pursuant to the statute. By section 313 of that act (added by Laws of 1899, chap. 581) it was provided: "In all cases where county and State taxes which have been levied upon real estate in any city shall remain unpaid after the time when the same should have been paid, notice of the sale of lands situate in the city for such unpaid taxes, shall be published in the official newspapers of the city * * *." In the same section it is provided that notices of the redemption from such sales shall be published in the official newspapers of the city. It is apparent that if this statute in these particulars applies to the city of Troy it repeals by implication the laws of 1860 and 1892, as far as they direct publication of such notices in two county papers to be designated by the board of supervisors. That these provisions of the statute do apply to the city of Troy seems to me unquestionable. That the city of Troy has the requisite population to bring it within the cities of the second class, as provided by the statute, is conceded. The object of this statute was to make a uniform charter for such cities, and there is no apparent reason why the notices of tax sales or of redemptions from tax sales should not be governed by this general uniform plan as well as any other provision for the government of city affairs. It is probably true that the former statutes quoted made a complete system of special laws for the collection of taxes, the publishing of notices of tax sales, and the publishing of the notices of the right to redeem therefrom. Recognizing the rule that special statutes are not to be deemed to be repealed by implication by general statutes unless intention to repeal the same be found by clear intendment, the general purpose of this statute granting a uniform charter to cities of the second class is prima facie evidence of such intendment, and is conclusive evidence thereof unless there be something in the situation which renders the proceeding directed by the special statute to be peculiarly applicable to the city of Troy. There is no reason suggested why the system called for by the general statute is not just as effective for the city of Troy as for other cities of the second class, nor why it is not equally effective and adaptable as were the special statutes governing the same which were in existence at the time of the passage of the act.
Second. As to the notice of tax sales and redemption therefrom as to the rest of the county, the relator contends that the special acts are repealed by chapter 908 of the Laws of 1896, known as the Tax Law. Without reciting the full text of the provisions of that law applicable to the case at bar, it may be said generally that it is provided by that tax law that the county treasurer shall cause to be published a notice of sale for unpaid taxes for six weeks "in t wo newspapers designated for the publication of the session laws". (See § 151, as amd. by Laws of 1898, chap. 362, and Laws of 1905, chap. 445.) By section 157 it is provided: "The provisions of article six of this act, entitled 'sales by comptroller for unpaid taxes and redemption of lands,' shall, in so far as it is not otherwise herein provided, govern and control the action of the county treasurer, who shall perform the duties therein devolved upon the comptroller, and the same rights and remedies shall be deemed to exist under the provisions of this article as are provided for in said article six." Article 7 contains no specific provisions for publication of redemption notices; therefore, under section 157 above stated, the provisions of article 6 must control as to the publication of redemption notices. In that article in section 130 it is provided that the comptroller shall publish notices of the right to redeem "in the newspapers designated by the board of supervisors of the county in which such lands are situated, to publish the session laws." It is conceded that the relator is one of the newspapers duly designated to publish Session Laws in the county of Rensselaer. Therefore, if this general Tax Law controls the publication of these notices, the respondent wrongfully refused to give to the relator an order for the publication thereof. The respondent, admitting this proposition, nevertheless contends that the Tax Law is a general law and does not repeal the special laws determining the system for the collection of taxes in the county of Rensselaer. The same answer seems to me applicable as to the proposition that this special law was not repealed as to the city of Troy by the statute creating a charter for the cities of the second class. The object of these general statutes in this revision was not to supply a procedure for some counties which had no procedure provided by special laws, but to make general laws which would give a uniform procedure in different parts of the State. That object cannot be too jealously adhered to in cases where the surrounding conditions do not make necessary the retention of a special law. That these general laws repeal special statutes governing special localities, though not specially enumerated in the repealing act connected therewith, seems to be determined in the case of People ex rel. Catholic Union v. Sayles ( 32 App. Div. 203; affd. on opinion below, 157 N.Y. 679). It is further declared in Matter of Huntington ( 168 N.Y. 399), and again in Pratt Institute v. City of New York (183 id. 151). In the last case cited the learned judge writing the opinion of the court, speaking of the Tax Law, says: "It is a codifying act, designed to reduce all statutes relating to taxation into a complete and harmonious system. A codifying act is presumed to exhaust the subject to which it relates, unless a different intention appears on the face of the statute, or is an irresistible inference from special circumstances. The new enactment is substituted in the place of all statutes previously existing and becomes the sole rule of action." In the Pratt Institute case in the Appellate Division (reported in 99 App. Div. 525) the court, referring to the Huntington case, says: "Although the question in that case arose upon a transfer tax, yet the court, in reaching its judgment, held that the Tax Law is such a revision and substitute for all former exemption statutes, general and special, as to supersede and repeal them by implication." In the Huntington case (at p. 408) the court said: "If these views are correct, it was not necessary to search out the many private statutes conferring exemptions and to enumerate them in the schedule of the repealed statutes. In the construction of a statute of so much moment, enacted as the result of long experience, much discussion and great consideration, the rule that effect must be given to the intent of the Legislature, if the language of the enactment will permit, is of commanding force." In the cases cited the special statutes which were deemed repealed by implication by the Tax Law were statutes prescribing certain exemptions. It is claimed that the statute here claimed to be repealed by implication is not a statute prescribing exemption, but one prescribing a mode of procedure, and, therefore, that the cases cited are not authority for the proposition that the special statutes which were in force before the passage of these acts have been repealed by implication. Where, however, a uniformity is sought — and there is no apparent reason why a uniform procedure is not feasible in the city of Troy — the argument would seem to me to be stronger for the following of the general statute and the holding of the repeal of the special statute by implication. Special reasons could more easily be found for special exemptions in special localities than for special procedure in those localities. If the special statutes governing procedure were allowed to be deemed in force the general act would fail of its purpose to accomplish a uniform procedure.
By section 158 of the Tax Law, however, article 7, which provides for the sale of lands for the non-payment of taxes and for the publication of the notice thereof, and article 6, which, among other things, provides for the publication of the notices of redemption, do not repeal any statute providing for the sale of real estate for taxes in any city. The general Tax Law, being limited thus to the notices for the sale and redemption of lands outside of the city, can hardly work by implication a repeal of these special laws as to the sale and redemption, and publication of notices thereof, in a city. As to the land, therefore, in the city of Troy, the special statutes governing the publication of notices of tax sales and redemption from such sales were not repealed by the general Tax Law. In 1897 the city of Rensselaer was created by chapter 359 of the laws of that year. By sections 202 and 204 provision is made for the publication of notices of tax sales and notices of redemption from such sales in the official newspaper or newspapers of such city. By section 62 (as amd. by Laws of 1901, chap. 294) it is prescribed that the common council shall at its first meeting in each official year designate one or more papers, not more than two, published in said city as official newspapers thereof. Notices of tax sales of land in the city of Rensselaer and notices of redemption from such sales, therefore, must be published in the official newspaper as prescribed in the act creating the city. The relator is not a newspaper published in the city of Rensselaer and, therefore, under chapter 359 of the Laws of 1897 is not entitled to the publication of notices of tax sales therein and notices of redemption from such sales.
But this act provides for the publication of notices of sale and redemption of lands for city taxes only. As to the notices of sale for State and county taxes and for redemption therefrom the general Tax Law will still govern. (See Rens. charter, §§ 196, 200, as amd. by Laws of 1898, chap. 226; Id., §§ 202, 204.)
The argument is made that under these notices and under the special statutes lands have been sold, and the granting of this application would disturb many tax titles and bring confusion in the administration of the Tax Law in the county of Rensselaer. The sale made under the special law was of an interest different from that required to be made under the general statute. This argument is not without force in the construction of these statutes, and were the question a doubtful one should have weight with the court in resolving that doubt. Where, however, the construction of the statute seems clear and to hold in force these special statutes would require not only a disregard of governing principles of construction of these statutes established by the authorities in the State, but a disregard of the ultimate governing purpose in the enactment of these general statutes, it is better that the general rule be established even at the expense of some confusion by reason of sales heretofore had under statutes which have been repealed.
The order should be reversed and the mandamus issue as to notice of lands to be sold for taxes or to be redeemed which are situated in the county of Rensselaer, except for city taxes within said city of Rensselaer.
All concurred, except CHESTER, J., dissenting.
Order reversed and mandamus directed to be issued as to notice of lands to be sold for taxes or to be redeemed which are situated within the county of Rensselaer, except for city taxes within the city of Rensselaer.