Argued November 26, 1888
Decided December 4, 1888
Almet F. Jenks for appellant. Frederic A. Ward for respondent.
We deem it unnecessary to examine at length the questions presented by this record in view of the elaborate and satisfactory opinions pronounced at the Special and General Terms, and shall content ourselves with a brief statement of what seem to us controlling considerations which justify and require an affirmance of the orders below.
It is to be taken as a conceded fact that the title to the landing place at the foot of Fulton street, Brooklyn, which is the subject of the assessment, is vested in the mayor, aldermen and commonalty of the city of New York. The tax proceedings are based on this assumption. In what manner or at what precise time the city of New York acquired title, does not appear. The ferry (now known as Fulton ferry), running from this landing place to the city of New York, is recognized in the Dongan charter as in existence when that charter was granted. In the protest of the mayor, aldermen and commonalty of the city of New York, presented to Lord Cornbury in 1707, against granting the petition of one Seberingh for a ferry franchise between Nassau Island and the city, it is alleged that the city of New York had possessed and enjoyed the franchise of operating a ferry between Nassau Island and the city of New York for seventy years prior to that time, and the protest refers to the landing place on Nassau Island, used in connection therewith, locating it at the point where the landing, which is the subject of the tax in question, now is. The commencement of this period of seventy years antedates the Dongan charter nearly fifty years The words of grant of the ferry privilege to the city of New York in the Dongan charter of 1686, and in the Cornbury charter of 1708, and also in the Montgomerie charter of 1730, operated by way of confirmation of existing rights, and were not the foundation of the city's title to the franchise or the landing place. The city of New York, therefore, under an admitted title, the origin of which is not disclosed, has for a period of two hundred and fifty years, occupied by itself, its agents, or lessees, the present landing place in Brooklyn, and used it for the convenience of the public and as an incident to the ferry franchise.
We think the landing place was not taxable, upon the principle that property of a municipality acquired and held for governmental and public uses, and used for public purposes, is not a taxable subject within the purview of the tax laws, unless specially included. It would probably be competent for the legislature to make the landing place taxable in Brooklyn, but not having done so, in terms or by necessary implication, the power to tax the landing cannot be spelled out from general words, subjecting to taxation all real and personal property within the state. This principle of construction is well settled. It proceeds upon obvious public considerations. There would be manifest incongruity in subjecting to taxation, for public purposes, property dedicated to or acquired under legislative authority for public and governmental use. We do not think that the principle that municipal property, devoted to public uses, is not taxable, unless expressly made so by statute, depends upon the origin of the title, whether acquired by purchase or voluntary grant, or as the product of taxation, nor upon its locality, whether situate within or without the territorial limits of the municipality. These considerations may be important in some cases. We prefer, however, to express no opinion on the question whether there is, in principle, a distinction between taxation of the property of a municipality strictly devoted to public uses, and property which it owns, though not acquired for a public use, although it may be held, on the general trust, applicable to all property of the corporation, but the acquisition or holding of which has no essential connection with the public functions of the municipality. It is conceivable, we suppose, that the city of New York might, in satisfaction of a debt, or upon some other consideration, acquire a building lot in Brooklyn, which was not and could not be specifically devoted to any public use of the city of New York. The question which would be presented in such a case is quite foreign to the present one. The ferry franchise was conferred for a public use. This is clearly recognized in all the charters. Its acceptance by the city imposed a duty corresponding with the privilege granted. The duty to maintain the ferry could not be performed without a landing place on the Brooklyn side, and authority conferred to maintain the ferry presupposes the right to acquire what was essential to its operation. The one thing is an inseparable incident of the other, and the franchise to maintain the ferry in question, conjoined with the ownership of the landing, constitute together a ferry property belonging to the city, devoted to public use, the revenues from which, by ordinance and statute, are irrevocably pledged for the payment of the public debt. (City Ordinances, art. 6, § 52. subd. 6; Laws of 1882, chap. 410, §§ 171, 172.) The supposed hardship to the city of Brooklyn of exempting the landing from taxation while the city bears the burden of maintaining police supervision over it as a part of its territory, if the hardship exists, is an immaterial circumstance. But the city of Brooklyn enjoys compensating advantages in the maintenance of the ferry, and the legislature, following a policy long established, has not subjected the landing to taxation. The fact that the city of New York operates the ferry through lessees and derives its revenues from the rental, and not from the operation of the ferry by its immediate agents and servants, does not make the franchise or the landing taxable. It is to be assumed that the immunity of the property from taxation was in the contemplation of the parties when the lease was made, and was considered by them in fixing its terms. The tax is imposed on the land as the property of the city, and not on the lessees in respect of their interest. Many authorities on the question presented are cited in the opinions below. We refer to a few of them, which we think fully support the conclusions reached. ( Rochester v. Town of Rush, 80 N.Y. 302; King v. Inhabitants of Liverpool, 7 B. C. 61; Darlington v. Mayor, etc., 31 N.Y. 164; Cooley on Taxation, 132, note; The Mayor, etc. v. Furze, 3 Hill, 612; Dillon on Mun. Corp. [3d ed.] 773, and cases cited.)
The orders of the Special and General Terms should be affirmed.