Reclamation District No. 3 v. Goldman

Sharpstein, J.:

If the Act of March 28,1868 (Stats. 1867-8, p. 507), under which the plaintiff claims to have organized, contains any provision “ in relation to taxation for local purposes,” such provision was not repealed by the enactment of the Political Code. (Pol. C., Sec. 19.) The former act did provide that the Commissioners appointed in pursuance of its provisions should *208 assess upon the land to be reclaimed a tax proportionate to the whole expense and to the benefits which would result from the work, and that said tax should be collected and paid into the county treasury. Did that constitute it an act in relation to taxation for local purposes?” If it relates to taxation, it is doubtless “ to taxation for local purposes.” It provides for taxation by special assessments, which “ are made on the assumption that a portion of the community is to be specially and peculiarly benefited in the enhancement of the value of property peculiarly situated as regards a contemplated expenditure of public funds; and in addition to the general levy, they demand that special contributions, in consideration of the special benefit, shall be made by the person receiving it.” (Cooley on Taxation, 416.) “ Charges and impositions,” says Folger, J., in Buffalo City Cemetery v. Buffalo ( 46 N. Y., 506 ), “which are laid directly upon the property in a circumscribed locality, to effect some work of local convenience, which in its result is of peculiar advantage and importance to the property especially assessed for the expense of it, are not public, but are local and private” within the meaning of a statute which exempted cemeteries from “all public taxes, rates and assessments.” “Publictaxes, rates and assessments are those which are levied and taken out of the property of the person assessed, for some public or general use or purpose, in which he has no direct, immediate and peculiar interest.” (id.)

Now the Act of 1868 speaks of the charges and impositions which it authorizes to be laid upon the lands within a reclamation district as taxes; and in providing for their assessment it provides for taxation; and an Act which provides for taxation relates to taxation and, as before stated, this Act relates to local taxation, if to any. Therefore it was not repealed by the Political Code. Whether it could be repealed without impairing the obligation of a contract is a question which it is not now necessary to decide.

Judgment reversed with directions to the Court below to overrule the demurrer with leave to the defendant to answer within ten days after being notified thereof.

McKinstry, Myrick, McKee, and Thornton, JJ., and Morrison, O. J., concurred.