110 N.Y. 216, In re Miller

Citation:110 N.Y. 216
Party Name:In the Matter of the Estate of MARY E. MILLER, Deceased.
Case Date:October 02, 1888
Court:New York Court of Appeals

Page 216

110 N.Y. 216

In the Matter of the Estate of MARY E. MILLER, Deceased.

New York Court of Appeal

October 2, 1888

Argued June 5, 1888.

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William H. Harris for appellant. By the amendments of 1887 the petitioner was exempted from any tax under the collateral inheritance act of 1885. (People v. Davenport, 91 N.Y. 585; Potter on Statutes, 164, 191, 192; Butler v. Palmer, 1 Hill, 333; 1 Kent Com. 455.) Acts which are in favor of the citizen are not obnoxious to constitutional objection as being retrospective. (Potter on Statutes, 167.) Acts of the nature of those under consideration must be taken together, as if they were one and the same act, 'and the first must be read as containing in itself the words, the amendment supplied by the last.' (Potter on Statutes, 172.) All rights which necessarily depend upon the statute are lost by its repeal. (5 Abb. Dig. 596; 1 Bl. 541; 3 Burr. 1456; 12 Munroe, 357; 4 Bing. 212; Butler v. Palmer, 1 Hill, 324; People v. Livingstone, 6 Wend. 526; People v. Gold and Stock Tel. Co., 98 N.Y. 78; Heckman v. Pinkney, 81 id. 211; U.S. v. Claflin, 97 U.S. 546; Union Pacific R. R. Co. v. Cheyenne, 113 id. 516.) In looking for the intent of the legislature, not only the language of the statute may be resorted to, but also the circumstances which occasioned its enactment and the object professed in its title,

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and if by these aids the intent of the act can be clearly ascertained, effect may be given to it, although no retrospective words are contained in the law. (People v. Molyneaux, 40 N.Y. 113; People v. Suprs. Columbia Co., 43 id. 132; Ayers v. Lawrence, 59 id. 196; People ex rel. Witherbee v. Supervisors, 70 id. 236; Cook v. Wood, 71 id. 371; People ex rel. v. Davenport, 91 id. 585; Banks v. Quackenbush, 3 Denio, 594.) All rights depending solely on a statute are lost by its repeal, unless some reservation is made in the repealing statute. (Moore v. Mausert, 49 N.Y. 332; Benton v. Wickwire, 54 id. 226; Nash v. White's Bank of Buffalo, 105 id. 245; Gorley v. Sewell, 77 Ind. 316; McQuilkin v. Doe, 8 Blackf. 581; Mount v. State, 6 id. 25; Blaiden v. Abel, 6 Iowa, 5; Byan v. Harvey, 11 Texas, 311; Rafter v. Sullivan, 13 Abb. 263; Cheney v. Wolf, 2 Lans. 188; In re Surrogate of Cayuga Co. 46 Hun, 657.) Notice of an application for an order directing payment of the tax should have been served on the petitioner. (Cooley on Taxation, 432; McMullen v. Anderson, 95 U.S. 31; In re McPherson, 104 N.Y. 323.) No clause having been inserted in the act of 1887 saving taxes, which might have been levied under the act of 1885, but were not, the remedy is gone as to such taxes not levied. (Ross v. Lane, 11 Miss. 695; Abbott v. Britton, 23 La. An. 511; Mount v. State, 6 Blackf. 25; McQuilkin v. Doe, 8 id. 581.)

William Vanamee for respondent. The law of 1887 had no retroactive effect, and did not operate to destroy a debt already due and payable to the state. (N.Y. & O. M. R. R. Co. v. Van Horn, 51 N.Y. 473; Fitzpatrick v. Boylan, 57 id. 433; Dash v. Van Kleeck, 7 Johns. 499; Jarvis v. Jarvis, 3 Edw. Ch. 462; Berley v. Rampacher, 5 Duer, 183; People v. Supervisors of Columbia Co., 43 N.Y. 130, Wood v. Oakley, 11 Paige, 400; People v. Supervisors Ulster Co., 63 Barb. 83; People ex rel. Wade v. Strack, 1 Hun, 96; Murray v. Gibson, 15 How. [ U. S.] 421; Heong v. United States, 112 U.S. 526; Citizen's Gas-Light Co. v. Alden, 44 N. J. 648, North Bridgewater Bk. v. Copeland, 89 Mass. 139; Whitman

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v. Hapgood, 10 Mass. 437; City of New Orleans v. L'Hote, 35 La. An. 1117; City v. Vergnole, 33 id. 258; City of New Orleans v. Rhenish W. Lloyds, 31 id. 781; City of Oakland v. Whipple, 44 Cal. 303; Hosmer v. People, 96 Ill. 58; Price v. Mott, 52 Pa. 315; Gilman v. City of Sheboygan, 2 Black, 510; Moran v. Com. of Miami Co., 2 id. 722; State v. Kinne, 4 N. H. 238.)The portions of the sections which are repeated are to be considered as having been the law from the time they were first enacted, and the new provisions are to be understood as enacted at the time the amended act took effect. (Benton v. Wickwire, 54 N.Y. 226; Ely v. Holton, 15 id. 595; People ex rel. Van Keuren v. Town Auditors, 74 id. 310; People v. Com. Town of Palatine, 53 Barb. 70.) When the legislature intend to give the law of their enactment operation upon the past, they will and must do it with such choice of words as places it beyond the realm of doubt. (Citizens' Gas-Light Co. v. Alden, 44 N. J. 648.)

Thomas F. Wentworth for executors of George W. Parsons, deceased. The imposition of the tax itself does not constitute a vested right in the state which the legislature cannot repeal. (Sedg. on Stat. and Const. Law, 202; Butler v. Palmer, 1 Hill, 333, 334, 335; Smith's Com. on Stat. Law, 890; People v. Supervisors, 67 N.Y. 109; Lamb v. Schottlier, 54 Cal. 322.) In construing a statute the old law must be considered, the mischiefs or inconveniences or hardships produced by it, and then the remedy proposed by the new law or statute. (43 Ill. 215.) We may look to the occasion of the enactment of a law to assist us in determining its character as retro or prospective. (People, etc., v. Supervisors, 70 N.Y. 236.) The repeal of a tax law puts an end to all right to proceed to a levy of taxes under it, even in cases already commenced, unless the right is reserved in the repealing statute, and statutes and statutory remedies for the enforcement of a tax are gone when the statute is repealed without an express saving. (Cooley on Tax. [ [2d ed.] 18; Bailey v. Mason, 4 Minn. 550; Dunwell v. Bidwell, 8 id. 34; Smith's Com. on Stat. and Const. Construction,

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890; Beebe v. O'Brien, 10 Wis. 481; State v. Ingersoll, 17 id. 631; State v. Andrews, 20 Tex. 230; McKibben v. Lester, 9 Ohio, 627; Bennett v. Hargas, 1 Neb. 419; People v. Van Nort, 64 Barb. 205; Fenelons' Petition, 7 Barr [Pa.] 173; Stoever v. Immell, 1 Watts [Pa.], 258; North Canal St. Road, 10 id. 351; Comm. v. Cowley, 1 Ashmead [Pa.] 179.)


The question passed upon by the surrogate was brought before him by the petition of Francis Lynch, verified on the 29th of August, 1887, and upon notice to, among others, the executors of the will of Mary E. Miller, to the treasurer of the county of Orange, and to the comptroller of the state of New York. By that petition it was stated that the testatrix died September 30, 1886, after providing by will that the petitioner should receive the income of a certain portion of her estate until he attained the age of twenty-eight years, and at that time have that portion of the body thereof...

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