[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 378 Robert Szold and Jess G. Schiffman for Amalgamated Housing Corporation et al., amicus curiae. In 1926, when the Legislature enacted the State Housing Law (Laws of 1926, ch. 823; since repealed L. 1939, ch. 808, now covered by Public Housing Law [Cons. Laws, ch. 44-a]), it declared the purpose of the act in its title to be "To promote the public health and safety by providing for the elimination of unsanitary and dangerous housing conditions, to relieve congested areas, and the construction and supervision of dwellings and for the letting of apartments at reasonable rentals." Within the declared purpose, the law authorized the organization of limited dividend companies to construct and maintain low cost housing projects. To encourage the formation of such companies and the investment of funds therein, special privileges were granted to such companies including the following: "Any public limited dividend housing company formed hereunder shall be exempt from the payment of any and all franchise, organization, income, mortgage recording and other taxes to the state and all fees to the state or its officers." (State Housing Law, § 39.) Private limited dividend housing companies were granted a similar *Page 379 exemption. (State Housing Law, § 51.) Provision was made in the act for a State Board of Housing upon which was imposed the obligation of supervising the construction and maintenance of housing projects by limited dividend companies, and the control of rentals and the auditing of their accounts. Until 1934, the expenses of the Board in performing these duties were not imposed upon the companies but were borne by the State. In 1933 (L. 1933, ch. 802) the Legislature amended section 16 of the State Housing Law relating to the accounting feature of housing companies by providing that among the expenses of construction and operation of such companies there should be included such an amount as the Board might fix to reimburse it in whole or in part for its expenses of inspection, supervision and auditing, and the companies were directed to pay such amount to the Department of State. The amending statute also provided that the amount so paid should be included as a factor in determining the maximum amount of rentals. The purpose of this last provision was to enable the companies to shift the burden of these payments to their tenants. Acting upon the provisions of this amendment the State Board of Housing, by resolution, fixed the charge for the expenses required to be paid by each limited dividend housing company for the year beginning July 1, 1934, at one-twentieth of one per cent of the original cost of each completed project.
Defendant is a private limited dividend company organized in 1928. The amount payable by the defendant as fixed by the Board for the Board's services for the year beginning July 1, 1934, was $622.87. To recover this sum the State brought this action. The defendant's answer consisted of four separate affirmative defenses, which, in substance, alleged the inapplicability of the amendment of the State Housing Law enacted in 1933 to the defendant and alleged, if otherwise applicable, the invalidity of the amendment on three different constitutional grounds. The sufficiency of each of these defenses is before us upon this appeal. *Page 380
Defendant contends that the statute is not applicable to it because it was organized and had completed its buildings prior to 1933 when the statute was enacted. The law itself makes no such distinction. It relates to all limited dividend housing companies whenever organized. It merely amends provisions already applicable to the defendant by adding, for the future, a new item to its expenses. (Cf. People ex rel. New York Electric LinesCo. v. Squire, 107 N.Y. 593; affd., 145 U.S. 175.)
Passing then to the validity as distinguished from the applicability of the amendment, we reach the contentions of the defendant that the statute impairs the obligation of a contract, deprives the defendant of property without due process of law and illegally delegates legislative powers.
The defendant claims that the exemption from the payment of certain taxes and fees is violated by the amendment. Exemptions from taxation which have induced action in reliance thereon, as the defendant may well contend that the exemption here has done, may not be invalidated by subsequent legislation. (People exrel. N.Y.C. H.R.R.R. Co. v. Mealey, 224 N.Y. 187; affd.,254 U.S. 47.) Tax exemptions, however, are limitations of sovereignty and are strictly construed. (Hale v. State Board ofAssessment, 302 U.S. 95; Perry Co. v. City of Norfolk,220 U.S. 472.) If ambiguity or uncertainty occurs, all doubt must be resolved against the exemption. (People ex rel. Mizpah Lodge v.Burke, 228 N.Y. 245.) The exemption upon which defendant relies is not a general exemption from all exactions on the part of the State but only from certain types of taxes and fees; franchise, organization, income, mortgage recording, are the types specifically mentioned, and then follows, "and other taxes to the state and all fees to the state or its officers." The payment here required to be made by the defendant must fall, if within the statute at all, within the general exemption. It is to be noted that the sum is payable to the Department of State for a specific purpose. It does not naturally fall within the content of the word "tax." A tax in the strict sense is payable into *Page 381 the general fund of the government to defray customary governmental expenditures. (Morgan's SS. Co. v. LouisianaBoard of Health, 118 U.S. 455; United States v. Butler,297 U.S. 1, 61.) The word "fee" is of more doubtful meaning. It is scarcely a word of art and must be interpreted as it is commonly understood. We are familiar with recording fees, with filing fees, with fees in judicial proceedings, such as "term fees," "trial fees," "jury fees." These are all of general application. Here the exaction does not occur in the ordinary course of relations between the government and its citizens. It is particularized in application; it is not general. We are wholly unfamiliar with such a payment being designated as a fee. It is to be noted that the payment for which provision is made in the amendment is called in the law neither a tax nor a fee, but a charge. A similar use of terms occurs in the Public Service Law in relation to the requirement for payment of the expenses of the Public Service Commission. (Public Service Law [Cons. Laws, ch. 48], §§ 18 and 18-a. Cf. Banking Law [Cons. Laws, ch. 2], § 17; Insurance Law [Cons. Laws, ch. 28], § 32.) We recognize that in the discussion of governmental exactions imposed in other statutes the words "tax" and "fee" and "charge" are sometimes indiscriminately used. (Great Northern Ry. Co. v. Washington,300 U.S. 154; Foote Co. v. Stanley, 232 U.S. 494, 504.) Taking into consideration the kind of taxes which the statute specifies as indicating the kind of exactions from which the housing companies are to be exempt, we cannot say that the exemption in question is definite enough and sufficiently free from ambiguity to give protection against this direction for the payment of the Board's expenses. As the exemption is not to be construed as excluding the requirement for this payment, the constitutional guaranty is not infringed.
The argument of the defendant that the amendment is invalid as a violation of the due process clause is based on the circumstance that no provision is made in the statute for a hearing in respect to the distribution of the Board's expense and the amount to be allocated to any particular company. *Page 382 This argument was before the Supreme Court of the United States in People ex rel. New York Electric Lines Co. v. Squire (supra), where a public service corporation was required to pay a part of the expenses of a State Board for supervision and the claim of invalidity on the ground mentioned was rejected.
The last contention of the defendant is that the amendment is invalid as an illegal delegation of taxing power. The requirement for payment is not imposed by the State Board, but by the Legislature itself. The only power that is delegated is the power to allocate particular expense. This is a delegation clearly permissible. (Matter of Village of Saratoga Springs v.Saratoga Gas, Electric Light Power Co., 191 N.Y. 123; Matterof Mt. Hope Development Corp. v. James, 258 N.Y. 510.)
For these reasons we conclude that none of the defenses is sufficient in law, and that the order of the Appellate Division should be reversed, and the judgment of the Special Term affirmed, with costs in this court and in the Appellate Division, and that each of the certified questions be answered in the negative.
LOUGHRAN, LEWIS and CONWAY, JJ., concur; LEHMAN, Ch. J., FINCH and RIPPEY, JJ., dissent.
Ordered accordingly. *Page 383