Lockport Union-Sun & Journal, Inc. v. Preisch

Goldman, J. (dissenting).

The prevailing opinion quite correctly asserts that this ease turns upon the construction of section 12 of the Tax Law, but I am unable to agree with the result reached. In my view the majority opinion fails to take due heed of well-recognized canons of statutory construction. It is arguable whether the statute is ambiguous. The pivotal words are 1 ‘ tabulated statements ’ ’ and it is with the definition of these words that I cannot concur. I am not unmindful of Judge Leabned Hand’s wise admonition that one should not make “ a fortress out of the dictionary” (Cabell v. Markham, 148 F. 2d 737, 739) but surely he did not intend by that sage remark to advocate that words do not generally mean what they are defined to express by our accredited lexicographers. The Century Dictionary and Cyclopedia (Vol. 9, p. 6151) defines tabulate ‘ ‘ To put or form into a table or tables; collect or arrange in lines or columns; formulate tabularly: as to tabulate statistics or a list of names.” (And, see, Colvin v. Mills, 214 Ky. 812, 819; Kunkle v. Coleman, 174 Ind. 315, 321; Jones v. Cooper, 230 Ky. 566, 569; Matter of Inselbuch v. Helfand, 266 N. Y. 155, 156; Matter of Goldin, 171 Misc. 761, 762.) “ Some statutes are framed in language so plain that an attempt to construe them is superfluous. The function of the courts is tó enforce statutes, not to usurp the power of legislation, and if the legislative intent is clear no attempt at construction will be made. * * * When the language is explicit, the courts are bound to seek for the intention in the words of the act itself to the extent that they are not at liberty to suppose or to hold that the Legislature had an intention other than their language imports.” (McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 76.)

*511It has also been said that 1 When the meaning of a statute is clear, construction is unnecessary; in such a case, the duty of the court is to carry out the expressed legislative intent, not to read a different intent into the law by the aid of canons of construction. But, if the intent of the law making body is not clear, and the construing power of the courts is therefore called into operation, they will be guided by the canons of interpretation, which long experience and the settled wisdom of the courts have uniformly approved. * * * The Legislature is deemed to have had knowledge of the rules of construction when they enacted a statute; and, in the absence of anything to the contrary, the courts suppose that the Legislature intended its acts to be interpreted in accordance with such rules ”. (McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 91.)

The tenor of the prevailing opinion is that administrative officers construed “ tabulated statement ” as if the Legislature has said ‘ summarized ’ ’ statement and that it is logically difficult to give the words “ tabulated statement ” used at two different places in the same section a different meaning.

The difficulty with that reasoning, as I view it, is the failure to recognize that different administrative officers are involved and the “ tabulated statement ” is to serve a different purpose in its use by the distinctly different officials. The 1957 opinion of the Attorney-General commencing at page 291 of the official opinions points out at page 294:

“ Bearing in mind the different purposes of the requirements respecting publication in the newspapers and publication by the State Tax Commission in its annual report and the context in which the word is used in the statute, I am of the opinion that the requirements of the statute respecting newspaper publication are not met by the publication of a summary statement reflecting the number of parcels and the gross amount exempted in each class of tax exemption.

“ The purpose of the inclusion in the report of the State Tax Commission of ‘ a complete tabulated statement based upon the statements transmitted to it ’ is to show the over-all effect of such exemptions upon the economy of the State. It is, therefore, perfectly proper to read the word ‘ tabulated ’ as requiring only a segregation of the number of parcels and the amount of exemptions in each tax exempt classification. On the other hand, the purpose of the publication in the newspapers is to advise local taxpayers of the specific properties that have been exempted in cities and to guard against errors, discrimination and fraud. This purpose is wholly defeated by the publication of a summary statement and I am, therefore, *512constrained to read the Avords ‘ a tabulated statement of the returns received ’ in the sense that the statement is the preparation in tabular or table form from all of the various returns prepared by the local assessment officers of the city. Such a construction carries out the basic intent of this provision of the statute.

‘ ‘ In ansAver to your inquiry, therefore, I am of the opinion that the statement required to be published must list all of the individual properties which are exempt from taxation.”

It is undisputed that for many years prior to 1955 respondent-appellant or her predecessor as Clerk of the Board of Supervisors of Niagara County, New York, the officers charged with the administration of the statute, published a full and complete list in tabulated form of all property situated within the city exempt or partially exempt from taxation Avith the names of the oAvners as contained in the forms and blanks of the State Tax Commission furnished to respondent-appellant by the Commissioner of Assessment and Taxation of the City of Lockport.

Further not mentioned in the prevailing opinion is the fact that in 1910, in the Report of the Attorney-General there is an official opinion to the State Board of Tax Commissioners in the course of which the statement is made at page 677 ‘ in each city from which returns of exempt property are received, there shall be published in the official papers of such city a copy of the exempt list from such city as disclosed by said returns ”. True it is that the primary question there involved was whether the published list need only include the exempt property Avithin the city limits. The fact remains, however, that the Attorney-General there construed tabulated statement ’ ’ as contained in the 1904 statute as requiring publication of the exempt list. Despite such construction, which remained unchallenged for almost half a century, the Legislature, although making changes in the statute in 1916 and renumbering the section in 1933, left unchanged the words ‘ tabulated statement ’ ’.

It was not until 1956 that the Attorney-General, in an informal opinion which does not even appear in the published volume of Informal Opinions for 1956, construed the statute as requiring the publication of a summary statement; not a tabulated statement as provided in the statute. The informal opinion thus made on August 15, 1956 was short-lived. The formal opinion of the present Attorney-General was made on January 23, 1957.

*513We have then two bases for concluding that the words as used in section 12 of the Tax Law, as they relate to the publication in the official paper or papers of the city involved, require not a summary but a published list of all of the individual properties. It has been uniformly held that: “ ‘the practical construction of a statute by those for whom the law was enacted, or by public officers whose duty it is to enforce it, acquiesced in by all for a long period of time, is of great importance in its interpretation in a case of serious ambiguity. ’ (Grimmer v. Tenement House Department of N. Y., 205 N. Y. 549, 550.) ” (People ex rel. Werner v. Prendergast, 206 N. Y. 405, 411.) (See, also, Matter of Smith, 279 N. Y. 479, 489.) Again the statement is made in Hassan v. City of Rochester, 67 N. Y. 528, 534-535: ‘ ‘ The reports of public officials to the legislature, also, show the payment of numerous assessments of a similar character, and the Session Laws, for a series of years, down to the present time, make provision for the same, thus giving a legislative construction to enactments of this character. This practical construction continued for a long period of time, is entitled to a great weight in the interpretation of a statute unless the legislation and practice is manifestly in violation of the words used, and has almost the force of a judicial exposition.”

Despite conflicting views by certain State public officials, so far as the record before us discloses, the respondent-appellant until 1955 for many consecutive years published a complete list of all the exempt or partially exempt properties. There was thus a practical construction placed upon the statute by the official or officials in question which construction, in my opinion, is entitled to substantial weight.

I believe, however, that the most impelling reason for construing the statute as I have is based upon the 1957 opinion of the Attorney-General, the final official word by that office reaffirming the 1910 opinion and the subsequent re-enactment of the statute (L. 1958, eh. 959) without substantial change. In those circumstances, except that there is lacking court definition, the following excerpt from Matter of Gilmore v. Preferred Acc. Ins. Co. (283 N. Y. 92, 97) is persuasive: “ The use of these terms, therefore, falls within the recognized principle that where terms have been defined by the courts and the Attorney-General, it is presumed that the continued use of those terms by the Legislature subsequent to the definitions is in accordance with the meaning thus defined.”

It has been contended that publication of the list containing the names of exempt property owners rather than just the sum*514maries of categories of exemption would be an undue expense to the county. In the instant case it is argued that the complete list would cost $952.56 as against $18 for the summarized statement. Even if the amount involved were many times greater than the modest cost of publishing the entire list in a “ tabulated statement ” as mandated by the statute, I would remind the respondent-appellant that the cost of informing our citizens of the affairs of their government and thereby inciting their interest in it, whether it be fiscal or otherwise, can never be too great. A free and responsible society should demand no less.

Accordingly, I dissent and vote for affirmance.

All concur, except Goldman, J., who dissents and votes for affirmance in a separate opinion. Present—McCurn, P. J., Williams, Bastow, Goldman and Halpbrn, JJ.

Order reversed on the law, without costs of this appeal to either party and petition dismissed.