The Law Taxing Real Property Is Constitutional. § 220 immediately the tax upon contingent estates at the highest rate which, on the happening of any of the said contingencies or conditions, would be possible and making such tax due and payable forthwith out of the property transferred, was held constitutional in the Matter of Vanderbilt, 172 N. Y. 69; Matter of Brez, 172 N. Y. 609. Chapter 658, Laws of 1900, relative to the appointment of transfer tax appraisers in the counties of New York, Kings, and Erie, was declared constitutional, as it was not a local act and, therefore, did not come within the provisions of the Constitution, that no private or local bill shall embrace more than one subject, which shall be expressed in the title. Matter of Wallace, 71 App. Div. 284, 75 N. Y. S. 838. Chapter 173 of the Laws of 1901 (§ 230), allowing the county treasurers of certain counties to act as appraisers, although retaining a certain percentage of all transfer taxes paid and accounted for by him each year as a part of his fees, was held constitutional in the Matter of Fuller, 62 App. Div. 428, 71 N. Y. S. 40, revg. same case, 34 Misc. Rep. 750. 5. Constitutionality of Chapter 41, Laws of 1903. The constitutionality or validity of chapter 41 of the Laws of 1903, in effect March 16th of that year, amending section 221 of the Transfer Tax Law, so as to impose a tax upon the transfer of real as well as personal property to those in the 1-per-cent. class, has been attacked upon a somewhat unusual ground, to-wit: That the certificate of the Secretary of State attached to said act, invalidates the act, in that it states that it was "Passed a majority being present," whereas section 25 of article III of the Constitution of the State, provides as follows: § 220 The Law Taxing Real Property Is Constitutional. § 25. On the final passage in either house of the Legislature, of any act which imposes, continues or revives a tax, or creates a debt or charge, or makes, continues or revives any appropriation of public or trust money or property, or releases, discharges or commutes any claim or demand of the State, the question shall be taken by yeas and nays, which shall be duly entered upon the journals, and three-fifths of all the members elected to either house shall in all such cases, be necessary to constitute a quorum therein. In the Matter of Weeks (not reported), the decedent died possessed of real estate in this State valued at $38,000, which she devised to her son, and upon the confirmation of the report of the appraiser, before Surrogate Howell of Orange county, the State Comptroller claimed that this real estate was taxable at 1 per cent., the decedent having died subsequent to the passage of chapter 41 of the Laws of 1903. The executors contended that only a majority of the Legislature was present at the passage of this act, and that the evidence of this fact is shown by the original certificate annexed to this bill, which certificate is required to be annexed by the presiding officer of each house, according to section 40 of the Legislative Law, upon the passage of a bill where three-fifths of the Legislature are constitutionally required to be present, and that chapter 41 as published in the Session Laws of 1903 is certified to have been passed by a majority, and not in the presence of three-fifths of the members of both houses. Section 40 of the Legislative Law reads as follows: Certificate of presiding officer: Upon the passage of a bill or concurrent resolution by either house, the presiding officer thereof, shall append to such bill or resolution, a certificate of the date of its passage by the votes of a majority of all the The Law Taxing Real Property Is Constitutional. § 220 members elected to such house or in the presence of three-fifths of such members, if such be the case, or by the votes of twothirds of all members elected to such house, as the case may be. No bills shall be deemed to have so passed unless certified by the presiding officer, which certificate to such effect shall be conclusive evidence thereof. The surrogate in entering the order assessing a tax upon this real estate filed a memoranda of his decision, the important part of which, after referring to the objection raised by the executors, is as follows: 66 a tax" I am, therefore, forced to the conclusion that this law was passed by a majority vote, and not by three-fifths of the members being present, and that the constitutional objection would apply to this act which imposes, continues or revives a tax," if the words mean any tax and to include all taxes. We find, however, that these same words "An act which imposes, continues or revives a tax" used in another part of the Constitution, have been interpreted by the Court of Appeals of this State in the Matter of McPherson, reported in 104 N. Y., page 306, where it was held that the word "tax as used in the expression, "which imposes, continues or revives a tax" means a general tax, an annual recurring tax, and does not include any special tax. In the opinion of Earl, Justice, in that case, the following language is used: We are of the opinion that this section of the Constitution is not applicable to this case. In terms it applies to every tax which the Legis. lature can impose and is not confined to a property tax. It is not even by its terms confined to a general tax embracing the whole State; but the language, literally construed, is broad enough to embrace every local tax imposed for local purposes. As stated above, taxes may be imposed upon a great variety of objects. They may be direct or indirect, special or general, and they may be imposed in the shape of excise and licenses, upon hawkers, peddlers, auctioneers, insurance agents, liquor dealers and others. All the contributions for the support of the government, enforced from individuals in the various ways mentioned, are, properly speaking, taxes. Notwithstanding the general language of the section referred to, we do not think it was intended to apply to every tax which the Legislature could impose, and so it has been held. The object of the constitutional provision was to convey information to the members of the Legislature and to the people, and it should have a practical construction with a view to accomplish its purpose so far as attainable, and to carry out the policy which we may assume dictated it. The tax imposed by this act is a permanent one. It is always uncertain upon whom it will fall and how much revenue it will produce. It would have been impossible for the Legislature, perhaps years in advance, to specify the particular objects to which the tax should be applied, and we are of the opinion that this section of the Constitution § 220 The Law Taxing Real Property Is Constitutional. was intended to apply to the annual recurring taxes known at the time of the adoption of the Constitution and imposed generally upon the entire property of the State. The Legislature would know definitely the objects for which such taxes were imposed and could anticipate, with some certainty, the amount which they would produce; and in their imposition it was deemed important by the framers of the Constitution that the object of the tax should be stated. But we do not think that the policy embodied in the section had any reference to special taxes which may be collected in a variety of ways under general laws, such as auction duties, excise duties, taxes on business or particular trades, avocations, or special classes of property. This case has been followed in the Matter of Clark v. Sheldon, 106 N. Y. 104, and in the Matter of the Will of Vassar, 127 N. Y. 1. I conclude, therefore, that these words, "An act which imposes, continues, or revives a tax" as used in the Constitution, have been defined and interpreted by the highest court of this State, and that this language is not to be interpreted as applying to any and all taxes, but only the annual recurring general taxes, and that the tax in question, the transfer tax, is a special tax and that the constitutional provision, therefore, does not affect it. The order to be made herein will, therefore, include a provision fixing a tax of 1 per cent. upon the reported value ($38,000) of the real estate passing from the decedent to her son, Thomas W. Weeks. Upon appeal to the surrogate, the order was affirmed June 12, 1905, upon the further ground that from the journals of the Senate and Assembly respectively, for the year 1903, it appears that the act was passed by a majority, three-fifths being present. The Appellate Division of the Second Department (Matter of Weeks, 109 App. Div. 859), in affirming the order of the Surrogate's Court, held that it was unnecessary to determine whether the provision of the Constitution referred to in the surrogate's opinion only applied to general tax laws, or that the act in question was a special tax law, and, therefore, not within said constitutional provision, because it is clear that the certificates in question are defective, and that, therefore, resort may be had to the journals to prove the fact. The order of the Appellate Division was thereafter affirmed by the Court of Appeals (Matter of Weeks, 185 N. Y. 541) on authority of Matter of Stickney, 185 N. Y. 107. Id.; the Matter of Stickney. Id.; the Matter of Stickney. § 220 This same question was first raised by appeal in the Matter of Stickney, before Surrogate Fitzgerald of New York county, and the Law Journal of June 9, 1905, contains the opinion of the surrogate, affirming the order assessing the tax and holding the law constitutional. It appears that in June of 1904 certain amended certificates were made by the ex-president of the Senate of 1903 and the ex-speaker of the Assembly of that session, and were filed in the office of the Secretary of State and attached to the original act, which read that the bill was duly passed, a majority of all the members voting in favor thereof, three-fifths being present. On the hearing before the appraiser the Comptroller introduced in evidence extracts from the journals of the respective houses, which establish that on the final passage of the bill the requisite three-fifths were present. The appellants claim that the original act and certificates are conclusive; that the amended certificates and affidavits filed therewith were inadmissible in evidence, as incompetent, and that the amended certificates were appended to the original bill without authority of law. They also contended that neither the extracts from the Journals, nor the Journals themselves, are legitimate evidence, as they were not records by common law and have not been made so by statute. Before 1892 there was no provision of law making the certificate of the presiding officer conclusive evidence as to the manner in which bills were passed, and the surrogate in his opinion states that, as an important fact to be kept in mind, as no decision by the courts of this State has been cited which arose under a law |