Pumpelly v. Village of Owego

45 How. Pr. 219

• Court: New York Court of Appeals
• Decided: June 15, 1863
• Status: Published

Opinion

Balcom, J.

This action being an equitable one, the plaintiff is not entitled to judgment as a matter of course. He is obliged to apply to the court for the relief demanded in the complaint (Code, § 246, sub. 2). And there being no answer, he cannot have any relief exceeding that demanded in his complaint (Code, § 275). When judgment has been entered by default, upon a complaint that does not show a cause of action, the defendant may appeal therefrom to the general term (Raynor agt. Clarke, 3 Code, 230; Caincs, 104; Gra. Pr., 2d ed., 641; Wilkingson agt. Tiffany, 4 Abb., 98). And I am of the opinion the plaintiff should not have judgment in an action wherein he must apply to the court for it, though the defendant do not answer, if the complaint does not state facts sufficient to constitute a cause of action. The amount of tax assessed upon the defendant’s property is only forty dollars and seven cents; but the value of the horse which the collector seized on the warrant for the collection of it is $180. How, if the tax is void, the plaintiff has a perfect legal remedy against the trustees who issued the warrant, and must pursue that; and I think the suspicions and belief of the plaintiff, that the defendant is about to assess other taxes on his property, do not furnish any ground for restraining the assessment thereof; and I am of the opinion the complaint does not state facts sufficient to constitute a cause of action of an equitable nature, and equitable relief only is demanded in it. This conclusion agrees with that arrived at by brother Mason, when he decided the motion to dissolve the temporary injunction issued in the action. The motion for judgment for the relief demanded in the complaint must be denied, with ten dollars costs.

From this order, denying plaintiff’s application, he appealed to the court at general term, where the order was affirmed; from which order of affirmation he now appeals to this court.

I. If it is true that the complaint does not state facts sufficient to constitute a cause of action of an equitable nature, still plaintiff is entitled to the relief demanded.

1. We insist that the default of the defendant to answer or demur, in all cases, entitles the plaintiff (under sub. 2, § 246, Code) to the relief'demanded in the complaint.

The relief, of course, must be such as the court has power to grant; but, we submit, there is no other qualification.

All the conditions required by this provision of the Code, to entitle the plaintiff to judgment, are:

1st. A summons and complaint.

2d. Service and proof thereof.

3d. Failure to answer or demur; then,

4th. The judgment may be had.

The word “ may,” in that connection, we insist is imperative, entitling the plaintiff to the judgment, and requiring judgment to be rendered.

Thus it was held in Alderman Backwells Case (1 Vern., 152) that the chancellor was bound to grant a commission of bankruptcy, on due application and proof, though the words of the statute were that he may grant (Newburgh Turnpike Co. agt. Miller, 5 J. Ch. R., 113).

The complaint may be defective, still “judgment may be had.” The remedy for such defects is -by demurrer.

The Code is professedly an entire if not a perfect system of practice. The rights and the remedies prescribed are intended to be exclusive, and not concurrent with others differing from them. The causes of demurrer are to be taken advantage of by demurrer, and not by motion or on motion.-

If the court, on motion for judgment, give effect to the objection that the complaint does not set out a cause of. action and deny the motion, the anomaly is presented of an action remaining in court with no mode of terminating it, either by judgment or otherwise. And the provision of the Code, “ that judgment may be had,” is nullified.

The position which we here take is in accordance with the old practice.

“A judgment by default is an implied admission of the plaintiff’s cause of action ” (1 Dunlap's Pr., 374, and note 23).

Paine and Duer enumerate four descriptions of judgment, of which the third mentioned is as follows :

“ 3. For the plaintiff, when the facts, and the law arising thereon, are admitted by the defendant; which is the case in judgments by confession, non sum informatus and nihil dicit” (2 Paine & Duer Pr., 231, 232).

The judgment which we ask for here is like the former judgment by nihil dicit, on which the facts and the law arising thereon are admitted by the defendant.

So, in the court of chancery, upon a bill taken fro confesso, Hoffman,, in his practice, says: “ According to my experience the course of our courts has been to allow the plaintiff to take a decree according to his prayer ” (1 Hoff. Pr., 551).

And in the supreme court, under its present organization, where a suit was commenced by a tax-payer to restrain the common council of Hew York from certain alleged misappropriations of the funds of the city, and default was made, no answer or demurrer having been put in, judge Edmonds held, upon application by the plaintiff for the relief demanded in the complaint, that the defendants, by suffering the bill to be taken as confessed, had conceded the jurisdiction of the court, as well as the title to the relief asked for, and gave judgment accordingly (Adriance agt. The Mayor of New York, 1 Barb. S. C. R., 19).

“ When a-bill praying an injunction is taken pro confesso, a perpetual injunction will be decreed ” (Eden on Injunctions, 253, 1st Am. ed).

But a ground of objection to this motion has been attempted to be drawn from the former practice of this court, by which judgment was sometimes arrested.

True, after judgment by default, the defendant might, within four days after entry of judgment under the former practice, move in arrest of judgment for any such defect in the declaration as would render the judgment reversible.

Hnder the Code, however, there can be no such thing as a motion in arrest of judgment.

The entry of judgment in all cases is specifically provided for by the Code, and, when entered, it is a final judgment, and there is no power left in the court to modify the practice in this respect.

If there be sueh defect in the complaint now as would, under the former practice, authorize, an arrest of judgment, such defect can be taken advantage of only by demurrer or appeal; arrest of judgment is excluded:

Besides, this is not a case for arrest of judgment, even under the old practice. It will not be pretended that no cause of action is set out in the complaint. The utmost that is pretended is that no cause of action of an equitable nature is set out; and it is said that plaintiff has an adequate remedy at law. °

Section 148 of the Code does not apply to cases of default (15 How. Pr. R., 500).

“A defendant cannot move for a nonsuit on the ground of the insufficiency of plaintiff’s complaint” (Kelly agt. Kelly, 3 Barb., 419).

“ If complaint be defective, its sufficiency ought to be tested by a demurrer, and not on a motion for nonsuit ” (Id.; and see Carley agt. Wilkins, 6 Barb., 557, 562-564). “ The Code is silent as to the time and manner in which defendant,’after failing to demur td complaint, can insist that it contains no cause of action. In determining this question we must be .governed by the analogy of the former practice.”

He is manifestly entitled, therefore, to the benefit of some judgment. Hence, an arrest of judgment would not begranted.

2. There being a cause of action set forth in the complaint, even if that is but a legal cause of action, the defendants cannot, in this way and at this time, object to the equitable relief demanded.

The defense in equity, of want of jurisdiction in the court, on the ground that the plaintiff has a perfect remedy at law, cannot be made at the hearing if not set up in the answer (Leroy agt. Platt, 4 Paige, 77; Truscott agt. King, 2 Seld., 147; Grandin agt. Leroy, 2 Paige, 509; Hawley agt. Cramer, 4 Cow., 726, 727). The cases above cited were cases in which answers had been put in, but no objection was made in the answers that plaintiff had adequate relief at law; and it was held that such objection could not be first made at the hearing.

The defendants had, in the language of the chancellor, in Mawley agt. Urmner, “ submitted the cause to the cognizance of the court, and they now come too late with this objection to its jurisdiction, unless the court be wholly incompetent to grant the relief which the complainants have sought by their bill.”

In the case now before the court, the defendants have appeared and “ submitted the cause to the cognizance of the court,” equally as if they had answered. The default to answer altogether does not place defendants in a better position, in respect to this question, than if they had answered, omitting to object to the jurisdiction; they have equally omitted now, to object to the jurisdiction, and are therefore not in a condition to object at the hearing.

The court is not incompetent to grant the relief sought.

In The Bank of Utica agt. City of Utica (4 Paige, 399) the parties, after bill filed, had stipulated to waive all objections to the jurisdiction of the court, in order to present the question of the right of defendant to tax the plaintiff on its “ surplus fund” to the decision of the court. The chancellor, in deciding the case, said: “ By the written stipulation between the parties for the purpose of bringing this question before the court for a decision upon the complainants’ bill alone, the defendants have expressly agreed to waive the objection that there was a certain and adequate remedy at law for the complainants, if the construction of the situate is as contended by them; and in this case there can be no doubt as to the power of the court, if it take jurisdiction of the cause, to give a perfect remedy to the complainants by the ordinary decree for a perpetual injunction against the collection of this tax” (7 Hill, 261).

The objection in this case being equally waived by the default, and the court having power to grant the relief, we submit confidently that we are entitled to it, and, consequently, that the order appealed from it erroneous and should be reversed.

II. The case shown by the complaint is one which entitles the plaintiff to the relief demanded.

1. As to the illegalities of the tax, when measured by the charter itself, under which defendants proceed, and which alone, perhaps, constitute ground for a legal action only, and would not alone, except for the default of defendants, be sufficient to warrant a demand of equitable relief, we will first refer to them.

(1.) Ho sufficient estimate, such as the charter requires, was made by the trustees, on which the sum of $1,000 was voted by the electors.

An estimate in detail, showing the sums necessary for each object of expenditure, was of course intended; else why require that it be subjected to the inspection of the electors for ten days prior to the time when they are to vote upon it ?

A mere statement of a gross amount, such as was made in this case, does not fulfill the requirement.

The estimate is, at the annual meeting, to be submitted to the electors; and “ thereupon” they may direct to be raised by tax on said village such sum “ as they shall deem necessary and proper,” not exceeding $1,000, for the purposes stated in the estimate.

How, as corporations (municipal as well as others) are strictly limited to those powers specially conferred upon them, and where power to tax is given, a power in derogation of the ' common law, it must be strictly pursued (4 Hill, 76), the electors, without the estimate required, had no authority to vote the tax (Halstead agt. The Mayor,. &c., of New York, 3 Corms., 433).

2. Apart of the lamp and watch tax, to wit, $269.47, to pay corporation bond to Cresson, Stewart & Peterson for lamp-posts, was assessed and levied on the whole village, and formed a part of the tax assessed against plaintiff, although he and his property were not within the lamp and watch "district, upon the property in which district the charter requires such tax to be raised.

3. The sum of ten dollars, to pay rent for pound, was added by the trustees to the $1,000 voted by the electors, without authority; also the sum of two dollars and sixty-seven cents.

These vitiate the whole tax.

2. But beyond this non-conformity to the charter, by which we mean the act of April 9, 1851, we contend that the act of April 15, 1857, under which defendants claim authority to tax plaintiff, confers no such authority, because,

1. That act is not an amendment of the charter, but an independent act, and carries with it to the new territory none of the provisions of the charter.

There is, in the act, no adoption of any of the provisions of the charter; no reference to the charter. It is a new act of incorporation, and is itself the only charter of the village thereby incorporated.

It has the powers given by" the general law to all corporations, but no others.

Section 3 of title 3, chapter 18, part 1 of the Revised Statutes provides as follows: “ In addition to the powers enumerated in the first, section of this title, and to those expressly given in its charter, or in the act under which it is or shall be incorporated, no corporation shall possess or exercise any corporate powers, except such as shall be necessary to the exercise of the powers so enumerated and given.”

The' power to tax is in derogation of common rights, and such power, especially, will not be implied (Sharp agt. Spier, 4 Hill, 76).

It is true that the title of the act is as follows : “ An act enlarging the boundaries of the village of Owego, in the county of Tioga.”

But the title is no part of the act (1 Kent Com,., 430, 1st ed.).

It may be resorted to for the purpose of removing ambiguities, where the intent is not plain; but where the words of the enacting clause are clear and positive, recourse cannot be had to it.

The true rulé is, as declared by Mr. J. Bulleb, in Crespigny agt. Wittenoom (4 Term R., Y93), that “ the preamble may be resorted to in restraint of the generality of the enacting clause, where it would be inconvenient if not restrained; or it may be resorted to in explanation of the enacting clause if it be doubtful. This is the whole extent of the influence of the title and preamble in the construction of the statute” (1 Kent Com., 431, 1st ed.).

The words of this statute are clear and positive; there is no ambiguity in them; hence, the title cannot be resorted to.

The same rule applies now under section 16 of article 3 of Cons.: “ The character (of an act) is to be determined by its provisions, and not by its title” (The People agt. McCann, 2 Smith, 61).

Besides, we may insist that it is unconstitutional because the title does not specify the subject of the bill.

But even if the intention was to enlarge the boundaries of ■the village, as then existing, there is no necessity that the provisions of the charter, in regard to taxation, should be extended over this enlargement. The legislature might well intend that the party brought into the village by this act should be exempt from municipal taxation. It was just, thus to exempt him; it would be unjust and oppressive not to exempt him. He was brought in without his consent, and against his protest. The village had incurred debts; why should he be made liable to contribute to the payment of those debts, and why should the burden of taxation for municipal purposes be imposed upon him at all ? It was entirely competent for the legislature to discriminate in his favor and exempt him altogether (The People agt. Mayor, &c., of Brooklyn, 4 Coms., 427).

The court will be slow to attribute to the legislature an intention to subject this protesting party to the unjust liability of contributing to pay the debts of a municipal corporation, even if the legislature had power so to do; and will not be disposed to strain a point of construction in favor of such an outrage.

Besides, by subjecting plaintiff to such taxation, another^ fundamental principle of the charter itself, as well as of government, would be violated, to wit, taxation without representation. The charter provides, in effect, that no corporator shall be taxed without an opportunity to vote wye or no on the question whether the tax shall be laid.

This opportunity is denied to plaintiff if he is to be subjected to this taxation. It is taxation without representation. The court will not give such construction to this act as to attribute such violation of right to the legislature.

(2.) It certainly cannot be said that the village constituted by the act of April 9, 1851, and the village constituted by the act of April 15, 1857, are identically the same; yet all the power of taxation conferred by the act of 1851 is with reference to the village constituted by that act.

The electors may direct a sum not exceeding $1,000 to be raised by tax on “ said village;” that is, the village constituted by the first section of the act.

But where is .there any authority authorizing the electors to direct any sum to be raised by tax on the village constituted by the act of 1857 ?

If, by the act of 1857, it had been declared that “ the first section of the act of 1851 is amended so as to read as follows,” then the new description would have been substituted into that first section, and thenceforth that section would have read according to the new description. But now there is no incorporation of the new description into the act of 1851, so that the “ said village ” can never refer to that new territory. Hence the electors have no power to direct money to be raised by tax on the new territory.

Ho such power is granted by the act of 1857, nor can it be drawn by necessary implication from the act of 1851.

(3.) If, however, the act of 1857 is to be considered as an amendment of the charter, then, so far as it undertakes to render'the persons and property of persons thus brought in, against their consent, liable to be taxed to pay the existing debts of the village, it is unconstitutional and void.

This is not merely oppressive, but it is “ against natural right and justice,” and, therefore, violative of a great fundamental principle of government; and, in the language of chief justice Spenger, in Bradshaw agt. Rogers (20 J. R., 106), “ any law violating that principle must be a nullity.”

We. are aware of the distinction made by the court between the power to tax and the right of eminent domain, and that the prohibition against the taking of private property for public uses, without just compensation, has been held not to apply in cases of taxation. Still, we insist that the power of taxation may be abused, and the spirit, if not the letter, of the constitution violated by such abuse.

It will scarcely be pretended that an act of the legislature, imposing a tax directly upon A., not being a resident of the village of Owego, and having no property therein, for the 'purpose of raising money to pay the debt of the village, would be a valid act.

A. is a natural person, the village an artificial person. The supposed act would, in effect, be taking the property of one person and giving it to another; and would, most certainly, be a violation of the spirit of that provision of- the constitution .which declares that “ no person shall be deprived of life, liberty or property without due process of law;” and, also, of that provision, “ nor shall private property be taken for public use without just compensation,” which senator Tract, in 18 Wend., 59, construed as “ equivalent to a constitutional declaration that private property, without the consent of the owner, shall be taken only for the public use, and then only upon a just compensation” (People agt. Mayor of Brooklyn, 4 Coms., 419).

The principle on which taxation proceeds; and is held not to contravene that provision of the constitution, is that the tax-payer is supposed to receive his just compensation in the benefit which he derives from the appropriations of the money which he is compelled to pay.

In the case supposed, A. is under no obligations to pay the debt of the village, and can derive no benefit from it. The principle does not apply: cessat ratio, cessat et ipsa lex (Taylor agt. Porter, 4 Hill, 140; Embury agt. Conner, 3 Coms., 511; Powers agt. Bergen, 2 Selden, 358).

Says Bkoksou, J., in Ta/ylor agt. Porter, “ Under our form of government the legislature is not supreme; it is only one of the organs of that absolute sovereignty which resides in the whole body of the people. Like other departments of the government, it can only exercise such powers as have been delegated to it; and when it steps beyond that boundary, its acts, like those of the most humble magistrate in the state who transcends his jurisdiction, are utterly void. Where, then, shall we find a delegation of power to the legislature to take the property of A., and give it to B., either with or without compensation ? Only one clause of the constitution can be cited in support of the power; and that is, ‘ the legislative power of this state shall be vested in a senate and assembly.’ But the question immediately presents itself, what is that legislative power, and how far does it extend ? Does it reach the life, liberty or property of a citizen who is not charged with a transgression of the laws, and where the sacrifice is not demanded by a just regard for the public welfare? * * * The legislative power of this state does not reach to such an unwarrantable extent; neither life, liberty nor property, except when forfeited by crime, or where the latter, is taken for public use, falls within the scope of the power.”

So, in Powers agt. Bergen (2 Seld., 367), Jewitt, J., says: “ If the legislature should pass an act to take private property for a purpose not of a public nature, as if it should provide, through certain forms to be observed, to take the property of one and give it to another, or if it should vacate a grant of property under pretext of some public use, such cases would be gross abuses of the discretion of the legislature, and fraudulent attacks on private rights, and the law would be clearly unconstitutional and void,” citing 2 Kent Com., 340.

Will -any one pretend that if the “ forms to be observed ” were by a process of taxation, and levying upon and selling ' the property of one and handing over the proceeds to another, it would not equally be a “fraudulent attack upon private rights,” as where the property itself, and not the proceeds of it, were taken from one and handed to another ?

Wright, J.,

in Grant agt. Courter (24 Barb., 238, 239), qualifies the legislative power to tax, saying: “We are to be understood, of course, as referring to taxation for a public purpose, in which the community that pays the tax has an interest.” And Clarke agt. The City of Rochester, 14 How., P. R., 204; Read from this case from pp. 208, 211, 212, 214; Town of Guilford agt. Cornell, 18 Barb., 644, 645; White agt. White, 5 Barb., 484, 485, Mason, J.

And yet this is precisely what this act of 1857 does, if the effect claimed for it is given to it.

4. The act of April 15, 1857, was passed, there not being three-fifths of all the members elected to each house present ■on the final passage thereof.

The fact is alleged in the complaint, and admitted by the default.

That it was necessary that three-fifths should have been present, we insist, under section 14, of art. 7, of the constitution of blew York, which is as follows: “ On the final passage, in either house of the legislature, of every act which imposes, continues or revives a tax, or creates a debt or charge, etc., the question shall be taken by yeas and nays, etc., and three-fifths of all the members elected to each house shall, in such cases, be necessary to constitute a quorum therein.”

This act, if it subjects plaintiff and his property to taxation by the village of Owego, although it does not in terms impose a tax, still authorizes a tax to be imposed, quifacit per alium, facit per se. If the legislature cannot, itself, impose a tax, except in the way marked out, it cannot, except in the same way, authorize another to impose the tax (Clarke agt. The City of Rochester, 13 How., P. R., 204).

Security against arbitrary legislation is not dependent on negatives expressed to legislative power, but on natural rights.

Moreover, it makes him and his property chargeable with their proportion of all taxes assessed by the village. Hence, it “ creates a charge ” upon plaintiff and his property.

We have a legislative construction of the constitutional provision in the uniform practice of certifying all acts which authorize the imposition of taxes, as having passed, three-fifths being present.

The act of April 9, 1851, was so certified, and so the charters of all villages where power to tax is given since the adoption of the present constitution.

3. The plaintiff, in bringing this action upon the equity side of the court, does not come in conflict with that class of decisions which hold that a tax-payer cannot maintain a suit, brought to restrain the levy and collection of an illegal tax.

Those cases proceed upon the ground that the plaintiffs were interested in preventing the act sought to be enjoined, only in common with the rest of the community—and the relief sought was such as would inure to the whole community —amounting to a total prohibition of the action of the defendant, not with reference to the plaintiff only, but to the rest of the community.

The principle is, that where there is no direct individual injury, no a'ction can be maintained by a citizen, on the ground that his interests, as a member of the state, have been interfered with. This is the doctrine of Doolittle agt. Board of Supervisors of Broome (16 How. R., 512).

The action, in that case, was brought by the plaintiffs, a portion of the freeholders of a new town sought to be erected by defendants, to restrain the organization of the town. Judge Denio, in giving the opinion of the court, remarks, in the outset of his opinion, that “ It is not pretended that the plaintiffs have any interest which is not common to all the resident freeholders of the alleged new town of Port Crane. * * * The general rule certainly is, that for wrongs

against the public generally, whether actually committed or only apprehended, the remedy, whether civil or criminal, is by a prosecution instituted by the state, in its political character.” He then proceeds to illustrate the principle by cases of nuisance, and says: “ Common or public nuisances, which are such as are inconvenient or injurious to the whole community in general, are, as all are aware, indictable only, and not actionable. * * * Where the act complained of, or which is apprehended, besides being a public nuisance, is specially injurious to a private person, he may maintain an action, or a bill for an injunction, in his own name.”

After referring to several cases, the judge proceeds: “ These cases are sufficient to show the principle upon which the courts act in this class of cases. ' In the present case, no difficulty of the kind referred to arises. The act of the supervisors has no bearing upon the plaintiffs’ individual interests. Whatever interest they have in the question belongs to them only as citizens and members of the community.”

■ On the principle above stated, the court held that the plaintiffs could not in that case maintain their action. But here the plaintiff complains of a special injury to himself, not as a “ member of the state,” and in common with the rest of the community, but individually, he, alone, is affected by the acts complained of, done and to be done; and therefore, on the principle of the same case, he may maintain the action.

But it may be said that the right to maintain an action on the equity side of the courts, in such case, is modified by the question whether the plaintiff has an adequate remedy at law. To that effect is the case of Haywood agt. The City of Buffalo (4 Kern,, 534).

The court in that case, after laying down the general rule that where a matter is, ¡prima facie, one of legal cognizance, a court of equity will not take cognizance of it, recognize the existence of several exceptions, one of which is, “ Where the proceeding in the subordinate tribunal will necessarily lead to a multiplicity of suits.”

This, we insist, is the case here, and with that view we have brought this action, to have the rights of the parties settled in one suit, rather than be compelled to bring an action at law from time to time, for an interminable period, whenever a new tax shall be collected.

It stands admitted as a fact, that “ defendants intend to proceed, and will proceed, unless restrained by this court, from time to time to assess and tax ” plaintiff and his property for the purposes aforesaid, and unless this court intervene, and settle the rights of the parties, an interminable series of trespass suits is before them.

It is on this very principle that this court, when it has obtained jurisdiction of a cause for any purpose, will retain jurisdiction for the purpose of doing complete justice between the parties.

The court has, by the default of defendant, obtained such jurisdiction. The cause is before the court. On the principle of avoiding a multiplicity of suits, this court will not turn the plaintiff over to a court of law, and compel a new suit.

“In many cases the courts of ordinary jurisdiction admit, at least for a certain time, of repeated attempts to litigate the same question. To put an end to the oppression occasioned by the abuse of this privilege, the courts of equity have assumed jurisdiction.” Repeated actions of ejectment for same premises instanced, Mitford Pl. (143, 144). This case stands on the same principle. The repeated actions have not yet been brought, but it is admitted that they will be, and the repetition of actions was necessary only to show that others would continue to be brought. This appearing now, we are in the same situation as we should be after having been compelled to bring several trespass suits to recover for our property illegally taken, after a decision in our favor.

It is, we submit, therefore, a case emineiitly proper' for this court, sitting as a cotirt of equity, to take cognizance of and decide.

And yet, if the court should think otherwise on the merits, still we most confidently insist that we are, by reason of defendant’s default, for the reasons submitted under our first point, entitled to the relief demanded in our complaint.

Weight, J.

The plaintiff, resided and had real ánd personal property liable to taxation for' village purposes, within the' village of Owego, as its limits were established by áú act of legislature, passed in April, 1857. The proper corporate authorities assessed against' him a tax of some forty dollars, for the payment of the debts and expenses of the corporation, and were proceeding to collect such tax when he brought his action to restrain its collection, and also to restrain the corporation from assessing and taxing his property for1 like purposes- in the future. The general grounds Stated in the complaint for the relief demanded was, that the tax was illegal and- void.

The facts alleged were substantially these:

In April, 1851, the legislature passed an act declaring what should constitute the territorial limits of the village of Owego, and prescribing the powers of the corporation as to taxation, and the mode of exercising them. In April, 1854, another act was passed amendatory of the former one, in which the territorial limits of the village were changed again, and the taxing powers of the corporation enlarged. The plaintiff was not a resident within the village, as its limits were established by these acts, and much the larger part of his real estate was situated outside of them. In April, 1857, the legislature passed another act entitled “ An act enlarging the boundaries of the village of Owego, in the county of Tioga.” The first section declared that “ the territory within the following limits (describing them) shall constitute the village of Owego.” The second section declared that “ the provisions of any act heretofore passed, which are inconsistent with this act, are hereby repealed.” Both the plaintiff and his property are within the limits of the village, as established by the latter act. The act was passed without the consent and against the remonstrance of the plaintiff, and it is assumed (from the fact that the secretary of state in the publication of it did not, after the bill became a law, add the words, “ three-fifths being present ”), that it did not have its final passage when three-fifths of all the members elected to each house were present. Prior to the passage of the act of 1857 the village of Owego contracted debts for various purposes, which debts, or a part thereof, the corporation owed at the time of the passage of such act.

At an annual election for village officers, held on the 5th January, 1858, the meeting of electors, by resolution, directed to be raised by tax, on the village, for village purposes, the sum of $1,000. The only estimate of the moneys necessary to be raised during the year then next ensuing, which was prepared by the trustees and submitted to the meeting, being a general one, that it would be necessary to raise by tax for the year 1858, to pay the debts and current expenses of the corporation, the sum of $1,000, and not an estimate in detail showing the sums necessary for each object of expenditure. On the 4th February, 1858, the board of trustees, by vote, ordered that the sum of $2,767 be raised by tax, for debts and expenses, of which amount the sum of $1,757 was for an indebtedness which had accrued and was incurrred prior to the passage of the act of April, 1857.

Immediately after the said sum of $2,767 had been ordered to be raised by tax, the assessors of the village proceeded to make a valuation of the estates, real and personal, subject to taxation, within the boundaries specified in the act of April, 1857, as constituting the village of Owego, including therein the taxable property within such boundaries, and prepared an assessment roll thereof assessing the whole of said sum of §2,767, and assessed and taxed the property of the plaintiff the sum of forty dollars and seven cents, as the proportion to be paid by,him off that sum. On the 23d February, 1858, the assessors annexed a warrant to the assessment roll commanding the collector of the village to receive and collect from the plaintiff the tax of forty dollars and seven cents, and the collector, under and by virtue of such warrant, in proceeding to collect such tax, levied on and seized a horse of the plaintiff of the value of §150, to satisfy the same. It is from the warrant in the plaintiff’s complaint that the defendant claims the right and authority under the several provisions of the acts of 1851, 1854 and 1857, to tax the property of the plaintiff situated without the limits of the village of Owego, as established by the act of 1854, but within such limits as established by the act of 1857, to assist' in paying not only the debts and expenses incurred and to be incurred by the corporation after the passing of the act of 1857, enlarging the village boundaries, but also the debts incurred and owing by the village prior to the passage of such acts; and it is charged that the corporation intends to proceed, and will proceed, unless restrained by the court, not only to collect the tax already assessed against the plaintiff’s property and levied on his horse, but from time to time to assess and tax his property for the purposes aforesaid. There is no allegation in the complaint charging or imputing to the defendant' any fraud in causing the tax to be levied and raised; nor is it alleged or pretended that the acts of the defendant will lead to a multiplicity of suits; nor is it essential that the plaintiff will suffer an irreparable injury; nor does the complaint show that the plaintiff has not a perfect remedy at law. Indeed, it shows affirmatively that he has, for if the tax of which he complains was illegally assessed, or the village authorities assumed to assess him as a resident of the corporation, when in fact he was not, their acts were void or voidable, and against which the plaintiff had an adequate remedy at law.

The question involved is one merely of power in the corporation to tax the plaintiff for village purposes, and if the power does not exist, or, if existing, the particular assessment was illegal, he has a complete legal remedy. Conceding the facts stated in the complaint to be true, I am of opinion that they were not sufficient to constitute either a legal or equitable cause of action. It cannot be claimed that the plaintiff would have any remedy at law if the tax of which he complains was legally imposed. Whether the tax was legal or illegal depended on the question of corporate authority, and whether he was an inhabitant of and property-holder within the corporation. The tax was assessed and levied under the provisions of the acts of 1851 and 1854, relating to the village, and the assessment was partly for debts incurred before the enlargement in 1857 of the boundaries of the corporation, and partly to meet the expenses for village purposes subsequently.

The act of 1851, which purports to amend the several acts incorporating the village, provided that ten days before each annual election the board of trustees shall prepare an estimate of the moneys necessary and proper to be raised during the year then next ensuing to pay the debts and expenses of the corporation,1 and at such annual election the same should be submitted by the president or other presiding officer to the meeting of electors, and such meeting may thereupon, by resolution, direct to be raised by tax on the village, for paying the corporate debts and expenses, a sum, not exceeding §1,000 in any one year, as they should deem necessary and proper (Laws of 1851, ch. 11, §§ 33, 34). This estimate was prepared for 1858, and submitted to the meeting of the ele&tors. It was not an estimate in detail showing the sums necessary for each object of expenditure, but a general estimate that the sum of §1,000 would be required to be raised by tax for the year 1858 to pay the debts and expenses of the corporation. The meeting of electors voted a tax of $1,000, and it was put into the assessment. It is contended that this estimate made by the board did not fulfill the requirements of the law, it being a mere statement of a gross amount, and that consequently the electors had no authority to vote the tax. I am clearly of the opinion that the position is unsound and that the meeting of electors was not divested of authority. The estimate was a substantial fulfillment of the statute requirement, and was sufficient. It could hardly have been contemplated that the trustees should make a detailed estimate of each of the sums necessary for each object of expenditure, for this would be often quite impracticable, but if it was required the omission would not deprive the electors of authority to vote the tax. Such authority does not depend upon the form in which the estimate is prepared and submitted to them by the board of trustees. This disposes of the first objection, that, measured by'the provisions of the act of 1851, the tax was illegal.

But it is urged that if the tax was legally imposed, as respected those within the limits of the village, as defined by acts of 1851 and 1854, the defendant was without authority to tax the plaintiff, at least to pay the debts of the corporation that accrued before the passage of the act enlarging its boundaries. The plaintiff was not a resident or property-holder within the limits of the corporation before the passage of the act of 1857, but if that act was valid and operated to amend the village charter, he became such by force of it. It is not denied that if it was constitutionally enacted, and is to be considered an amendment of the village charter, and not a new act of incorporation, being itself the only charter of the village thereby incorporated, the plaintiff and- his property were brought within the corporation. It is contended, however, that it is not an amendment of the charter, but an independent act carrying with it to the new territory none of the provisions of the charter, but that if it is to be treated as an amendment then it is unconstitutional and void. Neither of these positions are tenable. It is manifest that it was not the legislative intention, by the act of 1857, to create any new municipal corporation, investing it with no powers whatever. The village of Owego is. recognized as an existing organization, and all the act assumes to do is to enlarge its boundaries. The title declares its object, and the second section repeals the provisions of any act theretofore passed inconsistent with it. All that was inconsistent with it were existing acts that related to the boundaries, and the acts of 1851 and 1854 with this exception remained unaltered. It seems to me that it would be absurd to hold that it was the intention of the legislature, and that was the effect of the enactment to create a new corporation by the name of the village of Owego, conferring on it no powers whatever, while such a corporation already existed with complete powers for municipal government. The title is, “ An act enlarging the boundaries of the village of Owego, in the county of Tioga.” The title or preamble of a statute may be said to be no part of it, but it may be used to enable the courts to arrive at the' intention of its framers. The intention was clearly in this case to amend the old charter, and not to create a new corpoporation, with none of the powers of a municipal organization.

Equally groundless are the objections to the constitutionality of the act. These are twofold. 1st. That the legislature has no constitutional authority to impose or authorize the defendant to impose a tax upon persons or property thus brought into the corporation against their consent to pay its existing debts ; and second, that the act was passed in violation of the constitutional provision that“ on the final passage in either house of the legislature of every act which imposes, continues or revives a tax, or creates a debt or charge, the question shall be taken by yeas and nays, and three-fifths of all the members elected to such house shall, in such cases, be necessary to constitute a quorum therein” (Con., art. 7, § 14). With regard to the first objection it is enough to say there is no constitutional limitation upon the legislative power to tax the persons and property of individuals within the state. The power may be executed as well to pay debts incurred before the property-holder comes within its jurisdiction, as those incurred afterward when a municipal corporation is created, and the state confers upon it a portion of its taxing-power to raise money for municipal purposes. The property-holder within the limits of the corporation is subject to taxation without regard to the question when the liabilities were contracted to discharge which the tax is imposed. He cannot be liable to be assessed to pay off and discharge liabilities of the city or village incurred after he shall become a resident, and exempt from taxation for debts previously legally incurred for city or village purposes. As well might a person from another state settling in ours, and bringing with him a large amount of property, subject to taxation, object to being taxed to pay the debts of this state that had been previously incurred.

Hor is there any force in the objection that the act of 1857 had its final passage when three-fifths of all the members elected to each house were not present, even if the averment of the complaint were sufficient to raise the constitutional point. The legal presumption is, that the law received the constitutional vote required, and that the requisite number were present at its passage, although the certificate of the secretary of state may be wanting in his publication of the law, and if it is designed to raise that question it must be expressly put in issue by the pleading. The complaint contains no express averment that three-fifths of all the members elected to> each house were not present on the final passage .of the bill. It alleges that in the publication by the secretary of state of the act, the secretary has not, after stating when the bill became a law, added the words, three-fifths being present, but said words are absent from said law as published, and nowhere- appear in such publication, and the plaintiff thereupon avers that said bill did not pass when three-fifths of all the members elected to each house were present on the final passage thereof. This is not an express averment of the fact that the requisite number of members were not present at its passage. The plaintiff avers that the bill did not pass when three-fifths were present, because in the publication of it by the secretary of state the words “ three-fifths being present ” nowhere appear in such publication. But it was not required that three-fifths of the members should be present at the final passage of the act. It simply enlarged the territorial bounds of the village. It imposed no tax, nor did it continue or revive one, or create a debt or charge within article 7, § 14 of the constitution. The acts that authorize the imposition of the tax were passed in April, 1851, and April, 1854, and were applicable to then present boundaries, but on the 15th April, 1857, the act last mentioned became a .part and parcel of the acts of 1851 and 1854,- and was then on that day read and so construed together as one entire act. Such was the lgal effect.

I am of the opinion, therefore, that the complaint did not set forth either a legal or equitable cause of action. But if I am mistaken in the opinion that the complaint does not show an illegal assessment of the plaintiff, it is conclusively settled in this state that an action will not lie to restrain the collection of a tax unless the case were brought within some acknowledged head of equity jurisdiction (Moore agt. Smidley 6 John. Ch., 28; Wiggin agt. The Mayor, etc., of New York, 9 Paige, 16; Van Dorn agt. The Same, id., 388; The Mayor of Brooklyn agt. Meneserole, 26 Wend. R., 132; The N. Y. Life Insurance Co. agt. The Supervisors of the City of New York, 4 Duer, 192; Haywood agt. The City of Buffalo, 4 Kernan, 534; Susquehanna Bank agt. Supervisors of Broome County, 25 N. Y, 312). In Wilson agt. The Mayor of New York, where the plaintiff had been taxed in the city of Hew York 'for personal property while he was a resident of the state of Connecticut, and he commenced the action to restrain the collection of the amount at the June term, 1861, the court considered the point of jurisdiction so well settled that on the argument of the appeal we gave judgment against the plaintiff, reversing the judgment of the Hew York common pleas. There is no allegation in the eo niplaint under consideration bringing the case within any acknowledged head of equity jurisdiction. The charge that the corporation intend to proceed, and will proceed unless restrained, not only to collect the tax in question, but from time to time to assess and tax the plaintiff’s property for similar purposes, amounts to nothing in that direction. Courts of equity assume jurisdiction when there might otherwise be a multiplicity of suits, and the right had been once settled at law, but that is not this case. Here no right has been litigated or settled in a court of law, and it cannot be pretended that additional suits are to be prevented by a judgment in this action in the plaintiff’s favor. - That the corporation may again assess and tax his property for village purposes is no ground for equitable jurisdiction.

It remains to be considered whether after the defendant was in default by not demurring or answering, and the plaintiff applied for the relief demanded in his complaint, the court erred in denying it. It seems that upon the application the defendant appeared to oppose the motion, and after hearing the counsel for the respective parties it was denied. I have no difficulty on this point. This was an equitable action, and although no demurrer or answer was interposed, the plaintiff was not entitled to the judgment asked for in his complaint as a matter of course. The Code provides that in such action, upon a failure to answer, application shall be made to the court for the relief demanded in the complaint (Code, § 246). This is in accordance with the practice of the late court of cl&ncery, for in that court, when the bill was taken pro confesso, the cause had to be brought to a hearing the same as when an answer was put in, and it was not the practice of the court to' allow the plaintiff to- take a decree according to the prayer of his bill, nor was he permitted td draw up the decree. The defendant in this case admitted nothing by a failure to answer but the truth of the facts alleged against him. By the default the right was not waived to appear and object to the jurisdiction of the court, and that the complaint did not state facts sufficient to constitute á cause of action. The Code expressly reserves the right to a defendant, though the objection be not taken either by demurrer or answer (Code, § 148). If the defect in the complaint be that it does not set forth an equitable cause of action and entitle the plaintiff to the relief demanded, it is one that cannot be cured, and would not be waived by any pleading, and I think the objection could be raised at any time when the parties are before the court at a special or general term. But if it was that a default in answering would afterward preclude a defendant from objecting that the complaint does not state a case within the appropriate jurisdiction of a court of equity, it would not necessarily follow that the denial of the application in this case for the relief demanded in the complaint was erroneous. It is a fundamental rule, says judge Stoey, which is always indispensable to be observed, that the bill must state a case within the appropriate jurisdiction of a court of equity. If it fails in this respect the error is fatal in every stage of the cause, and can never be cured by any waiver or course of proceeding of the parties, for consent cannot confer a jurisdiction not vested by law (Story’s Eq. Pleading, §§ 10, 31). Where the case, as presented by the plaintiff, shows a want of jurisdiction in the court (though the defendant by his course of proceeding may have waived the right to raise the objection), there can be no doubt of the power of the court ex meio motio to refuse the relief asked for. If the court has not jurisdiction of the subject of this action, it is eminently proper that it should not be usurped, and the application for relief, though even ex fcm'te, ought to be denied. That was this case. The order of the supreme court should be affirmed.