Nelson v. New York City

PETITIONER:Nelson
RESPONDENT:New York City
LOCATION:Congress

DOCKET NO.: 30
DECIDED BY: Warren Court (1956-1957)
LOWER COURT:

CITATION: 352 US 103 (1956)
ARGUED: Nov 07, 1956
DECIDED: Dec 10, 1956

Facts of the case

Question

Audio Transcription for Oral Argument – November 07, 1956 in Nelson v. New York City

Earl Warren:

Number 30, Gerald D. Nelson et al., Appellants, versus the City of New York.

Mr. Jones.

William P. Jones:

May it please the Court.

At this time, Your Honor, because the appellee served his brief three weeks late, I’m going to have to ask leave of the Court to serve the reply brief.

The clerk’s office informs me that copies have been furnished to the members of the Court.

Earl Warren:

Very well.

William P. Jones:

This appeal is from the final order of the New York Court of Appeals which denied the motion for reargument but granted the motion to amend the remittitur to show that constitutional questions had been presented and necessarily passed upon.

Appellants challenged the constitutionality of Title D, Chapter 17 of the Administrative Code of the City of New York and the action taken by the City thereunder in taking two of appellants’ properties in foreclosure in rem for the collection of delinquent real estate taxes.

In this case, appellants’ two properties worth in the aggregate $52,000 were confiscated to collect $887 of water charges.

The statute involved — provides an in rem method of collecting delinquent real estate taxes.

It provides —

Any difference water taxes and real estate taxes?

William P. Jones:

Water charges are defined by statute as a tax lien and then the statute goes on to define that at all delinquent liens, tax liens shall be foreclosed.

However, at this point, I take occasion to point out a significant difference that water charges can be collected in persona as provided in code.

Furthermore, water charges can also be collected in a very simple way of turning off the water which is also pointed out in our brief.

Well, the statute provides for the usual posting of a list of delinquent parcels in the clerk’s office and then notice by publication, that is the novice feature of the statute.

That’s the way the action is commenced.

Then from that date, the defendant taxpayers have seven weeks to redeem their property.

If they don’t redeem, then the statute forecloses them forever from redemption.

It then provides that they’ll have another 20 days to answer it.

If they neglect to answer through inadvertence, mistake, oversight or any of those reasons, the statute directs that an absolute — an irrevocable deed issued to the City for those — for each of the parcels, that accomplishes a confiscation, a barefaced simple confiscation of all and the entire value of the property.

Now, in this case, the appellants have been paying their real estate taxes ever since they acquired these two pieces.One was a — a piece of real estate in Brooklyn, the other in Queens.

One was acquired in 1934 and the other in 1938.

The record shows that during that entire period, the appellants paid all of their real property taxes, which were vastly in excess of the amount of the water charges.

Now, commencing in 1945, due to the unexplainable behavior of a trusted bookkeeper who managed the clerical details for the office, these — these bills for water charges were not paid.

The appellant trustee didn’t know about it.

He was being presented with the real estate taxes in vastly larger amount than the water charges and he paid all of them.

But this clerk, this bookkeeper didn’t give him the — the water charges for some reason.

In any event, the water charges commencing with the year 1945, were not paid, and it is for these water charges that the foreclosure action was commenced.

That keyed it off.

William P. Jones:

Now, the statute provides that this foreclosure shall be instituted against any parcels which are four years or more delinquent.

The action against the Queens property came first.

That was instituted in May of 1950.

In May of 1950, there were only $72.50 worth of water charges which were delinquent four years.

Those were the only charges for which this foreclosure action could have been instituted.

Earl Warren:

What was that amount again, please?

William P. Jones:

$72.50.

That property was assessed for $6000.

Our appellant trustee did not — didn’t have any actual notice of that action.

Nobody sees the publication in the — in the newspaper.

You just don’t.

It’s one of those things.

He didn’t see the list posted in the county clerk’s office in Queens County and he didn’t see mail notices to this office which he maintained which this bookkeeper is also concealed.

Is it — it’s conceded it — his bookkeeper had noticed?

William P. Jones:

It’s conceded, Your Honor, that I personally found here notices in that office.

The record says that they were found in the office after — long after this property was foreclosed.

This bookkeeper had concealed them.

Actually, they were found up on top of a bookcase.

Some of them were — they were scattered all over at the office in the most peculiar way.

But it is conceded they had to reach the bookkeeper then?

William P. Jones:

They had reached the office, Your Honor.

It’s not conceded if they reached the bookkeeper.

They got to the office.

Earl Warren:

They came to the office in the ordinary course of mail, I presume.

William P. Jones:

I don’t know whether they came in the ordinary course of mail, Your Honor.

They can’t be found in the office.

Earl Warren:

Did they come by mail?

William P. Jones:

I don’t even know that.

I presume they were.

Earl Warren:

Well, did the envelope show that —

William P. Jones:

It didn’t.

There was — there was no envelope.

It was just the note.

John M. Harlan:

(Inaudible)

William P. Jones:

Your Honor, all we know is that — is that those notices were found in the office.

John M. Harlan:

(Inaudible)

William P. Jones:

That’s right.

Felix Frankfurter:

And that was the address given by the trustee by the City of New York?

William P. Jones:

That — that was the address given by the City, by the trustee.

Did this go under the D17-5 that you have under Appendix A?

Is this procedure under that?

William P. Jones:

Yes, Your Honor.

This — this procedure is — I think it was in my brief, if you’re referring to my —

Page 20.

William P. Jones:

Yes, sir.

It had — it proceeded under that.

William P. Jones:

That was the statute that we’re concerned with.

And the — the City did file a — the office of the clerk the list?

William P. Jones:

We assumed that they filed that — that list under the — pursuant to the statute.

William J. Brennan, Jr.:

And no proof that they didn’t follow up the other details of the statute by letting you notice.

William P. Jones:

No, there’s nothing in this record to raise that point.

John M. Harlan:

In other words, if you have — had a bookkeeper who would have had (Inaudible)

William P. Jones:

Well, that may or may not be.

At any rate, the combination of the — the way this bookkeeper performed his duty may — interfered with the reception of the notice.

John M. Harlan:

Now, what I — if one requires (Inaudible) the bookkeeper (Inaudible)

William P. Jones:

Well, we certainly proceeded against the bookkeeper, but he turned out to be judgment proof of course.

John M. Harlan:

(Inaudible)

William P. Jones:

Well, we thought he was more than delinquent.

We — we thought that he was an — an embezzler as well.

At any rate, we got a judgment against him for some hundred thousand dollars which —

William J. Brennan, Jr.:

But Mr. Jones, what are the notices that you’ve been discussing?

Are they the notices of the foreclosure proceeding or — or water bill?

William P. Jones:

I have mentioned the — the receipt of the water bills which were found in the office.

I have also said that the notices of the foreclosure action were later found in the office.

William J. Brennan, Jr.:

Are they the notices referred to at page 27 of Appendix A?

John M. Harlan:

Was the trustee — are your trustee been surcharged with accepting (Inaudible)

William P. Jones:

Not — not at this time, Your Honor.

Mr. Justice Murphy had — on page 27?

William J. Brennan, Jr.:

Yes, with reference there to — before the day of the first publication, treasury should course a copy of such notice to remand.

William P. Jones:

Those are the notices that I’ve been referring to.

William J. Brennan, Jr.:

And how many of such notices were they?

William P. Jones:

There was a notice for each action.

There were two actions involved here.

William J. Brennan, Jr.:

And they found both notices?

William P. Jones:

Both notices were found in the office, years after the action.

William J. Brennan, Jr.:

With the water bills or separate?

William P. Jones:

The water bills were also found.

I can’t tell you now, whether they were physically together, but water bills were also found and found not to have been taken.

Felix Frankfurter:

The water bills waterloo on that basis did — they were arrears?

William P. Jones:

No, Your Honor, and they didn’t.

That’s one of the peculiarities of the City’s tax method that the water bills don’t show whether they’re paid or not.

Felix Frankfurter:

No, no.

Were there no notices indicating there have arrears?

William P. Jones:

That appears only on the real estate tax bill.

Felix Frankfurter:

But it appeared on that?

William P. Jones:

It appears — the word arrears appears on the real estate — real estate tax bill, but — but it doesn’t (Voice Overlap) —

Felix Frankfurter:

On the water bill?

William P. Jones:

Not on the water bill nor does it specify on the real estate tax bill which item is in arrears and which one is unpaid.

I thought —

Earl Warren:

But this — this failure to pay the water tax is shown in the general term in arrears on the property tax, is that right?

William P. Jones:

It’s that is the — the nonpayment of the water tax is what caused the word arrears —

Earl Warren:

Yes, yes.

William P. Jones:

— to appear on the real estate tax bill, but there is no cross-connection on that the real estate tax bill which notifies the taxpayer what item is not paid.

Felix Frankfurter:

No, but he has notice that there are some arrears in some case.

William P. Jones:

(Voice Overlap) —

Felix Frankfurter:

That in fact we must know that nonpayment of taxes, arrears may have consequences and he stepped out, is that right?

William P. Jones:

As a meticulous —

Felix Frankfurter:

(Inaudible) this trustee — this trustee is the size of a property?

William P. Jones:

The Brooklyn property was assessed at $46,000.

Felix Frankfurter:

No, but the trustee, does it appear whether he was an innocent, that he was unversed in — in transactions like this?

William P. Jones:

He was not — along with most people, not too thoroughly informed on the — on the tax billing method of the City of New York.

Felix Frankfurter:

Well, but if he’d get billed in the said arrears —

William P. Jones:

(Voice Overlap) —

Felix Frankfurter:

— there’s no suggestion that he was not mentally competent to know what arrears is, isn’t it?

William P. Jones:

No, Your Honor.

There’s — there’s no suggestion of incompetence.

Felix Frankfurter:

This isn’t — is this an old lady who’s mentally defective like the Somers case?

William P. Jones:

This isn’t like the Covey case.

Unfortunately, the — when I say the – the nice point in the Covey case of incompetence is not present in this case.

Well, do I understand that the — who was he, a trustee you’re saying?

William P. Jones:

He’s a trustee.

Does the trustee receive in his own hands notices of the — of — which specified that there were delinquencies?

William P. Jones:

He received them in this office which he —

No, no, I understood that, but I thought you just said something in regard to the tax bill as distinguished in the water bill.

William P. Jones:

I did.

And that the water bill did not give notice of being delinquent.

William P. Jones:

That’s right.

But they were tax bills.

William P. Jones:

That’s correct.

There were (Voice Overlap) —

And on those tax bills, there was notice of delinquencies.

William P. Jones:

There was the word arrears —

Arrears.

William P. Jones:

— which indicates a delinquent tax.

Now, and — where — did they come to the attention of the —

William P. Jones:

They did.

— of the trustee?

William P. Jones:

Those bills —

And with notice of delinquency he did not.

William P. Jones:

Well, it’s not a notice of delinquency, Your Honor, quite as sharp as that.

Well, what is arrear?

What — what’s the word do you use?

Arrears?

William P. Jones:

Arrears.

Yes.

All right, those have arrears.

Notice of arrears, he did nothing about it?

William P. Jones:

Nothing other than pay that bill.

He did pay that bill through a check and that the — and that check was sent in and — and paid that bill.

He paid — he paid that — his real estate —

Earl Warren:

Well, now, if there had not been some other debt as the word arrears wouldn’t have been there, would it?

William P. Jones:

There had been no indebtedness at all.

Well, there was an indebtedness of the tax bill that was sent.

It was a real estate tax bill as I understood you —

William P. Jones:

That’s right.

— or did I misunderstood?

William P. Jones:

They were both sent, Your Honor.

Both the water bills and the real estate taxes were sent —

I understand.

William P. Jones:

— and — and marked on the real estate tax bill was the word arrears.

That’s right.

And that came to the attention of the trustee?

William P. Jones:

That’s right.

And — and he made no investigation as to what arrears was there for?

William P. Jones:

Well, he saw presumably saw the tax bill.

What?

William P. Jones:

I say, he — he presumably saw the tax bill.

Yes.

William P. Jones:

Now, whether he didn’t see that word arrears or not.

He did testify or anything of the case?

William P. Jones:

No, this was brought up on motion by affidavit.

So, there was no testimony in this case.Your Honor?

Tom C. Clark:

He paid debt — you say he paid the tax bill —

William P. Jones:

He paid the tax bill.

Tom C. Clark:

And that was the one with arrears on?

William P. Jones:

That’s right.

He paid the tax bill in full.

Tom C. Clark:

And not include the water tax?

William P. Jones:

That’s correct.

But he paid the — he paid the current tax bill, didn’t he?

William P. Jones:

He paid a current tax bill.

And that — that could not have been in arrears?

William P. Jones:

It was not in arrears, no.

But the word arrears meant nothing to him and he made no further investigation?

William P. Jones:

That is correct.

It meant nothing to him because he had been paying all of his real estate taxes and that he knew.

Felix Frankfurter:

So that the man gets the bill which says arrears and he knew he had paid his taxes.

Was that just one bill in the said arrears or several bills?

William P. Jones:

No, several bills.

Felix Frankfurter:

A good — good — except —

William P. Jones:

A series.

Felix Frankfurter:

A series over years.

William P. Jones:

That’s right, a series over years.

Felix Frankfurter:

That man who’s — who’s aware of the fact that he takes for granted that he paid his bills, gets — he paid past bills gets the current bill that says arrears to get a series of them and he just disregards that fact, is that right?

William P. Jones:

Well, he disregards it because it — I suppose an ordinary man might say, “Over here.

What does this mean?

I keep paying my current bill and these arrears are never explained.”

Felix Frankfurter:

Well, did he — did he — did he take it?

Is there anything in the record to show that he ever said that to himself that he’s just —

William P. Jones:

There — there is not.

No.

Felix Frankfurter:

And I say again this is —

William P. Jones:

Except what he —

Felix Frankfurter:

— this was a trustee of an estate wasn’t he?

William P. Jones:

Yes, sir.

Felix Frankfurter:

And to the amount of — did — did the record show that the — that the whole estate embraced other property besides this?

William P. Jones:

The record shows that that there were other properties.

Felix Frankfurter:

But this was a substantial — this was a trustee of substantial properties.

William P. Jones:

That’s correct.

And — and as a part of administering this rather substantial property in real estate, he had a reputable real estate agent managing the properties.

They were seven at that time which he operated.

A real estate agent kept them maintained, painted, repaired, the rents collectively, and remitted to him the rent.

His tax bills however came to a — a little administrative office which he maintained separate and apart from his real estate managing agent.

Felix Frankfurter:

And they came to him because he paid this.

William P. Jones:

They — yes, sir.

They came to that office and he would come —

Felix Frankfurter:

But not in the office here.

They — they came to him.

They were brought to his (Inaudible)

William P. Jones:

They were.

Felix Frankfurter:

— is that right?

William P. Jones:

They were.

He would — because he would go to that office two or three — two or three hours a week and this bookkeeper would present him with the bills to be paid and he would write the checks out for the payment of these various tax bills.

Felix Frankfurter:

That — that then — that aspect of the trustee that was paying bills on which was printed arrear, he didn’t leave to his agent, he did himself?

William P. Jones:

That’s right.

He did not leave that to the real estate agent.

Now, this bookkeeper that presented him these tax bills marked arrears, is that the same bookkeeper who you say owes you money because of — he tried to cover the —

William P. Jones:

Well, he owes this money because there’s an unsatisfied judgment against him.

He was the bookkeeper in the administrative office of the trustee.

William P. Jones:

That’s correct.

That’s right.

Earl Warren:

Was this trustee compensated for his trusteeship?

William P. Jones:

No, Your Honor.

He never took commissions.

William J. Brennan, Jr.:

Mr. Jones, did you say whether these tax bills in addition of the word arrears or the amount of the arrears.

William P. Jones:

No, Your Honor, they did not.

William J. Brennan, Jr.:

Just the word?

William P. Jones:

Just a word, the one word, arrears.

William J. Brennan, Jr.:

Was that stamped on it or —

William P. Jones:

It was high printed, I think or it was just a draft.At any rate, it appeared on there by one word, arrears.

It didn’t say how much.

It didn’t say what item, what year, what category the charge was, whether it was a water charge, a sewer assessment, a painting assessment.

William J. Brennan, Jr.:

Is there some authority rule or statute or which specifies that form of indicating arrears?

William P. Jones:

That’s right.

That’s — that — that is the pursuant to the — to the tax portion of the New York City administrative code.

William J. Brennan, Jr.:

Was it the sort of thing that alerts taxpayers generally that the bill may not be all if they owed?

William P. Jones:

It didn’t alert this taxpayer.

William J. Brennan, Jr.:

I know it did not, but is that —

That’s the way you do it, right?

William P. Jones:

That’s the way the City does it.

William P. Jones:

There are — have to prove your question Your Honor.

There are great many other taxpayers who haven’t been alerted by that method either.

Felix Frankfurter:

The answer to the Chief Justice’s question is that this trustee wasn’t a compensated trustee.

I don’t suppose I have to guess as to the irrelevance that he was an imaginary trustee because the estate was transferred under a will of complete — it’s bearing the same name Nelson.

(Voice Overlap) —

William P. Jones:

That’s correct.

Felix Frankfurter:

(Inaudible)

William P. Jones:

Father and son.

Felix Frankfurter:

Father and son.

William P. Jones:

Yes.

Felix Frankfurter:

All right.

William P. Jones:

There’ll be no point that’s made of the fact that he didn’t take permission.

Well, I — I understand that — that this tax notice that came to him was in itself not a delinquent tax.

William P. Jones:

It was not.

It is for a current tax.

For a current tax which is unpaid.

William P. Jones:

Which is unpaid.

So, it couldn’t — the word arrears did not apply to the tax that was listed on the notice that he got.

William P. Jones:

In fact, it couldn’t have, no.

Whether he knew that at the time, he — he believed as he many times said that why I paid all my taxes and that was true.

We went and checked the record and — and since 1934 and in one case in 1938 and the other, he had an unbroken record of paying the real estate taxes.

There was one exception.

A half year’s tax for the year 1948, 1949, real estate tax was not paid.

Now, that is an –an inadvertence just like the water charges, but other than that, which doesn’t figure in these cases because that one was not four years old and couldn’t key off this in rem statute.

The real estate record is unbroken.

John M. Harlan:

What is it specifically, Mr. Jones, that you claim to violate in the City’s procedure that you claim violates due process?

William P. Jones:

Well, now, that can bring us directly to what I believe is the — is the key in the case, acquainted with generally with the in rem type method of foreclosing real estate taxes.

Those statutes exist in many States.

One of the ordinary elements is publication by notice, no return by a publication, commencing the action by filing a list of delinquent taxes in the County Clerk’s office or the County Auditor’s Office copy with publication in a — in a newspaper and possibly followed by a mail notice.

Now, that is the ordinary way.

But, why do you say possibly?

William P. Jones:

Because all of the statutes don’t require the mailing of the notice.

Well, look at this 1705 of page 20.

What does that say?

That’s the one we’re operating right here.

William P. Jones:

That’s right.

That’s the — that’s the kickoff point, Your Honor.

The filing of that list in a County Clerk’s office commences the action and then he has to publish in a local newspaper.

And then, he is told to mail a notice if he knows the address.

Now —

Now, where is that?

William P. Jones:

That is further along in that same Section.

On page 27, I think.

William P. Jones:

Mr. Justice Burton put his hand on it there.

Trader shall post a copy of such notice to be mailed to the last known address of each property affected thereby.

Where is that?

William P. Jones:

That’s on the top of page 27 in my brief, Appendix A.

But if he doesn’t know the address, he does something else.

William P. Jones:

If he doesn’t know the address, he doesn’t have to mail that notice.

Nobody does something else, I think, files an affidavit in the office of the treasury?

William P. Jones:

That’s correct.

Do you do that?

William P. Jones:

Well, he — he did in this case because this record shows that — that he had what he — what he believed was the address of the taxpayer.

So, he mailed these notices.

He mailed the notices?

William P. Jones:

Right.

And did he — he didn’t get that?

The taxpayer never received it.

William P. Jones:

He never had actual note.

He didn’t get it.

Felix Frankfurter:

(Inaudible)

Earl Warren:

Well, it — it was —

Felix Frankfurter:

But it went to the office.

William P. Jones:

It got to the office.

That’s right.

Earl Warren:

To his office?

William P. Jones:

He got —

Earl Warren:

His address?

William P. Jones:

Yes, sir.

Felix Frankfurter:

What you mean to say is the water commissioner or the comptroller of New York didn’t call him up on the telephone and say, “Mr. Jones, did you get a notice?”

He said, “Yes.”

That isn’t (Inaudible)

William P. Jones:

That’s right.

The record show that —

Felix Frankfurter:

(Inaudible)

William P. Jones:

That’s right.

However —

Felix Frankfurter:

Was there anything he says?

William P. Jones:

The record shows, Your Honor, that — and it’s never been denied that the taxpayer never had actual notice.

That — that has been undenied in the record.

Well, what — what is your position to — to comply with due process?

There should be a proceeding whereby an official of the City or of the State to — took a notice, of the pending suit before closure, and delivered it to the individual who made the return.

William P. Jones:

No, I’m not — I was just about to get to what I consider the point here.

The — I was reviewing very briefly the in rem general type of the in rem statute which brought — was brought on by — by published notice and — and the list posted.

The other element of the in rem proceeding is that a judgment those against the property itself dispensing with any personam process or any personam collection or any personam liability.

But then this is where they diverge and why this statute involved is — is novel, unique, and the question brought here today we think is a — a new question presented to this Court for the first time.

Most of the other in rem statutes provide that there be a sale of the property to collect the tax and that the surplus goes to the owner.

(Inaudible)

William P. Jones:

Well, but there’s the sale and — and it exposes the property to a — a fair objective sale in which there’s a strong possibility that there will be surplus for the owner.

At least he’s got that, and that’s the minimum that we say he can insist on, all right.

William J. Brennan, Jr.:

You said that it was an option on the part of a City to use that method rather than the one it used.

William P. Jones:

There was an option, an option under another Section of their code Title A, but this particular, now, this is where the City statute is unique and novel.

It doesn’t order a surplus sale.

In fact, it orders and directs that there be no surplus sale, but that there be a confiscation of the entire property.

May I ask you —

Felix Frankfurter:

(Voice Overlap) for an equity redemption?

William P. Jones:

That’s correct.

It doesn’t — it cuts off all of the owner’s equity in the surplus.

Felix Frankfurter:

That’s why you have federal cases you have (Inaudible) point because the statute there explicitly (Inaudible) pertinent to the redemption.

William O. Douglas:

Well, you get equity redemption here, but it’s just rather a short period of time.

William P. Jones:

Well, it’s not — it’s an opportunity to redeem.

It isn’t actually an equity redemption.It’s a chance to pay your taxes, an opportunity you have for seven weeks after that list is filed.

Then, you’ve got another 20 days to answer and if you inadvertently miss them both, the statute orders an absolute deed executed to the City or irrevocable deed for that entire property.

Felix Frankfurter:

But within that procedure, we don’t a chance to — if there was that’s been suspended for this.

It collects an opportunity for making (Inaudible) through the cutoff day, right.

William P. Jones:

Well, Your Honor —

Felix Frankfurter:

Is that right?

William P. Jones:

No, sir.

I insist that’s not an equity of redemption —

Felix Frankfurter:

(Voice Overlap) —

William P. Jones:

— that takes an opportunity —

Felix Frankfurter:

(Voice Overlap) —

William P. Jones:

— you can’t get the property there’s — what if you can’t pay your taxes then?

William J. Brennan, Jr.:

Well, Mr. Jones (Inaudible) he was bound to pay up what he owed or suffer the consequences that —

William P. Jones:

Well, yes if that’s due.

If he sees — if he does get notice, yes.

I mean, if he — if he gets the notice.

William J. Brennan, Jr.:

What I’m suggesting to counsel is a friendly and (Inaudible)

William P. Jones:

I’m suggesting this, Your Honor, that there’s no case that I can find that’s been decided by this Court, which upholds an in rem statute with a confiscatory feature with a speedy confiscatory feature like this one.

William J. Brennan, Jr.:

Well, you are suggesting you can reach it in a short term.

William P. Jones:

It’s not the period.

It’s the fact that there has been a confiscation for the — in lieu of the collection of the tax.

It’s the taking the entire property, instead of confining the tax authority to collecting its just tax.

Now, that brings me to the case that’s cited —

Earl Warren:

Well, how — how would they collect their tax?

William P. Jones:

By a sale of property.

Earl Warren:

And did someone suggest that they ever — tax sales as we all know —

William P. Jones:

Well, that’s fine.

Earl Warren:

— many tax sales and what — what people do, they go on, and they set the amount of the taxes of the property.

William P. Jones:

Well, that’s all right.

If that happens, that certainly — we say that the taxpayer, if that happens to him, it’s — it’s hard luck, but at least, he’s had the benefit of a sale which might produce surplus in return for his equity in the property.

Stanley Reed:

And for the City to take it —

William P. Jones:

And not —

Stanley Reed:

— instead of having the sale is the unconstitutional matter that you —

William P. Jones:

That is the key to it, Your Honor.

William O. Douglas:

You’re — you’re not suggesting discrimination, equal protection.

William P. Jones:

That was the later point which I — I would like to come to, but this — if I can develop this point Mr. Justice Reed —

Stanley Reed:

Yes, it will — put it open.

William P. Jones:

— which, like Eerie — you put your finger on it precisely that it is the taking the whole property without a sale.

That is the wrong thing.

Now, these cases that — that the appellee cites in support of this statute don’t involve statutes like that.

They involve — now, the Wynonna case involving the Minnesota statute, that Minnesota statute precisely directs that there be a surplus sale and that the tax authority gets out of the property only the amount of its tax and the proceeds from the sale is surplus to the tax go for the benefit of the owner.

That’s why it’s so different from this statute and that — that’s where this statute diverges and why it’s such a — a rudely tough statute on the — on the individual rights of a property owner.

Felix Frankfurter:

Why —

William P. Jones:

Now —

Felix Frankfurter:

–does D17-6.0 printed in your Appendix E?

(Inaudible)

When the City — when the City begins its foreclosure proceeding to the opportunity of the delinquent taxpayer to get the surplus, seek or have you got the — the period —

William P. Jones:

Right.

Felix Frankfurter:

— provided by the statute?

William P. Jones:

Right.

When this — when the statute — when this — this action has begun, it — it is the — precisely, it’s not a problem of getting the surplus.

It’s simply a — a further time that he can pay the taxes due and he still retains everything he had —

Felix Frankfurter:

So that he —

William P. Jones:

— before.

Felix Frankfurter:

— so that there is no forfeiture until he’s had the opportunity until these extra 10 weeks or whatever they are left.

Isn’t that right?

William P. Jones:

That’s right.

Felix Frankfurter:

The forfeiture —

William P. Jones:

If he sees — if he gets there in time.

If he gets there in just 10 weeks.

Felix Frankfurter:

But that’s exactly cutting off from getting there in time.

William P. Jones:

No, the statute doesn’t.

Felix Frankfurter:

The statute gave him notice that there’s a publication of all of this.

William P. Jones:

There is publication in local newspaper.

Felix Frankfurter:

Sure.

William P. Jones:

In this case, Brooklyn and a Queens newspaper.

Felix Frankfurter:

For six weeks running.

William P. Jones:

Well, I — I don’t — I don’t really recall —

Felix Frankfurter:

Isn’t it?

William P. Jones:

— how long this thing has to be published.

Felix Frankfurter:

In fact, it says so, week after week.

William P. Jones:

Once a week, I think.

Felix Frankfurter:

Once a week?

William P. Jones:

Once a week, yes.

Felix Frankfurter:

So, that there isn’t a forfeiture following upon the late issues.

William P. Jones:

Well, it’s not an instantaneous forfeiture, Your Honor —

Felix Frankfurter:

But, then it gets —

William P. Jones:

— but it —

Felix Frankfurter:

— back to the point that Mr. Justice Douglas asked you about, whether you claim that the time is too short.

William P. Jones:

No.

And yes.

That isn’t certainly one of the features.

That — that’s what makes it harder because there’s 10 weeks and that’s all.

There is that theory.

Hugo L. Black:

I’d like to see if I — is — is the first thing you contend this?

That most statutes provided with the collection of taxes that if we’ll take properly, had to use property to collect these provides for a means of collecting the tax only and it simply has a tax only out of the property.

William P. Jones:

That is absolutely —

Hugo L. Black:

And here they provided first place that automatically, they take the title to your property.

William P. Jones:

That is correct.

Hugo L. Black:

And do not limit themselves to trying to get the actual value of the property —

William P. Jones:

That is absolutely —

Hugo L. Black:

— the actual value of the tax.

William P. Jones:

They have — from then on, they’re not — not in —

Hugo L. Black:

Your contention is in the first place as I understand it is that violates due process.

That is quite right that.

William P. Jones:

Yes as it — that and — and particularly —

Hugo L. Black:

And then —

William P. Jones:

— under the circumstances of this case.

Hugo L. Black:

Yes.

Then, you say that — that material that even though they have taken away your property, that might be what’s a great deal more than the amount you owe on the taxes.

You call that opponent.

William P. Jones:

I call that a forfeit, sir.

Hugo L. Black:

In other words, you got — do not call that a collection tax.

Is that what you keep referring to as confiscation —

William P. Jones:

That’s right.

It is.

It’s to confiscate —

Felix Frankfurter:

What difference does it make whether you have 10 weeks or half a year, if — if you could get the City all the revenue to skip to — to collect the — the unpaid taxes out of the property that’s times in a period?

William P. Jones:

Do you mean that if the — if the —

Felix Frankfurter:

For example two years after these proceeding starts.

That, the argument, those you have just — which you’ve just indicated was exact.

Which is just enough, wouldn’t it?

William P. Jones:

It would — it would be just as bad —

Felix Frankfurter:

It would be bad.

William P. Jones:

— yes, it would.

Just as bad.

Felix Frankfurter:

Yes.

William P. Jones:

It would be just bad and —

Felix Frankfurter:

Two years, five years automatic.

William P. Jones:

That’s right, two years —

Felix Frankfurter:

Right.

William P. Jones:

— five, just as bad.

Felix Frankfurter:

(Inaudible)

William P. Jones:

Essentially, just a bad.

Of course, you might have to pick-up an opportunity in the — in a longer period to correct yourself.

In other words, you — you again, Mr. Justice Frankfurter, put your — put the two together.

It’s very — it’s bad enough to have your property over and above the taxes confiscated, but when it’s done swiftly and with haste and weeks is a — is a short time to lose all of your property.

Why then it’s — it’s troubling then.It’s — it’s lawful.

Felix Frankfurter:

Well, in rem then has nothing to do with — notice has nothing to do with — whether although the Commissioner — one of the Commissioner (Inaudible) has personally called up Mr. Nelson and told him all about it or had to have it in a (Inaudible) wouldn’t make any difference because the statute which did the City release beyond, the dollars will send to the delinquent tax you said are constitutional, is that right?

William P. Jones:

I do say that.

Felix Frankfurter:

All right.

William P. Jones:

Yes, I do.

Felix Frankfurter:

(Voice Overlap) —

William P. Jones:

I — I say that and that’s —

Felix Frankfurter:

All right.

William P. Jones:

— one point.

That is one point in this case.

Earl Warren:

Do you find this statute to be unique or rather similar statutes throughout the country?

William P. Jones:

I have never seen another one, Your Honor.

Earl Warren:

Have you looked for them?

William P. Jones:

I have.

Earl Warren:

You have been unable to find any statutes that have a — a procedure similar to this?

William P. Jones:

I have not found one, Your Honor.

Earl Warren:

All of them, all of them?

William P. Jones:

I haven’t checked all 48-State.

Earl Warren:

All of them that you have checked to give them an opportunity to —

William P. Jones:

That is correct.

Earl Warren:

— to get back the excess over the taxes.

William P. Jones:

That is correct.

Every — every statute that I have checked in connection with this case provides a surplus sale.

And when — now, to find the surplus sale is at least requiring a sale that guarantees that the tax authority is going to get only its taxes plus interest, plus penalties, plus cost of the action and if there’s anything left over, it goes to the owner.

Now, the other — very briefly, the other —

Hugo L. Black:

In effect, you’re saying that if they get any more than that and that’s all you own.

They’re confiscating your property.

William P. Jones:

I say that, yes, but they’re getting a windfall that it isn’t tax collection at all.

That puts the tax authority in the real estate business.

The other case that he’s — appellees have cited in support of the statute involves a Michigan statute.

So, Michigan statute also provided a surplus sale.

They did it a little differently in a rather curious difference by providing that the purchaser if the tax fail would be sold the smallest possible, undivided fee interest, which he would take in payment for the amount of tax.

So then, you’ll see the purchase if the tax sale winds up as a cotenant in fee with the owner, but the owner still has his surplus represented in the remainder of the fee.

Now, that’s also a surplus method.

He’s preserved his ownership in the land.

Likewise, the Nebraska statute, involved which they cite in support of this statute.

I want to refer the Court to United States, the Lawton 110 U.S.146, which appears to be very close to the point of this case.

In that case, the United States —

Felix Frankfurter:

(Inaudible)

William P. Jones:

US v. Lawton.

Felix Frankfurter:

That statute is (Inaudible) right for the seizure of the property to say the Government to satisfy out of the money, out of the amount received from the sale.

The Government may satisfy a tax rule under separated (Inaudible) that has come to the owner.

Felix Frankfurter:

The statute explicitly provided that.

William P. Jones:

Right, right.

Felix Frankfurter:

But it doesn’t follow the counter statute is a part and agree that it was constitutional.

It doesn’t even follow because the United States has a different statute, that New York does have its kind of a statute.

And it doesn’t follow because now, New York has ameliorated its statute.

That what it did before was beyond the power of the City.

William P. Jones:

Well, except what Mr. Justice Black presented in his opinion, that if the surplus hadn’t been given back to the owner, that he would have been deprived of due process of law.

Felix Frankfurter:

That’s because the statute said he was entitled to it.

Why not?

William P. Jones:

But I want to point out — I — I think, Your Honor, that it was more fundamental than that.

That it was a principle.

Felix Frankfurter:

Well, but —

William P. Jones:

But it involved regardless of the statute.

Felix Frankfurter:

But, Mr. Jones, they have a statute that explicitly says the Secretary of the Treasury.

The property is sold and has net $10,000 and there (Inaudible) a tax of $453, the rest can be confiscated because Congress said it must be returned.

Of course, if you don’t give back what Congress said you’re entitled to, that’s the deprivation of property arbitrarily and therefore without due process by the Secretary of the Treasury no matter how it ended.

William P. Jones:

Well, in my reading of the opinion, I — I gathered from the opinion that the statute didn’t actually provide for the surplus to go to the —

Felix Frankfurter:

Or in any explicit detail turned.

William P. Jones:

There is a point of improper notice in this case.

However, following the doctrine laid down in the Mullane case.

Mullane case, which was the key to the decision in Covey versus the Town of Somers states that any pro forma notice, which is reasonably calculated to bring the action to the attention of the defendant will satisfy the minimum requirements of the due process.

Of course, in the Covey case, there is an incompetence, but we contend that that minimum requirement for notice is not satisfied in a case where the plaintiff, the party bringing the action in New York City in this case knew or should have known from the facts that the pro forma notice would be a mere gesture.

They in fact did know that this notice would be a mere gesture or should have known and are chargeable with knowing that it was a gesture from the record in the case.

Now, this is why after plaintiffs — after appellants, Queens property had been taken, they continued to pay real estate taxes on it.

And the City continued to bill them for taxes, even though the City had taken title to it and sold it to somebody else for $7000 and retained all the proceeds, the City still continued to bill the appellant for real estate taxes and the appellant paid those taxes.

Now, if that isn’t notice to an opposite party, who in turn is going to rely on pro forma notice to give this uninformed person notice about confiscatory action, then he’s not going to get any notice.

Why, I — I don’t see what — what would be a good example.Furthermore, the appellants paid the much higher real estate taxes and left unpaid the water charges.

Now, the water charges were small in amount, but because they are the older ones, they would detain these ones.

But nevertheless, they went on paying these — these large taxes.

Now, that also is notice to the City that their pro forma type of notice would not get across to the appellant and therefore, there is not the proper minimum notice in this case required by Mullane, the ruling of the Mullane case.

But could you — could you say that, the sentence of what you think would be the type of notice they should have, the — the minimum requirement of due process?

William P. Jones:

Served as — as a — as process in a civil action.

That’s the minimum in a civil action, is personal service.

In this particular case, when —

The — the property would have to be sold, well, your argument.

William P. Jones:

My argument here —

Would have — it would have to be sold as though it were a foreclosure of an individual mortgage.

William P. Jones:

That’s right, sir.

That’s right.

Felix Frankfurter:

But what would you regard a personal service in this case?

William P. Jones:

Personal —

Felix Frankfurter:

(Inaudible) what would you regard as personal service?

William P. Jones:

I think a — a letter, something — certainly, something more than he got, possibly, a telegram to his house, possibly a personal call or some kind of a personal contact.

They knew these notices weren’t getting across, because he certainly wasn’t behaving like a man who was getting notice of his property being in danger.

Felix Frankfurter:

A personal call or a telegram, roughly, how many taxes —

William P. Jones:

A — a great many tax, I’m sure.

Felix Frankfurter:

— are there in the City of New York?

William P. Jones:

There are a great many.

That would be — it would —

Felix Frankfurter:

How many?

(Inaudible)

William P. Jones:

How many?

There must be — there are maybe 500,000.

Earl Warren:

I think that some brief says about 837,000 if I’m not mistaken, is that right?

William P. Jones:

(Inaudible)

Seymour B. Quel:

If the Court —

Earl Warren:

Mr. Quel.

Seymour B. Quel:

Thank you, Your Honor.

If the Court pleases, before I discuss the merits of the statute, I have suggested in my brief and my adversary does not agree that this appeal was academic with respect to the larger of the two parcels involved.

Now, Mr. Jones did not touch upon that aspect of the case in my argument and I would like to develop that briefly.

Seymour B. Quel:

When this case got to the Court of Appeals, the Court of Appeals said in a brief opinion, “This is a hard case, but relief should come from the legislature.”

After the decision of the Court of Appeals, Mr. Jones filed his notice of appeal to this Court after he got the — was permitted to amend — amend it and this Court noted probable jurisdiction.

Now, in the meantime, the New York legislature amended the in rem foreclosure statute and that amendment is annexed as an appendix to my brief.

And that amendment provided in substance that with —

Whereabouts?

Seymour B. Quel:

The Appendix, Your Honor, commencing on page 20 of — of my brief.

It was laws of 1956, Chapter 481.

Now, that amendment provided in substance that with respect to in rem foreclosures, which had been completed in the past, the taxpayer could come in within a period of 60 days after the passage of a statute and request the return of his property.

And the Board of Estimate in its discretion could grant that application, provided that he paid the back taxes.

As to future in rem foreclosures, the period for doing that was four months, but it also expressly applied retroactively, provided, you came in within the 60-day period.

Now, this taxpayer came in and requested that the property be reconveyed to him pursuant to the statute and we wrote him a letter and said, “We would reconvey it to whom, provided, that he paid” — it was about $15,000 of taxes which accrued in the meantime.

And he wrote back a letter which said, “We’ll be glad to do this after the Supreme Court decides the case, but will you please hold it in abeyance while the appeal is pending.”

Now, those letters are not part of the record, because I — and I didn’t want to print them as a appendices because strictly speaking, they are not part of the record and they couldn’t be.

They are circumstances which happened after the decision of the Court of Appeals.

However, I have made typewritten copies of those letters and with the Court’s permission, I’d like to hand them up.

The statute, of course, I’ve printed because the Court can take judicial notice of that.

Now —

Felix Frankfurter:

Now, matters pertaining to mootness arriving subsequently do not fall within rule of court that case was to be decided on the record because the issue of mootness arises subsequent to and therefore, whatever is relevant to determining that as you may properly be before this Court, as I understand them.

Seymour B. Quel:

Surely.

Well, I’m glad you know that, Your Honor.

And perhaps, I should have printed as an appendix to my brief, but I hesitated to do that.

Now, it seems —

Earl Warren:

You may file them.

Seymour B. Quel:

Thank you, Your Honor.

Hugo L. Black:

Does that relate to all of the properties?

Seymour B. Quel:

No, it relates to one of the two properties involved.

The reason for that is this.

The statute is expressly made applicable to any property which the City has not reconveyed since it acquired title.

Now, the larger of the two properties, the City still had when the statute was passed and by its expressed terms the statute applied.

The other property, the so-called 45th Avenue property which is the smaller of the two the City had sold some six or seven months after it — it had acquired title.

Seymour B. Quel:

And as to that, the statute does not apply and I can see that the appeals of our respect to that parcel.

But as to the other parcel, I think that the appeal is moot.

Now, of course, in his reply brief, the — Mr. Jones says he doesn’t like the statute and its terms and so forth, but any question — I mean, the — the ameliorated statute.

But any questions relating to that are, of course, not before the Court on this appeal and would have to be, it seems to me, the subject of a separate proceeding.

Now, turning to the other parcel as to which clearly the appeal survives.

What happened here in substance is that the appellant had a bookkeeper who was an embezzler and a thief and they say so, themselves.

Incidentally, I don’t know to this day, what the bookkeeper’s name was or — or what’s happened to him.

We have accepted at their face value the statements contained by Mr. Nelson in his affidavit when he moved to set aside the in rem foreclosure with relation of his property.

And Mr. Nelson says on page 9 of the record in his affidavit, “On or about November 13th 1952, the bookkeeper’s attempted suicide precipitated deponent’s discovery that the bookkeeper had for a number of years been converting his employer’s funds to his own use.

And otherwise, acting, so as to injure deponent and his co-trustees and deprive them of their property.

Now, of course, that lies at the crux of the case.

I don’t see how the question of notice can arise in this case, as it did for instance in the Mullane case or as it did in this Town of Somers case, which incidentally involved a very similar statute to the instant one, but it was the New York State statute or the instant one is applicable in New York City alone.

In —

Tom C. Clark:

(Inaudible)

Seymour B. Quel:

It’s passed by the – by the State, Your Honor, as an — as an amendment to the New York City Administrative Code.

Tom C. Clark:

(Inaudible)

Seymour B. Quel:

The other is the statewide statute and I might explain to Your Honor, just what the difference is and why we — why we felt that a New York City statute was necessary.

You see, those statutes provide that when you foreclose, you cannot exclude any property which is delinquent because what they were trying to guard against was any possible favoritism on the part of the collecting officer.

Now, the state statute provides that if a parcel has been delinquent for four or more years, the tax district may foreclose.And when the tax district proceeds against these parcels which are delinquent, it takes in every delinquent parcel within the tax district.

Now, of course, New York City with its five counties is all one-tax district and that just wouldn’t have worked for the City.

We don’t want to foreclose against everything all at once.

So, the New York statute which parallels the state one very closely provides in substance that instead of doing it by the whole tax district, you can do it by so-called wards or sections.

The city treasurer picks out a section which is a well-recognized geographical division of the tax map and then proceeds with the in rem foreclosure.

Now, if he proceeds — and again, they were trying to guard against any playing of favorites in its taking in some parcels and excluding others, if a parcel is delinquent within the definition of a statute, it may not be excluded except or — for rather narrow exceptions which are not irrelevant by all.

Briefly, if some question of title has been raised or if some question as to — if some arrangement has already been made to pay the taxes on an installment plan and one of the minor exception.

Now, that means that when the City proceeds against a particular section, it must include within that Section every parcel which is four or more years delinquent as to taxes.

The city treasurer has no discretion.

He may not exclude it because it is small.

As a matter of fact, one of the reasons for the passage of the statute was if the City had an enormous number of tax liens and no practicable method of collecting them.

You see, the old alternative method and the one which prevails before the in rem procedure was in essence, a method which was substantially in personam and was similar to a private mortgage foreclosure.

Was this in rem a recent statute?

Seymour B. Quel:

It was passed in 1948 and was first applied by the City in 1950.

And there’s never been anything like it before, go in rem?

Seymour B. Quel:

There — not in the City.

There had been a state tax statute which as I recall, it was passed in 1939.

And which was before, Your Honors, in the — in the Town of Somers case, although, you didn’t reach the question of its constitutionality and I might say that there are two other cases, one of which is cited in my brief, the Pennoyer case.

And another one in 320 — in the Lynbrook Gardens case in 322 U.S.742 in which, Your Honors denied certiorari to review the state in rem statute on the ground of unconstitutionality.

Do you think that that (Inaudible)

Seymour B. Quel:

No, Your Honor, it does not.

Anymore than this one does.

It — as a matter of fact, on the application of the certiorari in the — sorry, in the Court of Appeals, in the Lynbrook Gardens case, they raised that exact point.

They said, the statute fails to provide for public sale of property against which the tax liens have been foreclosed and the distribution of surplus moneys to the owners of said property and they claimed that it was unconstitutional without reason.Your Honors denied —

William J. Brennan, Jr.:

And this what’s known as a strict foreclosure statute.

Seymour B. Quel:

I don’t think so, Your Honor.

We don’t call it that in New York.

I’m not familiar with that term.

Now —

Earl Warren:

Do other states — do other states have statutes of this kind?

Seymour B. Quel:

Well, Your Honor, that’s a hard question for me to answer.

At least my answer is, I don’t know.

Now, the reason I don’t know is that this is the first time I — I got my adversary’s reply brief this morning.

I was right with mine and to that extent, it was my fault, but in any event, until I got that reply brief, that point has never been raised in this case.

He never argued in the Court of Appeals that our statute was unconstitutional because it didn’t provide for sale of the property.

He raised other points which I’ll come to, presently, but this is the first time that this question has ever been raised, and any claim has been made that our statute is unconstitutional because it does not provide resale.

Felix Frankfurter:

Well, it wasn’t among the questions that he raised when — when this jurisdiction was stated, either.

Seymour B. Quel:

No, Your Honors.

It — it was not.

Now, I started to say that I don’t see how any question of notice arises in this case.

The bookkeeper was dishonest and the notice for that reason, some of the notices never reached the appellants.

They do not deny that notice of a foreclosure suits the two in rem proceedings was addressed to them at the address which they gave, which was estate of William Nelson.

Seymour B. Quel:

I think it was 36 West 44th Street.

The notices were sent there.

They got there.

They were never returned.

Hugo L. Black:

How were they sent?

Seymour B. Quel:

By mail.

Hugo L. Black:

By mail.

Is that the customary way?

Seymour B. Quel:

Yes, Your Honor, and the statute so provides — the statute provides that if you register your name with treasurer as the owner of property, he must under the in rem foreclosure statute, in addition to the publication in various newspapers and the filing in the county clerk’s office, he must send you a notice by mail and he did that here.

And they got that notice.

That is, the bookkeeper got it.

And they — they had registered their name for that?

Seymour B. Quel:

Yes, Your Honor.

Is that a — a routine matter that if you pay a tax and they register your name?

Seymour B. Quel:

No.

No, you — you were —

(Inaudible)

Seymour B. Quel:

— it’s optional and as a matter of fact, if the — if the — if you don’t do it that the treasurer hasn’t got your address.

Of course, you can’t mail that notice and he makes an affidavit to that effect.

But where you register your name with them, he’ll — he sends you this notice.

He must under the statute and there’s no claim here that he didn’t.

In fact, it’s admitted that he did.

That they — what — what they say in essence is the notices were sent.

The bookkeeper got them and he never called the notices of the foreclosure suit to the attention of the trustee.

Now, they do say however, that during this period of time and this all comes from Mr. Nelson’s affidavit without any attempt on our part to go into the facts which we accepted is true.

He said that for a period of years, the bookkeeper used to present the tax bill and he used to make out a check and he used to pay the tax bills.

Now, if Your Honors will turn to page 36 of the record, a sample of one of the tax bills is — is there reproduced.

And Your Honors, and this — this relates to the — to the 45th Avenue property and Your Honors will see that on about the middle of the page and slightly to the right, after giving the amount of the taxes, the amount of the taxes $196.20, incidentally, Your Honors will note the address of the appellant’s, estate of William Nelson, 36 West 44th and so forth.

Now, the amount of the taxes, $196.20, the first half is $98.10.The second half is $98.10.

And thereafter, there appears the word “arrears”.

Seymour B. Quel:

And in — underneath, there appears the legend.

The word “arrears” as it appears on the space indicated by the arrow, which is the arrow which appears right underneath “arrears” means that as of June 30, 1950, previous taxes, assessments or water charges have not been reported as paid.

If these have not been paid since June 30 of 1950, payment should be made immediately.

Now, for a period of some seven or eight years, the trustee got those of that character.

He made out the check for the current taxes.

He never bothered to find out what the word “arrears” meant or what it stood for.

I don’t see how within the limits of reasonable procedure, if you have any kind of an in rem proceeding, you could hardly give more notice than was given here.

The fault as I say, lies in the dishonesty of the bookkeeper.

Now, some questions were raised during the course of Mr. Jones’ argument with reference to the right of redemption under the existing Administrative Code provisions.

Now, that statute provides, but after the treasurer shall have filed his list and published and mailed notice and so forth.

Well, he have to publish as I recall it once a week for — for six successive weeks and then you have 20 days to answer.

And the — excuse me, the appellate division of the New York Supreme Court has held that if you have any — of course, you can come in and pay your taxes which is one way of getting your property back.

But in — in addition to that, you can if you wish, file an answer which says in effect.

“Well, I don’t want to pay my taxes, but please sell my property separately and put aside any surplus for me.”

And under the Chapman Docks case which is cited in my brief, you can do that so that if you have an equity on the property or you (Inaudible) substantial equity in the property, you may, if you wish preserve that equity in that manner.

Hugo L. Black:

Where — how do you that?

Seymour B. Quel:

Well, you file an answer and you — and you say — you’ll in effect ask the Court to direct that your property be taken out of the — of — of the property as listed and sold separately at a public sale and any surplus derived from such sale be set aside to your benefit.

Do you file that proceeding in — in a court?

Seymour B. Quel:

I beg your pardon.

Do you file such a proceeding in court?

Seymour B. Quel:

You file it as an answer to the in rem foreclosure proceeding, yes, in the Supreme Court.

But I — I didn’t know the in rem procedure was in the courts.

Seymour B. Quel:

Oh, yes, Your Honor.

May I explain that?

What happens is this.

The city treasurer makes up a list of delinquent tax parcels and he then files that in the county clerk’s office and he — and that is headed if Your Honor will note under the terms of the statute which is — where is the appellee —

(Inaudible)

Seymour B. Quel:

— which is set forth in the —

Page 20 of the appellant’s brief.

Seymour B. Quel:

Page 20 of the appellant’s brief.

Seymour B. Quel:

Your Honor, will notice on page 22.

It says, “Such list shall be known and designated as the list of delinquent tax essential, bear the following caption, quote, “Supreme Court blank County,” whatever the county is in the matter of foreclosure of tax liens pursuant to Title D and so forth.

So that it is a —

There’s no requirement of notice to the individual —

Seymour B. Quel:

Well —

— process?

Seymour B. Quel:

Publication plus mailing.

No process.

Seymour B. Quel:

No requirement of personal service.

That is correct, but it is an in rem foreclosure suit instituted in the Supreme Court of the county in which the properties lie.

The only thing really —

Is the judgment entered?

Seymour B. Quel:

— the — a judgment if — if there is no answer, a judgment is ended which directs the city treasurer to make out a deed to the City for the tax parcels involved as to which no answer has been filed.

However, Your Honor, there is no deficiency judgment.

You don’t wind up with a personal judgment against the owner.

You do wind up with a judgment which directs the conveyance of those properties to the City.

Tom C. Clark:

Where is — where is the answer to this statement?

Seymour B. Quel:

Page — page 26.

Tom C. Clark:

That’s the one I gave you the right to file an answer and you say you dropped (Inaudible)

Seymour B. Quel:

Well, that’s the one which gives you the right to file an answer.

Now, as to what happens if you have a surplus, that section — or if you think you have a surplus, that section has been construed by the — by the Appellate Division of the — page what?

Yes, thank you.

At the bottom of page 16 of my brief, I cite the City of New York against Chapman Docks Company, 1 App. Div.2d 895, in which the Appellate Division of the Second Department construed that as meaning that in addition to whatever defenses you might have with respect to the property, you could file a request that the property be singled out and the foreclosure and — and there will be a foreclosure sale.

Felix Frankfurter:

So that in effect, the statute doesn’t fitly not in words indicate that.

So, what — what I gather from the Chapman Docks case is that the Appellate Division — is that the last word on this subject?

Seymour B. Quel:

No, it is not, Your Honor.

The Court of Appeals is our highest court but the —

Felix Frankfurter:

No, no, but — but is this the last adjudication on this subject?

Seymour B. Quel:

Yes, Your Honor, and — and no appeal has been taken from that.

Felix Frankfurter:

So that what this in effect does is to grant upon the statute a judicially interpreted right to cover sale and get the surplus.

Seymour B. Quel:

That’s correct, Your Honor.

I think that’s —

Felix Frankfurter:

It’s also direct to the statute for our purpose as though they have been written in the statute for purposes of construing the statute by this Court.

Seymour B. Quel:

I — I think that’s correct, Your Honor.

I think it — I think it must be so construed in the absence of any —

Felix Frankfurter:

Well, I think that’s — what that statute means is for New York’s Court to say and you say the Appellate Division has spoken and this is not — no appeal has been taken.

Seymour B. Quel:

That’s correct.

Felix Frankfurter:

And evidently, the City — did the City lose there?

The City —

Seymour B. Quel:

Yes, we lost there.

We didn’t —

Felix Frankfurter:

With the appellant is there, the City didn’t appeal —

Seymour B. Quel:

That’s right.

Felix Frankfurter:

— and therefore, that’s the binding decision and that’s —

Earl Warren:

What year was that, Mr. —

Felix Frankfurter:

1956.

Earl Warren:

It’s very recent.

Hugo L. Black:

Now, may I ask —

Seymour B. Quel:

This year, Your Honor.

Hugo L. Black:

May I ask if the notice that you sent to them was going to their bookkeeper?

Seymour B. Quel:

Yes.

Hugo L. Black:

Notified of this particular proceeding in the Court?

Seymour B. Quel:

Oh yes, Your Honor.

Hugo L. Black:

Where is that now?

Seymour B. Quel:

Well, the notice — again, if Your Honor will turn to — to page 24 of my opponent’s brief, the appendix —

Hugo L. Black:

Well, the notice, we — we had the notice that was sent to us referred to a while ago, somewhere in the record.

The notice in one set, the bookkeeper got it.

Seymour B. Quel:

But they — but the bookkeeper got two different kinds of notices.

The bookkeeper got — the bookkeeper in the first place got the notice of the taxes.

Hugo L. Black:

Yes.

Seymour B. Quel:

In addition to that, the bookkeeper got a notice that this foreclosure suit was being commenced by the City against the particular parcels involved.

Hugo L. Black:

In the Court?

Seymour B. Quel:

In the Court.

Now, the form of that notice, Your Honor, is prescribed by the statute and that Appendix (A) of my adversary’s brief at page 24, you will see the way that notice reads this.

It’s — it had — it — it’s headed — incidentally, in reading that, Your Honor, if you would start just a little bit above the indented matter, such notice shall be in substantially the following form, quote —

Hugo L. Black:

On what page?

Felix Frankfurter:

Page 24 of the appellant’s brief.

Seymour B. Quel:

“Supreme Court —

Hugo L. Black:

Oh, I think that — (Inaudible) appellee’s brief — page 24?

Seymour B. Quel:

Yes, Your Honor.

“Supreme Court, blank County” and it says “Notice of foreclosure of tax liens by the City of New York in the borrow of,” so and so.

Then it says, “by action in rem.”

Then and it says, ”Please take notice that on the blank day of so and so, the treasurer of the City of New York, pursuant to the law filed that lien.”

And then — and then it goes on in — in considerable detail that notice covers about a page and a half and says, “to whom it’s directed,” and then — and then it says in substance that if you don’t come in and do something about the property, will revert to the City.

Hugo L. Black:

Well, let me see if I understand this.

Seymour B. Quel:

Surely.

Hugo L. Black:

As I understand it now, you notified him of the tax and that went to the bookkeeper.

Seymour B. Quel:

Right.

Hugo L. Black:

You later notified them that proceedings were being started in Court.

Seymour B. Quel:

Correct.

Hugo L. Black:

And that went to the bookkeeper?

Seymour B. Quel:

Yes, Your Honor.

Hugo L. Black:

And your statute does not provide as you understand it by reason of — the Court of Appeals’ opinion or whichever court, not the Court of Appeals.

Seymour B. Quel:

Appellate Division?

Hugo L. Black:

Yes, Appellate Division’s opinion.

The statute does not provide for an automatic taking of the property, but gives him a right to appear in Court after notice, the notice which went to the bookkeeper and see that his property is not taken as a whole, but that it is sold so that he can get any surplus value out of his property.

Seymour B. Quel:

That is substantially correct, Your Honor.

With this — now may — my — may we add this footnote to it?

Hugo L. Black:

Because I’d like to know.

Seymour B. Quel:

There isn’t any question irrespective of the opinion on the Chapman Dock’s case, that if you have a defense or if you want to pay your taxes, you can come in and pay them before the expiration period of 20 days.

Seymour B. Quel:

So, the statute clearly says that on its face.

The Chapman Dock’s case was concerned with the different situation with the situation where a man for instance said, “I owe taxes on this property.

I do not want to pay, but I want you to take that property out of the general list and sell it at a separate sale so that any surplus from such sale redound to my benefit.”

That’s the — that is not contained in the statute in express words.

Felix Frankfurter:

I haven’t read that opinion.

I have sent words, but I assume it’s not too difficult to see the process by which the Court arrived to that inasmuch as a man may come in and pay $623.

He comes in and says, “This is my property.

That’s a fund.

Would you translate that fund into dollars and cents and take out what belongs to you and give the rest to me?”

Seymour B. Quel:

That is correct, Your Honor.

Hugo L. Black:

That he has a right to do that under the law.

Seymour B. Quel:

Under the Chapman Docks case, he clearly has.

William J. Brennan, Jr.:

Well, is there any basis upon which the City could refuse him if he asks that — makes that request?

Seymour B. Quel:

The City could not refuse to accept the payment of the taxes.

William J. Brennan, Jr.:

No, I mean if he asks that the — the separate parcels be separately sold.

The City take what’s owing it and to pay him the balance maybe the City refused to do that.

Seymour B. Quel:

Well, before the Chapman Docks case, we apparently thought that we could refuse.

William J. Brennan, Jr.:

(Inaudible)

Seymour B. Quel:

No, not — not — we —

William J. Brennan, Jr.:

(Inaudible)

Seymour B. Quel:

— we did not appeal with Chapman Docks case and as the Chapman Docks case construes the law, we cannot now refuse (Voice Overlap) —

William J. Brennan, Jr.:

Well, that — that’s absolute right that the taxpayer had.

Seymour B. Quel:

Yes, Your Honor, under the present statute.

Earl Warren:

Had that procedure ever been opened to — to the appellant here?

Seymour B. Quel:

Had — yes.

Yes, indeed, Your Honor.

Earl Warren:

Would it have had to be before the — the Docks case?

Seymour B. Quel:

Well, the Docks case was not decided until this year.

Earl Warren:

Yes.

Seymour B. Quel:

He could have done exactly what the property owner in the Chapman Docks case did and presumably, the result had it been litigated would have been the same.

Felix Frankfurter:

That what —

Earl Warren:

So, there was no knowledge that they — on — on the part of the public generally that they had that right.

That — that is really the initial statute, wasn’t it?

Seymour B. Quel:

Well, I would say this that there was some doubt as to what the statute meant before the Chapman Docks case and that doubt has been resolved by the decision therein.

But you see, Your Honor, in this case, the trouble again was the bookkeeper.He just pocketed these notices of before of the in rem foreclosure and the trustee says that he never got the notices.

And, of course, we accept that statement as true, but now however unfortunate that result may be.

So far as the question of due process is concerned, it’s difficult to see what more we could have done here.

You just can’t show a personal service which has never been told to be a prerequisite to due process in an in rem foreclosure suit.

There are all kinds of tax statutes where you get judgments against property, all sorts of instances of notices by publication, which is the only notice, which have been held to satisfy the requirements of due process.

Now, short of actually personally serving these trustees, it’s difficult to see what more we could have done in this case.

Hugo L. Black:

Well, you offered the Chapman Docks doctrine as I understand it as a (Inaudible) his contention that you provide for on automatic taking of his property as a whole, irrespective of the value of the property?

Seymour B. Quel:

That is correct, Your Honor.

Hugo L. Black:

And that still to use the question of the notice to the bookkeeper.

Seymour B. Quel:

Yes, Your Honor.

Felix Frankfurter:

I notice in as I now, fairly rapidly looked at the small type in the Chapman Docks opinion and I notice they say that if a party says and so on, the Court should inquire as the case of the proper for directly of sale so that surplus moneys may be available to the answering party.

And I noticed they were confronted with the — the Village of Mamaroneck — Mamaroneck case 273 App. Div. (Inaudible)

Anyhow, they have that opinion staring them in the face and they distinguished that case because they said in that case the owner — merely the owner didn’t say the property was worth more.

He didn’t claim a sale.

He didn’t claim a surplus interest so that presumably this is a moot and has been a mooted question in New York and then they go on and say, “the — if it — it be intended that as an owner who has answer and property has a value substantially exceeding the amount of the tax liens is to be deprived of an equitable right to surplus money, the statute must so state or so indicate clearly.”

And their decision is that they impliedly read (Inaudible) of provision into the statute.

Seymour B. Quel:

Yes, Your Honor.

Felix Frankfurter:

Is that a fair construction of (Voice Overlap) —

Seymour B. Quel:

I — I think it is.

And I think that answers the constitutional objections which the appellant has to the case.

Felix Frankfurter:

How many in value does the Appellate Division have there, about 300?

Seymour B. Quel:

Well, they — they got up I think to —

Felix Frankfurter:

Was it 300?

Seymour B. Quel:

No, they — they got up to 286 and then they jumped into 1 A.D.2d.

Felix Frankfurter:

Well —

Seymour B. Quel:

My associate advises me that 273 App. Div. is 1948, Your Honor.

Felix Frankfurter:

(Inaudible)

Seymour B. Quel:

Now —

Felix Frankfurter:

Well, if — that preceded this litigation.

Seymour B. Quel:

Oh, yes.

Felix Frankfurter:

That preceded this litigation and this question —

Seymour B. Quel:

Surely.

Felix Frankfurter:

— this general problem was canvassing the Mamaroneck.

Seymour B. Quel:

It was, Your Honor.

Oh, yes.

I would like to mention one other thing, Your Honor, which I overlooked when I was discussing the question as to whether or not the appeal was moot with respect to the larger parcel.

The ameliorative statute vests discretions in the Board of Estimate.

However, so far, that — there have been 191 applications for the return of parcels which were taken.

We have granted 157.

We have not rejected any.

The only reason that the others haven’t been granted is that we’re still investigating when they’re being processed.

And in the letters which I’m going to hand up to, Your Honors, there is the statement by the Director of the Bureau of Real Estate that he will recommend to the Board of Estimate that the application be granted.

Now, I think that — that I can assure the Court that this application will be granted.

I mean, I wouldn’t ask the Court to dismiss the appeal as academic as to that parcel on any theory that the Board of Estimate still had any discretion.

We’ll —

Do you have discretion beyond the exemption for the statute?

(Voice Overlap) —

Seymour B. Quel:

I’m talking about discretion to — discretion to give them back their property after the foreclosure.

That’s the discretion there?

Seymour B. Quel:

Well, the — the words say the Board of Estimate in its discretion, but we — we’ve granted every application so far and we do not propose to deny this one.I mean, I just —

Felix Frankfurter:

May I ask you this question?

Seymour B. Quel:

Surely.

Felix Frankfurter:

It’s bearing on the question of mootness.

It can be mooted only if the exact, as I see it this is my (Inaudible)

Seymour B. Quel:

Go ahead.

Felix Frankfurter:

— if that which he claimed, that which he’s entitled to claim on his own theory is provided by the statute to wit that he gets, that he merely is the subject to the delinquent taxes.

Felix Frankfurter:

Now, does the statute leave him in that, even wholly the new statute?

Seymour B. Quel:

Now, I — I cannot in — in fairness say that because it does provide that he shall pay the cost that has a maximum —

Felix Frankfurter:

(Inaudible)

Seymour B. Quel:

— has a maximum limit —

Felix Frankfurter:

Yes.

Seymour B. Quel:

— of $500 — $500.

Felix Frankfurter:

But I — yes, I don’t — why would the —

Seymour B. Quel:

— as to cost.

Felix Frankfurter:

Cost.

Well (Inaudible), but beyond that, he — it gives him what he claims to be — he was improperly or invalidly, illegally deprived of that.

Seymour B. Quel:

Well, I want to —

Felix Frankfurter:

Namely, the surplus value beyond the statutes and clause.

Seymour B. Quel:

He gets the property back.

Felix Frankfurter:

He gets the property back.

He simply has to take actions for that.

Seymour B. Quel:

That’s correct.

It — it doesn’t apply to the property that’s been sold.

Felix Frankfurter:

That — then?

Seymour B. Quel:

As to the — and to the other property.

Felix Frankfurter:

He gets the property (Inaudible)

Seymour B. Quel:

That’s correct.

Felix Frankfurter:

All right.

Seymour B. Quel:

Now, Your Honor, in — in fairness to Mr. Jones, he does say in his brief that he doesn’t want to do that because the way he construes the statute, if he gets the property back he says, “We can keep the rent.

We’ve been collecting rents for three or four years.”

I’m not sure that that’s the proper construction of the statute.

I’m inclined to think it isn’t, but that question is not before the Court and I see no point in going —

Felix Frankfurter:

Well, is he —

Seymour B. Quel:

–in — into it —

Felix Frankfurter:

— would be in the position to litigate it?

Seymour B. Quel:

Oh, certainly he would.

Seymour B. Quel:

Indeed, he would.

If he pays the $15,000 which represent taxes plus a small — and it was plus the small amount, of course, he’ll get this property back.

Felix Frankfurter:

Then the question whether he should have had the rental on the City while he owned it (Voice Overlap) —

Seymour B. Quel:

Is — is a matter of dispute or possible, I hope not, possible additional litigation.

Now, Your Honors, I — I’ve tried to outline the procedure here.

The only thing I can say in conclusion is that the constitutionality of the statute of this character has to be viewed in the light of the problem involved.

We have 834,000 separate parcels of real estate in New York City.

And at the time that the affidavits were presented here, we had foreclosed against something like 40,000 for delinquent taxes and I’m advised that we have proceeded against up to date, against something like 57,000 parcels and have acquired title to them.

Now, Your Honors must realize also that in many instances, arrears of taxes are relatively small.

There is no practicable way of collecting these taxes by the old Title A method, because by the time you or it would take years and years and years to conduct the necessary title searches on all the various parcels involved.

We have devised by this method what we think is an expeditious way of collecting these taxes which we think satisfies the requirements of due process.

Pardon me.

Do you — did I understand it correctly that — that New York City has taken titles of 57,000 —

Seymour B. Quel:

That’s correct.

— pieces of land?

Seymour B. Quel:

57,000 —

Pieces of real estate.

Seymour B. Quel:

— of real — of real property have been foreclosed by this in rem method.

And since the ameliorative statute was passed which was early this year, there had been 191 applications for the return of properties.

I might say that under the ameliorative provision, we may not dispose of the property for a period of four months with reference to the future.

And within that four-month period, any owner can come in and make application for the return of the property upon the payment of the back taxes, as was done here in the incidence of the Powell Street property.

And Your Honor, may I hand up to the Court the copies of the — of the letters of —

Earl Warren:

Yes, you may give to the Court.

Seymour B. Quel:

With joy, Your Honor.

Earl Warren:

Mr. Jones.

William P. Jones:

May it please the Court.

I’d like to correct, as soon as I can, some misimpressions about the Chapman case that may have — had left with you.

The Chapman case was decided long after this case that we’re trying now was decided and long after, of course, this case has begun.

Of course, this case also was begun after any opportunity to make use of the answer in this foreclosure action had expired and the — and the Chapman interpretation of that section is only good for a taxpayer whose time to answer hasn’t expired.

Felix Frankfurter:

But I suggest that in our profession, we assume that when a decision is handed down, it wasn’t concocted the minute that the decision was handed down, but I’m not resorting to a fiction as evidence of the lawyer of the Chapman.

Felix Frankfurter:

He thought that the statute was in itself without construction and he was alerted to think so by the discussion of Mamaroneck case.

William P. Jones:

There’s one good reason why the one thing I — I know the lawyer in the Chapman case and — and the — and the — the state statute, Your Honor, that is, this prototype statute of New York State does provide that where an answer is filed.

Then, you’ll have certain rights that you don’t have when you don’t file an answer to that.

We all knew that very, very clearly and discussed that particular point that the state statute provided that where an answer is filed, you can then, in a proper case, move for a — to request the sale —

Felix Frankfurter:

I’m — I’m merely suggesting —

William P. Jones:

— but this — this — that you didn’t have it there.

Felix Frankfurter:

I merely suggest that the — that the stimulus to all that the statute might be so interpreted wasn’t there and I should think it is there particularly (Inaudible) that wasn’t merely a case in which you could reason on the fact that the Chapman’s doctrine isn’t — wasn’t really in that case.

William P. Jones:

Well, they can’t ever say that the — this case here was started long before.

Felix Frankfurter:

Not to my mind.

When was this being started?

William P. Jones:

This case was started in January of 1953.

Felix Frankfurter:

Well, the Mamaroneck case at 273 App. Div. does not involve after 1948.

William P. Jones:

No, I don’t think there is anything into the Mamaroneck case that have stimulated anybody’s thought that the — that — that filing an answer would have been includable under the relief in this statute, but what good would it have done to anybody in this case?

The chance to answer had long since expired, long since.

Felix Frankfurter:

But there was a chance (Inaudible)

William P. Jones:

No, there wasn’t, Your Honor, and that’s what I want to correct —

Felix Frankfurter:

Why not?

William P. Jones:

Because the answer had to be filed 20 days after — it had to be filed 10 weeks after this foreclosure action and that have gone on years before.

Felix Frankfurter:

Do you mean because of the — because of the notion that he knows?

It went back to me.

William P. Jones:

Yes.

Felix Frankfurter:

(Inaudible)

William P. Jones:

At — at any rate, any chance to make use of an — of an interpretation of — of what could be done with an answered file in this case, long since gone.

Hugo L. Black:

Well, I suppose we could — we could pass the old act unconstitutional on the grounds it provided for an automatic taking of your property when it, of course, has held at any time it doesn’t make — it doesn’t provide for such conditions, couldn’t we?

William P. Jones:

Well, yes, if you — if you’re — if you have the misfortune to miss your chance to answer —

Hugo L. Black:

Well, that’s the question of the adequacy of the note.

That’s a different question.

William P. Jones:

Well, I mean, then you have a — then, there is a confiscation if you miss your chance to answer.

Just a few brief words on this — on this remedial statute.

Remedial statute says that the taxpayer has to pay not only all of the taxes that were due at the time the City took the property but all of the taxes since that date plus interest during the period of the City’s claimed ownership and while the City is collecting the rents.

William P. Jones:

You’re given no credit for the rent.

In addition to that —

Earl Warren:

Do you agree you would have an action against the City for those rents in the event that you pay the taxes now?

William P. Jones:

I have — agree that I’d have an awful fight with the City on the interpretation of that statute —

Earl Warren:

But you agreed —

William P. Jones:

— because I — it has been discussed on the phone who would get those rents and that it has — I’ve have been informed that the City is going to keep the rents.

Earl Warren:

Do you mean that they’re legally entitled to them?

William P. Jones:

Under the statute, they claimed that they’re entitled to the rent.

So, you see there — it’s a fight who’s going to get the benefit of about four years of grants which are considerable.

So, it’s — it’s a very — it —

Hugo L. Black:

And you have a pretty strong argument, wouldn’t you, that they’re going to make you pay the taxes as though it was your property?

William P. Jones:

Well, you would have —

Hugo L. Black:

The City certainly ought to give you the rent.

(Voice Overlap) —

William P. Jones:

That — that is certainly a strong argument.

Hugo L. Black:

— at the cost of collecting.

William P. Jones:

That is a strong argument if I have to go — have to fight this one out too, I’ll certainly remember what Your Honor has said promptly [Laughter] the strength of the argument.

Hugo L. Black:

I hope so.

William P. Jones:

But there should be an end of litigation sometime and I hope that we don’t have to go to —

Felix Frankfurter:

What will you say to the —

Hugo L. Black:

(Voice Overlap) —

Felix Frankfurter:

— one-night decision?

Will you say — will you quote it as a one-night decision of the City?

William P. Jones:

[Laughter]

Hugo L. Black:

Nobody dissented yet.

William P. Jones:

I have only a few minutes left and I would like to point out something that I didn’t get to in my main argument.

That when the City resorted to this stringent method of collecting the taxes, there was available to it existing in as part of their tax law, the method under Title A which was the well-accepted method of selling a tax lien.

And then, the purchaser of the tax lien forecloses the tax lien and the owner gets surplus.

Now, that method was available and it was an alternative method.

This wasn’t a mandatory method in rem.

William P. Jones:

They had a choice.

They had an alternative.

But they chose to use the — the abrupt, the confiscatory method because the — the record undoubtedly showed here that this taxpayer didn’t know what was going on and that this was the — a sure windfall that was brought in to the in rem proceeding which it turned out to be some $51,000 of windfall property.

Also, there’s the clearly expressed intent of the legislature contained in the Governor’s Bill Jacket which says that the in rem method was intended to get back on the tax rules, heavily encumbered properties whose — where the taxes had — had practically doubled up the economic value.

And that Title A, this is the corresponding title in the state statute, was intended to be applied to improve properties.

Now, I — I submit that the — that under the circumstances of this case that the action of the City violated the appellant’s constitutional rights.

It isn’t necessary to knock out the entire statute.

We claim that only as applied to the appellants in this case.

However, it would be within the scope of the Court if they saw so fit.

We urge that the order be reversed with cause.

Seymour B. Quel:

Excuse — excuse me, Your Honor.

The — I find that the statute has been amended in a minor respect, not relevant really to the case here, but may I leave the amendment with the Court?

Earl Warren:

Yes, you may.

Seymour B. Quel:

With joy.

Thank you.