Summary
In Bellinger v. Gray (supra) it was held that where the board of supervisors attached their warrant to the assessment roll before its completion, by inserting and extending the tax, and then delivered it to the collector with directions to collect the tax, the assessment roll and warrant were void. The same doctrine was held in Davis v. Read (65 N.Y. 566).
Summary of this case from People v. InmanOpinion
Argued January 17, 1873
Decided March term, 1873
Francis Kernan for the appellant. C.D. Adams for the respondent.
In the view I have taken of the question of the defendants' liability on the facts disclosed by the findings of the judge who tried the issues, I deem it unnecessary to inquire into the sufficiency of the assessment roll when it was delivered to the board of supervisors, or whether the warrant in the form it was received by the collector afforded a protection to him in making the collection of the taxes directed thereby to be collected. I shall assume both to have been sufficient, so far as to authorize the board and collector to proceed in the discharge of their respective duties under the law regulating the assessment and collection of taxes. It will consequently only require an examination into the proceedings of the board, and of the defendant as a supervisor of the town for which he was chosen and as a member of the board, to reach a conclusion on the question to be decided on this appeal.
It is made the duty of the board of supervisors in each county, at their annual meeting, to examine the assessment rolls of the several towns in their county for the purpose of ascertaining whether the valuations in one town or ward bear a just relation to the valuations in all the towns and wards in the county; and they may increase or diminish the aggregate valuations of real estate, in any town or ward, by adding or deducting such sum upon the hundred as may, in their opinion, be necessary to produce a just relation between all the valuations of real estates in the county; but they shall in no instance reduce the aggregate valuations of all the towns or wards below the aggregate valuation thereof, as made by the assessors. (1 R.S., p. 395, § 31.) They are also required to make such alterations in the descriptions of the lands of non-residents as may be necessary to render such descriptions conformable to the provisions of the law referred to; and if such alterations cannot be made, they shall expunge the descriptions of such lands and the assessments thereon from the assessment rolls. (§ 32.) After these duties are performed they shall estimate and set down in a fifth column, to be prepared for that purpose, in the assessment rolls, opposite to the several sums set down as the valuations of real and personal estates, the respective sums in dollars and cents, rejecting the fractions of a cent, to be paid as a tax thereon. (Id., § 33.)
They shall also add up and set down the aggregate valuations of the real and personal estates in the several towns and wards, as corrected by them, and shall cause their clerk to transmit to the comptroller, by mail, a certificate of such aggregate valuation, showing separately the aggregate amount of real and personal estate in each town as corrected by the board. (Id., § 34.) They shall cause the corrected assessment roll of each town or ward, or a copy thereof, to be delivered to each of the supervisors of the several towns or wards, who shall deliver the same to the clerk of their city or town, to be kept by him for the use of such city or town. (Id., § 35.)
They shall also cause such assessment roll, or a fair copy thereof, to be delivered to the collector of such town or ward on or before the fifteenth day of December in each year (id., § 36); and to each assessment roll so delivered to a collector, a warrant, under the hands and seals of the board of supervisors, or of a majority of them, shall be annexed, commanding such collector to collect from the several persons named in the assessment roll the several sums mentioned in the last column of such roll opposite to their respective names, and containing directions as to the disposition of the moneys collected; and authority also is given, in case of the refusal or neglect of any person to pay his tax, to levy the same by distress and sale of the goods and chattels of such person, with a requirement to pay over such moneys by a specified time. (Id., § 37.)
It is then provided that, as soon as the board of supervisors shall have sent or delivered the rolls, with such warrants annexed, to the collectors, they shall transmit to the treasurer of the county an account thereof, and it is declared what shall be stated therein; and the county treasurers, on receiving it, are required to charge to each collector the sums to be collected. (Id., § 38.)
I have set forth these several provisions with this particularity for the purpose of showing the nature and character of the duties which are devolved on the several boards of supervisors.
It is evident that those imposed by sections 31, 32 and 33 are quasi judicial. They require the exercise of judgment in determining what changes shall be made in the valuations of the real estate in the several towns and wards to produce a just relation to each other, and, in the descriptions of the lands of non-residents, to make them conformable to law; and a decision as to the amount of tax to be paid on the several sums at which real and personal estates in the roll are valued is dependent on the amount of money that is required to be raised for the payment of different claims against the county, and towns, and cities, and other liabilities which are to be discharged; all of which must be passed on and settled by them. After those different questions are determined, the mere act of giving them effect by the insertion of what is necessary may be clerical; but when such insertion is made it is the result of such judicial determination.
It is also apparent, from the several provisions considered and construed in connection, that all of the duties required to be performed under these sections shall be discharged before those specified in the subsequent sections hereinafter mentioned are to be done. The amount of tax to be paid is to be ascertained after the requirements of sections 31 and 32 are complied with, and is to be "set down in a fifth column, to be prepared for that purpose in the assessment roll;" and when all that is done, and not till then, the assessment roll is complete. Then duties of a mere ministerial character are imposed by sections 35, 36, 37 and 38. One of those, and the only one now material to be noticed, is that required by sections 36 and 37. The warrant that is to be issued must be annexed to the assessment roll, as completed, or to a fair copy thereof; and it is without meaning and incapable of execution unless so annexed. It refers in express terms to the several persons named in the roll, and to the several sums mentioned in the last column thereof opposite to such names, meaning the amounts of tax to be paid by them respectively. After such warrant is delivered, in the form so specified — complete and perfect in every respect — and in a condition to be executed, the board is further directed to transmit to the treasurer the account specified in section 38. It appears to be a necessary result of the several requirements made of the board, that the assessment roll and warrant in question were neither of them such documents as the law required when they passed from the board and made it incumbent on them to deliver to the collector. In fact, they were neither of them of any legal effect, and what was subsequently done by the defendant was wholly unauthorized; and the warrant given to the collector, conceding it to be sufficient in form to protect him, was known by the defendant, or must be assumed to have been so known, to be illegal and insufficient to authorize a levy under it. He had signed it, and thereby (and also by his verbal direction at the time the package was taken) directed it to be done. He cannot be protected against that act by the warrant or by what the other members of the board, or the board as such, may have directed or authorized him to do in making the additions to the roll after its delivery to him.
There is no color or ground for saying that the plaintiff made a voluntary payment of the money taken by the collector. The whole course of proceeding at the time shows not only that it was not such, but that he expressly forbid the taking, and notified the collector that he would be held responsible therefor. The preceding views render it unnecessary to express any opinion whether the seal, or impression on the warrant intended for a seal, was sufficient or not, within the peculiar requirement of the statute in that respect. It is a question involved in doubt, and deserves the careful consideration of supervisors before concluding it to be sufficient.
My conclusion, therefore, is that the judgment appealed from is erroneous, and that it should be reversed and a new trial ordered, costs to abide the event.
I am in favor of a new trial in this case for the following reasons:
(1.) The warrant for the collection of the tax was void on its face.
The assessment against the plaintiff of $29,547, on account of "circulation notes and profits," was plainly illegal, and in making it the assessors exceeded their jurisdiction. It seems to have been intended to assess the plaintiff for notes issued by himself and for which he was a debtor, and that is simply absurd.
(2.) The assessment roll was not verified as required by statute, and that omission is fatal to its validity.
The provisions of a statute by which a public officer may condemn the property of an individual must be strictly observed.
(3.) The board of supervisors failed to discharge its duty The warrant was imperfectly sealed, and was left incomplete in several respects when the board adjourned. They had not fixed the "corrected valuation of real property," or inserted the "total of real and personal property," or extended the tax thereon.
All this was done by the defendant, Gray, and he had no legal authority to do it. It could be done only by the board of supervisors in corporate meeting duly convened, and the power was not and could not be delegated. If the warrant had been left as the supervisors left it when they finally adjourned, no tax could have been collected of the plaintiff. The defendant undertook, without authority of law, to do what the whole board of supervisors of the county of Herkimer ought to have done. Having finished the work he handed the papers to the collector of the town of Herkimer, and by virtue of it the property of the plaintiff was taken to the amount inserted in the warrant by the defendant. If he had inserted five times more, if the judgment of the Supreme Court is correct, the plaintiff could have no remedy. But the defendant is liable for his illegal act, by which the plaintiff has sustained injury.
It was suggested on the argument that this manner of doing business in respect to the assessment and collection of taxes was customary in the county of Herkimer, and therefore should be approved.
A custom to disregard a statute must become very obstinate before courts of justice will approve and practically repeal an act of the legislature.
There should be a new trial.
All concur in opinion of LOTT, Ch. C., EARL, C., not sitting.
Judgment reversed.