People ex rel. Oswald v. Goff — 52 N.Y. 434

Majority

p. 434

The People ex rel. Alexander Oswald et al., Respondents, v. Stephen M. Goff et al., Assessors, etc., Appellants.

(Argued February 28, 1873;

decided April 1, 1873.)

Headnote

Under the provision of the act for the correction of assessments, etc. (§ 1, chap. 453, Laws of 1865), which provides, that in case property has been omitted in the assessment roll of the next- preceding year, it shall be the duty of the assessors, upon application, to enter the same in the assessment of the current year, at the valuation of the year when it was omitted, or, if not then valued, at that of the preceding year; whenever it is ascertained that property has been omitted, and application is made as prescribed by the statute, the duty of the assessors is ministerial, and they have no discretion. They must enter the property at the valuation of the year preceding, if it was valued upon the assessment roll of that year; if not, of the year preceding that; they cannot change the valuation. If the property was not valued in one of those years the assessors have no power to enter it upon the assessment roll.

Where a clause is inserted in a judgment without authority, the proper remedy is by motion in the court below to correct the judgment, not by appeal.

Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, reversing an assess ment made by defendants against relators, brought up for review by writ of certiorari.

In 1868, defendants were the assessors of the town of Howard, Steuben county. The relators were non-residents of the United States, and were the owners of certain debts owing from inhabitants of said town. The assessors, in 1867,

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valued these debts at $30,000, and by mistake assessed them to “B. F. Young, agent of Pulteney estate.” An application was made by three tax-payers of the town to defendants, under chap. 453, Laws of 1865, to have the same assessed to the relators. Defendants, upon the roll of 1868, made an assessment against relators, as follows: “omitted in 1867, $40,000.” Further facts appear in the opinion.

James H. Stevens, Jr., for the appellants.

It was the duty of the assessors, upon application, to enter the property in the assessment roll of the current year. (Laws of 1865, chap. .453, § 1.) The statute is remedial, and such a construction should be put upon it as not to suffer it to be eluded. ( West v. McGurn, 43 Barb., 200 ; 1 Kent’s Com., 463; People v. Utica Ins. Co., 15 J. R., 382.)

WilUam Rvmsey for the respondents.

The assessors have no jurisdiction to assess except as the statute prescribes. ( Whitney v. Thomas, 23 N. Y., 281 -285; Torrey v. Milbury, 21 Pick., 64 -67; Cruger v. Dougherty, 43 N. Y., 107 , 122; Van Rensselaer v. Witbeck, 7 id., 517.) So much of the judgment as directs restitution to be made cannot be reviewed in this court. (Code, § 330; People v. Johnson, 38 N. Y., 63 -66; De Barante v. Deyermand, 41 id., 357; Hacket v. Belden, 47 id., 624.) The order for restitution was proper. (4 N. Y. Stat. at Large, 681; Devlin v. Platt, 11 Abb. Pr., 398 -401; Stone v. Mayor of N. Y., 25 Wend., 157 , 167; Tidd’s Prac. [ed. 1799], 1079; Bacon’s Abr., tit. Error, M., 3; Dyett v. Pendleton, 8 Cow., 325 -327; Safford v. Stevens, 2 Wend., 158 -164; Choules v. Chamberlain, 3 Abb. N. S., 118 ; S. C., 35 N. Y., 477 ; Lott v. Swezey, 29 Barb., 87 -95.

It is a general" rule that, in exercising the power of taxation, the statutory proceedings must be substantially pursued, as well to secure vigilance and fairness on the part of the public officers as to protect the citizen against unlawful burdens. At the same time the official action ofpublie officers clothed with this duty, acting in good faith,

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will be protected as far as practicable, consistent with the rules of law and the rights of others. They will not, in general, be held liable for mere errors of judgment when they have a discretion, or in the performance of a duty of a judicial nature. . The defendants, in placing the relators upon the assessment- roll, acted under the authority of the act,, chapter 453 of the Laws of 1865, which provides that whenever it shall - appear to the assessors of any town that any land or property, legally liable to taxation, has been omitted in the assessment roll of the next preceding year, it shall be the duty of the assessors, upon application, etc., to enter said land or property in the assessment roll of the current year, at the valuation of the year in which said tax was omitted, or, if not then valued, at the valuation of the preceding year. .

Whatever the nature of the duty of ascertaining whether any land or property has been omitted may be, when that is ascertained and the application made, there is no discretion to be exercised by the assessors.' They are to do a specific thing, which is a ministerial act, to'enter the property upon the assessment roll at the valuation of the preceding year, if it was then valued, or, if not, at the valuation of the year preceding that. If the property was not valued in one of those years, the assessors have no power to enter it upon the assessment roll." . The valuation required is the valuation upon the assessment roll. The property in question was valued upon the assessment roll of the preceding year, and assessed to a wrong person at $30,000. The defendants entered it at $40,000. This was unauthorized; but it is claimed that the property was -actually valued, upon the assessment roll of the preceding year, in the first instance at $100,000,- -and that it was reduced by the supervisors; or in some other way, ti> $30,000, and that the relators cannot complain that, the valuation is reduced. The assessment roll is the best evidence of the valuation, and the amount is presumed to have been fixed lawfully until the contrary is shown. The memorandums and recollection of two of the defendants cannot he allowed to override the official document on file in the proper.

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office. Aside from any other question, I do not think the defendants were authorized to enter the property at any other valuation than $30,000. They had no discretion and no judgment to exercise as to the valuation.

The authority is specific and must be strictly pursued. The language of the act is not fortunate for accomplishing the object intended; but we are obliged to take it as the legislature has adopted it. It is unnecessary to consider the other points raised as to the construction of the law.

The provision in the judgment for a restoration of the money collected on the tax is improperly there. The order of the Special Term allowing it having been reversed by the General Term, it is the same as though no authority ever -existed; but it is not properly before us on this appeal. Having been inserted without authority, the proper remedy as by motion in the Supreme Court to correct the judgment.

The judgment should be affirmed.

All concur, except Allen, J., not voting.

Judgment affirmed.