*1 Babhyte y. Shepherd. Statement of case. Shepherd Sylvenus Andrew and Alfred Vose. determining subject The office of what and what is assessor, to, judicial; determining such exempt from,- taxation, assessor, judicially; arriving acts and is liable for errors committed in at questions, subject. that his conclusions upon from the sixth district. The Supreme Appeal sued, the defendants before the plaintiff justice peace recover sustained $15, Tioga county, damages his name roll for assessment put having upon year who were then assessors for 1857, defendants, town of that Spencer, county, by' refusing him from he was a minister exempt taxation, although Methodist and his real and Episcopal denomination, estate worth lеss than all of as the $1,500, which, plaintiff was well known to the'defendants. alleged, The defendants took these plaintiff issue allegations.
At the before trial, that justice, he proved was a resident of said the. town, owning occupying farm there worth that he $2,500; possessed personal prop- worth owed debts to like erty $500, amount; for'that defendants were town, placed name on the assessment roll for assessed his prop- at for taxation the sum of He also erty $1,050. proved ordained as a minister of the regularly Methodist and had a sermon preached Episcopal society, every Sunday for several his farm years, other laboring during days it did he had been week; appear placеd circuit station over authority society any received their although belonged, ministry annual from the or the local ¡Conference, orders presiding nor did it that he inwas elder; appear receipt for his services as minister. salary also that he his certificate proved presented of ordination to the and demanded to be defendants, Baehyte *2 J. Court,
Opinion per Leonard, refused and he to allow his taxation, claim, but they value of his the sum taxed the assessed property of $9.63, neglected pay plaintiff having the collector and made the sold his amount amount, property, costs. with
Horace assessor of said testified town, Giles, another valued the that the assessоrs property plaintiff that reference did other without person, any deduction.
The rested his the defendants moved case, plaintiff having on the that acted nonsuit, ground judicially within also on jurisdiction, ground not shown was not worth property the amount of his and above .over assessment, $1,500 and the The the motion, exemption. justice granted to the excepted ruling. where the County plaintiff appealed costs. of the reversed,
judgment justice to the The defendants appealed Supreme Court, thereupon at the General Term the sixth district, and after hearing Court was with costs; affirmed, County to this the defendants now court. appeal submitted printed arguments appeal for the counsеl respective parties. for the J. Taylor,
John appellants. for the
B. F. Tracy, respondent. J. statutes of that all this State provide Leonard, and all estate within this State shall liable lands personal to the thereinafter taxation, exemptions subject specified. Title Section 1, 13, part 1, 387.) R. S., chap. p. (1 § title declares the' Sub exemptions. the same (page 388) of this section includes exempt, division eight minister of the Gospel, every priest personal and the of such minister real estate denomination; of any real and such him, when provided per occupied or priest exceed the value $1,500.” estate do not sonal Court, per Leonard, 5 of the same title further “If Section follows: provides-as thе real and or either of minis- estate, them, -any sum, ter or exceed the value of shall he priest, $1,500, residue, deducted from the.valuation of his. property, to taxation.” shall
Title second of this and man- relates chapter “place ner to be assessed.” Article second of directs “the title second manner which assessments are to *3 and the duties of the assessors.” be made, in Section directs- that the assessors shall proceed eight the and ascer- first to each days-of May July, year, between names of all the taxable tain, by diligent inquiry, in and inhabitants their towns or also respective wards, real or within same. personal, property, an assessment in nine directs them to roll, Section prepare and in four columns, set down separate which they.shall in In the 1.- information power: to the. best according all the taxable inhabitants names of first column, of land column, In second quantity town ward. or 2. full In the third 3. column, taxed each to be person. full In the fourth value column, 4. value of súch land. such after owned by person, all the taxable property personal 390, 391.) debts by (pp. him.” owing deducting just of section nine several subdivisions of the An examination ' one some will satisfy having title 1, chap. the differ- courts, decisions of acquaintance lawyers often among judges .and prevailing ence of opinion under these arising pro- necessarily questions respect an assessor, of the-duties performance visions, from will be taxation,, of exemption the subject considering embarrassment. of considerable one referred to- above, section 8, made their duty, by It the taxable inhabitants, are who inquiry, ascertain, diligent is taxable within property the real personal or wards. towns their respective what áre residents; to determine who them It devolves the Constitution exempt real are exempt buildings States; the United what this State or of per Court, of tlie Leonard, seminaries of or academies, public learning worship; colleges, under or what circumstances he is minister priest, who how much of real and claim may exemption, per- taxation. sonal is subject оften one residence is diffi very great The question a reference to the It law found, reports will be culty. of this court and of the Hew that the York judges this State, not in accord in Court holding building Superior or as a taxable as a seminary learning dwelling, 3 Sandf. S. 409 5 Jenkins, C., N. ; Y., (Chegaray 376.) in that held case has It been with- Supreme the subordinate character out reference to officeror and also in difficulty determined, another question that assessors which will shortly mentioned, case per- damages sonally correctly ascertaining their town an inhabitant of was entitled to an whether a minister or taxation as priest. that all the be found cases It will reported recognize do act certain *4 assessors judicially deciding determining in the which come before them their performance questions do so are not in act, that when duties, or in for errors mistakes their decisions. cases an action in these uniform to the occasionswhen are not officers respect act and when do judicially ministerially. Weaver it was held
In
v.
that
(
and estimate their best according belief and tion, judgment.” 119.) (p.
A number of cases are cited the learned judge, great that the law will not allow malice or showing corruption suit in a civil officer for does what charged against in the of a This rule performance judicial duty. applies only where the officer has case. jurisdiction particular Secor was similar action with (5 Barb., Prosser 601) It one. minister present prosecuted by for assessors his allowing taxation, real and estate under value. $1,500 being
It was seventh held Supreme Court, district, had no over such assessors or their jurisdiction persons that the assessment of It was conceded .property. property held that the court judicial act, no where the or the to assess person exempt.
It that the as a that case, appeared, plaintiff practiced this fact led assessors to hold sometimes, physician him not entitled to his exemption. have at this
The court seem to arrived because decision, ninth referred for section to above provides setting inhabitants and not for the names of the taxable down only, names of others. But how was it down setting the inhabitants were not taxable ascertained that that is made requisite the same diligent inquiry except ? conceded Why ascertaining which is while former, per- that the latter act judicial, *5 under of' the same' section authority (8), formed by not to is held the same judicial language, precisely It there is not discussed. The subject not protected? leaves us of the learned dixit judge, merely ipse distinction makes the at a loss perceive wholly act the other is not. while of one judicial, performance are when the assessors they conceded It bemay at all the conclu- without reaching exceed jurisdiction, case cited. in the. just arrived at sion Court, per Opinionof the Leonard, Owen, Vail v. is another case of simi-' Barb., (19 22) very lar features to one under consideration.
The action was
a minister of the
brought by
Gospel against
the assessorsfor
when
had none
assessing
statute
account of his
It was
exempt by
calling.
there held that the act was
and that the assessors
judicial
were not liable. The case of Prosser v. Secor was fully
in this
reviewed
which occurred in the
case,
district,
eighth
and the conclusion that assessors have no
over
jurisdiction
such
law
from
is held to
persons
taxation,
exempt
untenаble.
wholly
Brown v. Smith
in
also case
(
The case of v. Jenkins N. Chegaray (5 Y., 376) action party claiming exemption taxation on a her as a school or building occupied private off seminary the tax who collector, learning against under justified a war him rant issued to in due form of law. The learned who delivered the judge opinion in leading case J.) says, determining (Buggies,
whether was taxable as a plaintiff’s property dwelling as a acted seminary learning, judicially within of their The case sphere duty.” decided *6 the Court, Leosard, per of citation as but it is deserving opinion this ground, and a eminent very judge experience probity. great also in court which was There is another case twice, in different it for which has been before forms, adjudication, as an referred to case. authority controlling present N. Y., v. The Co. Chenango (11 People Supervisors of a manda on an was its first 563) appearance, application mus the relator, supervisors, compel by Mygatt, against them audit tax had been assessed allow as a him when he was fact resident resident, against another county. resided when he was county May,
Mygatt Chenango there on his but removed before assessed personal property, 1st of the This court same year Oswego county. July no held the assessors of had authority county Chenango to assess the removed to another relator, having county bеfore the last assessments to be when are, by law, made; day that he had a at law' action perfect remedy writ. and that he entitled was, therefore, in that acted It was said case that the assessors without In assess- and that their void. were jurisdiction, proceedings had over personal property, jurisdiction only ing that assessors act I concede residents. (says Judge Parker) If had a resident when been assessed, Mygatt judicially. not have had would been erred as amount, they for error.” liable of the court that assessors
It was the opinion had the relator remedy action, legal therefore entitled to the writ. he was not court, before this case came reported same again N. Y., 316). the title of v. Washburn (15 Mygatt county held that Chenango It was there for the or estate no Mygatt person because the estate, him for of assessing purpose on the first made law, must be assessment regarded, for ascertain- limited the last the statute day day July, day taxable inhabitants, the names of the ing of Oswego county. a resident Chenango, *7 ' Barhyte Shepherd. ü. of the Leonard, J. Opinion Court, per defendant was held be liable for tire personally damage occasioned assessment that That case ground. on the of of turned out the resi question jurisdiction arising of assessed, dence while the arises out party present of the claim There is in that case exempt. over nothing or thаt Weaver v. the assessorslose ruling juris Devendorf case other than that diction of . non-residence. The any case cannot be considered in the precedent controlling pres ent for the reason one, this case awas and had real estate resident, which he in the samé occupied where town of these was to defendants, He from his (aside performed. exemption) inhabitant. Whether his real and estate personal was exempt, was another not at all affected question, of question out of the jurisdiction arising of residence. place exercise of discretion and sound is as much required to determine what is or what is not under the 4th above section refеrred to as ascertain the value of the real estate of the taxable personal inhabitants. In my opinion, there no of involved. question jurisdiction It is clear that, effect decision of this court in v. Washburn, assessors must Mygatt determine the question residence at the peril personal responsibility damages shall, in case mistake, without fraud or malice even, name of non-resident on the assessment place roll. The who delivered opinion learned the court in judge while its harshness case, admitting severity, places his conclusion of the wholly upon ground non-residence of in the town where he was assessed for assessor lost estate, whereby jurisdiction. is not to extend necessary
It application rule on can so public policy, perceive, ground cases of mistake a claim include deciding exemption, estate person where within the party juris- the assessor. asséssors were diction riot ousted of to decide the claim of while the party a resident and possessed otherwise property taxable. was taxable like all other real per Hunt, State; character of the owner in-this if case, *8 as it was that of the anything, exempted property, in the case school of Madam building Chegaray. devolved the statute as to duty plaintiff’s deciding claim and assessors, necessa- upon it, performing acted and are entitled to rily judicially, рrotection. assessment, the result of their decision Entering roll cannot be from the act of separated judicially deciding. The assessorscannot refuse to into effect what had carry decided within their jurisdiction.
In the discussion have refer to the omitted to foregoing whether or not the assessors were error refus- question allow claim to for the reason ing plaintiff’s exemption, that the defendants not their decision liable, although should be had the held to be erroneous. The defendants and it before was their to decide the right, duty question them. It is not nor for of the it justice peace, court, to review their decision in an action them. an errors devolves only upon determining of thе when the review determines the court, appellate rights between That whom arose. parties question the case here.
I am for of the and reversing Supreme Courts, of the County affirming justice peace, costs of the and in below this court. appeals "J. The defendants were the assessors of the town Hunt, in the county Tioga, during year Spencer, was a minister of the attached Gospel plaintiff the Methodist in the denomination, Episcopal residing was the owner of a farm in same town. assessed entered assessors, town, roll at the sum of was also the assessment owner $1,050, At the time the possessor personal property. proper informed them that he assessors, apрlied a minister above the benefit of the stated, requested statute. examination exemption provided Upon he stated his of the value of before opinion Court, per Hunt, and that some farm, property, in value to debts He further owed. enough equal that he stated this farm and worked personally occupied in the his own week, six hands well as hired days that he had been ordained as a assistance; minister, regularly and that he on the of each week. The preached Sunday his claim defendants refused allow to be a minister, that he also a and refused apparently, farmer, ground, him the benefit of the statute in favor of give In a minister of the a tax Gospel. thereof, consequеnce *9 the of to plaintiff’s property $9.63, imposed upon pay which, the of the his expenses proceeding, sold. The now his action the brings against to for their refusal to recover allow the damages exemption trial the before the claimed. Upon justice, non- to the the Upon appeal County suited. Court, justice’s reversed, judgment appeal General of the Supreme Court, Term County The this was affirmed. defendants Court now appeal case court. presents Can an single The. question. be sustained assessors of a action town for refus- to a minister of the allow Gospel ing he is entitled to which statute taxation ? The defend- that claim ants duty premises judicial, are. therefore liable in an that action for they damages, decided The incorrectly. although plaintiff, claims hand, duty other assessors in ministerial and that merely, are liable to respect result from its or improper willful damages non-per- formance. to be
If the performed by defendants in duty this case its or ministerial, inaccurate negligent was purely performance them liable for the renders them consequent sus damages If the was a plaintiff. judicial tained one, they White Lead liable. (Rochester are v. Company City of 3 v. 343; Comst., People Supervisors Rochester, Chenango, of 15 573; Mygatt N. Kern., Washburn, Y., 316; see authorities, post.) Shepherd.' Barhvte of .per-HuNi, the-
The of statute the taxation of provisions respecting, at 1 R. .found S., p. margin; pages “ first The section lands and all following. provides all within this whether estate individ personal State, owned by uals or shall be liable to by corporations, taxation, subject - hereinafter exceptions specified.” nn “ enacts that Section four shall be following property * * from taxation: *-3. erected Every building for the use or other semi- college, incorporated academy * * * nary 1. learning. estate of personal any not made taxation incorporated on its company * * * title the fourth of this capita], 8. chapter. . every minister personal property or Gospel priest the real denomination, such or any estate minister and^ such real and by him, when.occupied provided priest personal of one thousand estate do not five hundred exceed value and All law 9. from execution.” dollars; property exempted by If the real and five or Section provides estate, minister exceed value of them, priest, either that sum five hundred be deducted thousand dollars, one shall *10 of residue the valuation shall be property, to taxation.” “manner the assessments statute.respecting which the the of enacts assessors,” that, and duties made, to be are “ and of July, they each year, the first days- May between the names of ascertain, inquiry, diligent to proceed shall or wards, in their towns inhabitants respective the all taxable the real or within personal, also all the property, taxable an assessment in which roll, they shall prepare They same. the columns, in four according set down, separate shall column, the 1. In the first power, information in best . n names In2. in each town or ward. inhabitants taxable of all each land to be.taxed the second column, quantity the land. the full value of such third column, In the 3. . person, In, all taxable value of the per full column, 4. fourth after deducting such owned person, by, property sonal R. S., 390.) Mm.” (1 debts owing just lands and that all personal statute is, The proposition V Shephebd. Babhyte Hunt, Court, per of the1 exceptions, with certain State, specified within Taxatiоn
are liable to taxation. 1.) (1 R. S., 389, § All lands and is the non-taxation is exception. rule; as taxation estate all comprise subject personal or and any exceptions declared in statute; exemptions of the taxable are to be cut out from property. body are as have them, buildings quoted Among exceptions all for As rule, erected seminaries buildings learning.” it to include are is the of the assessors taxable, is claimed, if a them the list; particular building it for a to have been built found seminary learning, hear the must be stricken from the list. assessors proof the statement of and decide whether the claimant, for that or whether absolutely was-erected building purpose, it for a housе, was erected used presence dwelling or to the main use of scholars boarders an incident and retain strike it which intended, in, building from the decide the fact be. list, they All estate is taxable, association rule.. An discounted amount persons holding paper half are a million of amount dollars, prima facie .of ask assessors to They, however, personal property. on it from .that are an incor- list, ground strike liable, not made to taxation on their capital. porated company two must be ignorance, If the profess propositions one of fact, wit, before them: an established must proved by production company, incorporated it; of action under thеir charter another proof is not liable to that such taxation incorporation.- of law, title tax the fourth law. The assess- its capital by *11 their list on and if the claim points, examine proof ors is stricken within out, sustained, property exemp- If heretofore 7, tion of subdivision qu'oted. proof either the claim is fails on point, rejected, tax remains in the list. the property of an Individual is assessed Under subdivision property assessed claims that to taxation. The it is party to the amount of taxation and asks §250,. that Tiffany—Von. 32 YIH. Babhyte [March Shephebd. Court, per Hour, stricken should be out as law from property exempt by and sale on execution. To effect this he
levy must result, that he satisfy is a assessоrs'by proof householder, they will decide whether he is himself a bona house- fide or whether he is a holder, or dependent bounty upon benevolence of some other He must that show he person. has a family and the assessors hear the evidence support, on this also. He must that if point show this assessed prop- be should taken from him erty he would not by execution, then have the articles of the value law remaining him to retain. This diffi- evidence involves permits usually cult and nice both of fact and it is questions law, the assessors make the to hear the evi- inquiries, and to determine the dence, of the claim. validity And so under the subdivision which upon present arises. The is a resident the town question in his a farm of Spencer, having occupancy acres, The assessors are not bound to owning personal property. know that there reason should not why property assessed with the other of their if there town, have no means of know- may right exemption; they that the would desire claim the benefit ing it. in the first He on is, therefore, instance, properly chargeable the assessment roll owned him. He and in the case he before did, the assess- may, present appear and claim an or a on ors deduction two grounds. he claimed an abatement from his First, personal property, owed to its he debts ground equal value, another entitled him law to such deduc- provision fact he bоund establish tion. This and sub- by oath, to a cross-examination' after assessors; who, ject his evidence and would decide deliberating it, hearing upon and allow or disallow his claim as the truth the question also He claimed deduction on the should require. ground a minister his evi- Gospel gave own and was cross-examined dence on this assessors. point, as I conclude claim, disallowed holding, They that the of a minister must them, evidence gave calling *12 Babhyte Shephebd. of the Hunt, Court, per a farmer during his occupation be exclusive, of the the benefit him from claiming week prevented days a minister. to deduction allowed under this have and all of the cases suggested
In each the assessors is judicial thе action of eminently statute, to hear administer oaths, evidence, To in its nature. and to decide with the law, its effect, compare weigh To action. of the essence of presented, judicial question make the and to make the deduction, indicating figures the assessment be conceded deduction itself, roll, may hear- ministerial but to arrive at the act; conclusion, by be of its evidence, credibility, weighing judging ing the evidence with the of law, provisions comparing entitled to a far from a is as deduction, the plaintiff as can well be ministerial act imagined. defendants matter subject and of the interested. person their party proceeding, ” “ is the matter of All real personal property subject for the of taxation. All taxable purpose jurisdiction, ” the town are the within their inhabitants persons juris- This embraced both
diction. person them full tiffj gave authority adjudicate plain them. presented Property question and residents it are taxable taxation, owning subject the individual shall Whether be inhabitants. ultimately He be a taxable inhabitant taxed is not may question. If he has inhabitant. a taxed within and not ais inhabit- ownership, apparent possession an inhabitant liable to be while reason ant, taxed, is, or of mem- exemption, of indebtedness being aof of an taxation character, particular ber incorporation be not may actually imposed. that a must
To be taxable does imply person taxed, that he is in the to the class where, condition belongs under certain That taxed. circumstances, may entitled to ultimately him, gives no to claim that he a taxable therefore, ground inhabitant of the town. *13 Barhyte Shepherd. [March v. Court, per Opinion Hunt, J.
That the. action in defendants adjudicating upon claim not does them plaintiff’s judicial, expose for an erroneous is also sustained legal liability decision, the authorities. Such was the statement in v. Chegaray Jenkins in (1 Seld., where, subdivision commenting upon 381), “ Ruggles 3, heretofore quoted, Judge says, whether was taxable as a determining plaintiff’s property or as a house, acted seminary dwelling learning, and within the their In The judiciаlly sphere duty.” Peo ple v. Supervisors Chenango (1 Kern., 573), Parker, J., “ In says, had assessing personal they only over residents. concede assessors act judicially. If a resident when Mygatt assessed, had.been they erred as would not have been- liable amount, they error.” In Weaver v. an (3 Denio, action 117), Devendorf the assessor for to allow'the against brought refusing of the the benefit minister, under consideration. Beardsley, “the act com-' J., says, was a determination. The were judicial plained within the and limit of acting clearly their judges scope not were authority. They volunteers,'hut was im duty compulsory, perative acting, they, did, of a in its nature public 'duty, were performance judicial, they an not howеver erroneous or action, wrongful determination.”
The same
established Henderson v.
principle
Brown, (1
In Easton and others v.
Caines,
Calendar
(11 Wend.,
92).
was an
action of
90),
trespass
trustees of
and the names of some of the
district,
taxable
school
inhabit-
the,
on
ants were not
the court held
list,
the trustees
trustees are
liable;
using
language:
determine who are and
who are
within-
taxable
the pro-
of the
statute. The
visions
ascertaining
inhabitants is-involved
considerable
error
difficulty,
in this
arise as well from a
respect may
misjudgment
as a
law the
mistake-in
officers,
part
fact. They
are bound to act and to exercise their best
in the
and if
of the taxes,
confine
apportionment
they
themselves
258-
Hunt,
per
err in
may
limit of the statute,
point
within.-the
though
liable either crim
should not be
of law or
judgment,
In
their motives are
Brown
if
pure.”
inally
civilly,
*14
Mid
the farm of the
partly
Smith
Barb.
(24
414),
in which
lived
farm,
towns.
upon
two
and
decided,
assessors
did not
This
town
appear.
clearly-
In an action
it
incorrectly.
ultimately appeared,
-
;
their action
and
held that
they
them,
judicial,
also
11 Johns.,
v. Young,
(See
Vanderhyden
protected.
;Hill
Harmon v. Brotherson
Barb., 207;
v. Sellick,
150
value, prepared according in' their information are to them- inform power.” They are to all selves, ascertain, means within their reach, oral statements, written observation proof, by personal are to reflect and judgment, consider, finally adju- to their best dicate, according information, prepare roll This accordingly. expression, my mind, strongly imports determination. case of power judicial Mygatt Washburn N. Y., claimed to be (15 deci- 316), sive case. This claim not well founded. present The difference between the case and present that Mygatt which the assessor held for Washburn, insert the roll name of him ing Mygatt, assessing *15 of $10,000 when he was an personal property, not, fact, inhabitant found in of is town, this, case, had officer no was jurisdiction person. Mygatt not, on the an first inhabitant of the town of day July, Oxford, had no to decide that therefore, jurisdiction whether was a taxable inhabitant. Not question, being at an inhabitant both a all, impossi legal physical that he should be a taxable inhabitant. He no bility more as a than subject jurisdiction, legal proposition, of China or Emperor Abyssinia, King had ho more assessors direct the tax power imposition than his of those distant upon, personages. him had to do his with They nothing personal prop circumstances. had under conceivable no erty any They action to take in direction. This is the ground precise of Washburn is both in case liability placed, and in itself the case v. Chenango People Supervisors of where sub the same (1 Kern., question argued 563), In decided. the latter stantially case, Judge says: Pakkek acted and their proceed-, The assessors without jurisdiction, In had void. they juris ings persоnal property, assessing If had resident diction over residents been a only. Mygatt and, had erred as to the amount, when assessed, they they been if had would have error. no But, they at are liable.” to act all, Babhyte Shephebd. Court, per Hunt, In the I have endeavored to show that the case, present both over the ample jurisdiction, person and of the matter of the taxation of his subject plaintiff, prop- That from the case, therefore, clearly erty. distinguishable present. involved decided in was correctly Vail v. question
Owen decision Prosser Barb., (19 22). contrary must be deemed to be overruled. Barb., 601), Secor (5 The conclusion that I have reached involves no hardship. The assеssors decided, think, erroneously, against validity claim He was entitled to plaintiff’s exemption. deduction of to the $1,500, statute. He was according not, their erroneous of all decision, deprived redress. He had to the board of assessorswhen remedy by appeal should inmeet to review their assessments. August reflec- Time, . tion conference have altered their subsequent deter- might mination. to correct the remedy by mandamus, action of the assessors in similar is now of cases, frequent occurrence, and relief have could been obtained that mode of proceed- But the erred, ing. my judgment, seeking relief action the assessors. Court Court should
Judgment County Supreme reversed and affirmed. justice *16 all the
Judgment concurring, except accordingly; judges J., who dissented. Smith,