Frederick v. Dorn

72 N.Y.S. 673 | N.Y. App. Div. | 1901

Kellogg, J.:

If the tax warrant which defendant sought to enforce was void upon its face then-it is no protection to defendant. The'tax-warrant,'-When originally delivered to him in October, 1899, appears-.upon inspection to have been a- mandate to collect certain taxes-■therein named, and-- directed him “ to receive ” such, taxes from the various' persons “ as may be voluntarily paid, to yon for two successive weeks after the delivery to you of this warrant, together withone cent on each dollar thereof for your fees, and after the expiration of the time above mentioned, to proceed forthwith to collect the residue of the sums not so paid in as aforesaid, with five cents on each dollar thereof for your fees.” The warrant was, by the trustee, made returnable “ within thirty days after the delivery thereof to you.” Prior to the passage of chapter 440 of the Laws of 1899, which went into effect April 25, 1899, this form of warrant might have been deemed lawful. Chapter 440, however, amended the law (Laws of 1894, chap. 556, tit. 7, § 81) as to the time in which voluntary payments at one per cent were to be received by changing it from two weeks to “ thirty days from the time of posting said notice.” The grave discrepancy is apparent. The warrant reads “ two successive weeks after the delvoery to you of this warrant,” and thereafter collections were to be enforced with five per cent fees. This, I think, made the warrant void since it was unauthorized by the statute in existence at the time, and this being apparent on the face of the warrant destroyed all protection to the collector acting under it.

In Stroud v. Butler (18 Barb. 327) a case was presented .to the court in which a warrant to a school district collector directed the collection of five per cent fees from each taxpayer on the entire tax roll. This the court held made the warrant invalid, and the collector who had acted under it and made a levy was declared to be a trespasser, although the levy was made after the two weeks and at a time when the collector was entitled by law to five per cent fees.

The warrant in this case is made returnable thirty days after delivery to the collector. I find no provision in the statute directing at what time such a warrant should be "made returnable. The defect in this respect in the statute was noted in Stroud v. Butler (supra) and does not appear to have been since corrected It may be assumed from the present law, however, that the trustee issuing the warrant has a discretion as to the time in which it is to be returned ; but that it cannot be made returnable in less than “ thirty days from the time of posting said notice” would seem to be clear, for all that time the taxpayers have to pay voluntarily at one per cent fees added to the tax. It would seem unreasonable and illogical, therefore, for a warrant to direct the compulsory collection of a.tax within the thirty days as this warrant. does, and for that reason also I think it void. There must be some time after the thirty days permitted to the collector to enforce payment if he is to be held, or his bondsmen are to be held, for a failure of duty in that respect.

There is still another reason for declaring this warrant at the time the levy was made to have been void. It appears that after it had been issued for thirty days, and after a considerable portion of the tax had been collected, the collector asked the trustee to renew the warrant as to the delinquents, which the trustee did; and at such time he changed the tax list by reducing the assessment of one Denmark, and the assessment of plaintiff he also reduced by changing $4,000 of personal to $3,000, and the value of realty from $1,300 to $1,000; and this was done by erasing and by new footings. The changes were apparent on the face of the warrant, and were also known to the collector at the time they were made. This the trustee had no right to do. The provision for correcting a tax list after it has once been placed in the hands of the collector with the warrant for its collection is found in section 84 of title 7 of the Consolidated School Law (Laws of 1894, chap. 556) and reads as follows: “ Whenever the trustees of any school district shall discover any error in a tax-list made out by them they may, with the approval and consent of the superintendent of public instruction,- after refunding any amount that may have been improperly collected on such tax-list, if the same shall be required by him, amend and correct such tax-list, as directed by the superintendent in conformity to law.” This embodies all the authority there is in the statute to make corrections, and unless the statute is followed no correction can be made. It results, therefore, that the pretended renewal was not a renewal, but a new tax list wholly unauthorized. It is of no moment that in this case the plaintiff was not harmed but rather benefited. It might have been' otherwise. Others were harmed if he was' not. The tax which he was excused from paying must needs be paid by the other taxpayers. It would lead to a pernicious practice if the court should recognize a power in a trustee to change the tax list after his authority over it had wholly ceased — even the power to excuse any one from the payment of a tax would be dangerous to the safety of all. The statute must be pursued with reasonable strictness, for the statute is the only thing which confers any power upon the trustee. Without" going into any of the other contentions of respondent, which attack the official character of the collector on the proof, offered, we must affirm the judgment, with costs to respondent.

Smith, J., concurred in the result.

Judgment unanimously affirmed, with costs.