42 N.Y.S. 63 | N.Y. App. Div. | 1896
This is an action to have two deeds, executed on two tax sales of a lot of land in the twenty-sixth ward of the city of Brooklyn, and subsequent deeds by which the title of the tax purchasers became vested in the defendants, adjudged void as a cloud upon the plaintiff’s title. The sales were made for unpaid taxes for the years 1872
That the original levy of these taxes was void is not disputed by the appellants, but it is contended that they were validated and rendered effective by a subsequent act of the Legislature, known as chapter 411, Laws of 1885. The 1st section of that act is as follows:
“ All taxes heretofore admitted by the Comptroller, and which have not been paid or canceled on lands of non-residents in towns within counties containing upwards of 300,000 inhabitants, and all unpaid general and school taxes heretofore assessed on lands of nonresidents in said towns, which shall hereafter be returned to and admitted by the Comptroller, whether said lands were entered in the several assessment rolls separately as the lands of non-residents or otherwise, shall be, and the same are in all respects hereby legalized and confirmed.”
The unpaid taxes on plaintiff’s lot fall within the provisions of this section. If the statute is constitutional and operative, then the plaintiff’s land was properly sold. The first question before ns is the constitutionality of the statute. The act went into effect on June 6, 1885. The first sale made by the Comptroller was in December, 1885. Therefore, there is no question here of the ratification or legalizing of a void tax sale, and the case does not fall within the condemnation of the decision in Cromwell v. MacLean (123 N. Y. 474). The question is simply the narrow one of the power of the
In The Matter of Lamb {supra) the irregularity was the failure of the assessors to make or attach to the rolls the affidavit required by law. It was held that this defect could be cured and the tax validated by subsequent legislation. In Clementi v. Jackson (92 N. Y. 591) the tax was void for lack of an affidavit sworn to by two of the assessors that they had personally examined, within one year past, every lot of land within the ward, yet the curative act was upheld. In Ensign v. Barse (supra) the assessors failed to sign the roll. It was held that this defect was not so jurisdictional as to be beyond the reach of validating legislation.
In the case before us the owners had ample opportunity for hearing before the board of assessors. If, therefore, the defect in this case was only an irregularity, the statute of 1885 was constitutional, and has rendered the taxes valid. I am not inclined to enter into subtle discussion or nice distinction between defects that are irregularities and those that are jurisdictional. In the decided cases are to be found expressions condemning defects in the levying of taxes as jurisdictional, which undoubtedly the Legislature could cure by subsequent laws. As pointed out by Judge Finch, in Ensign v. Barse {supra), there are defects which may be deemed jurisdictional under the law as it stands, yet not so jurisdictional that the Legislature may not subsequently cure them. It becomes necessary, therefore, to examine the character and effect of proceedings for the taxation of lands of resident owners under the general system of the State. If they are proceedings to tax the land itself I should be inclined to admit that the error in the imposition of the taxes laid on the plaintiff's land was an irregularity only, or at least not sc jurisdictional as to be beyond the reach of subsequent legislation. But in my view the proceeding is not one essentially or primarily to create a tax lien on the land, but to affix liability on the owner.
Until the year 1850 the tax in the case of the lands of residents could never become a lien on the land. The sole method of enforcing it was from the personal property of the owner. If the
The appellants’ counsel urges upon us the authority of Wither-spoon v. Duncan (4 Wall. 210), where the Supreme Court of the United States said: “ Arkansas has the right to determine the manner of levying and collecting taxes, and can declare that the particular tract of land shall be chargeable with the taxes, no matter who is the owner or in whose name it is assessed and advertised, and that an erroneous assessment does not vitiate a sale for taxes.” I do not gainsay this doctrine. There the tax was one levied on the land. Hor is there any doubt that the Legislature might provide-that taxes for resident lands should be levied on the lands, as is the case in Hew York, in Brooklyn, and with respect to non-resident lands throughout the whole State. The question is not what proceeding the Legislature might have directed or authorized, but what it did direct and authorize. If by error a tax was levied upon A. when it should have been imposed on B., the Legislature might provide for a correction of the error by a reassessment of the tax upon B., giving him notice and a hearing. But it cannot by mere legislative fiat direct that the tax imposed on A. should be levied upon and collected from B., or from the property of B. We are, therefore, of the opinion that there was no tax on the land of the plaintiff which could be rendered legal or effective.
The next claim of the appellants is that the plaintiff is barred from maintaining this action by the provisions of various statutes which make the deeds of a Comptroller on tax sales, after a certain
The judgment appealed from should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.