117 N.Y. 77 | NY | 1889
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *79 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *81 The comptroller appeals from so much of the order of the General Term as annuls his action in re-levying taxes upon the occupied lots. He acted and justifies his action under chapter 453 of the Laws of 1885. That act provides that "whenever any unpaid tax levied upon an assessment of land by a town or ward having a legal right to assess the same which may have been returned to and admitted by the comptroller shall be ascertained either before or after sale thereof to be illegal or void by reason of any irregularity or defect in or omission of statutory requirements for creating or collecting such tax the comptroller is hereby directed and empowered, whenever deemed practicable by him, to re-levy the correct amount of such tax and add thereto the five per cent allowed by law to be added by the collector, which aggregate amount of tax and charge, with interest thereon at ten per cent per annum from the first day of August following the admission of such illegal or void tax, shall thereupon be due and payable, and shall be subject to existing provisions of law governing the collection of and sale for unpaid taxes by the comptroller." This act is undoubtedly a convenience to the state, and furnishes a summary remedy for illegal *83 taxes sought to be enforced against non-resident lands. When discovered to be illegal they are to be re-levied by the comptroller and then collected. Within certain limits the act works no injustice, but when enforced to its full extent the right of the taxpayer to notice of his assessment seems to disappear at the door of the state house.
This case furnishes an illustration in its facts, which are these: The lands in question were in the county of Greene and owned by one George Clark. He was a non-resident of the county, but the lots assessed were all of them occupied by his tenants, residents of the town. The lands should have been assessed to the resident occupants. They were assessed to the non-resident owner, and in the part of the roll devoted to non-resident lands. The assessment was, therefore, invalid and illegal, and the lots were not effectually assessed at all. The learned counsel for the comptroller declares in his brief that "the law does not read that way, and it is difficult to see how such a construction can be fairly put upon the statute." We have offended against that criticism in, at least, three cases. (Buffalo S.L.R.R. Co. v.Suprs. of Erie,
Now the occupied lands in the present case were not assessed to the resident occupants, nor even as non-resident land, but were assessed to the non-resident owner. While it is true that they were placed in the non-resident column, yet the name of the owner was appended, and so a personal liability on the face of the roll was initiated against him. As a consequence the lands were not assessed at all. There was not even the form or appearance of an assessment against the occupants, and that against the owner was illegal and invalid. Under such circumstances a re-levy of the tax by the comptroller necessarily involved a new assessment by him, and against the occupants who as yet had never been assessed at all. If he could make such assessment, which would necessarily be the first or original one against them, he certainly must act under some law which gives them notice and a right to be heard. The notice of the assessors was not such, for the occupants were not then assessed, and it did not concern them in the least. If they appeared on the review day they only ascertained that there was no assessment against them and so no right of theirs in any manner threatened If the owner appeared he found an invalid assessment of which he need not complain, since it could not be enforced. The comptroller, therefore, under the law, could only re-levy the tax against the occupants, and to do that he must first assess the occupants who had not been assessed before. If the law could make him an assessor for Greene county and then its collector, it could not do so as against the occupants without some provision for notice and some chance of a hearing. (Stuart
v. Palmer,
The act, therefore, should be limited as, indeed, its own terms indicate. It can relate only to unoccupied lands of non-residents, or where the occupants are themselves non-residents, which alone can be assessed as non-resident lands and returned as such to the comptroller, and permits him to re-levy on the basis of the old assessment where the same is irregular or void, but not in any respect which violates the constitutional rights of the owner.
We are assured that the act is a curative statute. That may well be said of it as we have construed it, but it is impossible to cure what never had life enough to be sick. There never was any assessment against the occupants, and nothing to be cured. As to them it was simply an omitted tax, and the cases of People exrel. v. Board of Assessors of Brooklyn (
We agree, therefore, with the General Term in their conclusion that the taxes in question could not be re-levied.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed. *86