115 N.E. 447 | NY | 1917
This proceeding was instituted for the purpose, in effect, of reversing and annulling the action of the county treasurer of Nassau county in canceling certain tax deeds issued to the relator. Said deeds were so canceled because to the warrants issued to the tax receiver was affixed the seal of the board of supervisors of Nassau county instead of the seal of the county as required by the statute. The sole question of importance argued upon this appeal is one involving the interpretation and application of the five-year Statute of Limitations contained in section 132 of the Tax Law. If *120 other questions could have been argued they have not been and we shall confine ourselves to the consideration of the question thus presented.
It is conceded by the appellant that the failure to affix the proper seal to the warrants which were issued as aforesaid rendered the same invalid and made the sales founded thereon invalid. (Brase v. Miller,
We do not think the failure to affix the proper seal was a jurisdictional defect resting upon any constitutional ground, and, therefore, governed by the period of five years.
We shall not attempt to define every fault in tax proceedings which might amount to a jurisdictional defect under constitutional principles. Some of these readily occur to the mind and may be cited simply for purposes of comparison with the present one. Such an one would arise from failure to give a taxpayer any notice of an assessment against him or opportunity to be heard in respect thereof. Other equally grave flaws would be those specifically mentioned in the statute where the taxes for which the sale was being made had been paid, or where an attempt had been made to levy taxes by or on behalf of a town or ward having no right whatever to assess the land on which the tax was being laid, and still another jurisdictional fault would arise where lands of a resident were assessed and sold as on an assessment against a non-resident. Various defects of this jurisdictional character are discussed in the following cases which sustain the views here being adopted: Williams v.Supervisors of Albany (
It is easy to see that the error of the tax officials in any one of the instances mentioned would affect the very foundation of the proceedings upon which a tax sale might rest, and that a sale despite such a defect would be without jurisdiction and would invade the constitutional rights of the taxpayer in a manner that could not be cured by subsequent legislation. Comparison, however, shows how different such cases would be than the present one. Here there has been no failure to act and no erroneous action which disregarded the fundamental requirements of a valid assessment or sale. No complaint is made that the taxpayer did not have full notice of the assessment and an opportunity to be heard in respect thereof. It is not asserted that the tax had been paid, that the property was not properly described, that full power did not exist to issue the warrants under which the sales were made, or that such warrants did not contain a proper description of the lands and necessary official signatures. The only trouble arose from the inadvertent act of affixing the wrong seal, and while under the case of Brase v.Miller (supra) this error made the warrants invalid and the sales ineffectual because there was a failure to comply with a mandatory statute, the legislature, if it had seen fit, could have provided that the seal of the board of supervisors should be affixed, or could have dispensed with the affixation of any seal, or by appropriate and timely legislation could have cured the error if it had been committed and the warrant issued. Under such circumstances we think it is perfectly safe to say that the fault amounted to an irregularity, and that it did not rise to the dignity of a jurisdictional defect based on constitutional grounds.
The order appealed from should, therefore, be reversed, with costs in all courts, and the determination and act of the county treasurer be annulled.
CHASE, COLLIN, CUDDEBACK, HOGAN, CARDOZO and POUND, JJ., concur.
Order reversed, etc. *123