In Van Rensselaer v. Witbeck (7 N.Y. 517), the certificate, which the assessors of the town were then required to annex to the assessment-roll, was defective, and it was held that where a statute prescribes the form of the certificate to be signed by the assessors and attached to their roll, a substantial compliance with its terms is necessary to give jurisdiction to the board of supervisors to impose a tax and issue their warrant to the collector thereon, and that without such a certificate the assessment-roll is fatally defective.Summary of this case from Brevoort v. the City of Brooklyn
December Term, 1852
N. Hill, Jr., for appellant. D.L. Seymour, for respondent.
The 26th section of the act "Of the manner in which assessments are to be made, and the duties of the assessors" provides that the assessors, or a majority of them, shall sign the assessment roll, and shall attach thereto a certificate in the following form, which shall also be signed by them." The prescribed certificate requires the assessors to certify that they have set down all the real estate situate in their town, and that with certain specified exceptions, "we have estimated the value of the said real estate, at the sums which a majority of the assessors have decided to be the true value thereof, and at which they would appraise the same in the payment of a just debt due from a solvent debtor," c. "And that with the exception of those cases in which the value of the personal estate has been sworn to by the owner or possessor, we have estimated the same according to our best information and belief."
The assesors in this case certified that they have estimated the value of the real estate in the town of Greenbush, at the sums which a majority of the assessors have deemed proper, and that the assessment roll contains a true statement of the aggregate amount of the taxable personal estate, of, c., over and above the debts due from such persons respectively, and excluding stock otherwise taxable, according to the usual way of assessing,"
The certificate made by the assessors of Greenbush, is a departure from the one prescribed by the statute, in almost every material requirement. This is conceded; but it is insisted that the making out, or drawing up of the assessment roll, and affixing their signatures by these officers, is like a judgment record, evidence of a judicial determination, upon which the board of supervisors could act, and that the omission of the certificate altogether would not in the least invalidate the proceedings.
If we assume that assessors act judicially in estimating the value of property, or the amount possessed by individuals and corporations within their jurisdiction, they, as inferior and special tribunals, deriving their whole authority from the state, are bound to comply with all its material provisions. Their adjudication concludes no one until it is recorded in the manner prescribed by law. In making the record they act ministerially. The statute prescribes the principle and the manner in which the assessment shall be made, and the precise evidence of the acts of the assessors in both particulars. This is furnished by the certificate alone. The mere roll, divided into columns, and containing a certain account of real or personal property opposite the name of an individual, is not a final adjudication, but preliminary thereto. Notice must be given (§§ 19, 20); the tax payers have a right to be heard (§ 22) and introduce evidence (§ 23). When this has been done, and all objections disposed of, the assessors, or a majority of them, shall sign the roll and attach the certificate in the form prescribed by the 26th section. The record is then, and not until then, complete.
"The roll thus certified (not merely signed) shall on or before the first of October, be delivered by the assesors to the supervisors of the town, who shall deliver the same to the board of supervisors." The jurisdiction of the board attaches when this document, or record, as it is termed by the defendants, thus certified is placed in its possession. Without the certificate the roll would resemble a judgment record without the judgment clause. The certificate contains the judgment of the assessors, and the principle upon which it is founded. It is, therefore, indispensable, not only because it is prescribed by the statute, and for the reason suggested, but because it furnishes about the only protection provided by the statute against unequal and oppressive taxation. Individuals if assessed too high, may reduce the valuation of their property by their own affidavit (§§ 22, 23). But if others are assessed much below the true value of their property, the injustice is as palpable and oppressive to those who are assessed according to the statute, as if some had been omitted altogether. The certificate was intended to prevent favoritism and partiality, by compelling the assessors solemnly to affirm that they have estimated each tax payer's property at its full value (§ 9, sub. 3, 14, 122). If this rule is complied with, equality in taxation will be secured, and in no other way (3 Mass. R. 429). The proceedings therefore would be fatally defective if no certificate had been annexed to the assessment. They are, if possible, worse with the one furnished in this case. The assessors have taken the precaution to negative all presumption that they had done their duty, by certifying that they had estimated the real estate, not according to its value, "but as they deemed proper," and the personal, not "according to their best information and belief, of its value," "but according to the usual way of assessing." We are informed by the learned judge who delivered the opinion of the supreme court, that the usual method is to estimate property at less than half its value, under the obligation of an official oath, which requires its full value to be stated. If this be so, the practice should be corrected. In the second place, these proceedings show the importance of adhering to the law, since these assessors, if the surmise of the learned judge is well founded, though prepared to violate their duty and their oath of office, shrunk from testifying to a gross falsehood to be recorded under their signatures.
In conclusion, I am of the opinion that the assessment roll was not complete and in a condition to be delivered to the board of supervisors until a certificate was made containing substantially the matters specified in the 26th section. 2. That the assessment roll thus certified to, is necessary to confer jurisdiction upon the board of supervisors: and 3. That the warrant and roll constitute a process in the nature of an execution, and must be construed together, and that the defect of jurisdiction in this case being apparent on the face of the instrument, it was no protection to the collector. The judgment should be reversed.