McMahon v. Palmer

• Decision Date: 13 April 1886
• Citation: 102 N.Y. 176,6 N.E. 400
• Parties: In re McMAHON, Receiver, etc., v. PALMER.
• Court: New York Court of Appeals Court of Appeals

102 N.Y. 176

6 N.E. 400

In re McMAHON, Receiver, etc.,

v.PALMER.¹

Court of Appeals of New York.

April 13, 1886.

Appeal from court of common pleas, New York city.

Wm. H. Field, for appellant, Francis A. Palmer.

D. J. Dean, for respondent, Martin T. McMahon, receiver, etc.

RUGER, C. J.

Upon an application by the receiver of taxes of New York to the court of common pleas of that county, the appellant was adjudged guilty of misconduct in refusing to pay the tax assessed upon his personal property for the year 1881, and a fine was imposed upon him therefor. The proceeding was had under the provisions of chapter 230, Laws 1843, and was conducted in conformity therewith. The tax in question was predicated upon the customary annual assessment of property liable to taxation under the general laws of the state, but was in this instance based upon an assessment of the value of national bank shares owned by the appellant. The number of shares so owned by the defendant, and the estimated value thereof, was furnished by him to the assessment officers, and upon the information thus obtained, with that derived from other sources, said shares were appraised at their actual value, and placed in the assessment lists provided for the enrollment of property of that description. Certain irregularities are alleged to have occurred in the proceedings for the assessment of the property which it is claimed were jurisdictional in character, and ought to render such assessment invalid, and the tax levied thereon void.

It is quite true, if any act which was required by law to be performed by the assessment officers, and which is made thereby the condition of a valid assessment, has been omitted by them, it will render the assessment void. We have been unable, however, to find any such irregularity in the proceedings. Those claimed to exist are the following:

That the deputy tax commissioners failed to comply with section 7 of chapter 302 of the Laws of 1859, which required them personally to examine ‘each and every house, building, lot, pier, or other assessable property,’ and furnish, under oath to the commissioners of taxes and assessment, a detailed statement of such property, with the name of the owner or occupant, ‘with such other information, in detail, relative to personal property,’ as said commissioners may from time to time require. This provision very obviously refers only to real property, except in the clause expressly referring to personal property, and there is no claim that that requirement has been omitted. This view of the statute was assumed by this court in Brevoort v. City of Brooklyn, 89 N. Y. 128, and seems to be required by the plain inapplicability of the provision to assessments of personal property.

It is also claimed that the oath required to be made to the statement directed to be returned by the deputy to the commissioners of taxes and assessments was improperly made, in that it was sworn to on the eighth, instead of the second Monday of January, being the 10th. There is no provision requiring such oath to be made on any particular day, and the whole object and intent of the statute in respect thereto is complied with, provided it be taken after the examination of property is made by the deputy commissioner, and before the statement is filed with the commissioners on the second Monday of January thereafter.

It is also claimed that the entry of the assessments for national bank shares upon a list or book separate from other assessments for personal property against individuals in the city renders such assessment void. It is provided by section 3, c. 596, Laws 1880, that such ‘shares shall be included in the valuation of the personal property of such stockholders in the assessment of taxes at the place, city, town, or ward where such bank, banking association, or trust company is located, and not elsewhere, whether the stockholder resides in said place, city, town, or ward, or not.’ Sections 4 and 5 of chapter 410 of the Laws of 1867 provide for the assessment of personal property in the city of New York upon separate rolls from that of real estate. In the General Laws of the state the personal property of an individual is required to be assessed against him in the place of his residence, and assessments of real estate follow the location of such property. It must follow, as the necessary consequence of these requirements, when the individual assessed does not live in the same ward in which the bank is located in which he owns shares, and does not own real estate therein, that his assessment for bank shares must be made upon lists especially prepared for that purpose, in the ward where it is located, or the property must altogether escape assessment and taxation. The familiar rule that a statute must be so construed as to give it effect, and to avoid a result which would render it inoperative, if it be reasonably susceptible of such an interpretation, would seem to require us to sanction the only mode of assessment which seems capable of securing the benefits designed by the statute.

It is also clear that the tax-payer has not been deprived of any substantial benefit by the mode thus pursued. The statute gives information to him of the place where the roll is to be deposited for examination, and the length of time during which it is to be there kept for inspection, and of his opportunity during such time to apply to the proper officers for the correction of any errors which he may find in his assessment. Not only this, but the commissioners of taxes and assessments are also required to advertise the fact of the completion of the annual record containing all assessments upon property in the city of New York, and the time when the same shall be ready for inspection by tax-payers, and to keep the same in the tax commissioners' office, open for that purpose from the second Monday in January to the thirtieth day of April thereafter. There is no complaint but that these requirements were complied with, or but that the appellant had actual notice of the assessment in question in ample time to procure its correction, if any error existed therein. In fact, it affirmatively appears that the relator did appear before the commissioners of taxes on the twelfth day of April, 1881, and made affidavit upon which he procured a substantial reduction of the assessment in question. In re DePeyster, 80 N. Y. 572;In re Lowden, 89 N. Y. 548.

It does not appear that there is any provision of law requiring the assessments of individuals for bank shares in New York to be made otherwise than in the mode adopted in this case; and in the absence of such provisions we do not see why the practice here pursued was not in harmony with the general regulations applicable to the subject, and did not afford to the appellant the same opportunity and notice of the assessment in question that was given to all other tax-payers of similar assessments in New York. There is nothing in section 5219 of the Revised Statutes of the United States which either impliedly or expressly condemns the mode of registering the assessment adopted in this case. That section provides that nothing contained in that act shall prevent the shares owned by an individual in a national bank from being included in the valuation of his personal property in assessing taxes imposed by the authority of the state in which the bank is located. The mere ministerial act of the officers in estimating and noting the result of the judicial determination as to the liability of the individual, and the value and assessability of his personal property, provided such act does not produce an inequality of assessment, are not affected by the provisions of the section. The section purports only to affect the judicial act of the assessors in including the value of bank shares in the assessments of property, and not to regulate its exercise except in respect to the rate of taxation and assessment adopted. The provisions pertaining to the assessment of bank shares in New York are essentially different from those considered by Judge WALLACE in Albany City Bank v. Maher, 19 Blatchf. 175; S. C. 6 Fed. Rep. 417. The views there expressed are inapplicable to the modes of assessment prescribed in the city of New York, and apply only to cases where the assessment of both real and personal property are required by statute to be made on the same book or roll. The views we have expressed are sustained by the decisions of this court, (Foster v. Van Wyck, 2 Abb. Dec. 167,) and also by Williams v. Weaver, 75 N. Y. 30, which, in this respect, was unaffected by the subsequent proceedings in that case.

There are no other objections affecting the regularity of the proceedings for assessment which are of sufficient importance to merit notice.

It is further objected by the appellant that ‘the system of taxing the appellant's national bank shares resulted in taxing the moneyed capital invested in them at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of this state invested in other investments.’ The particular ground upon which the appellant bases this point is the claim that ‘there is no law upon our statute books for the taxing of shares of stock of railway companies, street railways, ferry and...