People ex rel. Barnard v. Wemple
| Decision Date | 22 October 1889 |
| Citation | 22 N.E. 761,117 N.Y. 77 |
| Parties | PEOPLE ex rel. BARNARD v. WEMPLE, State Comptroller. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, third department.
Certiorari to review the action of the comptroller in relevying certain taxes upon lands of George Clarke, the relator's assignor, after the cancellation by the comptroller of the sale of such lands for non-payment of taxes. There was an order at the general term, annulling his action in relevying the taxes, and from this order the comptroller appeals.
Z. S. Westbrook, for appellant.
J. B. Olney, for respondent.
The comptroller appeals from so much of the order of the general term as annuls his action in relevying taxes upon the occupied lots. He acted, and justified 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 empowered and directed, whenever deemed practicable by him, to relevy 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 1st 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 taxes sought to be enforced against non-resident lands. When discovered to be illegal they are to be relevied 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 tax-payer 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 Clarke. 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: Railroad Co. v. Supervisors, 48 N. Y. 101;Hilton v. Fonda, 86 N. Y. 339;Stewart v. Crysler, 100 N. Y. 378, 3 N. E. Rep. 471. The first of these was decided before the amendment of 1878, but the others after it went into effect. That amendment was designed to accomplish two things only, and those were to make lands occupied by persons other than the owner assessable against such owner, if he resided in the county, although not in the town or ward; and the other was to provide for the omitted case of occupied lands of a non-resident owner where the occupants themselves were also non-residents. In that case the lands would be as much non-resident lands as if wholly unoccupied. The claim that the phrase ‘be assessed to the occupant as lands of non-residents' gives to the assessors an arbitrary choice, independent of the facts, is not to be encouraged. It is contrary to the whole...
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