Barhyte v. . Shepherd

The statutes of this State provide that all lands and all personal estate within this State shall be liable to taxation, subject to the exemptions thereinafter specified. (1 R.S., § 1, Title 1, chap. 13, part 1, p. 387.) Section 4 of the same title (page 388) declares the exemptions. Subdivision eight of this section includes as exempt, "the personal property of every minister of the Gospel, or priest of any denomination; and the real estate of such minister or priest when occupied by him, provided such real and personal estate do not exceed the value of $1,500." *Page 240 Section 5 of the same title further provides as follows: "If the real and personal estate, or either of them, of any minister or priest, exceed the value of $1,500, that sum shall be deducted from the valuation of his property, and the residue shall be liable to taxation." Title second of this chapter relates to the "place and manner in which property is to be assessed." Article second of title second directs "the manner in which assessments are to be made, and the duties of the assessors." Section eight directs that the assessors shall proceed in each year, between the first days of May and July, to ascertain, by diligent inquiry, the names of all the taxable inhabitants in their respective towns or wards, and also the taxable property, real or personal, within the same. Section nine directs them to prepare an assessment roll, in which they shall set down in four separate columns, and according to the best information in their power: "1. In the first column, the names of all the taxable inhabitants in the town or ward. 2. In the second column, the quantity of land to be taxed to each person. 3. In the third column, the full value of such land. 4. In the fourth column, the full value of all the taxable personal property owned by such person, after deducting the just debts owing by him." (pp. 390, 391.) An examination of the nine several subdivisions of section 4 of title 1, chap. 13, will satisfy any one having some acquaintance with the decisions of the courts, and the difference of opinion often prevailing among judges and lawyers in respect to the questions necessarily arising under these provisions, that the performance of the duties of an assessor, in considering the subject of exemption from taxation, will be one of considerable embarrassment. It is made their duty, by section 8, referred to above, to ascertain, by diligent inquiry, who are the taxable inhabitants, and the real and personal property which is taxable within their respective towns or wards. It devolves upon them to determine who are residents; what real and personal property is exempt by the Constitution of this State or of the United States; what buildings are exempt *Page 241 as colleges, academies, seminaries of learning or public worship; who is a minister or priest, and under what circumstances he may claim an exemption, and how much of his real and personal property is subject to taxation. The question of residence is often one of very great difficulty. It will be found, by a reference to the law reports of this State, that the judges of this court and of the New York Superior Court were not in accord in holding a building exempt as a seminary of learning or taxable as a dwelling. (Chegaray v.Jenkins, 3 Sandf. S.C., 409; 5 N.Y., 376.) It has been held in that case by the Supreme Court, without reference to the subordinate character of the officer or the difficulty of the question to be determined, and also in another case which will shortly be mentioned, that assessors are personally liable in damages for not correctly ascertaining whether an inhabitant of their town was entitled to an exemption from taxation as a minister or priest. It will be found that all the reported cases recognize that assessors do act judicially in deciding or determining certain questions which come before them in the performance of their duties, and that when they do so act, they are not liable in an action for errors or mistakes in their decisions. The cases are not uniform in respect to the occasions when these officers do act judicially and when ministerially. In Weaver v. Devendorf (3 Denio, 116), it was held that assessors acted judicially in ascertaining the taxable property of the plaintiff, and in estimating its value. The plaintiff was a minister, and the assessors, who were the defendants in the action, refused to make any allowance for his exemption, and assessed him at a higher rate than others. The court says (BEARDSLEY, J.), that "it is not at all material whether the $1,500 were or were not deducted by the defendants, or whether the plaintiff's property was assessed at a higher rate than that of others, for in neither event can this action be sustained." The real estate of the plaintiff in that case exceeded $1,500 in value, and the judge says the defendants had jurisdiction over the property as well as the person of the plaintiff; "and it was their imperative *Page 242 duty to ascertain, as far as practicable, the taxableproperty, and estimate its true value according to their best information, belief and judgment." (p. 119.) A great number of cases are cited by the learned judge, showing that the law will not allow malice or corruption to be charged in a civil suit against an officer for what he does in the performance of a judicial duty. This rule applies only where the officer has jurisdiction of the particular case. Prosser v.Secor (5 Barb., 607) was a similar action with the present one. It was prosecuted by a minister against the assessors for not allowing his exemption from taxation, his real and personal estate being under $1,500 in value. It was held by the Supreme Court, seventh district, that the assessors had no jurisdiction over such persons or their property. It was conceded that the assessment of property was a judicial act, but the court held that the assessors had no jurisdiction to assess where the person or the property was exempt. It appeared, in that case, that the plaintiff practiced as a physician sometimes, and this fact led the assessors to hold him not entitled to his exemption. The court seem to have arrived at this decision, because the ninth section referred to above provides for setting down the names of the taxable inhabitants only, and not for setting down the names of any others. But how was it ascertained that the inhabitants were or were not taxable except by the same diligent inquiry that is made requisite for ascertaining the taxable property? Why is it conceded that the latter act is judicial, while the former, which is performed by the authority of the same section (8), under precisely the same language, is held not to be judicial and not protected? The subject is not there discussed. It is merely the ipse dixit of the learned judge, and he leaves us wholly at a loss to perceive the distinction which makes the performance of one act judicial, while the other is not. It may be conceded that the assessors are liable when they exceed their jurisdiction, without at all reaching the conclusion arrived at in the case just cited. *Page 243 Vail v. Owen (19 Barb., 22) is another case of very similar features to the one under consideration. The action was brought by a minister of the Gospel against the assessors for assessing his property when he had none not exempt by statute on account of his calling. It was there held that the act was judicial and that the assessors were not liable. The case of Prosser v. Secor was fully reviewed in this case, which occurred in the eight district, and the conclusion that assessors have no jurisdiction over such persons as are by law exempt from taxation, is held to be wholly untenable. Brown v. Smith (24 Barb., 419) is also a case in point as authority. It was there held that the assessors acted judicially in determining the residence of a person, and that they were not liable for erroneously setting the name of a resident of an adjoining town in the tax list. This decision occurred in the Supreme Court, fifth district. The plaintiff's land was partially in the town of Plainfield, Otsego county, and partly in Winfield, Herkimer county. The assessors (the defendants) resided in Plainfield. The court say they plainly had jurisdiction of the subject matter, although on the evidence the plaintiff's residence in the one town or the other was by no means clear; and in determining it the assessors acted judicially. They were held not liable to an action, although they erred. The case of Prosser v. Secor was also referred to and very decidedly disapproved. The case of Chegaray v. Jenkins (5 N.Y., 376) was an action by a party claiming exemption from taxation on a building occupied by her as a private school or seminary of learning against the tax collector, who justified under a warrant issued to him in due form of law. The learned judge who delivered the leading opinion in the case (RUGGLES, J.) says, "The assessors, in determining whether the plaintiff's property was taxable as a dwelling or exempt as a seminary of learning, acted judicially and within the sphere of their duty." The case was not decided upon *Page 244 this ground, but it is deserving of citation as the opinion of a very eminent judge of great experience and probity. There is also another case in this court which was twice, in different forms, before it for adjudication, which has been referred to as an authority controlling in the present case. ThePeople v. The Supervisors of Chenango Co. (11 N.Y., 563) was its first appearance, on an application for a mandamus by the relator, Mygatt, against the supervisors, to compel them to audit and allow a tax which had been assessed against him as a resident, when he was in fact a resident of another county. Mygatt resided in Chenango county in May, when he was assessed there on his personal property, but removed before July 1st of the same year to Oswego county. This court held that the assessors of Chenango county had no authority to assess the relator, he having removed to another county before the last day when assessments are, by law, to be made; that he had a perfect remedy at law by action against the assessors, and that he was, therefore, not entitled to the writ. It was said in that case that the assessors "acted without jurisdiction, and that their proceedings were void. In assessing personal property, they had jurisdiction only over residents. I concede (says Judge PARKER) that assessors act judicially. If Mygatt had been a resident when assessed, and they had erred as to the amount, they would not have been liable for error." It was the opinion of the court that the assessors were liable and that the relator had a legal remedy by action, and he was not therefore entitled to the writ. The same case again came before this court, and is reported by the title of Mygatt v. Washburn (15 N.Y., 316). It was there held that the assessors of Chenango county had no jurisdiction of the person or estate of Mygatt for the purpose of assessing him for personal estate, because the assessment must be regarded, in law, as made on the first day of July, the last day limited by the statute for ascertaining the names of the taxable inhabitants, and on that day he was not a resident of Chenango, but of Oswego county. The *Page 245 defendant was held to be personally liable for the damage occasioned by the assessment on that ground. That case turned on the question of jurisdiction arising out of the residence of the party assessed, while the present arises out of the claim to be exempt. There is nothing in that case overruling Weaver v.Devendorf, or that the assessors lose jurisdiction in any case other than that of non-residence. The case cannot be considered a precedent controlling in the present one, for the reason that the plaintiff in this case was a resident, and had real estate which he occupied in the same town where the duty of these defendants, as assessors, was to be performed. He was (aside from his exemption) a taxable inhabitant. Whether his real and personal estate was exempt, was another question, not at all affected by the question of jurisdiction arising out of the place of his residence. The exercise of discretion and sound judgment is as much required to determine what is or what is not exempt under the 4th section above referred to as to ascertain the value of the real and personal estate of the taxable inhabitants. In my opinion, there is no question of jurisdiction involved. It is clear that, by the effect of the decision of this court in Mygatt v. Washburn, assessors must determine the question of residence at the peril of personal responsibility in damages in case they shall, by mistake, without fraud or malice even, place the name of a non-resident on the assessment roll. The learned judge who delivered the opinion of the court in that case, while admitting its harshness and severity, places his conclusion wholly upon the ground of the non-residence of the plaintiff in the town where he was assessed for personal estate, whereby the assessor lost jurisdiction. It is not necessary to extent the application of the rule on any ground of public policy, that I can perceive, so as to include cases of mistake in deciding a claim to exemption, where the person and estate of the party are within the jurisdiction of the assessor. The assessors were not ousted of jurisdiction to decide the claim of exemption while the party was a resident and possessed of property otherwise taxable. The property was taxable like all other real property in *Page 246 this State; it was the character of the owner in this case, if anything, which exempted the property, as it was that of the building in the case of the school of Madam Chegaray. The statute devolved the duty of deciding as to the plaintiff's claim upon the assessors, and in performing it, they necessarily acted judicially, and are entitled to protection. Entering the result of their decision upon the assessment roll cannot be separated from the act of judicially deciding. The assessors cannot refuse to carry into effect what they had decided within their jurisdiction. In the foregoing discussion I have omitted to refer to the question whether or not the assessors were in error in refusing to allow the plaintiff's claim to exemption, for the reason that the defendants are not liable, although their decision should be held to be erroneous. The defendants had the right, and it was their duty to decide the question before them. It is not for a justice of the peace, nor is it for this court, to review their decision in an action against them. The duty of determining errors devolves only upon an appellate court, when the review determines the rights of the parties between whom the question arose. That is not the case here. I am for reversing the judgment of the Supreme and County Courts, and affirming that of the justice of the peace, with costs of the appeals below and in this court.