Johnson v. Learn

By the Court, Davis, J. The defendant was cbllector of taxes of the town of Humphrey. He seized and sold the plaintiff’s property by virtue of a warrant issued to him by the supervisors of Cattaraugus county. It is now settled by Van Rensselaer v. Witbeck, (3 Seld. 517,) that the warrant and assessment roll to which it is annexed, constitute one process, and a fatal defect appearing upon the face of either renders both void and the collector a trespasser; but it is equally well settled that if the process be regular on its face, or “ in due form,” it fully protects the officer executing it, whether the tax was legally assessed or not. • (Chegaray v. Jenkins, 1 Seld. 376. Savacool v. Boughton, 5 Wend. 170. Patchin v. Ritter, 27 Barb. 34.) The real question upon this branch of the case, therefore, is not whether the plaintiff was personally assessable for his farm in Humphrey, but whether such facts appeared on the defendant’s process as show that the assessors had no jurisdiction to assess him therefor. The form and place in which his name is inserted in the roll are by no means controlling, or indeed important, on this question. It may be said that the roll indicated to the collector that the plaintiff was a non-resident, but it at the same time showed that he was personally assessed for lot 48, by name, and that he was the person of whom the tax was to be collected under the direction of the warrant—to collect “ of the several persons named,” &c. His non-residence was not material if notwithstanding that he might be assessed upon the lot; for the statute expressly provides for the collection of taxes of non-residents of the town “ assessed upon any estate of such person situated out of the ward or town in which he shall reside.” (1R. S. 919, § 10, 5th ed.) So far therefore as the collector is concerned, it is only material to inquire whether the plaintiff, being a nonresident, might under any circumstance be assessed in perso [619] nam for the lot in Humphrey. If he might, then we must assume, for the protection of the collector, that those circumstances existed, and that by reason of them the assessors had jurisdiction to make the assessment; because it is no part of his duty “ to dispute the authority of his superiors, unless upon grounds apparent upon the face of their mandate. The law does not give him the means of ascertaining extrinsic facts for this purpose, nor does it attribute to him the capacity for reviewing the assessment on such facts, if they could be ascertained.” (Chegaray v. Jenkins, 1 Selden, 376.) The provisions of the revised statutes on the subject of the place where, and the person to whom, property is tobe assessed, as amended by chapter 176 of the laws of 1851, so far as important to the question before us, are as follows: “ § 1. Every person shall be assessed in the town or ward wherein he resides when the assessment is made, for all lands then owned by him within such town or ward and occupied by him or wholly unoccupied. § 2. Land occupied by a person other than the owner, may be assessed to the owner or occupant, or as non-resident lands. § 3. Unoccupied lands not owned by a person residing in a ward or town where the same are situated, shall be denominated lands of non-residents, and shall be assessed as hereinafter provided.” Before the amendment of 1851 the second section read as follows: “ § 2. Land owned by a person residing in the town or ward where the same is situated, but occupied by another person, may be assessed in the name of the owner or occupant.” The change in this section is significant and important, and seems fully to supply the casus omissus pointed out by Harris, J. in Van Rensselaer v. Cottrell, (7 Barb. 127.) In the New York and Harlem Rail Road Co. v. Lyon, (16 Barb. 651,) the court seem to have overlooked the amendment of .1851, and to have decided that case upon the statute as it stood prior to the amendment; or the force and effect of the change was misapprehended by the learned judge. To us it [620] is obvious that the statute as amended empowers the assessors of a town to assess lands therein situated, occupied by a person other than the owner, (though owned by a non-resident,) to the owner or to the occupant, or as non-resident lands; and that this was the purpose of the amendment, seems apparent on comparing the present with the former section, and observing the words stricken out and those added by the legislature. Formerly, the land “occupied by a person other than the owner,” which might have been assessed to “the owner or occupant,” was only “land owned by a person residing in the town or ward where the same is situated;” but by the amendment this limitation is wholly stricken out, and now all lands occupied by a person other than the owner may be assessed in either of three modes: to the owner, or to the occupant, or as non-resident lands. This leaves to the assessors a reasonable discretion in such cases, to be exercised with a view to the mode most likely to insure the prompt and certain collection of the tax. The assessors of Humphrey, therefore, had power to assess lot 48 to the plaintiff, provided it was “land occupied by a person other than the owner.” There is nothing in the defendant's process to show him that it was not so occupied. In form the assessors have sufficiently assessed the lot to the plaintiff personally, and having done that, so far as the collector is concerned, we have no farther inquiry to make. In adjudging the land to be occupied, and for that reason assessable to the plaintiff as owner, they may have wholly misjudged ; but the collector has neither authority nor means to correct their error. It is enough for him that his process shows a tax assessed to the plaintiff as owner of a lot of land situate in Humphrey; and it is of no consequence that it also, shows the plaintiff to be a non-resident, because he must presume that the fact which would give the assessors jurisdiction to assess the land to the plaintiff, although a non-resident, also existed. Froto these views it follows that the warrant and assess [621] ment in this case were a protection to the defendant, and that the judgment of the county court should for that reason he affirmed. Erie General Term, November 22, 1859. Greene, Marvin and Davis, Justices.]