Rome, Watertown & Ogdensburgh Railroad v. Smith

Daniels, J.: The. defendant is the tax collector of the town of Rendall, in the county of Orleans, and an injunction was issued against him to restrain the collection of a tax imposed upon the plaintiff’s property in the year 1885. The collection of the tax was resisted by the [333] plaintiff as unlawful because of tlie alleged omission of the assessors to indorse or attach their oath to the assessment-roll in the form in which that was provided for by chapter 201 of the Laws of 1885. When the roll was completed, instead of making and attaching the oath in the form provided by this act, they made the oath in the form prescribed by section 8 of chapter 176 of the Laws of 1851. That act was passed to amend certain provisions of the Revised Statutes relating to the assessment and collection of taxes; and after the time fixed for the hearing of objections to their assessments by the assessors, and the determination of such objections and the completion of their roll, they were severally required to appear before any officer of their county authorized to administer oaths and severally to make and subscribe the oath prescribed by the statute. This direction was so far complied with by the assessors that on the 28th of August, 1885, and after the completion of their roll, they appeared before a justice of the peace of the county and took the oath in the form prescribed by the act of 1851; and because of the oath being taken in that form and not under the act of 1885, their assessments, so far as they affect the property of the plaintiff, have been objected to as unlawfully imposed. But it by no means follows, from the fact that the assessors took the oath in the form provided by the act of 1851, that the assessment was on that account either void or irregular, for the oath prescribed by the act of 1885 is the same as that directed to be taken by the act of 1851, except that the assessors are not now required to state that they have assessed the property at the value they would appraise it in payment of a just debt due from a solvent debtor. That requirement has now been omitted, and the assessors are no longer directed to add to the statement that the property has been assessed at its full value, the additional phrase, “and true,” as that was required by the act of 1851. But these changes in the oath required to be attached to the roll are of an unimportant character, for the duty resting upon the assessors is still the same to assess the property at the full value thereof, and to swear in the oath that the assessment has been made at this valuation. In this particular both the act of 1851 and that of 1885 are practically the same. For the assessors, by the former, have been required to swear that “ we have estimated the value of the said real estate at the sums which a majority of [334] the assessors have decided to be the full and true value thereof.” While by the later act they are still required to swear that “ we have estimated the value of the said real estate at the sums which a majority of the assessors have decided to be the full value thereof.” The duty imposed upon the assessors is the same in each of the acts. The assessment required to be made must be according to their estimate or determination the full value of the property, and the oath in each instance has been prescribed to authenticate the performance of that duty. And adding to the oath the further statement that the assessment is also of the “true value,” and made at an amount at which the assessors would appraise the property in payment of a just debt due from a solvent debtor, in no manner either diminished or enlarged the duties or acts of the assessors The latter phraseology which is contained alone in the act of 1851 was used as an equivalent of the full and true value of the property. And that it was so understood by the legislature and intended to be acted upon in that manner by the assessors, is very evident from the language in which the act of 1851 was enacted. For care was taken by it in the first instance to require the assessors to estimate the value at the full and true value of the property. And the further requirement was apparently added to secure the intelligent observance of that obligation, for it was another appeal directty to the conscience of the assessors themselves requiring them to swear, in addition to the fact that their assessment of the property was of the full and true value, that they would also appraise the property at the same value to pay a just debt due from a solvent debtor. That this additional requirement was understood by the legislature as only the equivalent of the other branch of the oath is further evident from the act of 1885 omitting this particular phrase. For the same duty is still enjoined upon the assessors, to estimate the property included in the assessment-roll at the full value thereof. And no more, nor less' than that, was enjoined upon them by the act of 1851. In taking the oath, therefore, prescribed by the act of 1851, the assessors swore to all that was required of them in the act of 1885, and, in addition thereto, that the valuation was the “ true value ” of the property, and that they would appraise it at the same sum in payment of a just debt due from a solvent debtor. They did all that the act .of 18S5 [335] had directed they should do, and then made these additional statements to their oaths, showing still more clearly that they had discharged the duties required to be periormed by them by the act of 1885 in a more particular manner than that act had directed it to be done. By the addition no change whatever was made in the assessments, or the basis upon which the valuations were adopted, but the roll and its verification still remained a compliance with all that the act of 1885 had directed. . But if any doubt could be entertained upon this subject, it would be removed by the oath taken by the same assessors and indorsed upon the same roll on the 23d of October, 1885. For that oath was taken in the form as it was literally given by the act of 1885. And the fact that the assessors had previously made and indorsed the oath in the form mentioned in the act oi 1851, did not prevent them from making this further oath, and in that manner literally complying with the act of 1885. The roll was still subject to the control of the assessors. It had not passed under the action of the board of supervisors, and was evidently recalled from the hands of the supervisor of the town, if it were in fact in his possession, to add to it the oath last taken by the assessors. And as the act of 1885 does not direct that the oath shall be indorsed and taken at any specified date, the assessors still possessed this authority. What the law has directed is that the oath of the assessors shall be taken after they have completed their roll, without mentioning any period within which that shall be done. And as this roll was still subject to their authority, a reasonable construction of the act of 1885 will sanction what they did in the way of indorsing and making the oath in the form prescribed by this act. Even if the preceding oath had been irregular, or wholly defective, the assessors had the authority to correct it or supply its defects, and comply with the act of 1885, at the time when the last oath was taken by them. Upon this subject the statutes directing the performance of official duty, even where a time for that purpose may have been stated, are not in all cases to be literally carried into effect. For where the act contains no negative provision, and time does not appear to have been deemed essential, and the duty relates to the interests of the public, it may be performed even after the time in which the law may have directed that it shall [336] be done. In other words, the time mentioned in the statute will in these cases be considered to be not mandatory, but directory. (Parish v. Golden, 35 N. Y., 462.) And this rule has been applied to the assessment of taxes. In Rawson v. Van Riper (1 T. & C., 370), the statute required the school trustee to make the assessment for a tax voted for, within thirty days after the votes had been taken. The trustee failed to comply with this direction, but the assessment was afterwards made, and it was sustained by the couit upon the construction that the statute, as to time, was to be held to be directory. A point of the like description arose in Witheril v. Mosher (9 Hun, 412), and the same conclusion,was adopted and acted upon by the court In no view, therefore, was the plaintiff entitled to an injunction to restrain the collector in the collection of this tax under his warrant. The proceedings of the assessors were entirely regular, so far as they have now been drawn in question; and the order from which the appeal has been taken should be affirmed, with the usual costs and disbursements. In the case of the same plaintiff against Carroll Phippany, who is the collector of the town of Yates, in the same county, the facts are substantially the same as those in the preceding case. The first oath was taken by the assessors on the 25th of August, 1885, and the second, in the literal form required by the act of 1885, on the twenty-third of October of that year. There was accordingly the same compliance with the law as there was in the other case, and the order likewise in this should .also be affirmed, with the same costs and disbursements.