The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-07-23

Y
29) the court cay, If there be want of juris-
dicti0n, or m excess Of legal power, even
though the act be judicial in It's nature, N &C.
ton lies.
In Smith Va. wepdall, s<Iin, ACT, the trustees
Of q school district were sued in trespass; but
the alleged error was in the warrant itself UNI
der which the property was taken.
In Gale vs.. Mead ct al, the defendants were
sued in trover for house taken by tau col-
lector, under Q warrant issued by them as
trustees, for o school tax, and the court being
of opinion that the assessment and tax list made
BY them was Illegal, they were held liable.
In Weaver va. Dwind0rf 8 DEMO. 40, also an
tor under warrant issued by the defendants
to collect an assessment made by them upon
the plaintiffs property, the distinction above
alluded to is maintained, that the deiendants,
% assessors had Jurisdiction Of all the taxable
inhabitants in the town, and therefore Of the
plaintiff and his property, and for an error in
judgment in fixing its value are not Responsible;
lists where there is jurisdiction of the particular
case, and If the limits Of their authority be
transcelled, they are responsible for all the
consequences.
In Prosser VS. Secor, Barb 607, the applica-
ton Of this rule made in the last case is ques-
toned and condemned; but the rule itself is
even more strennously insisted npon. And u
is held that assessors have no authority to ed.
ter any PERSONS name on the assessment roll
when property is by law exempt from taxation,
or to impose any assessment thereon; that
hey have no jurisdiction whatever over such
persons or their property. The court add that
the assessment Of the value is judicial act,
upon which common law certiorari will lie;
ana that inferior tribunals are bound to see
that their acts are within the scope Of their au-
thority. They could not, by deciding them
elves that the plaintiff was q taxable inhabi-
ant, bring him within their jurisdiction. No
officer can acquire jurisdiction by deciding that
he has it. This was an action ON the case against
he assessors of town, and they were held re-
sponsible for the taxes illegally assessed and
levied and collected from the plaintiff
In Van Rensselaer, vs. C0ttrell, Barb, 127,
Justice Harris says the only facts necessary to
the jurisdiction Of the assessors is in reference
to personal property. that the owner be an in
habitant of the town or ward and If they should
assume to assess lands lying in another town,
or to assess an inhabitant Of another town for
personal property, though it might be situated
in their town. the act of the assessors would
unquestionably be void for want of jurisdiction.
The case Of Van Rensselaer, VS.. Whitbull, ID.
1873. decided by the same Judge, at first peru
sal, seemed to conflict with the one last cited.
Since then the plaintiff objected that he was
assessed for rents in Greenbush as personal es-
tate, when, in fact, he resided elsewhere; and
vet the assessment was sustained. On examin-
ing the statute claws of 1916, chap. 327) un-
der which rents are taxed, it will be seen
that though taxed as personal estate, they are
directed to be taxed in the town within which the
lands demised may lie, and in the same manner
and to the same extent as ANY personal estate
Of the inhabitants Of the town. No respect is
lin reference to this species of property had to
the residence IF the owner, and SO far as relates
to the jurisdiction Of the assessors to include 1t
in the assessment, it is treated as if it were q
part Of the land out of which It issues.
understand the same view of the effect Of
the decision of the assessors, upon the question
Of their own jurisdiction, to be stated by Rug
giles, Chief Justice, in his opinion in the Court
Of Appeals in Gregory VS.. Jenkins Selden,
ISL. Though he held the collector protected
h the warrant, he says. 1.-The decision Of the
assessors on a'question in which their own
authority to act was involved" q. e., upon
the question whether the property in ques-
tion could by law be ssessed, J :" was NOT for
all purposes conclusive;" and even "in collateral
actions their judgments may be questioned and
disIegarded, if it appear that in fact they had
no authority to act in the given case"
Upon thisreierence to the cases in this State.
and in view of what ] conceive to be just as
well as in conformity with Sound principle
ann0t doubt that assessors are liable for in
serting in the assessment roll the name of u
person who is not an inllabitant of the town or
ward 1t is their duty to ascertain who are in
habitants of the town or ward, and it is only AZ
to such that they have any authority whatever
as assessors Of personal property. This may
sometimes be difficult. But every Office brings.
with it duties and responsibilities and 1t Is not
just to those who may be prejudiced nor wise
as 1t respects the public, that an officer who ex
ceeds his authority should not be liable for the
consequences. The insertion of the name of an
individual in the assessment roll Is an afirma-
tive act, and the assessor is not under any duty
Il. L. 1~~.~- AZ e
upon which the liability Of such perfon depends;
and = hold assessors irresponsible when through
want Of proper information they assess non
residents for personal property, might lead to
great abuse And to say. further that the deci-
sion Of the assessor himself is conclusive, would
enable town or county to tax half Of the inhabi-
tants of the United States, and 80 far as proper
ty of the latter could be found in the county.
collect the tax by distress and sale. If asses
sors attempt this, I think them liable for oil
the damages resulting from their unauthorized
act.
How far the supervisors are also liable for
lending to such Illegal act their authority, may.
perhaps. depend upon the question whether
they have actual notice Of the illegality.
apprehend that the remedy Of party lille
gally assessed-that is, assessed when there IL
no legal right to impose any tax upon him
does not cease here. IF such tax be collected
by distress and sale Of his goods, or If upon the
levying Of warrant he pays the tax to save
his property, he may, think, sue for and reco-
yer bnck the money SO paid and that in such
case the body to whom the tax is paid by the
collector are responsible II this be so, the al
legation in the complaint herein, that the de-
PENDANTS Jenkins, the constable, and Hart re-
ceiver of taxes, are not of sufficient responsible
lily, &C., does not add any material fact to the
plaintiffs case.
The money is obtained in such case by duress
Of the plaintiffs property which may. when
paid. be recovered back. 1t is an illegal exac-
tion without right, and gives the party for
whose benefit, or by whose authority it is OBJ
tanned, no title.
In other States the precise proposition, that
If one pays taxes that are illegally assessed
upon him, he may recover back the money.