CHURCH, Ch. J.
The principal question involved in this case is, whether the omission to give the notice required by the statute of the completion of the assessment is a jurisdictional defect rendering the tax invalid and the trustees liable as trespassers.
Section 68, article 7, title 7 of chapter 555 of the Laws of 1864, provides that, "when the valuation of taxable property cannot be ascertained from the last assessment roll of the town, the trustees shall ascertain the true value of the property to be taxed, from the best evidence in their power, giving notice to the persons interested and proceeding in the same manner as the town assessors are required by law to proceed in the valuation of taxable property." Assessors are required to give notice of the completion of assessment rolls, and to specify a day when they will meet to review their assessments. (1 R.S., 303, § 20.) These provisions are designed to give the tax-payers an opportunity to appear and be heard as to the fairness, propriety and legality of the action of the assessors in making the assessments. In the case of assessments by school trustees the notice does not seem to be necessary, except when property not upon the last assessment roll of the town is assessed, or a change is made from such roll. The plaintiff's assessment was changed, and from the verdict of the jury we must assume that the trustees neglected to give the requisite notice.
The court charged the jury that such omission rendered the tax void. The authorities are not entirely in harmony, and the precise question has not been definitely passed upon by this court. In Randall v. Smith (1 Den., 214) the defect of notice with other irregularities were treated alike, and it was held that they did not render the trustees liable as trespassers. JEWETT, J., in delivering the opinion, comments upon Alexander v. Hoyt (7 Wend., 89), in which it was held that the trustees were trespassers, because they copied the valuations from an unfinished town roll, upon the ground that this was a ministerial and not a judicial act, and cites Easton v. Calendar (11 Wend., 91) as decisive of the question in favor of the trustees. There the irregularity complained of was in omitting to insert certain persons who were taxable in the roll and in including the fees of the collector in the warrant; and the court held that, in determining who were taxable inhabitants, the trustees acted judicially and were not liable for an error in the exercise of it. With great respect, I do not think the question in that case was analogous to this, as will be shown hereafter. The general rule applicable to such cases was correctly stated, that when the officer has jurisdiction and errs in the exercise of it, his acts are not void but voidable. The only difficulty is in determining when jurisdiction has been acquired. I do not find that Randall v. Smith has been regarded as authority, and it is not referred to in the subsequent cases. In Wheeler v. Mills (40 Barb., 644) it was expressly decided that the omission to give the prescribed notice by assessors invalidated the tax and rendered a title to real estate obtained upon a tax sale void, upon the ground that notice was one of the things to be done by the assessors to obtain jurisdiction over the subject. In Van Rensselaer v. Witbeck ( 7 N.Y., 517), which was trespass against the collector, it was decided that a substantial compliance with the terms of the statute, as to making and signing the certificate required to be attached to the assessment roll, was necessary to give the supervisors jurisdiction to impose a tax and issue a warrant for its collection. GARDINER, J., in delivering the opinion, said: "Notice must be given; the tax-payers have a right to be heard and introduce evidence. When this has been done and all objections disposed of, the assessors, or a majority of them, shall sign the roll and attach the certificate in the form prescribed by section 26. The record is then and not until then complete." The general rule laid down in Westfall v. Preston ( 49 N.Y., 349) is confirmatory of the doctrine of all the cases since Randall v. Smith, viz.: "A substantial compliance with the statute in the measures preliminary to the taxation of persons and property, in all matters which are of the substance of the procedure and designed for the protection of the tax-payer and the preservation of his rights, is a condition precedent to the legality and validity of the tax." Without further citation of cases, it is quite manifest that the weight of authority is, that the omission to give the notice is a jurisdictional defect. As an original question, it seems to me clear that this must be so. When persons are to be divested of their property by statutory proceedings, the directions of the statute must be substantially pursued. (4 Hill, 76.)
Trustees of school districts and assessors, in making assessments, must acquire jurisdiction of the person and subject-matter, or their proceedings are void. In performing duties of a judicial nature they are protected, but giving the notice to tax-payers is a ministerial and not a judicial act. They have no discretion or judgment to exercise. The mandate is positive, and must be obeyed. Is it jurisdictional in its character? It seems to me clear that it is. This is the only mode by which persons interested have an opportunity to be heard. It is in the nature of process to bring them into court, and it must precede the power of the trustees to act upon the subject. In the first instance, the assessors may exercise their own judgment as to who are taxable persons, and the kind and value of the property to be taxed; but this is preliminary to the final adjudication. Before that can be made, the persons proposed to be taxed are to have a hearing, and it cannot be made until an opportunity for such hearing is afforded. As well might a justice of the peace render judgment against a party, without the service of process.
In the case of school trustees, so far as they make an original assessment or change an assessment, they must give the prescribed notice, and if they fail to do it they have no legal right and no jurisdiction to make it. The principle decided in Calendar v. Easton ( supra), which was held decisive in Randall v. Smith, was correct. The irregularities in that case were held to relate to judicial acts. They were quite inferior to this defect, and it is unnecessary to criticise the application of the general rule to the facts of that case. Notice to the persons whose assessments were changed was necessary to confer jurisdiction. Without it the assessment against the plaintiff was void; and when there is a want of jurisdiction in imposing the tax, those directing its collection are liable as trespassers. ( 53 N.Y., 49, and cases cited.)
It is unnecessary to consider the effect of the decision of the superintendent of public instruction and its binding force in this action, as that decision was in accordance with the views herein expressed.
An objection was taken to evidence of the direction of some of the trustees at the sale. While the imposition of the tax and the issuing the warrant to collect it was sufficient to charge them, it was competent to show any additional interference on their part in taking and selling the plaintiff's property; and the objection that they acted at the sale as individuals and not as trustees is untenable. They are sued in their individual, and not in their official capacity; and their direction to the collector to take and sell the plaintiff's property, in the warrant, and personally, is what renders them liable. The collector is protected by his process, if good on its face, but they cannot shield themselves by that process.
It is objected, also, that the court charged the jury that it was incumbent upon the defendants to prove that they did give the requisite notice, and it is claimed that the presumption of the performance of official duty applies. A sufficient answer to this is, that there appears to be no exception to this part of the charge. But, regarding the notice as a pre-requisite to jurisdiction, I am inclined to the opinion that the presumption invoked does not apply. The facts conferring jurisdiction must be shown affirmatively. In Wheeler v. Mills ( supra) BROWN, J., said: "These are not cases in which public officers are presumed to have done their duty. It must appear that everything was done which the statute makes essential to the due execution of the power intrusted to them." To the same effect is the opinion of WELLES, J., in 46 Barbour, 325, and such, I think, is the general rule, although not necessary to be determined in this case. It was claimed upon the trial that the plaintiff did, in fact, appear before the trustees and was heard upon his assessment. This was disputed, and the court was substantially requested to charge, that if the plaintiff appeared it was a waiver of notice. The judge, in response, said that he would submit the question of appearance to the jury, and charged that, "if the party appears and has a full consideration I regard that as a waiver. * * * If Jewell appeared before the assessors and the matter was considered, that is equal to having appeared upon the notice, if he was heard in reference to the increased value of his property." The case then states: "Defendant duly excepted to the last expressions. We claim that the appearance is of no effect unless it was in pursuance of a notice."
The charge was substantially correct. If the plaintiff appeared and was heard upon his increased valuation, he had no reason to complain. The only criticism that can be made to it is, that the judge should have stated more explicitly that if the plaintiff knew of the increased valuation, and appeared, and had an opportunity to be heard, or was heard with reference to it, he was concluded; but the attention of the court was not called to this qualification. The general exception (if made by the defendants), "to the last expression," was not sufficiently specific for that purpose. But it is claimed that the exception was, in fact, made by the plaintiff, and not by the defendants, and this is rendered plausible by the expression which immediately follows, and which is evidently the language of the plaintiff and not of the defendants. The appellants' counsel, in his points, states that the printed case does not contain a "perfectly clear presentation of the points." This is quite manifest in this case, and is true in many others which come before this court for review.
The practice of taking the stenographer's minutes bodily for a bill of exceptions, is not to be commended. The case is often incumbered with voluminous, irrelevant matter, and the points and exceptions are often vague and inaccurate. It is the duty of the appellant to prepare the bill of exceptions, for which compensation is allowed in the fee bill, and he should see to it that the points and exceptions upon which he relies are correctly stated. Any ambiguity in these respects must necessarily result to the injury of the party alleging error, although in this case, according to the views expressed, it is not probable that the appellant has suffered any injury.
The judgment must be affirmed.
All concur; GROVER, J., concurring in result.
Judgment affirmed.
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