
    The People ex rel. George Barnard, Assignee, Resp’t, v. Edward Wemple, Comptroller, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 22, 1889.)
    
    1. Taxes and assessments — Relevy by comptroller — Laws 1885, chap. 453.
    Chapter 453, Laws 1885, giving the comptroller the right to re-levy taxes which are found to be illegal, relates only to unoccupied lands of non-residents, or where the occupants are themselves non-residents, which alone can be assessed as non-resident lands and returned as such to the comptroller. Tt does not permit him to re-levy in any respect which violates the constitutional rights of the owner.
    
      2. Same.
    The premises in question were occupied. They were assessed in the , non-resident list with the owner’s name annexed. Held, that the premises were not effectually assessed at all, and that the comptroller could not re-levy the tax, as the occupants, who were the proper persons to be assessed, had had no notice or opportunity to be heard.
    Appeal from judgment of supreme court, general termt third department, affirming determination and action of comptroller, except as to taxes relevied upon occupied lands, where such lands were not assessed to the occupants, and reversing it in such cases.
    
      Z. S. Westbrook, for app’lt; J. B. Olney, for resp’t.
    
      
       Affirming 25 N. Y. State Rep., 67.
    
   Finch, J.

The comptroller appeals from so much of the order of the general term as annuls his action in relevying taxes upon the occupied lots. He acted and justifies his action under chapter 453 of the Laws of 1885. That act provides that “whenever any unpaid tax levied upon an assessment of land by a town or ward having a legal right to assess the same which may have been returned to and admitted by the comptroller, shall be ascertained either before or after sale thereof, to be illegal or void by reason of any irregularity or defect in, or omission of, statutory requirements for creating or collecting such tax, the comptroller is hereby empowered and directed, whenever deemed practicable by him, to relevy the correct amount of such tax, and add thereto the five per cent allowed by law to be added by the collector, which aggregate amount of tax and charge with interest thereon at ten per cent per annum from the first day of August following the admission of such illegal or void tax, shall thereupon be due and payable, and shall be subject to existing provisions of law governing the collection of and sale for unpaid taxes by the comp-trailer.” This act is undoubtedly a convenience to the state, and furnishes a summary remedy for illegal taxes sought to be enforced against non-resident lands. When discovered to be illegal, they are to be relevied by the comptroller and then collected. Within certain limits the act works no injustice, but when enforced to its full extent the right of the tax-payer to notice of his assessment seems to disappear at the door of the state house.

This case furnishes an illustration in its facts, which are these : The lands in question were in the county of Greene, and owned by one George Clarke. He was a non-resident of the county, but the lots assessed were all of them occupied by his tenants, residents of the town. The lands should have been assessed to the resident occupants. They were assessed to the non-resident owner, and in the part of the roll devoted to non-resident lands. The assessment was, therefore, invalid and illegal, and the lots were not effectually assessed at all. The learned counsel for the comptroller declares in his brief that the law does not read that way, .and it is difficult to see how such a construction can be fairly put upon the statute.” We have offended against that criticism in at least three cases. Buffalo & St. Line R. R. v. Sup. of Erie, 48 N. Y., 101; Hilton v. Fonda, 86 id, 339; Stewart v. Crysler, 100 id., 378. The first of these was decided before the amendment of 1878, but the others after it went into effect. That amendment was designed to accomplish two things only ; and those were to make lands occupied by persons other than the owner assessable against such owner, if he resided in the county, although not in the town or ward; and the other was to provide for the omitted case of occupied lands of a non-resident owner, where the occupants themselves were also non-residents. In that case the lands would be as "much non-resident lands as if wholly unoccupied.

The claim that the phrase “ be assessed to the occupant, as lands of non residents,” gives to the assessors an arbitrary choice, independent of the facts, is not to be encouraged. It is contrary to the whole scheme of the statute to permit land of a non-resident owner, which is in the possession of resident occupants who can themselves be assessed and compelled to pay as if they were in truth owners, to be treated and returned as non-resident lands. There is neither necessity nor justice in that, and full force is given to the expression as relating to a case where both owner and occupants are non-residents. That is the construction we have adopted and with which we remain satisfied.

How, the occupied lands in the present case were not assessed to the resident occupants, nor ever as non-resident land, but were assessed to the non-resident owner. While it is true that they were placed in the non-resident column, yet, the name of the owner was appended, and so a personal liability on the face of the roll was initiated against him. As a consequence the lands were not assessed at all. There was not even the form or appearance of an assessment against the occupants, and‘that against the owner was illegal and invalid. Under such circumstances a re-levy of the tax by the comptroller necessarily involved anew assessment by him, and against the occupants who as yet had never been assessed at all. If he could make such assessment, which would necessarily be the first or original one against them, he certainly must act under some law which gives them notice and a right to be heard. The notice of the assessors was not such, for the occupants were not then assessed, and it did not concern them in the least. If they appeared on the review day they only ascertained that there was no assessment against them and so no right of theirs in any manner threatened.

If the owner appeared he found an invalid assessment of which he need not complain since it could not be enforced.

The comptroller, therefore, under the law, could only re-levy the tax against the occupants, and to do that he must first assess the occupants who had not been assessed before. If the law could make him an assessor for Greene county, and then its collector, it could not do so as against the occupants without some provision for notice and some chance of a hearing. Stuart v. Palmer, 74 N. Y., 183. It is said that notice was given to the owner by letter from the comptroller’s office. That was a very proper thing to-do, but did not affect the occupants or help the case, for the question always is, not what was done, but what might be done under the law. If, therefore, we construe this act to admit of an assessment where none had been made by the local officers, or one which was absolutely void and a complete nullity, we necessarily interpret it to authorize a new and original assessment against individuals not assessed before, and without any provision for notice.

The act, therefore, should be limited, as indeed its own terms indicate. It can relate only to unoccupied lands of non-residents, or where the occupants are themselves non-residents, which alone can be assessed as non-resident lands and returned as such to the comptroller, and permits him to re-levy on the basis of the old assessment where the same is irregular or void, but not in any respect which violates the constitutional rights of the owner.

We are assured that the act is a curative statute. That may well be said of it as we have construed it, but it is impossible to cure what never had life enough to be sick. There never was any assessment against the occupants, and nothing to be cured. As to them, it was simply an omitted tax, and the cases of People v. Board of Assessors of Brooklyn, 92 N. Y., 430, and Peoph ex rel. Oswald v. Goff 52 N. Y., 434, cited by the appellant, show what the remedy in such a case is. We agree, therefore, with the general term in their conclusion that the taxes in question could not be re-levied.

The judgment should be affirmed, with costs.

AH concur.  