State v. Platt

*115 The opinion of the court was delivered by Elmer, J.

The first ground relied on for setting aside the assessment in this case is, that the taxes are not assessed to any person or persons by their proper names, but are assessed to “ estate of J. B. Coles,” and in some cases to “ estate of Coles.” The property assessed is land situate within the limits of Jersey City. No form of assessment is prescribed by law. It has been a common practice in different parts of the state, where land is untenanted and the precise owners are unknown, to assess the tax to the heirs of the last known owner, and sometimes to the estate of such person. No objection has hitherto been made to this, although it is, perhaps, not strictly correct." The Supreme Court of New York, in the case of Wheeler v. Anthony, 10 Wend. 346, hold a tax assessed to the “widow and heirs of Zophar S. Wheeler” to be sufficient. And in the case of Ronkendorff v. Taylor, 4 Peters 349 , an assessment in Washington City to “ Henry Toland’s heirs” seems to have been considered legal.

It appears, by the depositions read in evidence, that this particular property has been assessed in the same manner several years, and the taxes paid without objection; and it is said that there would bo some difficulty in naming the persons who are interested in it. Edward Coles, one of the witnesses examined, states that he is the agent of the estate of J. B. Coles, deceased; and it is evident the property is well known, and commonly designated as the estate of J. B. Coles, or of Coles.

The argument most relied on to show that this mode of assessment is illegal was, that unless some person is named, the provisions of the charter and of the general tax laws cannot be carried out. If the tax is not paid, those laws authorize a tax warrant to issue to levy the tax by distress and sale of the goods and chattels of the delinquent, and in case goods and chattels cannot be found, to take the body of such delinquent, and deliver the same to the sheriff, or his jailor, to be kept in safe and close custody until payment be made of the tax, with costs. It does not follow, however, that we are bound to set aside the assessment as wholly illegal and void because it may happen that some of the means authorized to be used far col *116 lecting the tax cannot be made effectual. In the cases of assessments against corporate bodies, this provision is not applicable ; and it may be that no delinquent can be taken to jail} unless his proper name is inserted in the tax list and warrant.

By the third section of the “ act regulating the proceedings of courts in cases of taxation,” {Acts of 1852, p. 527,) it is enacted, that no return of taxes or list of delinquents shall be set aside or reversed, on certiorari or otherwise, for any lack of form which does not impair the substantial rights of the plaintiff in certiorari. The substantial rights of the prosecutors of this certiorari, I am satisfied, have not been, and will not be impaired by the lack of form in naming them. If they cannot be imprisoned, or even if no good title can be made for their land, should it be sold, they will not be injured. The. agent of these prosecutors it appears furnished one of the maps used in making the assessment, and the tax list shows on its face what particular property is assessed. No difficulty was experienced in taking an appeal. Without meaning to be understood that the mode of assessment adopted in this case is strictly correct, or to intimate any opinion in regard to future .proceedings which may be taken to collect the tax, I am of opinion that the assessment ought not to be set aside on account of the lack of form in naming the persons assessed.

Another class of exceptions to this assessment, relates to the manner of making it by lot,s or blocks, and to the mode in which they were valued. The land assessed in lots consists of about 250 acres, about two-thirds of which Was originally salt meadow, through which a creek runs and there are numerous salt ponds, much of which remains in its original state unimproved, and a considerable part of it enclosed by a fence, and used as meadow. It is all assessed as building lots, even that part which lies between the high and low water marks of the river. This mode of assessment and valuation, it is insisted, is not warranted by the facts of the case, and the valuation, it is alleged, is imaginary and exorbitant.

The charter provides that the assessors (there being two, who acted jointly,) “ shall assess all real estate and chattels situate in the city, both of residents and non-residents, by *117 valuing the same at its true full fair value, designating the number of lots or parcels of land and the value of personal chattels which they assess to each person.” Lots are here specially referred to, and the number owned by each person is repaired to be designated. This specific direction was probably occasioned by the fact, that long before the passing of this charter, and before the incorporation of “the associates of the Jersey Company,” which was the title of the first corporate body, the site of the city was surveyed and laid out into squares and lots, with streets and avenues, and a map of the survey made by one Mangin, which was afterwards adopted by the associates, and left by them in the office of their clerk, and in subsequent conveyances it was recognised and continually referred to. This map was recognised, and the dedication of land thereby made to the public use sustained as valid and binding by this court in the ease of Den v. Dummer, Spencer 86. The assessment was made of lots as laid down on this map, now nearly fifty years old, except a small portion assessed by another map, furnished to the assessors by the agent of the owners, and which had been made use of at an auction sale of some of the properly, indeed I think it may fairly he inferred that the assessment in lots was made with the approbation of the agent, or at least with his knowledge, and without objection at the time.

The streets and avenues, as laid down on the maps, do not appear to have been formally adopted by the corporation ; but they are regarded as dedicated to the public, and some of them have been improved at the public expense. Many of them have never been opened or marked on the ground, and some of them that cross the meadows will require to be filled up at a heavy expense. Many of the lots will also require expensive filling up, and some must be cut down very considerably. Sales have been made of lots interspersed in different parts of the tract; and whenever sales are made it is done by the maps before referred to. The lots are valued at different prices, according to their present condition and their situation.

All the circumstances shown in evidence satisfy me that in *118 assessing this property the assessors followed the directions of the charter. The lots were all such as had been long known and [recognised as lots by the proprietors and the public and by the city authorities. In many cases they were not actually designated on the ground, but they were so designated on maps of a public character as to be easily found, and their true, full, fair value ascertained. Other parts of the city were assessed by the same map and in the same manner, and such has been the practice.

But it is objected that the value placed on this property is imaginary and exorbitant. There are about three thousand lots, and the value exceeds a million of dollars. If rightly assessed as lots, as I think they were, they were of course to be valued as lots, and such was the intention of the charter. The city is rapidly extending, and every improvement made in it tends directly to enhance the value of the lots, so that in justice they ought to contribute their fair proportion of those expenses which make the city desirable as a residence and quickens its growth. If overvalued, the remedy of the owners was by an appeal to the commissioners selected for the purpose of revising the estimate of the assessors, and this remedy they availed themselves of. It is certainly shown that the present income of the property bears no comparison to the interest of the money at which it is valued. But the income is not the criterion; and it is not shown that they are valued beyond the true, full, fair value of them, certainly not so far beyond it as to show such partiality and misconduct in the officers as would justify us in holding the assessment to be wholly void. The lots were not valued so high as the price at which they are held, and are not valued higher than other property in the city in a similar condition.

Many of the lots appear to be assessed collectively, that is to say a block of lots containing a designated number is assessed at a round sum, being the collective value of all the lots included in the block. It is insisted that, if assessed as lots, the assessment ought to show the particular value of each lot. Whether a block of lots is assessed at a round sum in cases Where the lots contained in the block are not all of the same *119 value, does not distinctly appear. But admitting it to be so, I am not of opinion that the assessment is therefore erroneous.

The act requires only that it designate “the number of lots or parcels assessed to each person.” It is not required that each lot shall be separately valued. Such is not the law or the practice in assessing under the general tax law. The necessity of doing so under the charter of Jersey City is inferred from the provisions of the forty-eighth section. By that section, the taxes are made a lien upon the lands, tenements, and real estate assessed, and the common council may cause them to be sold at public auction for the shortest term for which any person will agree to take them and pay the tax, with interest and costs, first advertising the sale and describing them, with the proviso that the property, as sold, may be redeemed by tiie owner, mortgagee, or occupant, or persons interested therein, within two years, by paying the purchase money and subsequent taxes, together with interest at the rate of fifteen per cent, per annum. Unless each lot is separately taxed and sold, it is said there can be no proper description of the property, and there can be no redemption by a person who may happen to have a mortgage covering only one or more lots. As to the description of the property, all that is assessed to any one individual can be as easily described, and sold to pay all his tax, as a part to pay a part; and as to redeeming, it is obvious that the same difficulty may occur, let the assessment be made either in the one way or the other. Only a part of a lot or parcel may be mortgaged, or one mortgage may cover several lots, a part of which are embraced in another mortgage, and difficulty may thus arise in determining who may redeem. But it is not necessary to solve such difficulties now ; very probably some may occur that cannot be solved at all by a court of law, if even a court of equity can remove them. Unless the law, by express direction or by necessary implication, requires each lot to be assessed and valued separately, it does not follow, as I have already suggested, that the assessment is void and must be set aside because it may happen in a particular ease that some of the modes prescribed for collecting the tax cannot be made use of. If the property cannot be sold, which *120 I do not mean to intimate, the owners will not be prejudiced by the defect that hinders such a proceeding. The assessment, as made, is exceedingly voluminous and minute, and, indeed, is much objected to on that account. To require a separate and distinct assessment of each lot in the city, improved or unimproved, would render it still more so, and, as it seems to. me, without any corresponding benefit.

A part of the property is admitted to be land lying below the high water mark of the Hudson river, and a part is below the low water mark. This property is not liable to assessment, it is said, because such property belongs to the state, and not to individuals. The answer to this question is, that allowing it to be prima facie the property of the state, still it is possible the state may have granted it to the persons who are taxed for it, or to some one from whom they purchased. It is clear that it is claimed to belong to the estate of J, B. Coles. The agent did not disclaim the ownership when it was assessed, nor upon the appeal. A considerable part of it has been actually sold and conveyed as the property of the Coles since the assessment.

Another objection to this taxation is, that when it was made the churches within the limits of the city were not in terms exempted from taxation by the charter, and, although shown to be of the aggregate value of one hundred thousand dollars, they were not assessed. Meeting houses and school houses, although not formally exempted by the tax laws in force prior to 1851, were seldom if ever assessed in any part of the state. This omission was so obviously proper, and so entirely in accordance with the public sentiment, that it universally prevailed, and was in fact a contemporaneous construction of the laws this court would probably have sanctioned, had the question been formally raised. When the new system was adopted, the exemption was for the' first time expressly enacted; and although not contained in the charter of Jersey City, I do not think the omission to tax the churches such an illegality as ought to render the whole assessment void.

It would be a novel and dangerous doctrine to hold, that if the assessors happen to omit some property really taxable, the, *121 assessment is thereby necessarily void, so that no taxes can be collected. There is, perhaps, scarcely a district in the state where this does not happen, to a greater or less extent, almost every year. It is undoubtedly the duty of the assessor to include all the property liable to be taxed; but unless it be in cases involving a palpable and greatly injurious disregard or misconstruction of plain requirements of the law from the necessity of the case, this is a matter which must be left to his own vigilance. In the case of The State v. Branin, this court held that an omission to assess a poll-tax vitiated the whole assessment; but in that case there was not a mere omission to assess some particular individuals or property, there was a flagrant misconstruction of the law, affecting every taxable inhabitant, ^ery different in its character from the case before us. In the case of Williams v. School District, 21 Pick. 75 , the Supreme Court of Massachusetts held that an omission would not invalidate an assessment. The same principle was affirmed in the case of George v. Inhabitants, &c., 6 Metc. 497 .

The only valid objection I find to this assessment is, that the assessors included in it the sum of $2458.98 for losses and contingencies. Fifteen hundred dollars were ordered to be assessed, by the ordinance of the council, for contingent expenses, as by the charter they were authorized. But this additional sum is illegal. It must, therefore, be referred to a commissioner to ascertain what is the prosecutor’s proportion oí this sum, and to that extent the assessment must be set aside, and as to all the rest affirmed.