Bockes, J.:
Tbe denial of tbe appellant’s application by tbe county court was put, as stated in tbe order appealed from, on tbe ground of a want of jurisdiction in that court to grant tbe prayer of tbe petitioner. It was not based upon any denial of tbe allegations of tbe petition; bence, on tbis appeal, we must accepit those aver-ments as true.
It is stated in tbe petition that tbe “ surplus deposits” of tbe institution were all mvested in United States government bonds ; that sucb bonds were exempt from taxation; that said institution bad no “ other personal property liable to taxation ;n and further that the assessors bad illegally assessed tbe institution upon tbe. assessment roll for $30,000 “surplus deposits;” It was also averred that the assessors bad, on due application to them, refused to strike off sucb illegal assessment, and bad returned tbe roll to tbe common council.
These averments stand admitted, and they show that tbe assessment upon tbe mstitution for $30,000 United States government bonds, “ surplus deposits,” was illegal, not merely erroneous, but illegal, because wholly unauthorized by law.
Tbe decision of the county court was made, doubtless, on tbe authority of tbe opinion of Judge AlleN, In re Hermanee (71 N. Y., 481), and, indeed, it is justified by that opinion. But tbe remarks of Judge AlleN in that case, on which remarks tbe county court based its decision in tbis case, have been recently reviewed in tbe same court (In re New York Catholic Protectory),
It is urged by the respondent’s counsel that the assessors had the right to determine the fact whether the “surplus deposits” of the institution were, or were not, invested hi United States government bonds, and that they might determine that they were not so invested. This suggestion has two answers: (1.) That it stands admitted here, as averred in the petition, that all the “ surplus deposits ” were invested in United States government bonds, and that the institution had no other personal property liable to assessment; and (2) that even if the assessment should be deemed [484]*484to have determined this asserted fact against the institution,-such determination by the assessors would not be conclusive, the fact being one upon which their jurisdiction depended. (The Nat. Bank of Chemung v. City of Elmira, 53 N. Y., 49.) In this case it was decided that officers could not acquire jurisdiction by determining- that they have it. This precise point was also decided in The New York Catholic Protectory Case. (See first part of Judge Rapallo’s opinion.) The learned judge there says : “ If the jurisdictional fact did not exist the determination of the assessors could not establish jurisdiction in them.” The New York Catholic Protectory Case was precisely like this in its controlling fact. The land there assessed was declared by law to be exempt, as the United States government bonds here are declared exempt from taxation. So we must hold in this case, as it was held in The New York Catholic Protectory Case,' that “the imposition of the tax in question was manifestly illegal, the property upon which it was assessed being by law exempt from taxation. It was not a case merely of an error of judgment in determining the amount of the tax, but of a total want of jurisdiction in the assessors to assess the property at all.” Here the distinction, on which the decision turns, is marked. The distinction is between an erroneous and an illegal assessment. In the former the officers, ha -mig power to act, err in its exercise. In the latter they have no power to act at all, and, as was said in one of the cases cited, it does not aid the case for them to decide that they have it. So v e must accept the decision hi The New York Catholic Protectory ('ase as conclusive upon us here. It decides squarely that, where i here is a want of jurisdiction in the assessors to assess the property they assume to assess, the assessment is illegal, and the acts of 1869 and 1871, under which this proceeding was taken, apply. In that case the assessors had the general authority to assess the applicant’s land, but this piece assessed by them was by law exempt from taxation. So, in the case in hand, t-he assessors had the general authority to assess the applicant’s “surplus deposits.” But such surplus deposits were all invested in United States government bonds, and so, like the land in the other case, they were exempt from taxation, and the party had no other personal property liable to taxation. Thus it is seen that this is not a case of over valuation, [485]*485not a case of mere erroneous taxation; but is a case of illegal taxation, because of the want of jurisdiction in the assessors to lay the tax. This case, and that of The New York Catholic Protectory, stand alike in this regard.
• It was not necessary to apply to the assessors or to the common council, who here held tho position of the board of supervisors, under the Laws of 1869 and 1871, to correct the roll before making the application to the county court. It seems, however, that the appellant did so apply to the assessors, who refused to make the correction. There .is nothing in the statute requiring such action as a prerequisite to the right conferred.
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Bockes, J.:
Tbe denial of tbe appellant’s application by tbe county court was put, as stated in tbe order appealed from, on tbe ground of a want of jurisdiction in that court to grant tbe prayer of tbe petitioner. It was not based upon any denial of tbe allegations of tbe petition; bence, on tbis appeal, we must accepit those aver-ments as true.
It is stated in tbe petition that tbe “ surplus deposits” of tbe institution were all mvested in United States government bonds ; that sucb bonds were exempt from taxation; that said institution bad no “ other personal property liable to taxation ;n and further that the assessors bad illegally assessed tbe institution upon tbe. assessment roll for $30,000 “surplus deposits;” It was also averred that the assessors bad, on due application to them, refused to strike off sucb illegal assessment, and bad returned tbe roll to tbe common council.
These averments stand admitted, and they show that tbe assessment upon tbe mstitution for $30,000 United States government bonds, “ surplus deposits,” was illegal, not merely erroneous, but illegal, because wholly unauthorized by law.
Tbe decision of the county court was made, doubtless, on tbe authority of tbe opinion of Judge AlleN, In re Hermanee (71 N. Y., 481), and, indeed, it is justified by that opinion. But tbe remarks of Judge AlleN in that case, on which remarks tbe county court based its decision in tbis case, have been recently reviewed in tbe same court (In re New York Catholic Protectory),
It is urged by the respondent’s counsel that the assessors had the right to determine the fact whether the “surplus deposits” of the institution were, or were not, invested hi United States government bonds, and that they might determine that they were not so invested. This suggestion has two answers: (1.) That it stands admitted here, as averred in the petition, that all the “ surplus deposits ” were invested in United States government bonds, and that the institution had no other personal property liable to assessment; and (2) that even if the assessment should be deemed [484]*484to have determined this asserted fact against the institution,-such determination by the assessors would not be conclusive, the fact being one upon which their jurisdiction depended. (The Nat. Bank of Chemung v. City of Elmira, 53 N. Y., 49.) In this case it was decided that officers could not acquire jurisdiction by determining- that they have it. This precise point was also decided in The New York Catholic Protectory Case. (See first part of Judge Rapallo’s opinion.) The learned judge there says : “ If the jurisdictional fact did not exist the determination of the assessors could not establish jurisdiction in them.” The New York Catholic Protectory Case was precisely like this in its controlling fact. The land there assessed was declared by law to be exempt, as the United States government bonds here are declared exempt from taxation. So we must hold in this case, as it was held in The New York Catholic Protectory Case,' that “the imposition of the tax in question was manifestly illegal, the property upon which it was assessed being by law exempt from taxation. It was not a case merely of an error of judgment in determining the amount of the tax, but of a total want of jurisdiction in the assessors to assess the property at all.” Here the distinction, on which the decision turns, is marked. The distinction is between an erroneous and an illegal assessment. In the former the officers, ha -mig power to act, err in its exercise. In the latter they have no power to act at all, and, as was said in one of the cases cited, it does not aid the case for them to decide that they have it. So v e must accept the decision hi The New York Catholic Protectory ('ase as conclusive upon us here. It decides squarely that, where i here is a want of jurisdiction in the assessors to assess the property they assume to assess, the assessment is illegal, and the acts of 1869 and 1871, under which this proceeding was taken, apply. In that case the assessors had the general authority to assess the applicant’s land, but this piece assessed by them was by law exempt from taxation. So, in the case in hand, t-he assessors had the general authority to assess the applicant’s “surplus deposits.” But such surplus deposits were all invested in United States government bonds, and so, like the land in the other case, they were exempt from taxation, and the party had no other personal property liable to taxation. Thus it is seen that this is not a case of over valuation, [485]*485not a case of mere erroneous taxation; but is a case of illegal taxation, because of the want of jurisdiction in the assessors to lay the tax. This case, and that of The New York Catholic Protectory, stand alike in this regard.
• It was not necessary to apply to the assessors or to the common council, who here held tho position of the board of supervisors, under the Laws of 1869 and 1871, to correct the roll before making the application to the county court. It seems, however, that the appellant did so apply to the assessors, who refused to make the correction. There .is nothing in the statute requiring such action as a prerequisite to the right conferred. It was enough that the assessors were without jurisdiction in the premises, and consequently that tho assessment was illegal. This being so, the case camo within the purview of the law.
The order should be reversed, and tho case must go back to the County Court of Ulster county for determination by that court.
And in case the facts stated in tho petition should not be controverted, or, if controverted, should be proved to exist, that court should grant the order authorized by law to be granted. It may be proper here to say that, in case it should appear that the illegal tax has been collected, then it will lie with the county court to order the tax so improperly collected to be refunded under the law as amended in 1871. The order to show cause, which here took tho place of a notice of motion, is broad in its terms, asking for specific relief, or for such other or further order as might be just.
No costs should be given on this appeal, inasmuch as the county court was led into the making of an erroneous order by what was ■ supposed to be the law as laid down by the Court of Appeals.
Order appealed from reversed, and proceedings sent back to the County Court of Ulster county to be acted upon and determined by that court, without costs of appeal to either party.
Boardman, J., concurred.
MSS. op. Ct. of App., May 20,1879.