People ex rel. Western New York & Pennsylvania Railway Co. v. Woodbury

133 A.D. 503, 117 N.Y.S. 676, 1909 N.Y. App. Div. LEXIS 2216

Opinion

Cochrane, J.:

The motion to quash the writ of certiorari was based on the alleged fact that the writ was not allowed within four months after the assessment sought to be reviewed became, final. (Code Civ. Proc. § 2125.)

Section 45 of the Tax Law (Laws of 1896, chap. 90S, added by Laws of 1899, chap. 712, and amd. by Laws of 1900, chap. 254) provides as follows: ^An assessment of a special franchise by the. State Board of Tax Commissioners may be reviewed in the manner prescribed by article eleven. of this chapter, and. that article applies so far as practicable to such an assessment, in the same manner and with the same force and effect as if the assessment had been made by local assessors; a-petition for a writ of certiorari to review the assessment must be presented within fifteen days after the completion and filing of the assessment roll and the first posting or publication of the notice thereof as required by law.” Said article 11, in section 251 of the act, directs that the petition for the .writ must be presented “ within fifteen days after the completion and filing of the assessment roll and the first posting or publication of the notice thereof.” Section 42 of the Tax Law (added by Laws of 1899, chap. '712, and amd. by Laws of 1904, chap. 382) makes provision for the entry, by local assessors in their assessrhent rolls of special franchise assessments of the State Board of Tax Commissioners.

The filing of the assessment roll and the posting and publication of notice of such filing, as referred to in said sections 45 and 251 of the Tax Law, are commanded in section 38 thereof (as amd. by Laws of 1904, chap. 279), as follows: “ In cities the assessment roll when thus completed and verified' shall be filed on or before September first in the office of the city cleric, there to remain for fifteen days for public inspection. The assessors shall forthwith cause a notice to be posted conspicuously in at least three public places in the tax district, and to be published in one or more newspapers, if any, published in the city, that such assessment roll has been finally completed and stating that it has been so filed and will be open to public inspection.” Such requirement follows immediately after the provisions for the review and correction of the assessment roll by the ' assessors after notice to all persons aggrieved as contained in sections 35, 36 and 37 of the act.

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It is the theory of the relator that this proceeding to review the assessment herein is controlled by the foregoing provisions of the Tax Law; that accordingly the proceeding may be instituted within fifteen days after the assessment roll is filed with the city clerk and notice posted and published as required by said section 38; that such filing, posting and publication, has not taken place ; and that consequently the time for the commencement of this proceeding has not been limited.

The position of the relator is stated in its petition as follows :

“ That said assessors of the City of Eochester have completed their assessment roll for the year 1908, and the same has been confirmed by the Common Council of the City. of Eochester, and that the taxes upon said assessments, if the same were just, valid and legal, were due and payable from your petitioner on May 1st, 1908, but no notice of said assessment has been posted or published and fifteen days have not elapsed since the completion and filing 'of said assessment roll as aforesaid, and the first posting or publication thereof, as required by law.”

It is very clear that if the provisions of the Tax Law requiring the assessment roll to be filed in the office of the city clerk for fifteen days for public inspection and requiring the posting and publi catión of notice thereof apply to the city of Eoehester the relator is right in its contention because those acts have not been performed and without their performance the fifteen days within which by the Tax Law this proceeding might be instituted has not begun to run; but it is equally clear that if as contended by the. appellant those provisions are inapplicable to the city of Eoehester this proceeding is not saved thereby. .

The present charter of the city of Eoehester is chapter 755 of the Laws of 1907,, enacted after the Tax Law. The charter seems to contain within itself a complete system of procedure relative to the assessment and collection of taxes. It provides that the tax rolls shall be prepared by - the assessors on or before January fifteenth in each year; that they may review and revise their rolls after notice and must deliver them to the city clerk on or before the first day of April (§ 188) ; that the common council must meet on the first day of April for the purpose.of confirming the tax rolls' and levying the taxes and mus.t hear the allegations and complaints of all persons interested, of which meeting and the purpose thereof and of such hearing the city clerk must give notice by publication for at least three days (§107); that at such meeting or an adjourned meeting not later than five days after April first the common council must after amending and correcting the tax rolls confirm the same (§ 108) and levy the taxes-(§ 109); at which time such taxes become a lien upon the real estate in respect to, which the same have been levied (§ 199); that the assessors must insert in the tax rolls so confirmed by the common council the taxes levied by that body and the rolls must thereupon be delivered to the treasurer of the city on or before the twentieth day of April (§ 190); and that the city treasurer must immediately give public .notice that all persons named in the rolls are required to pay their taxes on and after the first day 'of May and before the fifteenth day of September* and must proceed to collect and receive the same on such first day of May (§ 165).

It will thus be seen that the, city charter makes, no provision for-the custody; of the tax rolls by the city clerk for the purpose of public inspection. His only duty in reference thereto is to submit the same to tire common council for its action and to give the required notice of hearing by- that body. The latter body under-the charter need not take action on the rolls until April sixth and they must be delivered not later than April twentieth less than fifteen days thereafter to the city treasurer, who must immediately give notice that on May first he will proceed with the collection of the taxes. The city clerk has no duty whatever with reference to the tax rolls after the same have been amended and confirmed by the common council and there is thereafter no period of fifteen days prior to the collection of the taxes during which within the contemplation of the charter the rolls are in the possession of any officer for the purpose of inspection by the public or during which period of fifteen days notice of filing with any officer is to be posted or published. If the common council does not take final action on the rolls until April sixth, the last day allowed for that purpose, they must at any time within fourteen days thereafter be delivered to the city treasurer, and if on the fourteenth day thereafter they are so delivered to that officer he must ten days after such delivery be prepared to receive payment of the taxes; so that it would in such case be physically impossible for the rolls to remain with any officer fifteen days for public inspection. ' The procedure specified by the charter is entirely dissimilar to that contemplated by the general act. The two acts are inconsistent and the charter must prevail. The last action with reference to the amendment and correction of the tax rolls is taken by the common council after notice to the public and an opportunity for the presentation of grievances and when the common council takes such action and amends and confirms the rolls the taxes immediately become a lien by virtue of the charter on the property affected and the right of any person to review the assessment becomes at the same time complete.

Under the charter the assessment in question became final and binding on the relator at the time of the confirmation of the tax rolls by the common council not later than April 6, 1908. ISTo sub sequent action was necessary or possible under the charter to limit the time within which this proceeding might be instituted, and as it was not instituted until September 5,1908,. it follows that the motion to quash the- writ of certiorari issued to review such assessment should have been granted.

The order must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

All concurred. '

Order reversed, with ten dollars costs and disbursements, and motion granted,'with ten dollars costs.

See, also, Laws of 1904, chap. 385, and Laws of 1899, chap. 713, respectively amdg. §§ 35, 37.— [Rep.

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Changed to November by chapter 353 of the Laws of 1908.— [Rep.