the assessors acted under a law which was void, yet as they had jurisdiction of the person, and the shares were liable to taxation in some form as personal estate of Swift, the determination of the assessors to impose a tax on the shares at the rate specified was considered a judicial determination which could not be attacked collaterally, and one which laid no foundation for a personal action against the assessors.1 So, where a bank had $103,000 of its capital invested in United States bonds, and claimed under the State law taxing the capital of banks, that to the extent of the investments in United States bonds it was exempt from taxation, the assessors refused to allow the exemption. Appeal was taken to the Court of Appeals, from a decision of the lower courts, on a certiorari, and the action of the assessors sustained. Subsequently in the Supreme Court of the United States the decision of the State court was reversed, and the assessment to the extent of the United States bonds declared void. The action of the assessors was precisely similar to that in case of Swift v. Poughkeepsie, they are not distinguishable, and in each their decision cannot be attacked collaterally, and is conclusive until reversed.'

What is the remedy for such errors? We have endeavored to point out the remedy in § 102; it is by a direct proceeding to correct the error, in the mode and to the tribunal designated by statute. The case just cited shows the importance of pursuing this remedy. The tax in this case was paid for several years under protest, but for only one year did the parties take steps to correct the error. When the action of the assessors was declared void by the Supreme Court of the United States, suit was brought against the city into whose treasury the tax had been paid. The plaintiffs recovered for the year in which they had taken steps to correct the error of the assessors, because the decision of the assessors had been reversed in a direct proceeding for that purpose, but for those years in which no such steps had been taken they did not recover. The decision of the assessors was conclusive for those years, and could not be attacked in a collateral proceeding. Subsequently, by act of the legislature, a remedy was provided for the banks in the cases where no steps were taken to reverse the decision of the assessors. In another portion of the work it is proposed to discuss the question how counties and cities can be made

Swift v. City of Poughkeepsie, 37 N. Y. 511, 512; affi'd in Nat. Bank of Chemung v. City of Elmira, 53 N. Y. 57, 58.

2 People ex rel. Bank of the Commonwealth v. Commissioners of Taxes, 23 N. Y. 192.

3 Bank of Commerce v. New York City, 2 Black, 650, 635, and note.

* Bank of the Commonwealth v. The Mayor, &c. of N. Y. 43 N. Y. 186, 187.

5 Ibid. page 187.

liable in an action, for taxes collected and paid into their treasury under an assessment which is void, and has been so declared in a proceeding for that purpose. So far as the State is concerned, it cannot be sued in its courts unless it has so provided by statute.

§ 104. Assessors, when liable for Errors-Errors, when cured -Remedy.-In the second class of cases, where the assessors have not jurisdiction, or act beyond the limits of the powers with which they are vested, their action may be attacked collaterally. Where they assess lands which do not lie within the county or district, the assessment is void.1 So if lands lie in two counties, and the statute directs that they shall be assessed in the county in which the owner resides, and it is assessed in the county in which he does not reside, the assessment is void. Or if the lands are within their district, but are owned by a non-resident, and under the statute should be assessed as non-resident lands according to their legal character, if they are assessed to resident of the town as resident lands, the error is one which goes to their jurisdiction, and the assessment is void.3 So where personal property was taxable to the owner in the county of his residence on the first day of July, a person who resided in the county in May and June, while the assessors were engaged in procuring information to make out their roll, but moved from the county before the first day of July, and who was assessed for his personal property in the first county, although under the circumstances he was not a taxable inhabitant of that county; the decision of the assessors that he was taxable did not give them jurisdiction. They cannot give themselves jurisdiction by deciding a question of law or fact necessary to their jurisdiction. Their jurisdiction depends on the law defining their powers, and grows out of the facts of the case.‘ The rule is a severe one as to assessors, especially in cases of taxation of personal property, where they have to decide questions of residence and domicile; the rule however has been enforced, where the question was one of great doubt upon the facts, but a jury had decided the question of non-residence against the assessors. In an action to

'Thurston v. Martin, 2 Sumner, 497; Toby v. Haggerty, 23 Ark. 370; Winslow v. Morrill, 47 Maine, 411; Bailey v. Fisher, 38 Iowa, 229. Here there had been a custom to assess beyond the limits of the city, but it was not sustained.

Hughey v. Horrell, 2 Ham. 231 (1-4 Ohio Cond. 335); Saunders v. Springsteen, 4 Wend. 429; Dorn v. Backer, 61 N. Y. 261.

3 Whitney v. Thomas, 23 N. Y. 281.

'Mygatt v. Washburn, 15 N. Y. 316, 320; affi'd in Nat. Bk. of Chemung v. City of Elmira, 53 N. Y. 58; Freeman v. Kenney, 15 Pick. 44; Lyman v. Fiske, 17 Pick. 231; Preston v. Boston, 12 Pick. 7; Hays v. Pacific Mail Steamship Co. 17 How. 596; Hebrew School, &c. v. Mayor, &c. of N. Y. 4 Hun, 446.

Dorwin v. Strickland et al. 57 N. Y. 492, 496; Bell v. Pierce, 51 N. Y. 12; Gregory v. Bugbee, 42 Vt. 480; Hurlbut v. Green, 42 Vt. 316.

recover a tax, the list is not evidence on the question of residence ; that must first be established. When the assessors have jurisdiction both of the person and property, if they act beyond the scope of their powers, their assessment is void, and the assessment may be attacked collaterally. Clark, residing in the town of Canton, was assessed with a farm at $2,750. On the sixth of July he sold to Fowler, gave him possession and moved to the town of Russell, taking from Fowler an agreement to pay the taxes on the farm for that year. On the eighteenth of August, while the roll was in the hands of the assessors for correction, on the application of Fowler, the purchaser, they changed the roll by setting the farm in the list to Fowler, and assessing Clark for personal property at $2,750. The assessors had no authority in reviewing the roll to add the names of persons or property not on the roll as deposited on the first of August. Only such property as was assessable on the first day of July should be on the roll, and the corrections to be made by them were corrections of the list as it stood when deposited for examination. In this case, having exceeded that authority by adding personal property to Clark, the assessment was void. The fact that Clark had agreed with Fowler to pay the tax on the personalty, and that Fowler had agreed to pay that on the real estate, does not give the assessors jurisdiction. That was a matter of contract between the parties, to be enforced in the usual way. They have a right to insist upon a strict compliance with the statute in all matters affecting their interests, and such an assessment could not be upheld. So where the name of I. N. Westfall & Co. did not appear in the roll until the third Tuesday in August, when it was put on with an assessment for personal property of $20,000. After the first of August the assessment was beyond the powers conferred, and they only had authority to correct errors in the roll, and had lost all jurisdiction over the person of the plaintiff, the assessment roll and the subject-matter of assessments for the current year, except for the purpose of reviewing the assessments already made, and the verification of the roll when the review had been made and the roll completed.2

The act of 1866 of the State of New York declared that "no tax shall hereafter be assessed upon the capital of any bank or banking association organized under the authority of the State, or the United States, but the stockholders in such banks shall be assessed and taxed on the value of their shares of stock therein." The National Bank of Chemung was assessed for its capital stock and paid the tax. It was claimed that as the corporation was within the town of the assessors,

1 Clark v. Norton, 49 N. Y. 243.

? Westfall v. Preston, 49 N. Y. 349.

they had jurisdiction of the person and subject, and the error was a judicial one in determining that the capital was subject to assessment. It was said to be within the principle of Swift v. Poughkeepsie, where the assessment was made on bank shares, which the Supreme Court of the United States decided were not liable to taxation under the State law. But there is a broad distinction between the two cases; in the latter case, the assessors followed the law of the State, in the former they acted in plain and direct violation of the statute which was made to govern their action, and exceeded the powers confided to them. If we look to the question as to whether the assessment was legal or illegal, there is no difference whether the illegality proceeds from a violation of the statute of the State, or the Constitution of the United States. In either case the assessment is not valid. But when

we look to the question of the personal liability of the assessors for the injury done by reason of the illegal assessment, we cannot keep out of view the fact that the assessors in the latter case followed the law of their State, and that they were liable to indictment if they failed to perform the duty, and under such circumstances, although technically the assessment was illegal, it is doubtful if any court would hold them liable. In the case of National Bank of Chemung, the assessors did not follow the law, but their action was in opposition to the plain words of the statute.1 The same principle is applied to other officers having similar powers, where they exceed the powers vested in them. A county clerk was authorized to extend on the roll a school tax, but it was done by the auditor, and in another case the county board of equalization directed an entry on the assessors' books of omitted taxes without the notice required by the statute, and in each case the assessment was declared void. So where lands were assessed to a resident, who after the assessment sold the lands and removed to another county, and the collector returned the tax for that year, 1866, as uncollected for want of goods and chattels, and by the statute such lands were to be proceeded against as non-resident lands. The supervisors, in 1867, when the land was assessed for that year to the purchaser, also added the tax for 1866, which was unpaid by the previous owner, to the tax of the purchaser for 1867. Such an assessment was illegal. The tax of 1866 could only be collected in the mode pointed out by the statute, to wit, as on non-resident lands.

The cases of the third class are very similar to those of the previ

1 Nat. Bank of Chemung v. City of Elmira, 53 N. Y. 49. This case contains a full and able discussion of the subject, and a review of all the cases.

Brown v. Harriss, 52 Mo. 336; Pacific R. R. Co. ". Cass Co. 53 Mo. 17.

Newman v. Supervisors of Livingston Co. 45 N. Y. 676.

ous class, as they consist principally in a failure of the assessors to perform their duties in matters connected with the assessment, rather than a want of jurisdiction or excess of authority. The doctrine is well expressed by Shaw, J., in Torrey v. Milbury. "There are some conditions precedent and some directory. But one rule is plain and well settled, that all those measures which are intended for the security of the citizen, for securing equality of taxation, and to enable every one to know with reasonable certainty for what polls and for what real and personal estate he is taxed, and for what all those who are liable with him are taxed, are conditions precedent, and if they are not observed the citizen is not legally taxed. But many regulations are made by statute, designed for the information of assessors and officers, and intended to promote method, system and uniformity in the mode of proceeding, the compliance or non-compliance with which does not affect the rights of tax-paying citizens. These are directory. Officers may be punished for not observing them, but they do not affect the validity of the tax." 1

Where the statute directs that the roll shall have a column for "true value" and one for "reduced value," but the roll contains only one column marked "value," or where there is no column for income, the assessment is valid. So an irregularity in issuing the notice of the meeting of county clerks who act as a board of assessors, or the failure of the tax officers to list all the property in their districts liable to taxation, or other irregularities and informalities which make the roll not in strict conformity to the requirements of the statute, are regarded as directory. Where a board of supervisors were required at their June meeting, to add to the assessment any taxable property omitted by the assessor, it is said that such a requirement as time is directory, and a correction at a later meeting by which property is made to bear its due proportion of the public burden is valid. But if there had been anything in the act to show that the legislature intended the time fixed as a limitation, it would have been invalid.' A roll which contains the valuation of the property assessed, but does not show the amount of each person's tax, is not valid; the latter is an essential and mandatory requirement. Where a certificate is required to be attached to the roll by the assessors, it must conform substantially with that required by statute. A certificate that the

121 Pick. 64.

2 Torrey v. Milbury, 21 Pick. 64.

3 Blackburn v. Inhabitants of Walpole, 9 Pick. 97. Missouri, &c. R. R. Co. v. Morris, 7 Kans. 210.

5 Dunham v. Chicago, 55 Ill. 357.

7 Hill v. Wolfe, 28 Iowa, 577.

6 Stephenson Co. v. Manny, 56 Ill. 160.

8 State v. Perkins, 4 Zabr. 409.