respective counties, and the auditor, or comptroller, apportions the whole amount to be raised among the counties in ratio of the assessed value of property, and transmits the amount to be raised by each county to the supervisors and county clerk. The supervisors then levy or impose a tax on persons and property sufficient to raise the amount needful for both State and county purposes. The whole amount collected is paid into the county treasury, and the county treasurer settles with the auditor or comptroller for the State tax. The supervisors in these States exercise a delegated power to levy or impose the tax not only as to county taxes, but also as to State taxes. Their duties and liabilities in the exercise of these powers will be considered under the head of Municipal Taxation. The subjects of taxation are designated by a general law, which is the guide of the supervisors as to the subjects on which they may impose a tax. § 92. Constitutional Limitations as to Imposition of the Tax.— The constitutions of New York1 and Virginia' provide that "Every law which imposes, continues or revises a tax, shall distinctly state the tax and the object to which it is to be applied, and it shall not be sufficient to refer to any other law to fix such tax or object." The supervisors of Orange county refused to levy the amount required by the comptroller of the State for that county, on the ground that the act imposing the tax directed the money so to be raised to be paid into the treasury of the State to the credit of the general fund, and that this was a violation of the foregoing provision of the Constitution, but their position was not sustained. It seems that in New York the revenues of the State are distributed into distinct and independent funds, according to the source from which they are derived and the objects to which they are to be applied, as the school fund, the canal fund, the literature fund and the general fund, each of which has its own peculiar sources of income, and is chargeable with its own appropriate expenditures. These distinct funds have been created by legislative, and sometimes by constitutional provisions. Viewed in the light of the history and practice of the State in these matters, the act was constitutional, and the tax and the object to which it was applied was stated with sufficient distinctness." So where an act passed by the legislature to enable the supervisors of the county of New York to raise money by taxation and otherwise, for the purpose of defraying the expenses of the government of the 1 Const. New York, art. 7, § 13, in force in 1858. 2 Const. Virginia, art. 10, § 16, in force since July, 1870. county, contained a provision that the taxes authorized should be imposed on the real estate of the New York Hospital, property which had been previously exempt, and the act was entitled "an act to make provision for the government of the county of New York," this was held to be a sufficient compliance with the constitutional provision. The provision does not require that all the details of a bill which affect private or local interests, should be set out in the title. If they are fairly embraced in the subject which is mentioned in the title, it is sufficient. But where the legislature imposed a tax of three and a half mills per dollar, or 80 much thereof as may be necessary, this was so not regarded as a compliance with the provision. It was simply a statement of the maximum tax to be levied, leaving it to the discretion of the administrative officers of the State to levy such tax as they should find necessary, up to the limit named. The power of taxation cannot be thus delegated by the legislature; they must determine the amount necessary and adequate, and declare the amount to be levied absolutely. If such legislation were valid, the whole taxing power could be surrendered to other departments of the State government. The same act did not state the object of the tax, except by reference to chapter 100 of the Laws of 1872, and in this respect violated the constitutional provision under discussion. The Constitution of New York contains other restrictions on the power of the legislature. No debt is to be contracted on behalf of the State, except to an amount not exceeding one million of dollars, to meet the deficits in revenues or expenses not provided for, or to repel invasion, &c., unless authorized by a law for some single work or object to be distinctly stated therein, such law to be submitted to the people at a general election, and receive a majority of all the votes for and against, and this submission is not to take place when any other law, or any bill, or any amendment of the Constitution is submitted to be voted for. These provisions place the credit of the State beyond legislative control. Their power to appropriate funds at their disposal in the treasury is supreme, but their appropriations beyond this are void and impose no obligations upon the people or successive legislatures for their payment. The prohibitions are absolute, and the vote as to an appropriation in excess of the million of dollars submitted at the same time as an amendment of the Constitution is a 1 People v. Com'rs of Taxes of N. Y. 47 N. Y. 501–504. 2 Sun Mutual Ins. Co. v. The Mayor, &c. of New York, 8 N. Y. 252, 253. 3 People v. Supervisors of Kings Co. 52 N. Y. 566, 567. nullity.1 The act creating the debt showing that it was for different objects, the fact that it declares that the debt shall be for the single object of raising money to pay the appropriation herein named, does not bring it within the provisions of the Constitution; the Constitution might be thus nullified by the dash of a pen or the construction of a sentence.2 § 93. Back Taxes; Relation of County Treasurer to State Treasurer in New York, Michigan and Wisconsin.-Property is often omitted from the roll by the assessors for one or a number of years, and most of the States have statutes authorizing the assessors when they ascertain such omissions, to place the property on the roll with the tax extended not only for the current year, but for the past years. The legislative authority given to tax the property for the omitted years is not exhausted by the failure of the party or the assessor to place it on the roll, and such assessments are valid. But in making such re-assessments, the statute must be strictly followed, and although, as a general rule, the valuation of the property is in the discretion of the assessors, yet where a statute as to omitted property directs that it shall be placed on the roll of the current year, at the valuation of the year in which said tax was omitted, the assessors cannot raise the valuation. Their duty is ministerial; they are to do a specific thing, and they have no discretion.* In Ohio, the statute made it the duty of the owner to list his land with the county auditor, and in case he should neglect to list it, the auditor was directed, when the same should be thereafter listed, to charge upon each tract so neglected to be listed the taxes for each year the same shall have been omitted. A. was the owner of a whole section of land, from which he sold off various parcels, leaving a balance of twenty-five acres, if there was no excess in the section, and the land was listed as twenty-five acres for a number of years. Then an excess was discovered, and the owner listed it for the proper number of acres. The auditor claimed to charge the owner for back taxes on the number of acres left off for twenty years. It appearing that the owner acted in good faith, it was held that this was a mere error in description, that he had listed his lands as required by statute, and that the number of acres was immaterial, except so far as it might aid in ascertaining the value of the land.5 1 Id. 564, 565. 2 Id. 561. 3 Blackwell on Tax Titles, p. 164, note 1; Overing v. Foote, 43 N. Y. 290, 294. 4 People v. Goff et al. 52 N. Y. 434, 436. 5 Ludlow v. Willich, 1 Cinc. (Ohio), 315, Taft, J., dissenting. In levying a tax, the legislature sometimes imposes it on the basis of a past assessment or valuation. Such laws have been questioned on the ground that they are retroactive in their operations, but this view has not been sustained, the courts regarding such laws as authorizing the future imposition and collection of a tax regulated according to a past assessment, and as being prospective in their operation, and not retrospective.1 And this is true whether the tax is imposed directly by the legislature for State purposes, or imposed by local authorities to whom the power has been delegated for local purposes.* 3 The system adopted in New York, Michigan and Wisconsin, which requires the local authorities to impose the tax upon subjects already designated by law to sustain the burden of the State tax, is similar to the mode of levying the land tax in England. When the comptroller or auditor has informed the supervisors or other local authorities, of the amount to be raised by the county which they represent, if they fail or refuse to make the proper appropriation, they may be compelled by mandamus, and when the comptroller has transmitted his statement of the account between the State and county, in reference to the tax, to the county treasurer, requiring him to pay within thirty days, interest runs on the amount after the thirty days. Under this system a question arises when the amount of tax collected is not sufficient to pay the State tax, and also the county and township tax, as to which shall bear the loss. The State tax is to be paid in full, and the loss, whether from default of the county treasurer or otherwise, falls on the county. But it is considered that a loss has not been sustained when the treasurer and sureties are being prosecuted on their official bond. In Wisconsin, if the amount of taxes which can be collected under the warrant in the hands of the officer is not sufficient to pay all, he may pay the State first, the township next, and the balance to the county treasurer.8 $94. The Assessment, by whom made.-The assessment ascertains what persons and property are liable under the tax bill, the value of the property and the amount of the tax to be paid by each person 1 Frellson v. Mahan, Collector, 21 La. Ann. 79; Locke v. New Orleans, 4 Wall. 173; Pitcher v. Jackman, 15 Ind. 109. 2 Shaw v. Dennis, 5 Gilman (III.) 418. 4 People v. Jackson Co. 24 Mich. 237. 'Blackstone, Sharswood's ed. bk. 2, p. 313.. 5 People v. County of New York, 5 Cow. 331. 6 People v. Supervisors of Livingston Co. 17 N. Y. 486; Winchester v. Toyer, 24 Wisc. 312. 717 N. Y. 486. 8 24 Wisc. 312. This was on the construction of a statute, but there was no express language in it, which controlled the decision. to the State. This duty is performed by assessors annually. In many of the States the value of the land is ascertained at fixed periods-in Virginia it is every five years--but as to all other matters connected. with the assessment it is annual. A question often arises, whether this duty must be performed by all of the assessors, or whether a majority may act. The roll is in many States required to be signed by the assessors, but through mistake, or from other causes, sometimes it is signed only by a majority. The general rule, in private agencies, is that an authority given to several persons jointly must be exercised by them jointly, or their acts are invalid. But where the authority is of a public nature, the rule is otherwise; where persons are clothed with public authority, and are exercising governmental functions, a majority may execute such authority. This rule applies to assessors, as well as other public officers. Where there are three assessors, and two have signed the assessment, it will be presumed that the third was present and acted in the business, and similarly where the law required a tax to be levied by a majority of the justices, and the record showed twenty-two on the bench, it was presumed they were a majority. Some of the authorities would seem to confine the rule,, so far as assessors are concerned, merely to evidence given of the acts of the assessors, allowing evidence of the acts of a majority to raise the presumption that all acted, but making it merely a presumption which may be rebutted by evidence showing that one of the assessors did not act.1 And it is said that where the statute requires three assessors, and two qualified as provided by law, but the other did not. qualify, the acts of the two were invalid on the ground that there were only two legal assessors, the statute requiring three. This case recognizes the rule that a majority may act, but does not consider the rule to apply except when the legal number of assessors were duly qualified. The weight of authority is that a majority of the number of assessors required by law duly qualified, may act, and their acts are as valid as if done by all of the assessors. But the act must be that of the majority, and where it appears that it is only the act of one assessor, where the law requires several, it is void. Nor does it give any validity to the act, where there are five assessors, to show that it 1 Cooley v. O'Connor, 12 Wall. 398; Sprague v. Bailey, 19 Pick. 436; Williams v. School District. 21 Pick. 82; McCoy v. Curtice, 9 Wend. 19; Lowe v. Weld, 52 Maine, 588; Dennis v. Maynard, 15 Ill. 477; State v. Parker, 3 Vroom (N. J.) 341; Bank of Chenango v. Brown, 26 N. Y. 467. Doughty v. Hope, 1 N. Y. 79-82. 'State v. McIntosh, 7 Ired. (Law), 78. * 1 N. Y. 82. Williamsburgh v. Lord, 51 Maine, 599; but see George v. Mendon, 6 Metc. 497, contra. "Metcalf v. Messenger, 46 Barb. 325. |