I am in favor of a new trial in this case for the following reasons:
(1.) The warrant for the collection of the tax was void on its face.
The assessment against the plaintiff of $29,547, on account of "circulation notes and profits," was plainly illegal, and in making it the assessors exceeded their jurisdiction. It seems to have been intended to assess the plaintiff for notes issued by himself and for which he was a debtor, and that is simply absurd.
(2.) The assessment roll was not verified as required by statute, and that omission is fatal to its validity.
The provisions of a statute by which a public officer may condemn the property of an individual must be strictly observed.
(3.) The board of supervisors failed to discharge its duty *Page 621 The warrant was imperfectly sealed, and was left incomplete in several respects when the board adjourned. They had not fixed the "corrected valuation of real property," or inserted the "total of real and personal property," or extended the tax thereon.
All this was done by the defendant, Gray, and he had no legal authority to do it. It could be done only by the board of supervisors in corporate meeting duly convened, and the power was not and could not be delegated. If the warrant had been left as the supervisors left it when they finally adjourned, no tax could have been collected of the plaintiff. The defendant undertook, without authority of law, to do what the whole board of supervisors of the county of Herkimer ought to have done. Having finished the work he handed the papers to the collector of the town of Herkimer, and by virtue of it the property of the plaintiff was taken to the amount inserted in the warrant by the defendant. If he had inserted five times more, if the judgment of the Supreme Court is correct, the plaintiff could have no remedy. But the defendant is liable for his illegal act, by which the plaintiff has sustained injury.
It was suggested on the argument that this manner of doing business in respect to the assessment and collection of taxes was customary in the county of Herkimer, and therefore should be approved.
A custom to disregard a statute must become very obstinate before courts of justice will approve and practically repeal an act of the legislature.
There should be a new trial.
All concur in opinion of LOTT, Ch. C., EARL, C., not sitting.
*Page 623Judgment reversed. *Page 622