dissenting. The proceedings of the commissioners now before us, were intended to be made in pursuance of the act of March 9th, 1848, (Nix. Dig. 850,*) which provides, that if any person or body corporate shall be assessed *189at too low a rate, upon a complaint being made to die commissioners of appeal, they may make such addition to the assessment as shall be agreeable to the principles of justice.
One of the grounds insisted upon for setting aside the assessment before us, which comes fairly within the scope of the reasons assigned is, that, in point of fact, the commissioners made no addition to the assessment already on the duplicate, either in form or in substance. Upon referring to the general tax law of 1846, (Nix. Dig. 842,*) to the supplement of 1848,† and to the tax law of 1862, under which the taxes in question were assessed, it is very apparent that a distinction is made between the valuation of the property and the assessment itself, which means the amount of ta.x required to be paid by the individual or corporation upon whom the assessment is made. It is this assessment to which the commissioners of appeal are empowered to make such addition as shall be agreeable to the principles of justice. The objection urged is, that they have not done this, but have only adjudged that the' assessment ought to have been made upon a much higher valuation of the prosecutors’ property, than that returned by the assessor.
On behalf of the city it is contended “ that the legislature manifestly presumed that the rate of taxation being fixed as everybody knows, in every year before the action of the com missioners could take place in this matter, it would be sufficient for the commissioners to add to the amount of the assessment. The fixing of the tax is a mere, and very simple matter of arithmetic. The principle id certum est quod certum reddi potent applies.
But it nowhere appears what the rate of taxation fixed by the assessor was, the law, at that time, not requiring the duplicate to state the rate, as it now does. The receiver of taxes was left to calculate the amount that was to be assessed from the verbal statement, not made even under the sanction of his oath, of the assessor; or possibly by observing how the tax had been calculated in other cases. This is, by far, too loose and unsatisfactory. And besides it may be *190that the commissioners, if they had proceeded as they were required to do, to ascertain what addition the principles of justice required them to make to the assessment of the tax, would have seen reason, upon examining the whole amount of tax authorized to be raised, to estimate that addition upon a different ratio of assessment from that adopted by the assessor. I do not mean to suggest that they are, in all cases, bound, to do so; but there is nothing in the law which forbids their doing so, if justice requires it.
Being clearly of opinion that the adjudication and certificate of the commissioners is radically deficient and illegal, and must for that reason be set aside, it is not necessary to examine the question submitted in regard to the principle upon which the valuation of the prosecutor’s property was increased, a question of no further importance, in consequence of the alteration since made in the law applicable to the taxation of mutual insurance companies.
The Chief Justice and Justice Woodhull concurred in affirming the proceedings.
Rev., p. 1149.
Rev., p. 1140.
Rev., p. 1149.