Perhaps, in the language of the Tax Law and the Village Law read in the light of their history, a legislative intent or policy may be found that an assessment upon taxable land, when made against a resident owner, should create not only a lien upon the land but a personal liability against the person assessed. Such intent is not enough. In order to give it vitality, the Legislature must provide that assessments shall be so made in order that all resident owners shall be under the same burden. The Legislature cannot delegate to *Page 316 local officers the determination of whether some resident owners, all resident owners, or no resident owners shall rest under a personal liability for the payment of taxes upon that land, nor can the Legislature give unrestricted discretion to the Board of Tax Commissioners to determine whether or not assessment shall be made against resident owners. That is a matter of general legislative policy, and determination of a general legislative policy can, of course, not be delegated to administrative officers.
The decisive question upon this appeal is whether the Legislature has imposed upon local tax assessors a mandate to assess taxes upon land against the resident owner of such land. It is doubtful whether the Legislature imposed such a mandate under the Tax Law, as amended by chapter 315 of the Laws of 1911. If it did, it seems to me quite clear that it removed the mandate by chapter 277 of the Laws of 1914.
Even under the earlier amendment, though there was provision for the insertion in a separate column of "the name of the owner or the last known owner or reputed owner of each parcel or portion of real property separately assessed" (§ 21), the Legislature expressly stated that the "entry of the name of the owner, last known owner or reputed owner of a separate parcel or portion of real property shall not be regarded as part of such assessment, but merely as an aid to identify such parcel upon the roll" (§ 63). That seems a tenuous basis for an implication that the assessors were under a positive duty to ascertain, if they could, the name of each resident owner and to enter that name correctly on the assessment roll so that each resident owner equally might be personally liable for the tax.
Under the amendment of 1914, even that tenuous basis disappears. No longer is there provision by the Legislature for a column in which the name of the owner or the last known owner or even the "reputed owner" of a parcel of land might be placed as an "aid to identify such *Page 317 parcel." On the contrary, then the Legislature expressly left prescription of the "form" of the assessment roll or rolls to the state board of tax commissioners, with the direction only that the "entries or descriptions * * * shall be sufficient to identify each separately assessed parcel or portion of real estate with the approximate quantity of the square feet, square rods or acres contained in such parcel or portion or a statement of the linear dimensions thereof."
Of course it is apparent that the purpose of this change was confined to matters of form, and that the form of tax rolls prescribed by the State Board of Tax Commissioners must still permit the inclusion of those matters in the assessment roll which the Legislature expressly or impliedly directed should be included. Certainly after the 1911 amendment the inclusion of the name of the owner, last known owner or "reputed" owner may hardly be regarded as an essential part of the assessment roll when the Legislature had expressly provided that the entry of such name "shall not be regarded as part of such assessment, but merely as an aid to identify such parcel upon the roll." Certainly the Legislature must have intended to give to the State Board of Tax Commissioners the power to eliminate the entry of such name even as an aid to identify a parcel of land upon the assessment roll when it removed from the statute reference to names as an aid to identify property, and confided to the State Board of Tax Commissioners the power to provide for "such entries and descriptions as shall be sufficient to identify" the parcel assessed. The fact that the State Board of Tax Commissioners did in fact retain a column for the name of the owner has, I think, no significance. It can hardly be said to be inconsistent with a construction of the statute that the State Board had discretion to retain or discard this form of identification.
Thus the judgment of the courts below can, I think, be sustained only if we find in the provisions by the Legislature *Page 318 for personal liability where the name of a resident owner is correctly entered, an implied direction that such names shall if possible be correctly entered; but that implication is negatived by the fact that in 1911 the Legislature expressly provided that the entry of the name of the owner, the last known owner or the reputed owner shall not be part of the assessment, and indeed the name of the "last known" owner or the "reputed" owner could serve no purpose except as an aid to identify the property taxed. It thus becomes evident that the purpose of the Legislature in retaining the provision for personal liability was merely to permit its administrative officers, if they saw fit, and when they saw fit, to impose a personal liability by the entry of the correct name of a resident owner, though the statute did not require such entry. That the Legislature could not do.
Until the recent depression there was little, if any, need for resort to personal liability. Today, we are told, taxable property cannot be sold for the amount of the tax lien. If a landowner is to be subjected to a personal liability for taxes beyond the price for which the land itself can be sold, the Legislature must say so directly and not leave to administrative officers the determination of when and whether such a liability should be created.
Judgment should be reversed, with costs.
CRANE, Ch. J., O'BRIEN, HUBBS, LOUGHRAN and FINCH, JJ., concur with CROUCH, J.; LEHMAN, J., dissents in opinion.
Order affirmed, etc. *Page 319