The New York Herald Newspaper, July 23, 1854, Page 6

LEGAL INTELLIGENCE, | ¢ Woodruff In re er te the Complam:. WEW YORK COMMON PLEAS—IN APECTAL TERM, Jury 22.—Lewis 0. Wilson vs. The Mayor, Se., of the City of New York, Harvey and Joseph Jenkins. Woopuurr J. delivered the emtag oath ten :—The complaint in this action is te this court as a court of equity, and prays a perpetual injunction to restrain the collection of a tax for the year £850, imposed upon the de- fendant as the owner of perronal property with- in tbe city and county of New York, for the eollection of which a warrant haa been issued by the defendant Hart as Receiver of Taxes for ‘the city and county of New York, directed to the defendant Jenkins, (a constable,) in pur- suance of which the latter has distrained oer- tain property of the defondant, and is proceed- ing to sell the same for the collection of such ‘ex. The facts which the plaintiff avess entitle heim to the relief sought are, that he isillegally aesessed in this city and county; that the pheintit!, during the whole of tbe year 1850, and for eight years Jast past, bas resided in Nor- walk, in the State of Connectiont, bas not re- sided within the State of New York, and that as euch resident of Connecticut and a taxable Wwbabitant therein, he has been duly assessed wpon his personal property, and has paid taxes Wereon in that State; that the assessors of the @ty andcoanty of New York made the aseese- ment of the amount authorised by law to be vaiset by tax upon the real and personal pro- perty in the city, and under the pretence that the plaintiff was a taxable inhabitant in the suid Gity, did, in 1850, assess bim as the ow.ser of perroval property in the Third ward of the said eity; that the assessment ro} containing such assessment was afterwards delivered to the tax eommis+ioners and to the Board of Supervisors, and sulmitted to their action, and afterwards the corrected assessment roils of each ward Were delivered to the Receiver of Taxes, with he usual warrant to collect the tax aod poy the same to the Chamberlain of th y; that the Bame o/ the plaintiff was inserted in such roll, and be was charged therein with $568 75-100, as atax npon personal property ; that the plain- tiff received no notice, and did not know that he -was to be assessed, nor that any tax had been imposed upon him or his property until long after such assessment rol) had been delivered to the said receiver; that soon after the plaintiff Yearned that such tax had been imposed in May, 1861, be applied by petition, verified by his oath, to the Common Council, stating the fact of his non-residence and praying the remis- sion of the said tax, which they refused; that Previous to this petition, to wit, in Jauvary, 1861, the defendant Hart, (Receiver of Taxes,) issued bis warrant to the defendant Jenkins, (@ constable,) commanding him to levy the amount of the said tax, with interest and costs, by distress aud sale of the goods and chattels of the plaintiff, and such distreas has been mado, ‘and «ale thereof will be made, unless restrained by order of the court. ” The complainant then avers that it will be the duty of the defendants, Hart and Jenkins, to pay the money, if collected, to the City Qhamberlain; that he has notified Jenkins of his non-residence; that Jenkins persists in his Jevy; that neither Hart nor Jenkins are ef sufficient responsibility to answer for the damages he will sustain by a sake of his property under such warrant; dhat the plaintiff cannot have adequate relic execpt in a court of equity; that such tax, so attempted to be imposed, is illegal and void; that such illegality does not appear on the face of the proceedings, but thut the evidence of the want of jurisdiction in such assessors to impose fhe tax, and of the illegality of such imposi- tion, must be given out of the record of the procecdiigs by proof of extrinsic facts, upon proving which dhe plaintife is entitled to have the acsesement declared illegal as to him, and the collection of the tax restrained, &e. The @efendants have interposed separate demurrers oe whe complaint, “for tuat said complaint dots not state facts suflicient to constitute a eaure of cetion.”’ It was insisted by the cona- eel for the defendants, ou the argument of the demurrers herein, that the plaintiff is liable to taxation in this State in respect to his personal property found here when the assessment is made; and that inasmuch as the plaintiifdoes not aver that he had st that time no personal pro- perty within the city and county of New York, he has not chown that the atsessmen! was cither legal or erroneous. The power of the State to tax all property withia its limits, whether weal or perronal, cannot be de Taxation dtself, for the purpove of insintaining and np- holding the government, is esscutial to tue idea @f its existence, avd the power to impose such Paxation is said to reside in the governmeni as @ part of itself, In this State, while the con- stitution recognizes the existence of the power to impore taxes, it leaves its exercise to the Legislature, and save only by prescribing cer- tain rules regarding the mode of exacting laws imposing taxes, it has left the extent of taxa- Aion and the manner of its apportionment solely aad exclusively to the wisdom and justice of the Legislature, In one section of the consti- tution (p. 5, art, 7), the particular texes men- tioned for the increase of the sinking fund of the State are authorized in these terms, viz.: “The Legislature stall by equitable taxes so increase the revenues,” &e, Aud it may be as- Bumed as within the spirit and meaning of the eonstitution that all taxes shoald be equitable. But I apprehend that in the apportioament of taxes, and the assigning to persons or to pro- - perty the portion which each shall contribute to abe public burthens, the Legislature have the wole and exclusive power of determining what fs just and equitable, und upon what descrip- tion of persons and upon what property within the State, and in what ratio, the imposition eball be made. (See Prov. Buck vs. Billings, 4 Peters, 514; McCulloch vs. Maryland, 4 Wheat. 428; cites the People vs. the Mayor, &c., 4 @omstock, 427.) And there is nothing inequitable in requiring ef the owners of personal property found iu this State, and kept here protected by our laws— it moy be acquiring eabanced vaiae from our institutions and government, our public works, the large developement of public and private enterprise within our limits, and various ether cirenmstauces which give value and macfulness to pi rty hold out to nonresidents #0 at to bring or send their property or funds to be used or sold here, that they may derive enhanced prices or larger income therefrom, to reader toonr government a just equivalent—to bear the same burthen in respect of such property as ‘the citizen himself bears in respect of his owa estate in the like condition. On the contrary, if the question be judged of ‘apon the simple inquiry what is equitable, as between thove who bring their wealth to our State and city, and here vail themeelves of our fecilities for trade, commerce and enterprise ‘i i obtain our protection, hecome competitors the gains profits of @bat business which we have done so much to Macilitate and promote, and bear away the en- hanced income which (by reason of the ad- vantages of our location, the eharacter of our Gnstitutions, the encouragement we give to pri- wate en , and the facilities which our public works afford,) they have beea able to ire; if what is equitable between them be the sole guide in the apportionment of taxation, St may be raid with great truth that they should share in proportion to the benetiés en- Joyed, and no fairer criterion conid be devised Zhan the amount of property so employed and #0 protected. To say that one of them, after @he heat and labor of the day—after the ac- complishment of the purpose for which he is Gupirying his property here, crosses the river or the Connecticut, line, to seek the sleep neces- to restore his vigor for the next day's @ontest with his citizen rival, though he leaves his rty secure and protected uader the efficient guardianship we provide, he, neverthe- Jess, onght to pay nothing, and his resideat competitor in the strife for wealth shoujd pay all; or, to say that his contribution shall only be given to the sovereignty that protects him An bie sleeping houra, is Lge inequitable, and, if no other consideration but such as re- mpe t those individuals be taken into view, is od the prevent plaintiff, in this aspect of Abo pare, would haye no just ground of and in ite apportionment, considerations of ex- | iency do and may properly influence the | giclature in their enactments ; and it is emi- | nently desirable that while equality ix to a cer- tain degree cought, uniformity in the rule of taxation should obtain, and it may often be true that what is upon the whole best for the State resv)ts in a seeming inequity a8 between indi- viduals or inequality between particular ca- sea, while comity towards other States may also be properly regarded. Thus, if the Legitlature were to tax the personal prop- erty of ns vaegy ae Roe! comity would require that the, person Poppers ot our pi citizens employed “or evened out of thia Stats should be exempt from taxa- tion here, So the policy of the State may re- quire that non-r-sidents should be encouraged to bring or send thir fuods to this State for employment or fuvestment, and our community may realize therefrom in other modes advan- tages which in the end fully compensate for the immunity from taxation which ix accorded to | Would seem that | the demurrant should them. Bat it is unnecessary to pursue this branch of the subject. The enquiry is, in this tribunal. not what property might equitably be taxed. nor what property it is expedient to tax, but what property is by law taxable?— wrat has our Legisiature by its enactments made texaile? And on this subject I have no doubt that our Legislature intended to recognize, and have recogn zed and adepted in reference to taxa- tion,ine gencral rule that personal property has no situe—that it follows the domicil of its owner, avd that the incidents to the ownership in vhis respect, asin many others (e.g. thelaw of ite distribution on the death of its owner, and its administration by courts of probate; its rranefes by gninent ; the rights of credit- ors thereto under atrachment, after such assignment, and the like), are governed by the Jaw of the domicil It is true that the first section of title lst of chapter 13, part Ist, under the bead of “Pro- perty liable to taxation,” declares that “all ands and all personal estat thin this State " “i * shall be Wable to taxation” (with certain specified ex- ceptions not material to the present enquiry). But when this is readin coanection with the generally recognized rule above referred to, that persona! property has ne as apart from the domicil of the owner, w! in substance imports that personal property is not within the meaning ot thestatute “wt this State,”? unlees its owner resides here, it is entirely con- sistent with its exemption from taxation here; and iomy mind the subsequent provisions of the same pter show that such was the mean- ing of the Legislature, ‘Thus section 5 of title TU, enacts that “every person shall be assessea in the town or ward where he resides, when the assessment is mide for all personal estate owned by him.” This may be said to imply its converse, that no per- son shall be assersed inany town or ward in which he does not reside. Again, in pres g the duties of assessors, section 9, article 2, of same title directs them toprepare an assessment roll, in the first col- umn of which they shall set down the name of ail the taxable inhsbitants of the town or ware, and in the fourth column the full value of allthe personal estate owned by such per- fon. ‘ection 11 provites for a te asscss~ ment of Ionds belonging to pon- jente, but no pro’ nis made respecting personal pro- perty owned by a person who is not an in- babiiant, thus showing that no such assessment , and no duty imposed upon pect of the personal estace . . of any such person. Section sribes the oath to be taken by © perscn a a 1 oath shall govern the amoun % and this, a3 well as the © tions above referred to, make the taxable amount embrace all personal propercy owned by him. This shows that no regard whatever is had to the place where such per- sonal property may happen then to be; it is treated as in the possession of its owner. Surcly if the assessment was desigued to em- brace property of now-residents which might be found here, it would have exempted the pro- perty of residents which might happen to be in avother jurisdiction, for the Legislature aim- ing, a3 we nust believe they would, to enact a just sule, would undoubtedly assume that ajust rule here wou!d be ajust rule, and would be adopt- ed, within such other jurisdiction ; and, theres fore, if the taxation of the personal property ef & non-resident was proper here, the taxation ot the personal property of our citizens would be d there, And hence that if we tax noa- here, and tax all the property of our own citizens also, the latter sould be taxed twice on the same subject. And, moreover, if the personal property of a ident is taxable, in what town, ward or taxable? There is nothing. in the statute which cau answer this question, and for bt contained in this statute, the property of n-resident of the State may aswell be taxed in Buifaloas in New York or in Albany, and as well in the latter place as in cither of the former. No par! of the statute, either directly or vy implication, makes personal property tax- able in the town or city where it may happen to be, whether it belong to a citizen or not, And, finally, there is uo clause which maxes it the duty of the assessors, or which gives them authority, to insert in the assessment roll the name or personal property of any person who isnot an inhabitant of the town or ward; ex- cept so far as the provisions in relation to the Jand of non-residents require that land so ewned shall be taxed—{seo Van Rensselaer vs. Cot- trell, 7 Read, 129,. below referred to]—neces- sary to jurisdiction of assessors over personal property, thet the owner be an inhabitant of the town or ward, dr. Whether it is wise and expedient, ia view of the nmense amonnts of personal property em- ployed in this city in the various pursuits of trade, commerce, nav hy persous who have the é out our borders, that the State should subject it to taxagion for the relief of our citizens wicther 1@ that end they should wake tl rying on ®€ such business bere as suffici dence or inhabitancy, to subject such pers x, is a quéstion exclusively for the Legis- Themis no doubt of their power, if they think it&txercise witl upon the whole be and proper. As the law now is, such persons are not inhabitents, nor, in my opinion, taxable as sneb. I sbonld not have deemed it at all necessary t. divcuss this quesifon at so great length, but that the pcint was pressed by the counsel ‘wv the defendants on the argument, aad that the Common Council of the elty appear by the complaint to have had the question urged upon them by the plaintit’, and to have persisted in the claim that he is Mable to taxation here. And the heavy burden of taxation borne by our citizens, render it in no wise remarkable that the city authorities should be desirous of effecting a dimiaution of the burthen so far as they legally may, by extending it over all the property protected and fostered by that govern- ment, to the maintenance and support of which the taxes are applied. Nevertheless, in the further view which I have taken of the care be- fore me, what I have said may be deemed an- necessery, because not essential to the determi- nation which I om called upon to make. The cefendant’s counsel farther insist that this case is not within the jurisdiction of this court, as a court of equity, aud that upon this ground the plaintiff must fail in this action. ‘Lhe want of jurisdiction is not named as a wound of demurrer, The code of procedure a section 144, provides that the defendant may demur to the complaint when cither ofsix causes of demurrer appear on the face of the complaint. The first of these causes is, “that the court has no jurisdiction of the person of the dotendent, or of the enbject of the action ;” and the sixth is, “that the comp)alnt does not state facts sull- cient to constitute a cause of action;’’ and sec- tion 145 declares that unless the demurrer dis- tinetly specifies the grounds of ebjection ta the complain, it may be disregarded. The Cyfondants here gost th ¢ demurrer E versary of the precise que: i aint pote the ground thou con: very wurrer assigned. And the enumeration want of ji ction being one of the six causes epecitically mentioned, it should not be availed of as @ ground of demarrer unless the demurrer iteelf aesigns it +p cially. It is true that under section 148 the to the jurisdiction of the courtis not to deemed waived by the omission to set it be either by demurrer, or even by answer, Sti!) it by po means follows that itoan be raised oa the argoment of ademurrer that assigns a dif- ferent cause Whether if not so set up the objections should only be permitied on the tinal hearing—or whether and how far it can be urged in any aid what other stages of the cause, the code does not provide. But it is at least doubt- ful whether on the argament of a demurrer, (¢. g. specifying for cause, “that several cau- ses of action have been improperly joined,’’) the demarrant ehould be permed to depart at al} from the very gro upon which the de- murrer is based. The judgment which the o: are called up- on to give, isa judgment upoM@e very issue of law vaised by the parties by their pleadings. Bui the queetion of jurivdiction was diseus.ed at length oa the argument and without odjec- tion on the part of the plaintiff. Probably apon a view of the subject which may be sound, viz. that the wont of jurisdiction of the cause of action may be urged in any and all stages of an action, whatever may be the formal question before the court, thoughthe form of the judg- ment upon the issue of law presented, might be somewhat embarrassing. If the court are of opinion that the cause of demurrer assigned has no foundation, how can they give judg- ment for the demurrant upon that issne ? Poreibly counse) suppose that notwithstand- ing the provisions requiring the demurrant to epecify want of jurisdiction when that is the ground of demurrer, yet that if it appears on the argument that the cause is not one of equi- ty counisance, the plaiotiff has not shown that in this action and upon this complaint he has a cause of action upon which the court can give him any relief. This isa somewhat latitadinarian construction of the meaning of the case, not very satisfactory tomy mind. The r of the court over the subject, when the jurisdiction of the court is voluntarily submitted to, cannot be questioned—it has often been exercised in thie State and relief given, as will appear hereafter. J do not however wish to be understood as giving any decided opinion uponthe construction of the Code, orvpon the rule to be obeerved in this particular, The eounsel for both parties have concurred in submitting the question of jurisdiction as properly before me under their demurrers, and 1 may therefore properly dis- pose of the case npon that question. And under the course of decision which has been had in this State in like cases, the prece- dents do not furnish a very satisfactory guide toaresult. Upon a review of the subject { am nevertheless brought to the conc!usion that the plantif has mistaken his remedy, and that no amendment can be made which will entitle him to any reliefof the nature sought by the pre- sept complaint. Briefly the reasons for this conclusion are, that by a wrong rule as is complained of here, no irreparable mischief is threatened—no cloud is thrown over tbe title toany real estate which @ court of equity may properly be pray remove—and the remedy i3 ample at law w out invoking the powers of the court as a court of equity, which alone are appealed to in this action, To trace the course of judicial decision ta this State, and point out the mode in the va- rious exigencies which may arise, in which an illegal assessment for taxes may be set aside or corrected, or its collection restrained, or the wrong done thereby be redreesed, is not an easy labor. Upon a cursory inspection of the cases there would sgeim to be no little conflict; but Lapprehend that, in truth, there exists, notwithstanding intimations of doubt thrown out in some of the opinions, full remedy at law in all cases iv which personal estate only is af- fected thereby. The mode of rectifying such assessment is by affidavit, while the assessment roll remains in the hands of the assessors; (Revised Statutes, 392-3. Laws of 1850, chapter 120); the notice they are reqtfired to publish to enable persons as- sessed to make such correction; the review of such assessments by the Board of Assessors, or Commissioners of Taxes, on the application of any person conceiving himself aggrieved. (Revised Statutes 393, and Lawsof 1850, chap- tery 120.) The further power of the supervisors to correct the rolls and remit taxes, (p. 595, Laws of 1844, chapter 250, sec. 2, and Laws of 1850, chapter 120,) need only be mentioned, Tn many respects, no doubt, their acts are final and conclusive. If their proceedings are regu- jar, and the act within the ecope of their juris- diction, following the directions of the statute, “no more error in the valuation of the property of a taxable inhabitant, or in the exercise of their discretion, or in determining the weight or snfeiency of evidence laid before them, can, | apprehend, be reviewed by any tribunal. n f they impose a tax upon property, not wy Jaw taxable, or assess a person who is not Liable to assessment, or if, by reason of errors in making up the assessment without complying with the essential requirements of he ric lute, or make an {illegal apportionm ont aR estat 35 f the taxes imposed, and whether the illeg: lity of the acts appears on the face of their pro- ceedings, or arises from extrinsic facts to be roved debars the proceedings themselves, I ave no doubt a review may be had, or redress may be obtained. Whether a certiorari will lie, and such review be hed thereon, and the extent of such review has been much discussed; if, however, a review be had by certiorari, it can only reach such il- legalities as are apparent upon the proceed- ings themselves, (the People vs. the Mayor, Kc. of New York, 2 Hill, 9, and motter of Muunt Morris equare, 2 Hill, 27-8, and cases cited), and it seems questionable whether, after the as- sessment rolls have gone into the hands of the collector, aud the warrant has issued, any review by certiorari would avail to stay the coltection of the tax. That the Supreme Court have power to grant such a writ, and thereupon to review the pro ceedings, is, however, settled. Sach writ was granted in Storm rs, Odell (2 Wend., 287) to review the assessments for a school tas, and in edonian Company vs. Trustees of Hoosick alls, Wend, 50s, end note on 665, to review the assessments for a village tax, (and sco effect, &e., in cases cited in the note). But in Lawton vs. Commissioners of Cambridge, the court says, * that the power of the court is in- disputable ; these are cases in which they will not interfere. In the case of a poor rate, they will retuse the writ, as also in the assessment of a land tax, from a regard to the public con- venience, (cites 2 T, N. 235. which refers to 2 Strang, 952 and 975.) In the People ys. Supervisors of Alleghany, 15 Wend, 195, and the People vs. Sapervisors of Queens, Hill, 195, and the People ve. The Mayor. ce. of Now York, 2 Hill, 9, the enbject is discussed at great length, and although the Dower of the court to issue the writ, and re- view the proceedings is asserted, yet it is de- clared to issne, rot cx i a matter within the discretion of the conrt, and the writ was refused. In these casca the ille- gality alleged the allowance of improper conn- ty and town charges, which increased the amount to be raised ye taxation, The remerks ot the court indicate that ia general such writ ought not to be allowed. by reason of the great public inconvenience it must occasion, Aud it appears, by the report of Mooers vs Smoddley, 6J.Ch. Rep. 30, that the Suprome Court hed re- fased the writ ina like case many yeara po- tore. In the matter of Mount Morris aquare, 2 HIN, 14, whore a writ of certiorari was applicd | for to review an assessment for opening a pub- Nie square was sought, the cgurt took the same those parficndars, cannot be gorreeted without } avai! In zach an action. i 3 A 1 i" Hi Li ; 3 etl és ; { 5 8 3 ii ge i ite Court by certiorari, and reversed or annulled. 6 Barb. 209. And like proceedings for the eretis gots street were in the gee manner remov d aod annulled between same par ties. 9 Barb. 585. And still another, between | the warrant issued for the collection of the some parties, were in like manner reversed, | could not, according to the views whieh is not reported from that court The | Broncon, have made @ mandamus fyeilanie case Jasi referreo to was appested to the Court api the levy ing of the tax by collector. of Appeals, and the d-cision reversed uvon the e pd hye merits, and not upon the id that the pro- | the subject, even eee “A 30 igen wat earsiork soles officers, oy jae aes anon ri, but Just oe Ruggles, in opini a disc a of the court, takes Onan. ‘It is well | hend that in fog tbat they would have acted settled that upon a commen law the | in no judicial character, but in the court will not examine the proceedings re-| a discretion, governed by their sense of justice, turned further than to ascertain whether the | in which they could not be controlled. cs The relator in the case last above referred to leo atked for a writ of prohibition to the Town In Chegery ve. Jenkins, 1 Selden, 382, the | Collector to stay the levying of the tax. This same member of the Court of Appeals waives | was denied on the ground that such writ does the consideration of the question whether an | not lie to a ministerial officer to stay the execu- erroneous assessment of taxes upon real estate, | tion of process in his hands—that it is directed not liable to taxation, can be corrected oncer-| to a court and to the party prosecuting an tiorari; and in Morewood va. Hollister. 2 Sel- | action or legal proceeding therein (1 Hill, 205.) den, 309 (in the same court), in diseussing the | See the cases cited. preceeding by common law eertiurari, says:— And yet in The People ve. Works there re- “The Court of Review, in such cases, only ex- | ferred to, (7 Wend 486,) the writ of prohibition amines to see if the officer acqnired jurisdiction. | was granted commanding the Collector of Taxes and acted. during the whole proceedings, within | to desist and refrain from collecting a town tax, the limits of the jurisdiction acquired.” and directing the Supervisor of the town not to In most of the cases above referred to, and in | receive the sum aforesaid, and not to pay it Van Renssalaer vs. Cottell. 7 Berb., 127, and | over if received. Tbe ground of the decision on same vs Whitbuk, p. 133; Weaver va, Dwen- | the merits was that the tax was illegally voted dor, 3 Denio, 119; and Sheldon ve.‘Van Bus- | ata tpecial town meeting, at which they had kerk, 2 Comst., 473, the making of the aasess | no power to act on the subject, and also that it ment is declared to be a judicial act; and al-| was raired for an illegal purpose, and the court tkough it is within the power of the court and | deemed this an appropriate remedy, and one the province of the writ of certiorari to bring | provided by the commen law a it the en- such proceedings under review, it is manifestly | croachment of jurisdiction, to keep inferior according to the course of the decisions referred | courts and tribunals within the limits and to to confine the exercise of the power of the-| bounds prescribed to them. This decision, how- court, in cuch cases, within very narrow limits, | ever, is regarded by Judge Bronson as no au- and in general to withhold it. thority for the allowance of the writ, though So far as this branch of the discussion bears | the point was distinctly decided. In the cases upon the case before me, it is manifest thata | mentioned above, as already suggested, the certiorari could be of no avail to the sent | acts of the ascessors are said to be judicial, and plaintiff. His complaint avers that he had no | there would seem no reason in the nature of Notice of the assessment before a warrant to | the proceedings for not addressing this writ to the Receiver of Taxes to collect the tax | them, and in regarding them, though nota court was issned—and not being a resident of} in name, as liable to be restrained in an excess the State, he was not chargeable with any | of jurisdiction when they exceed its limits. In notice by reason of any posting of notices, | Burdon vs, Gill, 5 Mod. 272, the Commisstoners by the ‘assessors, in the ward in which he | of Appeal, on the imposition of an excise, were was taxed. Ifthe proceedings were removed by | deemed a tribunal to be res ed by such a certiorari, no want of jurisdiction would appear | writ, and were restrained the Court of on iheir face, and the cases above referred to | King’s Bench. And it wo seem that in show that no proof of extrinsic facts could be | South Carolina the collection of a tax has been taken in the court of review, for the purpose | restraincd in the same manner, 1, McMillan of showing the want of juriediction or Ase WMe- | 410, Buyn ve. Carter—under what precise cir- gality. And besides, according to the opinions | cumstance, I have not been able to learn. In the above two cases cited from 15 Wend., 198, | view, however, of the decision in the Supreme and 1 Hill, 196 such certiorari would not ope- | Court in 1 Hill, 196, which is certainly in ac- rate to prevent the execution ot the warrant | cordance with the proper office of this writ, so which issued before the plaintiff had notice. and | far as it was then sought to address it toa therefore before the certiorari could have been obtained. However imperfect or inadequate the remedy by certiorari may be, it is eaid that a mandamus is proper where a party has a legal right, and there is no other appropriate legal remedy, and | of non-residence render such a resort of no avail where in justice there ought to be one. (ee 12 | to this defendant, unlees the prohibition can be J. R.. 414, the People vs. bea of Albany; | made to restrain the execution of the warrant, exparte Nelson, 1 Cow., 417; Hull vs. Super- | which, according to the case last mentioned, it vieers of Oneida, 19. J. R.. 260; in the matter | cannot. ef Bright vs, Supervisors of Chenango, 18 J. R., There are other modes in which, if the injury 242.) In these cages jurisdiction by mandamus | caused by an illegal assesament cannot, ina was entertained to compel the Supervisors to! particular case, be prevented by either of the allow county charges; and in one of them made | proceedings above adverted, it may neverthe- peremptory, and im two denied on the merits— | Jess be fully redressed, and by action at law. thowing that those bodies who doubted the sub- | Each case in this respect, however, depending ject to which this suit relates may properly be | upon its own circumstances. reached by mandamus, and in a matter of strict It was argued by the defendants’ counsel right. not resting in their discretion, may be | that if the assessment be illegal, all parties at- compelled to coniorm their proceedings to such | tempting to enforce its collection are trespass- inferior tribunal bas kept within ite jurisdic- tional limits.” (4 Comet., 441.) if it be allowable at all, must be obtained while there is some act to be done or omitted by the assessors themeelves or the su And in the present case the want of notice and the fact vent injustice, In the People vs. the Mayor, &., of New York. 10 Wend.. 393, a mandamus was applied This proposition is wholly unwarranted, and for to compel the defendants to execute and de- | is opposed to the best settled rules of law on liver a lease on a sale of land for assessments, | this subject. and-the court held the remedy appropriate, When the warrant is regular and no illegality although upon the merits of that case they re- | and no want of jurisdiction in the authority by fused it. A whom it was issued appears on its face, the o! In the Bank of Utica va. City of Utica, in| cer ia fully protected, and this is true of the which the legality of an assessment for taxes on | warrant complained of in this action. personal property of the defendants, which they claimed was not liable to taxation was the dis- tinct matter in controversy, the Chancellor says (4 Paige, 400):—“I think the complainants had @ perfect remedy at law by an application 19 the Supreme Court for a mandamus to compel the Common Council,” (who, by their charter, have | the officer. exclusive control of the assessment and collec-| In The Columbian Manufacturing Co. vs. tion of the city taxes) “to correct their assese- | Vanderpool, tr was brought against the ments and taxation if it was illegal.” | collector, upon the ground that In the People vs. the Supervisors of New | perty of a manufacturer of cotton, &c., was ex- York, 18 Wend. 605, 8 mandamus was applied | empt from taxation; no question of the ae | for to compel the defendants to strike from the | of the eollector appears to have been tax list and from the warrant to the collectov | and the action was decided upon the ground the names of the relators. The power of the | that the plaintiffs were pr ly taxed, which court to order such correction of the tax list, | question was alone di while such list remained within the control of the defendants, ecems not to have heen doubted, though the applicution was denied on the merits, | and the court intimate that under the Leaps i lar etotute relied upon by the plaintiffs, there the discretion given to the defendants, or a | in title. authority. appears on the face of the warrant itself that it tails to protect the officer to whom it is directed for execution. In The People vs, Albany C. P., the warrant is declared to authorize the taking of goods by was also trespass against the Collector, the imperfection in the tax list and warrant refer- ring thereto, were not such os to deprive the | defendant of his justification of the taxing. In The Bank of Utica vs. City of Utica, 4 upon the sufticiency of proof to their | Paige, 400, the Chancellor says that, whereas ion to be had, in relation to which the | in ‘that ease the illegality appears on the face Z could not interfere. In the People vs. | of the warrant, the 7 ‘ainants have an ade- the Assessors of Watertown, 1 Hill, 616, | quate and certain remedy at law by an action a mandamus to compel the assessors of trespass, if the warrant be enforced by a sale, to slrike out of the assessment roll fo? taxes, | &. an assessment upon the personal perty of And in Sheldon vs. Van Buskirk, 2 Comat., the relators, no doubt of the power of the cout to make the order, or of the ap} teness of the remedy was suggested, but the court denied the motion on the merits. In the People vs. the Supervisors of Niagara, 4 Hill, 20, the d fendants had struck from the roll of assessments for taxes certain three corporations, and th» re- latore (being tax payers,) moved for a mando- muito compel the defendants to restore those names to the assessment rolls; the motion was heard on the merits. No objection was mde to the form of the remedy, (al formal ob;ec- tions being waived,) and a peremptory manda- Mus was ordered by the court. It appears by the report of Mooers vs. Smed- ley, 6 John, Ch. R., 27, that where the error ; 475, which was also trespass it a collector of taxes, it was held by the Court of Appeals that the warrant being on its face in oe legal form. and iseued by persons having lawfal authority to make and issue a warrant for such a purpose, the officer was protected oo See to the like effect Van Rensselaer ve. Cottrell, 7 Barb, 132, and same vs. Whithall, ib.,143. And still more recently in the same court, in Che- gay . Jenkins, 1 Selden, 382, on t i al from dgment of the Superior Court a his city, Sand. R., 409,) it is held that the warrant having been issued by the officers, and there being nothing on its face showing a want of authority in the assessors to make the aesess- if ment complained of, or in the supervisors in complained of wes the allowance by the Super- | confirming it, or the receiver of taxes in issuing visors of alleged improper county charges, the | the warrant, and being in due form of law, it Supreme Court refused a mandamus, but on | was a perfect justification to the officer, even what ground is not stated. It may have been | although the tax was illegally imposed upon the upon the merits, or possibly because the war-| plaintiff's Property. rant hav already issued, the collector, as a The assessors themselves, however, and, in merely ministerial officer, could not be reached | some cases, the parties by whom the original thereby, But the learned Chancellor Kent, in| warrant for the collection of the tax ia iasued, that ease, says, “the superintending control in| may be liatle. Their acts, so far as they ex- these cases bas = been exercised by the! ceed their jurisdiction, do not protect them Court of Kings Bench, and nowhere else, and | from liability to make full reparation for any that court has proceeded certiorari, man- | injury which results therefrom. damus, prohibition, information,” &c, It Was indeed argued on the hearing that In the People vs. Supervisors of Queens, 1| they have exclusive jurisdiction to determine Hill, 196, above referred to, (in which the error | who are taxable inhabitants, and what is taxa- complained of was 9)so the allowance of alleged | ble property, and ff so, their acts are conclusive Po ap: tad county charges,) the motion was in| and ‘inal. Such arule could not be tolerated, the alternative for ‘‘n certiorari, prohibition, ' and is not at all sustained by the cases cited to mandamus, or some other writ, process order,” | support the proposition, and this sufficiently ap- &c., “for the relief of the relator and other tax | pears by a series of decisions in this State. perry &c.; but it appearing that the warrant In Saunders vs. Springsteen et. al., 4 Wend. jad issued and was in the hands of the} 429. The defendants, as assessors of the town collector, the subject of issuing a mandamus | of Lewiston, assessed the defendants’ land,which, for the correction of the errors was disposed of | by Inw, was not taxable in that town, and the by Justice Bronson by the remark, “I do not! tax was collected. In an action in the case see what use can be made of the writ of manda-| against them they were held liable, and the mus in a case like this.” And the Judge, after | judgment was aflirmed in the Supreme Court. stating that motions of this kind are eased | In the Ontario Bank vs. Bennell, trespass was to the diseretiou of the court, to con- | brought against the trustees ofa village. The sider the propriety of allowing a certiorari, (as above stated,) and having first come to the con- clusion that some of the objections to the pro- ceedings have no foundation, and that as to the propriety of the charges objected to, the certi- orari would be of no avail, becanse the Super- visors would return by their finding that they are proper charges, reaffirms the decision in the | that in so far as the error consisted in an over yeople vs. Supervisors of Allegheny, (15 Wend, | estimate of the amount, where the party is, in 1895,) “that tho errors of the Supervisors, in| fact, a taxable inhabitant, such error could not ; That ma!ter was with | court held that the plaintiffs were liable to be taxed in the village, and the plaintiffs therefore failed; but no doubt was suggested that if the plaintifts had not been taxable-a recovery might have been had. And in this case the true distinction between cases in which a liabi- lity does and does not exist is alluded to, viz., strict legal right of the party applying, to pre- | ers, and besides that the purchaser ata sale | under the warrant of distress would take no | It is only where the illegality, or want of | law the pro- | | In Wheeler ve. Anthony, 10 Wend. 346, whioh | | Jadgment in fixing its v | but that this exemption from liability ise of ists where there is jurisdiction of the mal | case, and if the limits of their | transcegged, they are responsible for | | | | \ | ministerial) officer, it is apparent that the writ, | | } j { } | | i j } | tif his re’ : tovollest an” iade by hem wea collect an ‘assessmen: em, the plaintift’s , the ears alluded to is maintained, that the defendants, laintiff and his pro) 3 are not responsible; ex- te ail the Consequences. In er ve. Secor, 5 Barb, 607, the applica- tion of this rule made in the last case is tioned and condemned; but the rule i ig. even more strenn insisted npon. is held that aesessors have no authority to ter any person’s name on the assessment roll when property is by law exempt from taxation, dor to impose any assessment thereon; that. hey have no jiction whatever over suck aes or their property. The court add that - je assessment of the value is a judicial act, upon which a common law certiorari will lie; and that inferior tribunals are bound to sea that their acts are within the scope of their au- ity. They could not, by deciding them- elves that the plaintiff was a taxable inhabi~ oftecr can sequire jurisdiction by deciding that cer can acquire ic that he bas it. This was an action oa case = he ascessors of a town, and they were held re- sponeible for the taxes illegally assessed and levied and collected from the plaintiff, In Van Rensselaer vs. Cottrell, 7 Barb., 127, Justice Harris ee the only facta necessary ta the juriediction of the assessors is in reference to personal property, that the owner be an in- habitant of the town or ward, and if they should. assume to assess lands lying in another town, or to assess an inhabitant of another town for perscral property, though it might be situated. their town. the act of the assessors would unquestionably be void for want of j jon. ‘he case of Van Rensselaer vs. Whitbull, Ib. 133, decided by the same Judge, at first peru- sal, seemed to conflict with the one laat cited. Since then the plaintiff 01 that he was assessed for rents in Green! a8 personal és- tate, when, in fact, he resided elsewhere; and et the arsesement was sustained. On examin- Ing the statute (Laws of 1846, cha 327) un- der which rents are taxed, it will be seen that though-taxed as personal estate, batons directed to be taxed in the town within w! the lands demised may lie, and in the same manner and to the same extent as any personal estate e = seamen ee eke bert: ees in reference to this species of pr vw residence of the owner, and so far as relates to the jurisdiction of the assessors to include it in the assesement, it is treated as if it were a part of the land out of which it isanes, T understand the same view of the effect of the decision of the assessors, upon the question of their own jurisdiction, to be stated by Rug- gles, Chief Justice, in his opinion in the Court of Appeals in Chegory vs. Jenkins, 1 peat 381. Thongb he held the collector protec! igite warrant, he says, “the decision of the aeors on afquestion in:which their own authority to act was involved,” (i. ¢., upom the question whether the property in ques- tion could by law be casessed,) “ was not for all purposes couelusive;” and even “in collateral actions their judgments may be questioned and disregarded, if it appear that in fact they had no authority to act in the given case.” 3 Upon thiareference to the in this State, ani in view of what I conceive to be just as well as in conformity with fsound iple, E <annot doubt that assessors are liable for in- rerting in the assessment roll the name of a person who is not an inabitant of the town or ward. It is their duty to ascertain who are in- habitants of the town or ward, and it is only as to such that they have any authority whatever Qs aseessors ‘ty. This may sometimes be it. Butevery office brings with it @uties and responsibilities, and it is not. just to those who be prejn . nor wise as it respects the public, that an officer who ex- ceeds his authority should not be liable for the consequences. The insertion of the name of az individual in the assessment roll is an affirma- tive act, and the assessor is not under any duty cpgr witch teint of sug pertm agenda upon W! ability of su on = md © hold aasessors irresponsible when thronghk want of bed ped information they asse:# non- residents for personal p » might lead to great abuse. And to say, , that the deci- sion of the assessor himeelf is conclusive, wonld enable a town or county to tax half of the inhabi- tants of the United States, and so far as proper- ty of the latter could be found in the county, collect the tax by distress and sale. If asses- sors attempt this, I think them liable for all inh damages reculting from their unauthorized act. = + How far the supervisors are also liable for lending to such illegal ect their authority, may, perkaps, depend upon the question whether they have actual notice of the illegality. lL apprehend that the remedy of a party ille-- gally assessed—that is, assessed when there ie no legal right to impose any tax upon him— rape Spee — tax ee ae yy distress and sale o: goods, or if upon levying of a warrant he 3 the tax to save his property, he may, I , sue for and ver back the re so paid: and that in case the body to the tax is paid collector are responsible. If this be so, legation in the complaint herein, that the de- fendants Jenkins, the constable, and Hart, re- ceiver of taxes, are not of sufficient responsibi- lity, &c., does not add any material fact to the plaintiff's case. The money is obtained in such case by duress of the plaintiff's property, which may, when paid. be recovered back. It is an illegal exac- tion without right, and gives the party for whose benefit, or by whose authority it is ob- tained, no title. In other States the precise promssttiony that legally assessed y: reco- such if one s taxes that are i upon ihe, he may recover ack money. A. &C. Manufacturing Company vs. Inhabitants cf Amesbury, 17 Maes. 441; Perry vs. Dow, 12. Pick, 206; Sumner vs. Parish fn Dorchester, 4 Ib, 341; Atwater vs. Woodbridge, 6 Conat. 223; Preston va. Boston, 12 Pick. 7; Adams vs, Litch- field, 10 Count. 127; Boston and S8. Glass Com- pany ve. Boston, 4 Met. 181; Dow va. 5 Met. 73; Tovey va Mitbury. 21 Pick. 64; ry “oy oe School District in Egremont, ash. 567. Decisions in somewhat analogous cases of ss ee by duress of may be found in Ripley vs. Gilston, 9 J 201; Clinton vs. Strong. fh. 370; Eliott vs. Swartwout, 10 Pet. 137; Bates vs. New York Insurance paay.8 1. C. 238; and see Harmony vs. Bing- am, 1 Duer, 209. Actions to recover back money paid for taxes alleged to be illegal have frequently been brought in this State. and in actions brought in other forms the right to maintain assampsit ix adverted to. Thus in Seaman vs. Benson, 4 Barb. 448, where the plaintiff failed in the ac- tion of trover, the court say: If the 's pi tty was taken and <old for too mach, aaly was not in trespass or trover, but in case for the injury sustained, or in assumpsit against the Trnstees of the Schoo! district for the excess of the moneys, &c.” In Fleetwood vs. the be A New York, 2 Sand., 481, which was bronght to recover back money paid to re-- deem sold for assessments, the court held the plaintiff not entitled to recover, because if the assessment was illegal there was no lien. and therefore no duress nor compniaion; and the court advert to the distinction, and to the gages in which duress of personal property, ‘