36 How. Pr. 1 | N.Y. Sup. Ct. | 1868
The duty of the defendants, under the law of 1867, (Laws of 1867, vol. 2, p. 2323,) was to hear the applications of the relators, and determine their claims of assessments for taxes made in the county of Otsego, upon United States bonds, stocks or securities, any or all of them, which by law were or had been exempt from taxation, and to repay to them the amounts collected or paid upon such assessments. It was not the duty of the defendants personally to repay such amounts; but it was their duty to levy the same by tax upon the taxable property of the county, and adjust and apportion the same upon the property of the different towns in the county as should be just, in the manner provided by section 3 of the law referred to. • According to the well settled rules for the construction of statutes, the law of 1867 was mandatory and imperative upon the defendants, as a board of supervisors, to determine the amounts of taxes the relators paid by reason of assessments made in the years 1861, 1662,1863 and and 1864, upon United States bonds, stocks or securities exempted by law from taxation in those years; and to cause such amounts of taxes to be collected and repaid to the relators, in the manner prescribed by the law of 1867. (Laws of 1867, vol. 2, p. 2323.)
The rule above mentioned is so firmly established, it is unnecessary to refer to the authorities where it is laid down. . The defendants have not determined that the relators did not pay any such taxes as they claimed they had paid, in the years 1861, 1862, 1863 and 1864, but that the county and the towns against which the claims were made could not in justice refund the taxes; and that having heard and examined the claims, they determined the same were invalid, and that they be not allowed. It is
The first duty imposed upon the defendants, as a board of supervisors, by the law of 1867, they have refused to perform, which duty was to ascertain and determine whether the relators were assessed, and whether they paid taxes as stated in their claims, and, if they paid any such taxes, the amounts thereof.
The error committed by the defendants was the result of an erroneous construction of the law of 1867. They supposed it was discretionary with them to cause such taxes as the relators claimed they had paid, to be repaid, or to refuse so to do; but the law of 1867 did not vest any such discretion in the defendants.
When the legislature “authorized and empowered” the defendants to cause taxes illegally assessed and paid in their county to be repaid, it became their duty to do so, when truthful claims for such taxes should be duly presented to them. (People v. The Supervisors of New York, 11 Abb. 114. People v. Common Council of Brooklyn, 22 Barb. 404. People v. Haws, 34 id. 69. Mayor v. Furze, 3 Hill, 612. 4 Wallace, 435. 5 id. 705.)
If the defendants had determined that the relators had . paid the taxes, as stated in their claims, the further duty would have remained to be performed by them, of allowing such claims, and levying the amounts thereof by tax upon the taxable property of Otsego county, and causing the same to be repaid to the relators, in the manner prescribed by the law of 1867.
If these views are correct, the judge at special term erred in refusing to grant orders for the writs of mandamus, for which the relators applied; and the orders of the special term should be reversed, and orders granted for peremptory writs of mandamus, requiring and commanding the. defendants to hear the claims of the relators, and
Balcom, Boardman, Parker and Murray, Justices.]
