31 How. Pr. 237 | N.Y. Sup. Ct. | 1864
With the views I entertain, it will not be necessary to enter upon an elaborate examination of all the objections taken to the issuing of the writs of prohibition. There are some points urged which dispose of the whole case, and to the consideration of these I shall confine my remarks.
First. I have great doubts whether the board of supervisors have the power to alter the assessment rolls by striking out the name of any person or corporation which may have been placed upon it by the assessors. Their duties in reference to the equalization of the assessments and the correction of the assessment rolls, are especially provided for by the Eevised Statutes (1 R. S. 1st ed. 395). Certainly there is no direct authority which confers upon the board of supervisors the right to interfere with the assessment rolls, which are before them, by changing any assessment upon them, unless the assessors have wilfully neglected to meet
The nearest approach to any decision in favor of the views of the relators counsel upon this subject, is the case of The People agt. Works (7 Wend. 486). In the case referred to, a writ of prohibition was granted at special term, ex parte by Savage, J. restraining a collector from collecting a tax levied upon the town for purposes which were palpably illegal. In The People agt. The Supervisors of Queens (1 Hill, 201), Bronson, J., in his opinion remarks, in referring to The People agt. Works, “ that case must not be understood as having decided anything more than that the tax was illegal. He also concludes, “ there is not the slightest foundation in the books for saying that a prohibition may issue to a ministerial officer to stay the execution of process in his hands.”
I think that the case cited is not a sufficient authority to . warrant the exercise of such a power against the board of supervisors of a county under the circumstances existing here, and it being at least doubtful whether they have authority to interfere with the action of the assessors as to the relators, writs of prohibition should not be granted against them for that reason.
Second. The writ of prohibition is not a writ of right, and, is not granted as a matter of course; but only on showing satisfactory grounds for relief, and upon making it appear that no considerable public inconvenience can arise from the delay. (Susquehannah Bank agt. Board of Supervisors of Broome County, 25 N. Y. 315; The People agt. The Supervisors of Allegany County, 15 Wend. 198.) The granting of the writ rests in the discretion of the court, and it should not issue where there are other remedies perfectly adequate. (Ex parte Braudlacht, 2 Hill, 367; 36 Barb. 248.) All the
A subordinate officer must act within the scope of the authority committed to him, and if he exceeds it he is liable. If the assessors have exceeded their jurisdiction, then they are responsible for the damages which may ensue. (The People agt. The Supervisors of Chenango Co. 11 N. Y. 563; Mygatt agt. Washburn, 15 N. Y. 316, 321.)
It was urged upon the argument that the assessors might be insolvent, and hence the remedy might be inadequate. If a legal remedy is apparent and clear, I do not think that in disposing of a motion of this character, that we should, without any proof of the fact, take into consideration the
It was suggested by the repsondent’s counsel, that in such a contingency, if the right was clear, the relators' might, after the completion of the tax roll and the delivery to the collector, commence them action and restrain the collection of the tax. This question does not arise, and is not necessary to dispose of the case, and hence I do not deem it appropriate to express an opinion in reference to it.
If there was no jurisdiction whatsoever, as is most confidently insisted, and the board of supervisors have no authority, it is also questionable whether the warrant is not void and the collector liable, in an action to recover the property seized for the payment of the taxes (The People agt. The Supervisors of Queens, 1 Sill, 198).
If the views I have expressed are sound and correct, then the court would not be justified in awarding' the writs of prohibition demanded, and after a deliberate consideration of the able and elaborate arguments of the counsel on both sides upon these motions, with the aid of such light as I have been, able to obtain in the limited period allowed for its decision, I have arrived at the conclusion that a proper case is not presented for the relief asked.
It is, perhaps, to be regretted that in a case of so much interest and importance, more ample time could not have been enjoyed for its consideration; but under no circumstances should a remedy so controlling and effective, be summarily invoked where it must effectually prevent the collection of taxes imposed by competent officers, when other relief can be resorted to by those who claim that they are injured. The exercise of a sound discretion demands thus much caution, and I am satisfied no injustice can be done by withholding the remedy here asked. The application for the wits must therefore be denied, and the motion to quash granted, with $10 costs in each case.