People ex rel. Rochester Telephone Co. v. Priest

95 A.D. 44 | N.Y. App. Div. | 1904

Chase, J.:

Certiorari, except as it has been enlarged and extended by statute, is a common-law writ. In its office it is confined to reviewing proceedings of inferior courts, officers, boards and tribunals where there is no other' remedy provided by statute. The writ in terms directs inferior courts, officers, boards or tribunals to certify to the superior court the record, of their proceedings for inspection and review, and the writ can run only to persons or tribunals that have acted judicially in making the determination sought to be reviewed. The purpose and extent of a statutory writ is defined by the statute authorizing it. The writ of certiorari authorized by article 11 of the Tax Law (Laws of 1896, chap. 908) is a special statutory writ.

The Court of Appeals in Mercantile National Bank v. Mayor, etc., of N. Y. (172 N. Y. 35, 42) say: “ With the enactment of chapter 269 of the Laws of 1880 there was created a new and complete system for reviewing upon certiorari, and for thereby correcting the errors of assessing officers. (People ex rel. Wallkill Valley R. R. Co. v. Keator, 101 N. Y. 610.) It rendered inapplicable the provisions of the Code of Civil Procedure, relating to the writ' of certiorari (People ex rel. Church of the Holy Communion v. Assessors, 106 N. Y. 671; Matter of Corwin, 135 ib. 245), and resumed within itself the remedies available to a taxpayer aggrieved by the action of the assessing officers. What was discretionary at common law, now became a right. . I think that that act became the only authority for the review of errors in assessments for purposes of taxation.”

Chapter 269 of the Laws of 1880 was repealed by section 280 of the Tax Law, but the language of the court quoted is applicable to sections 250 to 256 inclusive of said article 11 of the Tax Law. We must look to the statute, therefore, to ascertain whether the city of Rochester was properly made a party to the proceeding.

By section 251, article 11, of the Tax Law it is provided : “ The justice or court may allow a writ of certiorari to the officers making the assessment to review such assessment.”

By section 45 of said Tax Law (added by Laws of 1899, chap. 712, and amd. by Laws of 1900, chap. 254,) it is provided: “An assessment of a special franchise by the State Board of Tax Commissioners may be reviewed in the manner prescribed by article eleven of this chapter, and that article applies, so far as practicable, to such an assessment in the same manner and with the saíne force and effect as if the assessment had been made by local assessors. * * * guch writ must run to and be answered by said State Board of Tax Commissioners and no writ of certiorari to renew ^* any assessment of a special franchise shall run to any other board or officer unless otherwise directed by the court or judge granting the writ. An adjudication made in the proceeding instituted by such writ of certiorari shall be binding upon the local assessors and any ministerial officer who performs any duty in the collection of said assessment in the same manner as though said local assessors or officers had been parties to the proceeding.”

While the writ of certiorari to review a local assessment can run to the officers making the assessment only, the statute would seem to recognize that in reviewing an assessment of a special franchise made by the State Board of Tax Commissioners it may be necessary to have before the court the record of some other board or officer, and the court or judge granting the writ is consequently given authority to direct that the writ shall run to such other board or officer, to the end that such other board or officer can return to it such record as to the court or judge shall seem necessary for the review of the assessment of said special franchise, but there is nothing in said act, particularly when interpreted in the light of the law and practice as applied to common-law certiorari, to authorize the court or judge granting- the writ to bring before the court a municipal corporation as such as party defendant. Ho express or implied authority for making a municipal corporation a party defendant in this proceeding having been called to our attention, we are of the opinion that the order as made was without authority.

The i order should be reversed, with ten dollars costs and disbursements.

All concurred.

Order reversed, with ten dollars costs and disbursements.

* Sic. It is “review” in statute of 1899.— [Rep.