37 N.Y. 391 | NY | 1867
1. The statement furnished by the agent, Young, in compliance with the “act to subject certain debts, owing to non-residents, to taxation” (Laws of 1861, ch. 371, p. 721), was not conclusive on the assessors, and it was their right, and, if they suspected its accuracy, their duty, to go beyond it, and ascertain by means of other agencies, the amount of the debts subject to taxation, under the provisions of the law referred to.
Whether the amount which they taxed was in excess of the amount actually due, is a question not before the court. In determining that amount, the assessors acted judicially (Van Rensselaer v. Whitbeck, 7 Barb. 133; Van Rensselaer v. Cottrel, Id. 129; Bloom v. Burdick, 1 Hill 130), and their assessment was conclusive, until set aside by a proceeding instituted for that purpose. At all events, it was not in the power of the county treasurer to question its accuracy or legality, when called upon to issue his warrant for its collection. His duty was purely ministerial in its character, and could not be mistaken. His disregard of the judicial determination of a body, constituted for that purpose, and his attempt to substitute for it his own unauthorized judgment, are highly reprehensible, and should not pass without rebuke. Such conduct is subversive of good order, and detrimental to the public interests.
It might with propiety be said in this' case, that the county is the trustee of the people, and, as such trustee, entitled to the money in question, is the sufferer; and that, inasmuch as, by statute, “ all acts and proceedings by or against a. county, in its corporate capacity, shall be in the name of the board of supervisors of such county” (1 R S. 846, § 1), therefore, that body should have been the relator in a proceeding by mandamus, to compel the collection of the taxes assessed for its benefit. That the county, through its supervisors, might
Inasmuch as the people themselves are the plaintiffs in a proceeding by mandamus, it is not of vital importance who the relator should be, so long as he does not officiously intermeddle in a matter with which he has no concern. The office which a relator performs is merely the instituting a proceeding in the name of the people and for the general benefit. The rule, therefore, as it is sometimes stated, that a relator in a writ of mandamus must show an individual right to the thing asked, must be taken to apply to cases where an individual interest is alone involved, and not to cases where the interest is common to the whole community. This is the rule adopted in many of the states. (Hamilton v. State, 3 Ind. 452; State v. County Judge, 7 Iowa 186; State v. Bailey, Id. 390; Pike County v. State, 11 Ill. 202.) The rule is different in other states. (Heffner v. Commonwealth, 28 Penn. St. 108; People v. Regents of the University, 4 Mich. 98; People v. Inspectors of State Prisons, Id. 187; Arbeny v. Beams, 6 Texas 457; Laryer v. Commissioners of Kennebec, 25 Maine 291.) But the practice which has so long prevailed here, though never, so far as I can discover, passed upon directly by the court of last resort, where the objection was raised, seems to be a reasonable and convenient one, and ought now to be considered as settled.
This in no way conflicts with the decisions of this court in the case of Doolittle v. Supervisors of Broome County (18 N. Y. 155), where it was held, that an action could not be maintained by a person having no interest,
Order affirmed.
This question was not passed upon by the court; it is the individual opinion of the learned judge ; but it was so decided by the court below. -