State Ex Rel. O'Connell v. Canfield
208 N.W. 181
Minn.
1926
Check Treatment
Dibeiji, J.

The relators are the executors of E. J. O’Connell who died in Martin county on December 1, 1924. The defendant Canfield is auditor of the county and the defendant Boyce is treasurer. On *415 February 27, 1925, tbe auditor assessed for taxation moneys and credits belonging to tbe decedent prior to bis death, upon tbe ground that they were omitted from taxation, pursuant to G-. S. 1923, § 1985; and tbe treasurer added tbe penalty.' Tbe relators obtained a writ of certiorari from' tbe district court to review their action. Findings of fact and conclusions of law were made in favor of tbe relators and judgment was entered adjudging that tbe tax assessed was unauthorized and void. Tbe auditor and treasurer appeal from tbe judgment.

There is a misapprehension or misapplication of tbe proper use of tbe writ of certiorari. It is not a writ upon which to try issues. It is a writ of review, performing, when appropriate, somewhat tbe office of an appeal in reviewing acts judicial or quasi judicial in nature. It does not determine the validity of mere ministerial acts. No evidence is taken, no findings of fact or conclusions are made, and there is no judgment in tbe usual sense. Tbe questions involved are determined on tbe return of tbe officer. Tbe order made on tbe bearing of tbe writ annuls or affirms tbe proceeding.

Tbe writ is an extraordinary one, and is not granted where there is an adequate remedy in ordinary course of law. Whether tbe omitted property was properly assessed can be determined in tbe legal proceeding for tbe enforcement of tbe taxes. Tbe remedy is adequate. It may not be in all respects so convenient or speedy as injunction or certiorari; but if tbe district courts were required to try on certiorari or by injunction all tbe disputes arising between taxpayers and assessing and taxing officers, as soon as disagreements appeared, tbe possibilities of litigation, whatever tbe actual result, would be endless. A reading of Wall v. Borgen, 152 Minn. 106, 188 N. W. 159, which was a proceeding by injunction, sufficiently indicates tbe impropriety of an extraordinary remedy here.

It is proper to note that certiorari was used in State v. Eberhard, 90 Minn. 120, 95 N. W. 1115, without objection, to review an assessment of omitted property. This case, upon the substantive law of which tbe relators rely, apparently led to the adoption of certiorari as tbe appropriate remedy here. There will be no statutory costs.

*416 When the remittitur goes down the writ should be dismissed and such dismissal will be without prejudice to the claims of either party.

Judgment reversed.