State v. Howell

24 N.J.L. 519 | N.J. | 1854

Potts, J.

In 1850, a double tax was assessed against Howell, by the assessor of the township of Washington, on the alleged ground that Howell liad rendered a falso account of his rateable estate. Rev. Stat. 1004, § 2. Howell appealed, and the Commissioners of Appeal gave judgment in favor of the appellant, and reduced the assessment to one-half the amount, and thereupon this certiorari is brought.

A motion is now made to dismiss the writ on the ground, among others, that it is improperly directed to the Commissioners of Appeal. The record sought to be brought up by this certiorari, is the assessment of tax made by the assessor against Howell, and the judgment of the commissioners thereon, &c. The commissioners return, among other things, that after hearing the said appeal, they gave judgment in favor of the appellant, &c., which said judgment was reduced to writing, and entered in said duplicate, and that they delivered over the said duplicate to the collector of the township of Washington aforesaid, according to law, that the-faxes of said township might by him be collected according to law, “ since which time neither the said assessment nor our judgment thereon, nor any thing touching the same remains in onr hand, possession or custody; but annexed hereto, we send a copy of onr judgments, as they now appear upon the said duplicate in the collector’s possession, from whom we have procured said copy of our judgments, in the words and figures following, to wit(here follows a copy of the judgment,) and then two of the commissioners further certify, “ that the said assessment upon the said Aaron Howell, was made out and contained in the duplicate of assessments, now in the hands, possession and custody of the collector aforesaid, from whom we have procured the same to send to the Supreme Court, as follows:” (here follows a copy of the assessment.)

The writ must be dismissed. The certiorari should have been directed to the officer having the custody of the record ■sought to be removed by it. No one else has any legal authority to make the return required, and a return made without authority is no return. This has always been the law, and has been repeatedly adjudged so to be in this court. 4 Vin. Abv. 339, Certiorari B. 3, pl. 5; 2 Green R. 428, Morris Canal ad. State; 2 Harr. R. 160, State v. Thomas.

The attoruey who brought this certiorari was misled by 4he case of The State v. Faulkenburg, 3 Green, 320. But there this question was not raised.

Several other questions have been argued upon the brief of counsel, upon which it is unnecessary to give any opinion.

Ogden, J., concurred.