Supervisors of Albany County v. Durant, 9 Paige Ch. 182

Supervisors of Albany County v. Durant

9 Paige Ch. 182 | New York Court of Chancery | 1841

The Chancellor.

The case made by the complainant’s bill presents the question whether a wealthy individual, who *186is taxed on account of his personal estate, can escape from his liability for the payment of the tax, if he thinks proper to invest his funds in bonds and mortgages, or other property, which cannot be distrained and sold under the supervisors’ warrant to the collector. It is a general principle of the common law, that every person is bound and hath virtually agreed to pay such particular sums as are charged upon him by law, or by the sentence or direction of a competent tribunal having legal authority to impose such charge. (3 Black. Com. 158.) And where a statute gives a right without furnishing an adequate remedy to enforce such right, it is a part of the established jurisdiction of this court to lend its aid and furnish an effectual remedy where it cannot be had by a common law proceeding. Here the law has imposed a tax upon the defendant, in respect of the estate of which he is the owner, to be collected for the benefit of the city and county in which he resides. And if the mode prescribed by the statute for the collection of the tax is found to be ineffectual for that purpose, the common law or the court of chancery must supply the defect. Where a charge upon the person of an individual is created by statute without prescribing the mode in which the payment of the charge is to be enforced, the common law gives an action of debt to recover the amount of the charge thus created. Thus where a revenue law directs that goods imported shall be charged with certain duties, if the owner of the goods, or the importer, neglects to pay such charge, an action of debt will lie against him to recover such duties. (Attorney General v. Strangforth, Bunb. Rep. 96. United States v. Lyman, 1 Mason’s Rep. 482. United States v. Hathaway, 3 Idem, 324. Meredith v. The United States, 13 Peters’ Rep. 486.) Whether an action of debt would lie against the defendant in the case under consideration, to recover the amount of the taxes assessed upon him, after the supervisors had exhausted the remedy prescribed by the statute, is a question not material to be discussed here; as I am satisfied it was not necessary to bring a suit at law, and exhaust the remedy by judg*187ment and execution, before this court could have jurisdiction to compel payment out of the equitable assets and choses in action of the defendants. The tax itself, after it had been legally assessed, was conclusive as to the amount which the defendant was bound to pay. And the assessment of the tax and the issuing of the warrants to the collectors to levy the same out of the property of the defendant, and the return of such warrants unsatisfied for want of visible property whereon to levy, was equivalent to the recovery of a judgment and the return of an execution thereon unsatisfied, in other cases. For, by such proceedings, the complainants have exhausted the remedy which the statute gives them against the property of the defendant. In analogy, therefore, to the proceedings by creditors’ bills in other cases, I think the complainants had a right to come into this court for relief, as soon as the collectors had made their return to the county treasurer, in the mode prescribed by law, that the defendant refused to pay the taxes, and that he had no tangible property out of which such taxes could be levied upon the warrants delivered to them. I think also the allegations in the bill are sufficient to show that the collectors had complied with every thing required by the statutes, in making their returns to the county treasurer.

The remaining question is whether the suit is properly instituted in the name of the supervisors of the county, instead of the county treasurer. Although the tax, when collected, is to be paid to the county treasurer, he does not appear to be the proper person to represent the county as the complainant in a suit for its benefit, under the provisions of the revised statutes. The liability and duty of the defendant to pay these taxes are to the people of the county in their corporate capacity; as their funds in the hands of the county treasurer are diminished to the extent of the taxes uncollected. For all the other officers to whom the taxes are payable are first to receive the amounts payable to them for other purposes, and the balance is to be paid into the county treasury for county expenses, (1 R. S. *188396, 37.) The statute makes the county a corporation for certain purposes, and directs that all acts and proceedings by or against a county in its corporate capacity shall be in the name of the board of supervisors. (1 Idem, 364, § I, 3.) It also authorizes the supervisors of a county to bring suits to enforce any liability or any duty enjoined by law to the body which they represent. (2 Idem, 473, § 92.) I conclude, therefore, that this bill was properly filed to reach the equitable interests and choses in action of the defendant for the payment of these taxes, and that the suit was rightfully brought in the name of the supervisors of the county of Albany, to the inhabitants of which county in their corporate capacity the monies due from the defendant for taxes belong.

The decretal order of the vice chancellor must, for these reasons, be affirmed with costs.(a)

Reversed, on appeal !.o the court for the correction of errors, in Beecm-. her, 1841-