People ex rel. Onderdonk v. Supervisors of Queens County

Majority

p. 195

The People, ex rel. Onderdonk, vs. The Supervisors of Queens County, and others.

Headnote

On motion for a common law certiorari, opposing affidavits may be read, notwithstanding the case of the Commissioners, &c. v. The Judges, &c. ( 9 Wend. 434 ,) . apparently contra.

Until the proceedings of an inferior tribunal are removed into this court, no order to quash them can be made, however irregular they may be.

Semble, that persons upon whom a tax has been illegally imposed, and which is about to be collected, can obtain no relief through a mandamus.

An order made by a supreme court commissioner to stay the proceedings of a collector of taxes on his warrant, with a view to a motion, is a nullity, and may be disregarded without any formal vacatur.

It is seldom proper to award a common law certiorari, where the party has an adequate remedy, against the proceeding complained of, by action.

A certiorari will not lie to a ministerial officer, (e. g. a collector of taxes,) for the purpose of examining his right to proceed upon process under which he is acting.

jVor will it lie to any inferior tribunal except to remove proceedings winch still remain before it. Semble.

The certificate of town auditors allowing accounts, regular on its face, is a sufficient authority for the board of supervisors to proceed and cause the amount certified to be levied on the town.

Semble, such a Certificate precludes the supervisors from enquiring as to the merits of particular items allowed ; and if laid before them at their annual meeting, they are bottnd to act upon it without modification as to its amount.

A certificate of this nature, purporting in the body of it to have been made by “ the Boat'd of auditors of the town of N. H.,” is sufficient, though the officers have merely signed their names without adding their official titles.

It need not appear on the face of thé Cerifícate that the auditors itiet at tire proper time and place; it will suffice, if in point of fact their meeting was regular in those respects.

Where alb the officers constituting the board of town auditors have met, a majority - of them may decide, and their certificate will be valid though the supervisor-has refused to sign it.

p. 196

A certiorari will not lie to remove and correct the proceedings of a board of supervisors in assessing town and county taxes.

A writ of prohibition does not lie to a ministerial officer, (e. g. a collector of taxes,) to stay the execution of process in his hands ; but only to a court in which some legal proceeding is pending, and to the party prosecuting the proceeding.

The case of The People v. Works, (7 Wendell, 486,) commented on and explained.

H. M. Western moved for a certiorari, prohibition, mandamus, “or some other writ, instrument, process, order or proceeding,” for the relief of the relator and other taxable inhabitants of the town of North Hempstead, Queens county, from the tax which the town collector was proceeding to collect by virtue of a warrant from the board of supervisors of the county. He read an affidavit of the relator, and other papers, for the purpose of showing that the town auditors in October last improperly allowed the sum of $3264,22, for the costs and expenses of several suits in relation to Pearsall's Landing, as .a charge against the said, town of North Hempstead; that the board of supervisors' of the county, at their subsequent annual meeting, had directed that sum, together with the other town charges, to be levied upon the taxable inhabitants of North Hempstead: and had issued a warrant to the town collector, who was now proceeding under that authority to collect the tax. The affidavit states the relator’s tax at $46,50, of which he believes the sum of $27 is on account of the illegal charge above specified. In addition to the objection that the allowance in question was not a proper town charge, several objections were taken to the proceedings of the town auditors and the board of supervisors. It was also insisted that the warrant to the collector was irregular and void: and that the collector had forfeited his office by neglecting to execute his official bond in due time and proper form.

PL E. Davies, for the supervisors and others, proposed to read affidavits in answer to that on which the application was founded.

p. 197

Western objected that, on motion for a common law certiorari, opposing affidavits could not be received, and cited The Commissioners of Warwick v. The Judges of Orange, (9 Wendell, 434.)

That case, as reported, has. not been followed—certainly not of late. Motions of this kind are addressed to the sound discretion of the court, and we think that discretion will be best exercised after hearing all the facts, so far as either party chooses to present them. I will hear the answering affidavits.

Affidavits were then read, for the purpose of showing that this was a proper town charge, and that all the proceedings had been regular. After the reading of the papers had been completed,

Western, for the relator, insisted that the proceedings complained of were so clearly irregular and void, that the court should at once make an order for quashing them, without waiting the dilatory course of a certiorari, or other writ. [Bronson, J. Until the proceedings are regularly removed into this court, we have no power to quash them.] I shall then ask for a mandamus, or some other appropriate writ, for the relief of the relator and the other tax-payers who complain of these proceedings. [Bronson, J. I do not see what use can be made of a writ of mandamus in a case like this.] I will then confine myself to the writs of certiorari and prohibition. A certiorari should be directed to the town auditors, for the purpose of setting aside their proceedings in allowing the accounts ; and also to th,e board of supervisors, for the purpose of quashing their proceedings—at least, so far as relates to the illegal charges in question. But a certiorari alone will not answer the purpose; for before we can reach the end of our application in that way, the tax will be collected. A writ of prohibition should therefore be directed to the collector, restraining him from taking any further step in the collec

p. 198

tion of the tax. The People v. Works, ( 7 Wendell 486 ,) is an authority in point for awarding a prohibition. The counsel then examined at large the various objections to the proceedings, and cited several authorities in support of his positions.

H E. Davies Sp M. T. Reynolds opposed the motion.

An order to stay the collector’s proceedings on thp warrant for collecting the tax, until this motion should be decided, had been made by Roderick R. Morrison, a supreme court commissioner for the county of Richmond. As the court did not propose to decide the main question until time had been taken to look into the papers, Davies asked that the 'order to stay proceedings might be vacated.

There is no occasion for doing that. The order was a nullity from the beginning. There Was no suit or proceeding in' this court, and neither the commissioner nor a judge of this court had any authority to stay the collector.

At a subsequent day, the opinion of the court was delivered by

In the view I have taken of the case, it will not be necessary to go into a particular examination of all the objections which have been urged against these proceedings. If the relator has confidence in the opinion thatithe warrant of the supervisors is void Upon its face for any of the defects which have been pointed out, or thinks the collector has forfeited his office by omitting to execute a bond in’due time, or in the proper form, he can try those questions in an action of trespass or replevin, when his property shall be seized; and it cannot often be proper to award a cornmon law wit of certiorari, where the party has an adequate remedy in another form. Indeed, a certiorari to the town auditors, or the board of supervisors,

p. 199

would only bring up such proceedings as still remain before those bodies respectively. It would not remove the warrant in the hands of the collector, nor would the return show whether the collector had forfeited his office. And clearly we cannot send a certiorari to that ministerial officer for the purpose of examining the process under which he is acting, or to en-quire into the title by which he holds his office. There is no precedent for such a proceeding.

In relation to the principal question, the affidavits in opposition to the motion leave little room for doubt, that should a certiorari be sent to the town auditors, the return would state the costs in question to be a proper town charge. But if they should admit the contrary to be the truth, and we should thereupon quash their proceedings, it would not overthrow tire subsequent proceedings of the supervisors, in assessing the tax. That board had before it a certificate in due form, of the auditing of the town accounts of North Hempstead for the year 1840, which was a sufficient authority for what the board did, whether the accounts had in fact been properly audited or not. Indeed, the supervisors had no discretion but to direct the amount specified in the certificate to be levied and raised upon the town. (Statute of 1840, p. 251, ch. 305.) There can, therefore, be no use in sending a certiorari to the town auditors.

If the writ should be directed to the board of supervisors, it must still fail to accomplish the end which the relator has in view. The supervisors would return, that the sums which they directed to be levied upon the town of N. H., were duly certified to them as town charges by the proper board for settling that question; and that would be an end of the matter. The proceedings would be affirmed as a matter of course.

But it is said that the certificate of the town auditors was insufficient. The board of town auditors consists of the supervisors, town clerk, and two or more of the justices of the peace of the town. (Statutes of 1840, p. 251, ch. 305.) The first objection is, that the officers composing

p. 200

the board have only signed their names, without adding their official titles to the certificate. But they have done something more. The certificate purports to be made by “the board of. auditors of the town of North Hempsteadand that is, I think, sufficient. It is also objected, that it does not appear on the face of the certificate, that the auditors, met at the time and place prescribed by law. It is enough that they in fact met at the proper time and place. Another objection is, that the supervisor did not sign the certificate. He met with the other officers constituting the board, and when the body was properly formed, a majority of the members could act, although the supervisor or any other member should dissent. None of the minor objections to the certificate are well taken.

If these views are correct, the awarding of the writ could be of no use to the relator. But if we assume that there is some defect in the proceedings which might be reached by a certiorari, I still think the writ ought not to be granted. This is an attempt to remove the proceedings of the board of supervisors in assessing the general town and county taxes upon the taxable inhabitants of North Hempstead; and the errors into which the board may have fallen cannot be corrected in this *way without producing great public inconvenience. This subject was fully considered in The People v. The Supervisors of Allegany, (15 Wendell, 198.) We thought it not a proper exercise of discretion, to allow a certiorari in such a case, and, retracing our steps, we quashed the writ which had been awarded, notwithstanding the fact that a return had been made, and the cause had been argued upon its merits. We see no occasion for departing from that decision. In addition to the authorities cited on that occasion, I will mention that another case is referred to in Mooers v. Smedley, (6 John. Ch. R. 28,) where a certiorari to the supervisors was denied by this court.

The only remaining branch of this case is the motion of the relator for a "writ of prohibition to the town collector to stay the levying of the tax. A writ of prohibition does

p. 201

not lie to a ministerial officer to stay the execution of process in his hands. It is directed to a court in which some action or legal proceeding is pending, and to the party who prosecutes the suit, and commands the one not to hold, and the other not to follow, the plea. It stays both the court and the party from proceeding with the suit. The writ was framed for the purpose of keeping inferior courts within the limits of their own jurisdiction, without encroaching upon other tribunals. (2 Inst. 601. F. N. B. 94. Vin. Ab. tit. Prohibition; and same title in Com. Dig., Bac. Ab. 7th Lond, ed,, and Tomlin’s Law Dict. 3 Bl. Com. 111. See also Tomlin’s Law Dict, tit. Consultation ; and F. N. B. 116.) Our statute also shows that the writ issues to a court and prosecuting party—not to a ministerial officer. (2 R. S. 587, § 61, 65.) In the People v. Works, (7 Wendell, 486,) although the motion for a prohibition seems to have been granted, the remarks of the chief justice are in perfect harmony with what has been said in this opinion in relation to the proper office of the writ: and that case must not be understood as having decided any thing more than that the tax then under consideration was illegal. There is not the slightest foundation in the books for saying, that a prohibition may issue to a ministerial officer to stay the execution of process in his hands.

If the relator has suffered, or is in danger of suffering an injury, he is mistaken in supposing that we can grant the relief which he asks.

Motion denied.

Cases cited

Commissioners of Highways v. Judges of the Orange County Courts 9 Wend. 434 N.Y. Sup. Ct. p. 195