President of the Delaware & Hudson Canal Co. v. Atkins — 16 N.Y. St. Rep. 332

Majority

p. 332

The President, Managers and Company of the Delaware and Hudson Canal Company, App’lts, v. Alanson B. Atkins, as Collector of the Town of Highland, Resp’t.

(Supreme Court, General Term, Third Department,

Filed May, 1888.)

Headnote

1. Taxes—Collection of—Cannot be prevented by injunction. The collection of a general tax cannot he prevented by injunction.

2. Same—Remedy to correct erroneous tax.

Parties complaining of erroneous or oppressive taxation must seek redress by affidavit to reduce the amount of the tax or by certiorari to review the proceedings by which the tax is imposed.

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3. Same—Remedy against person assuming to act as assessor.

If persons assume to act as assessors without proper authority or perform their duties in such manner as to render their acts void, the party may proceed by quo wa/rranto or by action against the official to recover damages against him personally.

Exceptions ordered to be heard in the first instance at the general term on dismissal of the complaint at the circuit.

Peter Cantine, for app’lts; John F. Anderson, for resp’t.

In disposing of this appeal we do not deem it necessary, particularly to discuss the proceedings by which the assessors were inducted into the office, nor the steps taken by them, in imposing the tax complained of, as we have reached the conclusion, that upon the facts, the plaintiff is not entitled to the remedy by action, in equity, accompanied by an injunction to stay the collection of the tax. The assessors assumed to act under the color of an election, and although their title to the office may be subject to serious criticism yet they assumed to act under such election, and performed the duties of the office. Parker seems to have been elected at a regular town meeting, but in the face of a vote at the same meeting, to reduce the number of assessors for the town from three to one. He took the oath of office and entered upon its duties. Kortright was regularly elected, and participated in the assessment, up to the time he removed from the town, and after such removal signed the roll, and made the required affidavit as assessor. Bogert was regularly elected, and participated, to some extent, in making the assessment, but did not sign the roll, or join in the affidavit which accompanied the same. We are not able to adopt, as sound, the contention of plaintiff’s counsel, that the acts of Parker, Kortright and Bogert in making such assessment, should be regarded merely as the doings of private citizens, acting under no color of office and therefore void.

The proceedings were not arrested until they culminated, in the mandate for the collection of the tax, through the action of the supervisor of the town of Highland and of the board of supervisors of the county of Sullivan. After a careful consideration of this case, we arc satisfied that the present action cannot be maintained. It is not within anjr recognized head of equity jurisdiction. The remedy by injunction has been resorted to upon almost every con ceivable state of facts to prevent the collection of a general tax, and the effort has proved unsuccessful; and almost the entire range of judicial adjudication has been against such remedy. Parties complaining of erroneous or oppressive taxation have been required to seek redress, by affidavit, to reduce the amount of such tax, or by certiorari to review

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the proceedings by which the tax is imposed. If persons assume to act as assessors without proper authority, or perform their duties in such manner as to render their acts void, the party may proceed by quo warranto, or by action against the official, to recover damages against him personally. If such remedies are not sufficient to furnish adequate relief, the legislature must provide the needed remedy. The resort to an injunction is objectionable, as it is expensive and attended with delay in the collection of taxes, which are indispensable to the operation of the' machinery of government. The case does not show but that the plaintiff is subject to taxation within the town of Highland. It does not show that the tax is a lien upon the land of the plaintiff, so as to create a cloud upon the title to remove which a resort to extrinsic evidence becomes necessary. The tax has been levied upon personal property sufficient to satisfy; the same. The following adjudications are referred to as indicating the expression of the courts against the remedy by action in equity, accompanied by injunction, to prevent the collection of taxes. Heywood v. The City of Buffalo, 14 N. Y., 534 ; Livingston v. Hollenbeck, 4 Barb., 9 ; Susquehanna Bank v. Sup. B. Co., 25 N.. Y., 312 ; Rome W. and O. R. R. Co. v. Smith, 39 Hun, 332 -337; Meseck v. Board of Sup. of Col. Co., 50 Barb., 190 .

Motion for new trial denied and judgment ordered for the defendant, with costs.

Learned, P. J., and Landon, J., concur.