McLean v. Erlanger

The question is whether the appellant can go behind the return of the marshal to whom the warraant for the collection of the personal tax imposed upon him was issued. We agree with the appellant that jurisdictional facts must be stated in the petition, and it is conceded that all such facts are herein stated. One of these facts is that a warrant for the collection of the tax was issued by the petitioner to a marshal and that that ■officer has returned such warrant unsatisfied. This statement is made positively by the affiant, and is necessarily within his personal knowledge. It is not denied by the respondent The latter merely denies “any knowledge or information sufficient to form a belief of the issuance of such warrant.” This form of denial would, under the Code, raise an issue to a complaint in an action, but it is not a denial of a fact stated positively in an affidavit. Matter of Petition of N. Y., L. & W. R. R. Co., 99 N. Y., 17 ; R., W. & O. T. R. R. Co. v. City of Rochester, 46 Hun, 149 ; 10 St. Rep., 809 ; The People ex rel. Carleton v. Board of Assessment, 52 How., 140 ; Matter of Sullivan, 55 Hun, 285 ; 28 St. Rep., 566 . We thus have all the jurisdictional ‘ facts properly averred and conceded. For the averment that the marshal demanded payment under the warrant was superfluous, as the statute is in the ■alternative and provides for these proceedings in case of the refusal or neglect of any person to pay the tax imposed. The question is thus reduced to that suggested at the outset: can the appellant in these proceedings go behind the return of the marshal and prove its falsity ? We think not. Such a doctrine would be subversive of the entire system provided for the collection of personal taxes. And it could be inaugurated only by overturning the general rule that the returns and certificates required of a public officer in the performance of official duty are to be taken in the proceeding in which they are made as of unquestionable verity. Cooley on Taxation, 2d ed., 260, and cases there cited.

It will be observed that the marshal is not a party to this proceeding, and that the statute requires the receiver of taxes to proceed against the delinquent upon the marshal’s official act, namely, the return of the warrant unsatisfied. Cons. Act, § 859. Such a return is conclusive evidence, in the proceeding in question, of the jurisdictional fact that the person proceeded against “ neglected ” to pay the tax imposed upon him and that he had “ no goods or chattels in his possession ” (§ 857) upon which the same could be levied by distress and sale according to law. The burden of establishing this latter fact by evidence aliunde the return of the marshal is nowhere imposed upon the receiver of taxes, and if such burden were imposed upon him, the statute would become a dead letter. A public officer like the receiver of taxes,

He can, it is true, be mulcted the costs of contempt proceedings, but that is all. Now the court, under § 861 of the consolidation act, has ample discretion to relieve him from these costs, and while treating the marshal’s return as conclusive upon the question of jurisdiction, it would doubtless consider the failure, as matter of fact, to make a demand or to" search for property, upon the question of costs. Indeed, in the present case, upon the broad statements made by Mr. Erlanger in his affidavit and not denied in any manner, we think he should have been absolved from the costs of these proceedings.

The order appealed from should be modified accordingly so that Mr. Erlanger stand committed until he pay the tax imposed upon him, with lawful interest, but without costs either at special or general term.

Van Brunt, P. J., and Ingraham, J., concur.