Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

quires notice to be given of its meetings, and the record of the board shows no notice.1

In what is above said respecting the conclusiveness of the action of assessors, it is assumed that the case is free from fraud on their part. If fraud is charged, there may be a remedy in equity under principles to be stated further on.2

In some states an appeal is given from the assessors, or from assessing boards, to some specified court, to which is given limited powers of review. A court, whatever its grade, would be one of limited jurisdiction for such a purpose, and must keep within it."

1 Nixon v. Ruple, 30 N. J., 58. In Kelly v. Corson, 8 Wis., 182, and 11 Wis., 1, the effect of errors in the action of a board of equalization was considered. See Marsh v. Supervisors, 42 Wis., 502; Ross v. Crawford Co. Com'rs, 16 Kan., 411.

2 The mode of reasoning by which assessing boards have reached their conclusions is not open to review by the courts. Republic Life Ins. Co. v. Pollak, 75 Ill., 292; People v. Big Muddy Iron Co., 89 III., 116; English v. People, 96 Ill., 566; Traders' Ins. Co. v. Farwell, 102 Ill., 413.

3 That the power to hear an appeal for abatement of a tax is judicial, see Edes v. Boardman, 58 N. H., 580, questioning Auditor v. Railroad Co., 6 Kan., 500. The appeal is an equitable proceeding, and only so much of the tax will be abated as the appellant ought not to pay. For any error of law or fact for which redress may be had in this proceeding, no suit will lie against selectmen acting in good faith. Edes v. Boardman, 58 N. H., 580. See Carpenter v. Dalton, 58 N. H., 615. As to who is a "party aggrieved" and entitled to appeal in New York, see Matter of Phillips, 60 N. Y., 16; Petition of Gantz, 85 N. Y., 536, overruling Matter of Moore, 8 Hun, 513, and Matter of Saunders, 10 W. Dig., 351. For method of reviewing in New York, see Strusburgh v. New York, 45 N. Y. Sup. Ct. R., 508. A motion to vacate an assessment may be lost by lapse of time. Matter of Lord, 21 Hun, 555; S. C., 78 N. Y., 109; Matter of Brady, 46 N. Y. Sup. Ct. R., 36. If an appeal from the action of a board of equalization is given, it cannot be lost by the irregular action of the board. Ingersoll v. Des Moines, 46 Ia., 553. In Louisiana, after refusal by the assessors to reduce an assessment, and after the rolls have been delivered to the collecting officers, the assessors may be brought into court by the aggrieved party, and their action reviewed. Gay v. Assessors, 34 La. An., 370. If appeal to a court is not made in the statutory time, the court has no jurisdiction. Wells v. Board of Education, 20 W. Va., 157. In proceedings to restrain the cutting down of an assessment, the person assessed is a necessary party. Armstrong v. County Court, 15 W. Va., 190.

When a statute allows an appeal to the court from an illegal assessment, the illegality must be in a matter of law, independent of the exercise of

Refunding taxes. This is only an abatement, made after the tax has been paid or enforced. A general right exists in the state to refund any tax collected for its purposes, and a corresponding right probably exists in the common council, or other proper boards, of cities, villages, towns, etc., to refund to individuals any sums paid by them as corporate taxes which are found to have been wrongfully exacted, or are believed to be, for any reason, inequitable. But no executive or ministerial officer could have any such authority, unless expressly given by law.1

Remedy by certiorari. At the common law the writ of certiorari lies to remove into the supreme court of judicature the proceedings of inferior tribunals, in order that their errors may be corrected when it is alleged that they have exceeded their jurisdiction. In some of the states, considerable use has been made of this writ in tax cases, sometimes with, and sometimes without, statutory regulations. When the writ is by statute, a broader scope may be, and usually is, given to it than it has at the common law. The common law writ is not one of right,

discretion as to value vested in the taxing officers. Shear v. Com'rs of Columbia Co., 14 Fla., 76.

When the statute provides a special remedy for the collection of a personal tax by suit and a mode of reviewing the judgment, the party is confined to that mode of review. Washington Co. v. Germ. Am. Bank, 28 Minn., 360.

1In New York the county court may order the refunding of "any tax illegally or improperly assessed or levied." Boardman v. Sup'rs of Tompkins, 85 N. Y., 359. This applied to a case where a resident who was assessed for personalty showed that he had none. Matter of Coleman, 30 Hun, 544.

For proceedings under a statute which, when drain tax is set aside, authorizes the court to proceed to determine what is justly chargeable to plaintiff and award accordingly, see Peck v. Watros, 30 Ohio St., 590.

How school taxes should be refunded in Iowa where the district was divided after the tax was laid, see Spencer v. Riverton, 56 Ia., 85. A local aid tax, where the money has been deposited with the county treasurer, should be refunded from that fund. Barnes v. Marshall Co., 56 Ia., 20. See Des Moines, etc., R. Co. v. Lowry, 51 Ia., 486; Stone v. Woodbury, 51 Ia., 522.

2 When the relief sought by the applicants would affect all other tax payers and residents of a town equally with themselves, in arresting the collection of an alleged illegal tax, it has been held that it should be denied unless applied for by all. Libby v. West St. Paul, 14 Minn., 248. The writ

4

but is granted on the special facts; and the court has a discretion to refuse to grant it in any case, when great mischiefs might be likely to follow the setting aside the proceedings complained of. It may even dismiss the writ after it has been granted, without a consideration of the merits, if, in the opinion of the

held applicable to a case where a board of equalization had acted in a matter over which it had no jurisdiction: Royce v. Jenny, 50 Ia., 676; see Louisville, etc., R. Co. v. Bate, 12 Lea, 673; but not to a case where the levying board were proceeding to levy a tax on an erroneous certificate that a tax had been voted. Cattell v. Lowry, 45 Ia., 478. It will not be allowed where there has been an unauthorized increase in an assessment, the remedy at law being ample. State v. Washoe County, 14 Nev., 140.

As to the general nature of the writ in New York, see People v. Walter, 68 N. Y., 403. What reviewable upon it: People v. Commissioners of Taxes, 91 N. Y., 593. The return by statute is not conclusive and there may be a reference to take testimony. People v. Smith, 24 Hun, 66. In proceedings by a city to levy a tax for water bonds, no question as to the validity or regularity of the bonds can arise. People v. Long Island City, 76 N. Y., 20. If it appear on the face of the records that proceedings necessary to give jurisdiction had not been taken, an assessment by the county court is void and would be quashed on certiorari, and the tax should not be enjoined. Murphy v. Harbison, 29 Ark., 340.

In Michigan certiorari is not allowed in tax cases under the general laws. Whitbeck v. Hudson, 50 Mich., 86. But it is a common remedy to review proceedings in laying out drains and assessing the cost upon lands benefited, but the court will review upon it nothing but jurisdictional questions. The following are cases: Kroop v. Forman, 31 Mich., 144; Strachan v. Brown, 39 Mich., 168; Lane v. Burnap, 39 Mich., 736; Taylor e. Burnap, 39 Mich., 739; Milton v. Drain Com'r, 40 Mich., 229; Whistler v. Same, 40 Mich., 541; Willcheck v. Edwards, 42 Mich., 105; Dunning v. Drain Com'r, 44 Mich., 518; Wright v. Rowley, 44 Mich., 557; Lampson v. Drain Com'r, 45 Mich., 150: Reinig v. Munson, 46 Mich., 138; Van Buskirk v. Drain Com'r, 48 Mich., 258; Chapman v. Same, 49 Mich., 305; Null v. Zierle, 52 Mich., 540; Whiteford v. Probate Judge, 53 Mich., 130. There are many others. By statute, cases where the proceedings are susceptible of being corrected must be brought by regular suit into the circuit courts. See Tucker v. Drain Com'r, 50 Mich., 5. Proceedings in laying out highways are also reviewed on certiorari. See People v. Highway Com'rs, 14 Mich., 528; Van Auken v. Same, 27 Mich., 414; Names v. Same, 30 Mich., 490.

For the proceedings on certiorari in New Jersey, see Citizen's Gas Light Co. v. Alden, 44 N. J., 648; Woodbridge v. State, 43 N. J., 262. A party who neg lects to appeal should be given no redress on certiorari. State v. Snedeker 42 N. J., 76.

1 In Fractional School District v. The Joint Board, 27 Mich., 3, the writ was refused when applied for to review the proceedings in establishing a school district, fifteen months after the action had been taken; the district

court, it was granted improvidently. The writ must be applied for in due season, and before the proceeding, which it is desired to review, has passed beyond the control of the tribunal in which it was taken. If, therefore, the writ is issued to review the action of assessors, after the assessment roll has passed from their hands into the hands of the supervisor, it will be dismissed for that reason. The writ is not awarded to review political action, and, therefore, the action of a town or any other municipality, or of any of the local boards, in determining upon the purposes for which taxes shall be levied, or the time and manner of levying them, when that is committed to their judgment, or fixing upon the sums to be levied, or the objects of expenditure, or anything of a like nature, is not subject to review by means of it. The writ will be refused where an appeal is given which affords an adequate remedy, or, in other words, which is not so restricted in its scope as to preclude the party from a review of the errors of which he complains. It will not lie to review any merely discretionary

in the mean time having organized and taken upon itself corporate functions. See Bird v. Perkins, 33 Mich., 28.

Magee v. Cutler, 43 Barb., 239; People v. Supervisors of Allegany, 15 Wend., 198; Susquehanna Bank v. Supervisors of Broome, 25 N. Y., 312; Matter of Lantis, 9 Mich., 324. The writ should not be allowed where the purpose is merely to enable a party to recover back taxes paid by procuring a reversal of the proceedings. Pepole v. Commissioners of Taxes, 43 Barb., 494; People v. Reddy, 43 Barb., 539.

2 As to the effect of laches in general, see Petition of Lord, 78 N. Y., 109; State v. Binninger, 42 N. J., 528; Matter of Lantis, 9 Mich., 324.

3 People v. Delaney, 49 N. Y., 655. See People v. Supervisors of Queens, 1 Hill, 195, 199.

4 People v. Supervisors of Allegany, 15 Wend., 198; Benton v. Taylor, 46 Ala., 388. See Dwight v. Springfield, 4 Gray, 107; Dillon, Mun. Corp., SS 739-743.

5 The New York decisions on the subject of the remedy by certiorari are very numerous, and in People v. Betts, 55 N. Y., 600, 602, they are reviewed by Folger, J., in the following language: "The office of a common law certiorari is, in strictness, merely to bring up the record of the proceedings of an inferior court or tribunal, to enable the court of review to determine whether the former has proceeded within its jurisdiction; and not to correct mere errors in its proceedings. People v. Commissioners of Highways, etc., 30 N. Y., 72. True, it has been sometimes intimated, and sometimes held, that in the absence of any other remedy, and to prevent a failure of justice, the party will be suffered by it to bring up, not only the naked question of jurisdiction, but the evidence, as well as the ground or principles on which

action of any tribunal; nor is it within the proper scope of the writ to review the decisions of inferior tribunals on the merits. The court awarding it, therefore, will not look into the evidence on which the inferior tribunal may have acted,

the inferior body acted, and the questions of law on which the relator relies. Susquehanna Bank v. Supervisors, etc., 25 N. Y., 312; Baldwin v. Buffalo, 35 N. Y., 375; Swift v. Poughkeepsie, 37 N. Y., 511. Many cases are cited in The People v. Assessors, 39 N. Y., 81, and it is there held that the office of the writ extends to the review of all questions of jurisdiction, power and authority of inferior tribunals to do the acts complained of, and to all questions of regularity of their proceedings. In People v. Assessors, 40 N. Y., 154, it is held that the writ may bring up for review the decision that a given state of facts is not legally sufficient to compel a board of assessors to the conclusion that certain property was not liable to assessment; in other words, a decision of law. See, also, People v. Board, etc., 39 N. Y., 506, Freeman v. Ogden, 40 N. Y., 105; People v. Hamilton, 39 N. Y., 107; Western R. R. Co. v. Nolan, 48 N. Y., 513. In People v. Delaney, 49 N. Y., 655, inclining the other way, it was held that a departure by assessors from the statutory standard for estimating the value of property on the assessment roll cannot be corrected on certiorari. In People v. Supervisors, etc., 51 N. Y., 442, it was held that it was the office of a certiorari to review the determinations of inferior boards where a claim was rejected, as not just or legal. And in People v. Allen, 52 N. Y., 538, a certiorari brought up for review the decision of the defendants upon a question of law. It is thus seen that the office of a common law writ of certiorari has been somewhat enlarged since the decision in 30 N. Y., supra. But it will also be seen that it is in cases where the relator has no other available remedy, and where injustice would be done if the writ was not permitted to do its work. The rule still remains unimpaired, at least in principle, that where there is a remedy by appeal, the writ will be confined to its original and more appropriate office. Storm v. Odell, 2 Wend., 287. See, also, In re Mt. Morris Square, 2 Hill, 14, 27." To the foregoing may be added People v. Nearing, 27 N. Y., 306. That certiorari does not lie where there is an adequate remedy by appeal, see Withowski v. Skalowski, 46 Ga., 41; Peacock v. Leonard, 8 Nev., 84, 157, 247; State v. Apgar, 31 N. J., 358; Macklot v. Davenport, 17 Ia., 379; State v. Bentley, 23 N. J., 532. When, in assessing upon abutting lots the expense of a local improvement, a jury is allowed on their demand to parties dissatisfied with the assessment, the demand for a jury is the proper remedy for an excessive assessment and not certiorari. Jones v. Boston, 104 Mass., 461, citing North Reading v. County Commissioners, 7 Gray, 109; and see Whiting v. Boston, 106 Mass., 89.

The action of the auditor-general in charging back certain taxes to a county in his settlement with it, being within his official discretion, cannot be reviewed on certiorari. Supervisors of Midland v. Auditor-General, 27 Mich., 165. Tax payers of different townships cannot join in certiorari to set aside different taxes for the same general purpose when the objections raised are not common to all the taxes. Woodworth v. Gibbs, 61 Ia., 398.

« ΠροηγούμενηΣυνέχεια »