The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-07-23


sons. u there be want oi jurististion even |
in the judicial sct sought 10 be reviewed, or h |
other wor6s # there be an excess Of legal pow
er by which any pefsons rights may be ioju- |
yiously al. cted, an action lies, AID IL Il much |
better that be rhonld be put 10 this remedy. |
than that the whole proceedings should be ar |
rested and perhaps finally reversed for sncn
&c. OF Brooklyn, the proceedings in an assess
ment for a srwer, Of the same nature az the
ease last cite were removed to the Supreme
Court by certiorari, and reversed or annulled
Barb. zoe. And Ike proceedings for the
grading Of street were in the same manner
remov. and annulied between the same par
ties. Barb. 635. And still another, between
the same parties, were in like manner reversed,
which il not reported from that court The
case lasi referred to was appealed 10 the Court
of Appeals, and the decision reversed uo8u the
merits, and not upon the ground that the pro-
ceedines might not be 90 annulied on ccrtiora-
ri, but just oe Ruggles, in giving the opinion
settled toat upon common law certiorari the
court will not examine the proceedings re-
turned further than to ascertain whether the
inferior tribunal has kept within its jurisdic-
tional lilnits.n a Comst., 441)
In Chegery vs. Jenkins, Selden, 1872, the
same member Of the Court Of Appeals valves
the consideration of the question whether an
not liable to taxation, can be corrected on GER
tiorari; and in Norwood Va HOLSTER. 2 Sell
| den, 800 lin the same c0urt), in discussing the
! proceeding by common law certiorari, says
"The Court Of Review, in such cases, only ex-
amines to see If the officer acquired jurisdiction.
and acted. during the whole proceedings, within
| the limits Of the jurisdiction acquired"
In most Of the cases above referred to, and in
Van Rensselaer, vs.. Cottell. Berb, 127, and
| same vs. Whitbuk, .. 1873; Weaver va. Owen
dor, 3 DEMO, II9; and Sheldon We. Van Bus
kerk, COmst., 473, the making OF the assess
| ment is declared to be judicial act; and al
tough it is within the power of the court and
| the province Of the writ of certorari TO bring
such proceedings under review, it is manifestiy
according to the course Of the decisions referred
! TO to conhne the exercise of the power OF the
! court in such cases, within very narrow limits,
and in general to withhold it.
So far as this branch of the discussion bears
| upon the case before me- it is manifest that q
| certiorari could be of no avail to the present
plaintiff His complaint AYERS that he had no
| notice of the assessment before warrant to
the Receiver Of Taxes to collect the tax
was issued and not being resident OF
the State, he was not chargeable with any
notice by reason of any posting Of notices,
by the assessors, in the ward in which he
was taxed. If the proceedings were removed by
certi0rari no want of jurisdiction would appear
on their face, and the cases above referred to
show that no proof Of extrinsic facts could be
| taken in the court Of review, for the purpose
Of showing the want Of jurisdiction or other lie
gality. And besides, according to the opinions
In the above two cases cited from Is Wend., 1913,
and Hill, 1876 such certiorari would not 0pe-
rate to prevent the execution OF the warrant
which issued before the plaintiff had notice and
therefore before the certiorari could have been
| obtained.
However imperfect or inadequate the remedy
by certiorari may be, it is said that mandamus
Is proper where q party has legal right, and
there is no other appropriate legal remedy, and
where in Justice there ought to be one. (See IL
J. R.. Ala, the People vs.. Supervisors of Albany;
exparte Nelson, ! Cow, All; Hull VS.. Super.
| vifers Of Oneida, 10. J. R.. 260; in the matter
2 ef Bright VS.. Supervisors of Chenango, Is J. R.,
2429 In these cases jurisdiction by mandamus
WAS entertained to compel the Supervisors to
allow county charges; and in one Of them made
peremptOry, and IN two denied on the merits
showing that those bodies who doubted the sub
ject to which this suit relates may properly he
reached by mandamus, and in q matter of strict
right. not resting in their discretion, may be
compelled to conform their proceedings to such
strict legal right OF the party applying, to pre-
| vent injustice.
In the People vs.. the Mayor. &C., of New
York. 10 Wend 1913. a mandamus was applied
! for to compel the defendants to execute aud de-
! liver lease on . sale Of land for assessments,
and-the court held the remedy appropriate,
although upon the merits Of that case they re-
| fused it.
In the Bank of Utica vs.. City Of Utica, in
which the legality Of an assessment for taxes on
| personal property Of the defendants, which they
claimed was not liable to taxation was the dis
tinct matter in controversy, the Chancellor says
| a Paige, 400):--"I think the compliments had
perfect remedy at law by an application "
the Supreme Court for mandamus to compel the
Common Council" (who, by their charter, have
| exclusive control OF the assessment and collec-
ton of the city taxes) ito correct their assess
nents and taxation if it was Illegal
In the People VS.. the Supervisors of New
! York, Is Wend. COS, o mandamus was applied
for to compel the defendants to strike from the
tax list and from the warrant to the collccto.
the names of the REALTORS. The power of the
court to order such correction Of the tax list
| while such list remained within the control o.
the defendants, seems not to have been doubted
though the application was denied on the merits
and the court intimate that under the particu.
lar statute relied upon by the plaintiffs, there
w'as discretion given to the defendants, or a
finding upon the suficiency of proof to their
Subtraction to be had, in relation to which the
court could not interfere. In the People vs
The Assessors of WATERFOWL, 1 Hill, Gle
q mandamns to compel the assessors
to strike out of the assessment roll for taxes,
on Assessment upon the personal property oil
the REALTORS, no doubt Of the power of the COT
to make the order, or Of the appropriateness Of
the remedy was suggested, but the court denied
the motion ON the merits. In the People W
the Supervisors of Niagara, Hill, 20, the d.
PENDANTS had struck from the roll OF assessment.
for taxes certain three corporations, and thu re
lators (being tax pay ers,) moved for mandc-
mus to compel the defendants to restore those
names to the assessment rolls; the motion was
heard on the merits. No objection was mode
to the form of the remedy, (an formal ob'ec-
lions being waived,) and peremptory manda-
mus was ordered by the court
II appears by the report of Mooers VS.. Smed-
ley, John Oh. r., "a, that where the error
complained Of was the allowance by the Super
yisoIs Of alleged improper county charges, the
Supreme Court refused mandamus, but on