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

$500 =
warranted tho denial Of the writ Bat they are
not iDconsistent with The opinion that this writ
may 0fsxn be appropriately used where the
assessment rolls are still within the control Of
The proper body, and they are exceeding their
jurisdicficn or violating the clear legal right
Of an INDIVIDUAL BY imposing upon him an iile-
gal tax. where they have no discretion to exer-
else. The other GASES above referred TO appear
to me to warrant this opinion, and where the
party has no othc, legal remedy, his right to
have such writ allowed Is, i think, undeniable.
(See Hill, 1927
tits, however; apparent from what has bee
said that the present defendant, having no
the warrant issued for the collection of tax issued,
could not, according to the views Of Judge
Bronson, have made mandamus available to
prevent the levy ing Of the tax by the collector.
The supervisors had terminated their action on
the subject, and transmitted the rolls to the
collecting officers, and thus they may have had
discretionary power to remit tax. appre-
bend that in doing that they would have acted
in no Judicial character, bnt in the exercise Of
a discretion governed by their sense of Justice
in which they could not be controlled.
The relator in the case last above referred to
also atked for writ Of prohibition to the Town
Collector to stay the levying Of the tax. This
not lie to a ministerial officer to stay the execu-
ten of process in his hands-that it is directed
to o court and to the party prosecuting an
action or legal proceeding therein q Hill, 2O5.)
See the cas- es cited
And vet in The People w. Works there re-
ferred to, Il Wend 1867 the writ Of prohibition
was granted commanding the Collector Of Taxes
to desist and refrain from collecting a town tax,
and directing the Supervisor of the town not to
receive the sum aforesaid, and not to pay it
over if received. The ground OF the decision on
the merits was that the tax was illegally voted
Of special town meeting, at which they had
NO power to act on the subject, and also that 1t
was raised for an illegal purpose, and the court
deemed this an appropriate remedy, and one
provided by the common law against the en-
croacbment Of jurisdiction, to keep inferior
courts and tribunals within the limits and
bounds prescribed to them. This decision, how
ever, is regarded by Judge Bronson as no au-
thority for the allowance of the writ, though
the point was distinctly decided. In the cases
mentioned above, as already suggested, the
acts Of the assessors are said to be judicial and
there would seem no reason in the nature Of
the proceedings for not addressing this writ to
them, and in regarding them, though not a court
in name, as liable to be restrained in an excess
of jurisdiction when they exceed its limits. In
Burden vs. Gill, Mod. 272, the Commissioners
of Appeal on the imposition of an excise, were
deemed tribunal to be restrained by such
writ and were restrained by the Court Of
Kings Bench. And it would seem that in
South Carolina the collection Of tax has been
restrained in the same manner, l. Mcmillan
410, Buyn We. Carter-under what precise cir
cumstancc, have not been able to learn. In
view, however, of the decision in the Supreme
Court in Hill, 1876, which is certainly in ac-
cordance with the proper Office Of this writ, so
far as it was then sought to address it to
ministerial officer, it is apparent that the writ,
if it be allowable at ALL must be obtained while
there is some act to be done or omitted by the
assessors themselves or the supervisors And in
the present case the want of notice and the fact
of non-residence render such resort of no avail
to this defendant, unless the prohibition can be
made to restrain the execution Of the warrant
which, according to the case last mentioned, it
cannot.
There are other modes in which, if the injury
| caused by an illegal assessment cannot, in q
particular case, be prevented by either of the
proceedings above adverted, it may neverthe-
! less be fully redressed, and by action ut law
| Each case in this respect, however, depending
! upon its own circumstances.
! 1t was argued by the Defendants counsel
that If the assessment be illegal, all parties at
tempting to enforce its collection are trespass-
ers, and besides that the purchaser at sale
under the warrant of distress would take no
title.
This proposition is wholly unwarranted, and
is opposed to the best settled rules Of law on
this subject.
When the warrant is regular and no illegality
and no want Of jurisdiction in the authority by
whom it was issued appears on its face, the OH
Ger is fully protected, and this is true Of the
warrant complained of in this action.
1t is only where the illegality, or want OF
authority. appears on the face Of the warrant
itself that it fails to protect the officer to whom
it Is directed for execution.
In The People VS. Albany G. p, the warrant
is declared to authorize the taking Of goods by
| the officer.
In The Columbian Manufacturing Co. vs.
Vanderpool, trespass was brought against the
collector, upon the ground that by law the pro-
perty Of manufacturer of cotton, &C., was ex-
/, empt from taxation no question of the liability
Of the collector appears to have been raised,
and the action was decided upon the ground
that the plaintiffs were properly taxed, which
| question was alone discussed.
In Wheeler va. Anthony, 10 Wend. BAG, which
was also trespass against the Collector the
imperfection in the tax list and warrant refer
ring thereto, were not such as to deprive the
defendant Of his justification Of the taxing
| In The Bank Of Utica vs. City Of Utica,
1 Paige, 400, the Chancellor says that, whereas
in that case the illegality appears on the face
Of the warrant. the COMPLIMENTS have an ade-
quate and certain remedy at law by an action
OF trespass, il the warrant be enforced by sale
| &c.
| And in Sheldon VS.. Van Buskirk, Comst,
| AIS, which was also trespass against collector
of taxes, it was held by the Court of Appeals
| that the warrant being on its face in proper
| legal form. and issued by persons having lawful
authority to make and issue warrant for such
n purpose. the officer was protected thereby.
See to the like effect Van Rensselaer, We. Cottrell,
Barb, 1872, and same VS.. Whithall, Id. l43. Aud
still mere recently in the same court in Che
| gany vs. jenkins, Selden, 3S2, on appeal from
the Judgment of the Superior Court Of this city,
| 6 Sand r.. 1907 it is held that the warrant
having been issued by the proper officers, and
there being nothing on it's face showing want
Of authority in the assessors to make the assess
ment complained Of, or in the supervisors in
confirming it, or the receiver Of taxes in issuing
was perfect Justification to the officer, even