The People, on the relation of Philip Church, vs. The Supervisors of the County of Allegany, 15 Wend. 198

By the Court, Bronson, J. The power of this court to review the judgment and proceedings of inferior tribunals, for the purpose of seeing that they keep within the jurisdiction that has been assigned to them, and that their judgments and decisions are based upon correct legal principles, has not been, and cannot be questioned.

But it was said on the argument, that awarding a writ of certiorari in a case like the present, was a matter resting in the sound discretion of the court; and the principal question discussed was, whether we ought to entertain this proceeding, and review the decisions of the supervisors on the merits, or whether the certiorari should be quashed; and it was conceded that the same order might be made in this stage of the cause, as would be proper on a direct motion to quash or supersede the writ.

That this preliminary question, in its direct and ultimate consequences, is one of very considerable importance, will be . readily perceived on looking at the requirements of the writ, and the judgment which the relator asks to have pronounced upon the return.

The certiorari, among other things, requires the supervisors to return all the corrected assessment rolls of the several towns in the county, containing any valuation of the real and personal estate of the relator, and the sums therein estimated and set down, to be paid as a tax by the relator, together with the several warrants issued for the collection of the same.

The judgment which the relator conceives himself entitled to ask upon the return is, that the apportionment of taxes made by the supervisors at their annual meeting in November, 1832, for county purposes, and all the warrants issued by them for the collection of the taxes; and particularly so far as they affect the relator or his real or personal property, be vacated, quashed and annulled for irregularity. The suggestion in the notice that the judgment may be restricted to such taxes as were designed for county purposes, can be of no practical importance.

The assessment rolls are prepared and corrected without any reference to the purpose for which the tax is to be levied; and in apportioning the tax? the board of supervisors does not set down two or more sums to be paid by each person assessed, but only one sum in gross, without any reference to the application of the money when collected. The warrant annexed to the corrected- assessment roll, directs the collector to what persons he shall pay over the money, and the several purposes to which it shall be applied. 1 R. S. 396, §37.

It must, therefore, be apparent that in annulling the apportionment of taxes, or the warrants issued for their collection, no practical distinction can be made between those taxes which were designated for county and those which were intended for town purposes.

The ground for setting aside the proceedings of the supervisors may be, that they allowed improper charges against the county ; but the apportionment of the tax is entire, and must stand or fall altogether. ' Nor do I perceive how the tax, or the warrants for its collection, can be annulled, so far as they affect the relator, without also declaring them void in relation to all the other taxable inhabitants of the county. The ground upon which the relator proceeds, is not such as affects his interest alone; but is, in principle, applicable alike to every person who is named in the tax list.

The complaint is-not that the relator has been required to pay more than his just proportion of the county burdens ; but that, in consequence of the allowance of illegal charges, his tax, in common with that of every other person named in the assessment rolls, has been improperly increased. I have not met with any analogous case where the judgment or proceeding was quashed in relation to a particular individual affected by it, while it was left in force in relation to other persons in the same situation. In the case of the Commonwealth v. The Blue Hill Turnpike, 5 Mass.

R. 420, the court of sessions had received and recorded the verdict of a jury, assessing the damages of a party over whose land the road passed, and ordered the money to be paid by the corporation within six months; and in default of such payment, that the amount should be levied by warrant of distress against i i /,» . . ^ _ ,7 the personal property ot the proprietors oj the turnpike.

The court on a certiorari removing the proceedings, held that the first part of the order of the sessions was proper, but that the last part, directing the money to be levied of the property of the individual corporators, was illegal; and the order was affirmed in part, and quashed as to the residue. Parsons, C.

J. puts the judgment of the court upon the ground that “ the part quashed was independent of, and unconnected with the part affirmed.” He adds, that “ in a civil cause, the order may consist of several distinct and independent parts, and each part may be considered as a separate order, complete in itself.a Thus in a pauper cause, an order to remove three different persons may be considered as three orders, and if either order is illegal, it may be quashed, and the other orders affirmed.” He concedes that on certiorari, the court can enter no new judgment, as they can on a writ of error. In the The King v.

Symonds, 1 East, 189, the defendant was convicted of$an offence by the magistrate, and ordered to pay several forfeitures, amounting to twelve pounds, together with the reasonable charges of recovering the same ; but the magistrate did not ascertain the amount of those reasonable charges, and for this cause, on the return of a certiorari, the whole proceeding was quashed. In Rex v. Hall, Cowp. 60, the defendant, who had been imprisoned on a like conviction, was discharged out of custody oh habeas corpus, and the conviction was quashed.

In the case before the court, the matter to be reviewed does not consist of several distinct or independent parts. It is not like an order in a pauper cause for ¿he removal of three different persons, which may be legal as to one and illegal as to another. If the acts of the supervisors were unauthorized as to the relator, they were equally unwarrantable in relation to every other taxable inhabitant; and I can perceive no ground upon which the proceeding can be sustained in part and quashed as to the residue.

The question, then, involved in this proceeding is, whether the tax lists of the several towns in the county of Allegany, in which the relator was assessed, in the year 1832, and the ofwarrants issue<^ to the collectors, shall be quashed and annulled for irregularity. What would be the probable consequences of such a judgment as we are asked to pronounce ? How many hundreds of suits would it authorize against each of the twenty-six supervisors, who are defendants, and what would be the condition of the several officers who have collected the tax ?

If the relator has a right to prosecute the writ ex débito justifies, these inquiries should have no influence upon the disposition which is to be made of the cause ; the court must pronounce its judgment, and leave the consequences to others. But if, in awarding writs of this description, the court is to exercise a sound legal discretion, and'grant or refuse thp process, as the ends of justice and the public interest may require, we are not at liberty to shut our eyes to the consequences which may follow from entertaining this proceeding.

It is not necessary to decide that actions could be maintained, either against the supervisors or the collectors, in the event of a judgment in favor of the relator. It is enough that such suits would probably be brought, and it is not entirely clear, to say the least, that they could not be maintained. In the exercise of the superintending power of this court over inferior jurisdictions, the writ of error is a writ of right, and issues on conforming to such regulations as have been prescribed by law.

But the writ of certiorari, especially,in those cases where it is used for the purpose of reviewing the acts and decisions of the special jurisdictions which are created by statute, and do not proceed according to the course of the common law, such as boards of supervisors, commissioners of highways, and the like, does not issue ex débito justifies, but only on application to the court, and special cause shown. ¡ÍÜThe reason is, that these bodies exercise powers in which the people at large are concerned, and great public detriment or inconvenience might result from interfering with their proceedings.

The writ cannot be allowed by a judge at chambers, but only by the court itself. Starr v. The Trustees of Rochester, 6 Wendell, 565. Comstock v. Porter, 5 id. 98. Al bany Water Works Co. v. The Mayor’s Court, 12 id. 292. In The King v. Eaton, 2 T.

R. 89, on a motion for a writ to remove a conviction before a justice of the peace, Butter, J. said, that the rule requiring the defendant to lay a ground before the court for granting a certiorari, had obtained since the time of Charles the second, and he cited a case of that day, where it was held as clear law that a certiorari ought not to be granted in vacation, but in open court, and upon a ground shown. Commonwealth v. Downing, 6 Mass. R. 72. The State v. Vanderveer, 2 Halsted, 38. In Arthur v.

Commissioners of Sewers, 8 Mod. 331, it was remarked by one of the judges, that “ a writ of certiorari was not a writ of right, for if it was it could never be denied to grant it; but it has often been denied by this court, who, upon consideration of the circumstances of the cases, may deny it, or grant it at discretion.” And Bacon, (Abr. tit.

Certiorari A.) says, although the writ ought of right to be issued at the instance of the king, for the purpose of removing an indictment, yet the court “ has a discretionary power in granting or refusing it at the suit of the defendant.” He cites cases in which the court has refused to grant the writ. In Ludlow v. Ludlow, 1 Southard, (N.J.) 387, Kirkpatrick, Ch.J. says, the véfy issuing of such a writ is the exercise of a high judicial power, and must, in its nature, be discretionary. In Lees v. Childs, 17 Mass.

R. 351, it was held, that an application for a certiorari was addressed to the discretion of the court, and would not be granted but on showing probable cause for supposing that injustice had been done. In Ex parte Weston and others, 11 Mass.

R. 417, the court held the same doctrine ; and although that was a case which did not affect the public, but the rights of indviduals only, the court said, that before granting a certiorari they would always look into the record, and even into the circumstances attending the process; “ because, when the record is actually returned, in obedience to the writ of certiorari, they are bound to quash the whole proceeding, if error should appear.” In Ex parte Adams, 4 Pick. 25, the application for a certiorari was made by a person who had been fined by a justice of the peace, for not performing military duty, and was denied. cage ¡nvo}ve¿ the legality of an order of the commander *n chief, disbanding a militia company, to which several obiections were made.

The court said, “admitting that these objections could not be satisfactorily answered, and that the proceedings, in disbanding the company, were not strictly regular and legal, we should nevertheless be of opinion that a certiorari ought not to be granted. The application is to the discretion of the court, and we cannot imagine a stronger case. than the one presented, for the sound and salutary exercise of our discretion in refusing the application, notwithstanding some mistakes may have been made, since none of them are important or injurious to the company.” The Inhabitants of Freetown v.

The County Commissioners of Bristol,9 Pick.46, which related to the laying out of a road, is another case where the writ was refused ; although it was virtually admitted that there were irregularities which would be sufficient to quash the proceedings, should a certiorari be awarded. In The State v. Anderson, 1 Coxe, (N. J.) 318, a certiorari bad been issued to the clerk of a county, to certify the election of the defendant to the office of sheriff, for the purpose of setting aside the election, because the defendant was not a freeholder, as the law required.

A return had been made, and it appeared that the defendant was not qualified to hold the office.

The court said they had by law a discretionary power, in relation to the writ of certiorari; and they refused to set aside the election, and quashed the writ, “ on the single ground of public inconvenience.” If, in the cases which have been men-, tioned, too much importance was not attached to the consideration that the public, interests would be prejudiced by awarding the writ, it can hardly be denied that it would be a salutary exercise of the discretion of the court to refuse to interfere in that form in a case like the one under consideration. In Rex v.

The Inhabitants, &c. 1 Lord Raym. 580, it was remarked, “As to the cases of orders made by commissioners of sewers, and of the fens, the court is cautious in granting certioraris; and first, they make inquiry into the nature of the fact, and what will be the consequence of granting the writ; because the country may be drowned in the mean time, whilst commissioners are suspended by the certiorari.” This court has reviewed on certiorari an assessment for opening a sewer in Canal street, in the city of New-York, Le Roy v. The Mayor, &c. 20 Johns.

R. 430 ; and an assessment for regulating and paving a street, in the village of Brooklyn, Bouton v. The President, &c. of Brooklyn, 2 Wendell, 395. The writ may also be awarded for the purpose of removing a village tax, Caledonian Comp. v. Trustees of Hoosick Falls, 7 Wendell, 508,665, and for the purpose of reviewing a school district tax. Storm v. Odell, 2 Wendell, 287. Under what particular circumstances the writ was awarded in these cases does not appear; that was not the point before the court, in the decisions as reported.

The power of the court to allow the writ, in such cases, cannot be doubted ; and it is to be presumed that its discretion was exercised upon proper and sufficient grounds..

But if the court would award the writ in all cases like these which have been mentioned, merely on showing error in the proceedings of the inferior tribunal, it does not follow that it will in this form review the acts of the boards of supervisors in levying the general town and county taxes; especially in a case where no complaint is made against the principle on which the tax was apportioned: but only that the supervisors erred in auditing some of the county charges, and consequently added a trifle to the burden of the inhabitants.

So far as the public interest and inconvenience may be taken into the account in guiding the discretion of the court, the question now presented is vastly more important than it can be in the case of an assessment for a sewer, or for paving a street, or the levying a village or school district tax. That the court will not interfere in a case like the present, has, I think, for a long time been regarded as the settled law.

In Rex v.The Inhabitants of Utoxeter, 2 Strange,932,adjudged in 1732, the reporter states that, “ Upon great debate and search of precedents, is was held that a certiorari would not lie to remove the poor’s rate itself, the remedy being to appeal, or by action where a distress is taken, which will answer all the ends of justice in coming to an unequal rate ; W^ereasi if the rate itself should be required to be sent up, great inconveniences and delays would follow.” The court menti°nec*) as one ground of its decision, that the party had an appeal, an attempt was made two years afterwards to obtain a certiorari in a case where on appeal the rate had been quashed, and a- new rate had been made by the sessions.

This new rate the party sought to remove from the sessions, and urged that here he could have no appeal; but the court, in reference to what had been said in the former case, said, “ that was not the only reason they went upon, and denied the certiorari.” In The King v. King and others, 2 T. R. 234, a certiorari had been obtained to remove the assessments of the land tax in the tower division of the city of London, for the purpose of founding an application for an information against the commissioners.

The court, on motion, quashed the writ, saying that “ very great public inconvenience would ensue from permitting it to- issue,” and it was added, that “ for that reason the court had refused the writ in the case of a poor rate, for the poor would remain unprovided for in the mean time, if it were otherwise.

So here, at least as many, inconveniences, or perhaps more,, may b.e foreseen, from establishing a precedent for removing the assessments of the land tax by certiorari.” This case was. decided in 1788, and from that time to the present it seems to have been regarded as a settled question in England, that a certiorari will not be awarded to remove a poor rate, or an assessment of the land 1 tax. If there had been any case or dictum to the contrary, it would not have escaped the researches of the counsel who argued this cause on behalf of the relator.

In this state also the question has been regarded in the same light for more than thirty years. Although it is now directly presented for the first time,- Spencer, J. in delivering the opinion of the court in the case of Lawton v. The Commissioners of Highways of Cambridge,2 Caines, 182, which was a case upon certiorari,- said “ Though the general power of the court is iridisputable, there are cases where they will not interfere.

In the case of a poor rate, they will refuse the writ; as also in the assessment of the land tax, from a regard to the public inconvenience.” Whether the relator has in truth sustained an injury, I do not think it necessary to inquire ; nor do I feel called upon to point out a remedy. If the law has provided no adequate means of redress, the question addresses itself to the legislature, where a remedy for such cases may be provided, which, in its exercise, will not involve the evil consequences of proceeding by certiorari.

It is enough for the decision of the case presented, that the court does not consider itself at liberty to sanction this proceeding. There is another view of this case equally fatal to the application of the relator. He seeks to quash the apportionment of the tax, and the warrants issued for its collection; and yet none of those papers are before the court. The supervisors say they have not got them, and consequently cannot answer that requisition of the writ. It does not even appear that any tax has been imposed on the relator.

It cannot for one moment be maintained that the court can quash proceedings not brought up by the writ; and the case might have been disposed of upon this ground alone, if it had not been deemed proper to pass upon the main question which was so elaborately discussed on the argument. The proper disposition to make of this cause is to quash the certiorari. Precedents for such a course will be found in some of the cases already cited ; and in Rex v. Wakefield, 1 Burr. 485, the writ was superseded, the return taken off the file, and the order of the justices, which had been removed, was remanded.

In this case, as the tax lists and collectors’ warrants have not been removed, an order quashing the certiorari will give full effect to the opinion entertained by the court. Certiorari quashed.