Opinion
September Term, 1867
Hakes Stephens, for the respondent.
George S. Jones, for the appellant.
1. The statement furnished by the agent, Young, in compliance with the "Act to subject certain debts, owing to non-residents, to taxation" (Laws of 1851, chap. 371, p. 721), was not conclusive on the assessors, and it was their right, and, if they suspected its accuracy, their duty, to go beyond it and ascertain by means of other agencies, the amount of the debts subject to taxation, under the provisions of the law referred to.
By that act, the agent was required to return "all debts owing by inhabitants to persons not residing within the United States." Instead of this, however, the statement furnished, purported to be "a true account of all debts owing, which are liable to taxation under said act." This was a palpable evasion of the statute. It was not for the agent to constitute himself the judge of what debts were liable to taxation, and, in so doing, he made it necessary for the assessors to seek elsewhere for the information he had withheld. Whether the amount which they taxed was in excess of the amount actually due, is a question not before the court. In determining that amount, the assessors acted judicially ( Van Rensselaer v. Whitbeck, 7 Barb. 133; Same v. Cottrel, id. 129; Bloom v. Burdick, 1 Hill, 130), and their assessment was conclusive, until set aside by a proceeding instituted for that purpose. At all events it was not in the power of the county treasurer to question its accuracy or legality, when called upon to issue his warrant for its collection. His duty was purely ministerial in its character, and could not be mistaken. His disregard of the judicial determination of a body, constituted for that purpose, and his attempt to substitute for it his own unauthorized judgment, are highly reprehensible, and should not pass without rebuke. Such conduct is subversive of good order, and detrimental to the public interests.
2. The writ of mandamus may, in a proper case, and in the absence of an adequate remedy by action, issue on the relation of a private individual, to redress a wrong personal to himself, or on the relation of one, who, in common with all other citizens, is interested in having some act done, of a general public nature, devolving as a duty upon a public officer or body, who refuse to perform it. The collection of a tax, legally assessed, in which all the inhabitants of any political division of the State have a common interest, is an instance of this character, and such collection may be enforced by any one of such citizens. It follows, therefore, that Stephens, being a citizen and tax payer of the county of Steuben, was properly made a relator in this case.
This rule was adopted in the case of The People v. Collins (19 Wend. 56) — a well considered case — and has since been frequently followed. ( The People v. Board of Supervisors, 18 How. Pr. 463; Same v. Tracy, 1 id. 199; Same v. Supervisors of Niagara county, 4 Hill, 20; Same v. Supervisors of Chenango county, 8 N.Y. 317.)
Prior to the case of the People v. Collins ( supra), there was no settled practice in this State on this subject, and the rule there adopted, though differing from that which prevails in many of the other States, seems to be a reasonable one, and in many instances actually necessary to obtain speedy redress for wrongs affecting the public interests.
It might with propriety be said in this case that the county is the trustee of the people, and, as such trustee entitled to the money in question, is the sufferer; and that, inasmuch as, by statute, "All acts and proceedings by or against a county, in its corporate capacity, shall be in the name of the board of supervisors of such county" (1 R.S. 846, § 1), therefore that body should have been the relator in a proceeding by mandamus, to compel the collection of the taxes assessed for its benefit. That the county, through its supervisors, might have properly acted in that capacity, is not denied; yet, to adopt the rule that no citizen could so act, would be imposing an unnecessary burden on the county and involve unnecessary delay in redressing its wrongs. To convene so large a body as a board of supervisors, for extraordinary purposes, would be attended with great inconvenience to individual officers, and entail a large expense upon the people.
Inasmuch as the people themselves are the plaintiffs in a proceeding by mandamus, it is not of vital importance who the relator should be so long as he does not officiously inter-meddle in a matter with which he has no concern. The office which a relator performs is merely the instituting a proceeding in the name of the people and for the general benefit. The rule, therefore, as it is sometimes stated, that a relator in a writ of mandamus must show an individual right to the thing asked, must be taken to apply to cases where an individual interest is alone involved, and not to cases where the interest is common to the whole community. This is the rule adopted in many of the States. ( Hamilton v. The State, 3 Ind. 452; State v. County Judge, 7 Iowa 186; State v. Bailey, id. 390; County Pike v. State, 11 Ill. 202.) The rule is different in other States. ( Heffner v. The Commonwealth, 28 Penn. 108; The People v. The Regents of the University, 4 Mich. 98; The People v. The Inspectors of State Prisons, id. 187; Arbeny v. Beams, 6 Tex. 457; Laryer v. Commissioners of Kennebec, 25 Maine, 291.) But the practice which has so long prevailed here, though never, so far as I can discover, passed upon directly by the court of last resort, where the objection was raised, seems to be a reasonable and convenient one, and ought now to be considered as settled.
This in no way conflicts with the decisions of this court in the case of Doolittle v. The Supervisors of Broome county ( 18 N.Y. 155), where it was held that an action could not be maintained by a person having no interest, other than that which was common to all the freeholders of a town, to have the act of a board of supervisors, in erecting a new town, declared void. That case was properly so decided. The difference between a case, where an individual acts as relator or representative of the people to redress a public wrong by mandamus, and one where it is sought to accomplish the same result by an individual, in an action brought in his own name, is strikingly apparent.
The order should be affirmed with costs.
The court were unanimous in affirming the order; but they did not pass upon the question whether the statement furnished by the agent to the assessors was conclusive as to the amount to be taxed.