
    The People ex rel. Francis A. Hill as Supervisor, etc., v. The Board of Supervisors of the County of Wayne.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1888.)
    
    1. Taxes and assessments—Equalization op assessments—Duties and powers op board op supervisors relative to—1 R. 8., 395, § 31.
    
      Certiorari was brought to review the proceedings of the board of supervisors of the county of Wayne in equalizing the assessments made by the assessors of the several towns of the county. The relator charges that the defendant adopted am erroneous method in making the equalization and that the result was prejudicial to his town. The statute imposing this duty on the board of supervisors of each county provides the manner of its performance to attain the object to be accomplished. They are required to examine the assessment-rolls of the several towns in the county, for the purpose of ascertaining whether the valuations in one town bear a just relation to the valuations in all other towns in the county, and may increase or diminish the aggregate valuation of real estate in any town by adding or deducting such sum, on the hundred, as may in their opinion be necessary to produce a just relation between all the valuations of real estate in the county, but shall in no instance reduce the aggregate valuations of all the towns below the aggregate valuation thereof as made by the assessors. 1 R. S., 395, § 31. Held, that in making the equalization ' the board of supervisors could not lawfully alter the assessed valuations of personal property, and had nothing to do with such valuations except to continue them as made by the assessors of the respective towns.
    2. Same — Certiorari—What may be considered upon the hearing— Code Crv. Pro., § 2138.
    
      Held, that under the provisions of the Code of Civil Procedure, § 2138, the court mighlbconsider on the hearing, not only as before the enactment of that provision, the return to the writ, but the writ and the papers upon which it-was granted.
    3. Same—What is a material error in proceedings.
    
      Held, that although the equalization rests wholly in the judgment of the board of supervisors, and the results must depend upon the action of a majority when all the members do not concur, an error in the manner of equalization is not simply one of judgment when the proceeding is in violation of the statute.
    
      4. Same—Illegal action op board op supervisors—Supervisor is not estopped by.
    
      Held, that the principle of estoppel has no application to the action of any supervisor as the representative of his town, and that his duty being of a public nature, he is not authorized to take any proceedings in behalf of his town not authorized by the statute relating to his office.
    5. Certiorari—Restrictions upon the power op the court to grant the writ—Code Crv. Pro., §§ 2120, 2122—Equalization op assessments—Laws 1859, chap. 312, § 13—Laws 1874, chap. 351—Laws 1876, chap. 49.
    It is provided by Code Civ. Pro., § 2120, that the writ of certiorari can be issued only where the right to it is expressly conferred, or its issue is expressly authorized by statute, or where it may be issued at common law by a court of general jurisdiction, and the right to the writ or the power of the com t to issue it, is not expressly taken away by statute, and by section 2122, that, except as otherwise expressly provided by statute, a writ of certiorari cannot be issued when the determination can be adequately reviewed by an appeal to a court or to some other body or officer. It is provided, by Laws 1859, chap. 312, § 13, Laws 1874, chap-351, and Laws 1876, chap. 49, that a supervisor, in behalf of his town, may appeal to the state assessors from any act or decision of the board of supervisors in the equalization of the assessment, and upon such appeal may have determined whether or not injustice has been done his town in the equalization, and, if there has, have the requisite correction made. Held, that the system of review, by appeal to the state assessors, was complete in its scope and purpose, and that, therefore, the present case was within the scope of the provisions of the statute denying the right to a writ of certiorari
    
    5. Same—Constitutionality op restrictions—New York Constitution, . art. 6, § 6
    
      Held, that the remedy by certiorari was not a matter of right, but rested in the discretion of the court, and that the statutory provision, confining the party to the remedy by appeal when it adequately exists, was in accordance with the common law, and not in contravention of the New York Constitution, art. 6, § 6, providing that “there shall be the existing supreme court, with general jurisdiction in law and equity.”
    
      Certiorari to review the proceedings of the Board of Supervisors of the County of Wayne in equalizing the assessments made by the assessors of the several towns of the county.
    
      J. W. Dunwell, for relator; C. H. Roys, for defendant.
   Bradley, J.

The charge made by the relator is that the defendant adopted an erroneous method in making the equalization, and that the result was prejudicial to his town. The statute imposing this duty on the board of supervisors of each county provides the manner of its performance to attain the oliject to be accomplished. They are required to examine the assessment rolls of the several towns in the county for the purpose of ascertaining whether the valuations in one town bear a just relation to the valuations in all other towns in the county; they may increase or diminish the aggregate valuations of real estate in any town by adding or deducting such sum, on the hundred, as may, in their opinion, be necessary to produce a just relation between all the valuations of real estates in the whole county, but they shall in no instance reduce the aggregate valuations of all the towns below the aggregate valuation thereof as made by the assessors. 1 R. S., 395, § 31.

In the petition upon which the writ issued, it is alleged, and not questioned by the return, that the result was produced by the adoption and use of a table of decimals, one for each town, which represented the percentage of the aggregate assessed valuations with which the towns respectively were charged in the equalization as made; and m their application and use by the defendant of these factors the assessed valuations of the personal as well as the real estates, were included, by which means the valuations m the respective towns of the personal property as they appeared in the assessment rolls, were modified, and for some of the towns increased and for others diminished, but the aggregate valuations of real or personal estates and both of all the towns remained the same as that of the assessed valuations. This method was clearly irregular and erroneous for the reason, if for no other, that the board of supervisors, in making the equalization lawfully, had nothing to do with the assessed valuations of personal property other than to continue them as made by the assessors of the respective towns. Id., People v. Hadley, 76 N. Y., 337.

The return made to the writ contains the statement in effect that the defendant examined and inspected the assessment-rolls of the several towns, and made a correct and just, equalization of the values of the property in the towns; that the valuation finally determined by the board for the real estate in the town of Ontario bears a just relation between the valuations of all the real estate in the county; that the equalization made by said board as aforesaid was and is, in fact, effect and result the same substantially that would have been accomplished and produced if the said board had employed exclusively the method of equalization indicated by the Revised Statutes as a proper method; that the apparent irregularity of including personal property in the method of equalization employed, was corrected by allowances in the valuations of real estate counterbalancing the effect of such alleged irregularities; and that in making the equalization, the board included and made the addition and deduction of such sums upon the hundred as was necessary to produce a just relation between all the valuations of real estate in the county. Ho data or information is furnished by the return of the process by which the decimal multiplier was obtained, or in support of the alleged conclusion that the result produced by the equalization as made was the legitimate one and such as the statute required, The return, therefore fails in that respect to furnish the means for the court to determine that no prejudice resulted to the relator’s town by the erroneous method adopted and employed by the board in the equalization as made.

If the board proceeded intelligently upon any theory practical or demonstrable, to reach the required result through the peculiar means employed for the purpose, it may, it would seem, have been represented by the return. This particularity in the return was required by the writ.

Formerly, the review upon certiorari was dependent for the facts, entitled to consideration, exclusively upon the return. ' And the relator’s only remedy for an insufficient return was by proceeding to require a further or more specific one, and by action for a false return. People ex rel. Becker v. Burton, 65 N. Y., 452; People ex rel. Sims v. Fire Commissioners, 73 N. Y., 437; People ex rel. Thompson v. Mayor, etc., 6 Hun, 652.

These remedies still remain; but the rule applicable to the hearing is now modified by the statute, which provides that it “must be heard upon the writ and return, and the papers upon which the writ was granted,” Co. Civ. Pro. sec. 2138, so as to permit the facts stated in the writ or in the papers on which it was granted, as to which the return is silent, to be considered and have effect upon the hearing. People ex rel Peck v. Commissioners, etc., 8 N. Y. St. R., 664.

The court, is therefore, enabled to refer to a schedule annexed to the petition upon which the writ issued, and verified by it, which represents the valuations as assessed and equalized of the property, real and personal, of the several towns of the county, and the decimals used as to the towns respectively, to produce in the manner before mentioned, the equalization as made. This schedule termed “ Equalization Table,” shows, apparently, errors in results produced, because it appears that by the application made of the decimal process alike to the assessed valuation of the personal and real estates, the former was affected and changed accordingly for the purposes of equalization, and in some of the towns very considerably. In the town of Ontario the increase of the amount of the assessed valuation of the personal estate was upwards of $26,000. This may not be deemed comparatively large, but it must be treated as an error, prejudicial to the town, resulting from the irregular and apparently unauthorized method of the proceeding of the board. While the equalization rests wholly in the judgment of the board of supervisors, and the results must depend upon the action of a majority when all the members do not concur, the error in the manner of doing it is not simply one of judgment, when the proceeding is in evident violation of the statute, as was that under consideration, nor was it justified by the recognized use of the method in the county of Wayne, for several years preceding that in question, nor is the principle of estoppel applicable to the action in that respect, of any supervisor as the representative of his town, j His duty is of a public nature, and he is authorized to take no proceeding in behalf of his town not authorized by the statute, with reference to which and for its observance ini the discharge of Ins duty, he is given his officical character! by the people of the town which he represents in the board, i The conclusion seems to be required that the town of On- [ tario may have been prejudiced by the equalization as made by reason of the erroneous manner in which it was accomp- -: lished. In respect to the assessment of the year in question, ¡ the functions of the board of supervisors have terminated.; The tax based upon it has been collected. There is, therefore, no opportunity for the board to review or reconsider their action upon that equalization. ISior can the court make any correction or grant any relief to the relator’s town by way ox correcting the error or injury complained of. And any determination which th.e court could now make on this review would seem to have no practical effect.

But the question of the right to review such proceeding upon this writ is raised by the defendant’s counsel.

The statute provides that the writ of certiorari can be issued in one of the following cases only: First. Where the right to it is expressly conferred, or its issue is expressly authorized by statute. Second. Where it may be issued at common law by a court of general jurisdiction and the light to the writ or the power of the court to issue it is not expressly taken away by statute. Code Civ. Pro., § 2120. And that except as otherwise expressly prescribed by a statute, a writ of certiorari cannot be issued, when the determination can be adequately reviewed by an appeal to a court or to some other body or officer. Code Civ. Pro., § 2122.

The supervisor of the town of Ontario may have appealed, in behalf of his town, to the state assessors from any act or decision of the board of supervisors in the equalization of the assessment and, upon such appeal, to have determined whether or not injustice had been done to the town in the equalization, and, if there had been, to have the requisite correction made. Laws 1859, chap. 312, § 13; Laws 1874, chap. 351; Laws 1876, chap. 49.

In the review afforded by such appeal, ample means are provided and plenary power given by the statute to correct any errors committed by the board to the prejudice of the town appealing, and to make such correction effectual by awarding the requisite relief. This system of review seems, therefore to be complete in its scope and purpose. And for the purposes of relief from the injury suffered by the town by the equalization as made, the determination could adequately be reviewed on appeal to the state assessors. Considered in that view, without reference to the erroneous method of the proceeding of the board, the case is within the provisions of the statute denying the right to a writ of certiorari. People ex rel. Benedict v. Dennison, 28 Hun, 328; People ex rel. North Tarrytown v. Cobb, 14 Abb. N. C., 493; People ex rel Wright v. Chapin, 104 N. Y., 369; 6 N. Y. State Rep., 837.

It' is, however, urged on the part; of tne relator that the statute does not have the effect to deny to him-the right of review "by certiorari because, first, the provision of the constitution, that “there shall be the existing supreme court, with general jurisdiction m law and equity” (art. 6, § 6), is in the way of such legislative inhibition; and, second, that the remedy by appeal to the state assessors is not adequate in this case.

It is true that in view of such constitutional provision the legislature has not the power to limit the jurisdiction of this court, or .to qualify its character as a court of general jurisdiction. De Hart v. Hatch, 3 Hun, 375; People ex rel. Mayor v. Nichols, 79 N. Y., 582.

This statutory provision confining a party to the remedy "by appeal when it adequately exists is in accordance with the common law or practice rule usually applied in such case. People ex rel. Woodward v. Covert, 1 Hill, 674; In re. Mount Morris Square, 2 Hill, 14; Wood v. Randall, 5 Hill, 264.

In its relation to a party, the statute deprived him of no right which he had, entitling him to prosecute a remedy by the law of the land.” It was simply a denial to him of the right to seek the discretion of court for such writ when he had an adequate remedy by appeal. The remedy by certiorari was not taken by a party as matter of right. The use of the writ as a means of prosecution was dependent upon the discretion of the court. People v. Stilwell, 19 N Y., 531; People v. Hill, 53 N. Y., 547; People v. Tax Commissioners, 85 N. Y., 655.

We think there is nothing in the way of the observance by the court of that statute. In respect to the question whether the' determination can be adequately reviewed by an appeal, it may be that it could not if the purpose represented by the writ was to set aside the equalization by reason of the erroneous method and process which the board employed to produce the result reached by it, as in that case the review may have been treated as taken with a view to a proceeding anew by the board in the performance of that duty in the manner required by the statute.

For that purpose merely, the facts might be sufficiently made to appear by the writ, the papers upon which it was granted and the return. But the purpose expressed in the writ, and in effect in the prayer of the petition, was that the review of the determination be had on the merits, and that correction be made accordingly. Such relief is not within the power of the court on review by certiorari, but is the subject of review on appeal to the state assessors.

These views lead to the conclusion that the writ of certiorari should be quashed.

Haight and Dwight, JJ., concur.  