
    People ex rel. Hill, Supervisor, v. Board of Supervisors.
    
      (Supreme Court, General Term, Fifth Department.
    
    October 19, 1888.)
    1. Taxation—Assessment—Equalization—Power of Board.
    1 Rev. St. N. Y. p. 395, § 31, provides that the board of supervisors of each county,, in equalizing assessments, 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. Held, that they cannot adopt a scale for equalizing the aggregate valuation among the towns, based upon the assessment of both, real and personal estate, and by which the valuation of personal estate is changed-in some towns, though the total for the county remains the same.
    2. Same—Estoppel—By Acquiescence.
    Such erroneous method of equalization is not justified by its recognized use in the' county for several previous years, nor is the supervisor of a town estopped thereby in an action to have the assessment corrected.
    3. Same—Review—Certiorari—When Lies.
    Under Code Civil Proc. N. Y. § 3130, providing that a writ of certiorari may issue* where expressly authorized, or where it may be issued at common law by a court' of general jurisdiction, and the right has not been taken away by statute; and section 3133, providing that it cannot issue when the determination can be adequately reviewed by an appeal to a court, or some body or officer,—such writ cannot issue upon a petition seeking the review and correction of the proceedings of the county board of supervisors in the equalization of assessments between towns; there being an adequate remedy provided by appeal to the state assessors.
    4. Same—Constitutional Law—Judiciary.
    Const. N. Y. art. 6, § 6, providing that “there shall be the existing supreme court, with general jurisdiction in law and equity, ” does not prevent the legislature from taking away the right to a writ of certiorari in such case, as such writ is not a writ Of right, and the remedy is only modified.
    
      
      Certiorari on the relation of Francis A. Hill, as supervisor of the town of ■Ontario, in the county of Wayne, 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.
    Argued before Haight, Bradley, and Dwight, JJ.
    
      J. W. Dunwell, for relator. C. H. Roys, for defendants.
   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 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. 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 Bev. St. p. 395, § 81. In the petition upon which the writ issued it is alleged, and not ques'tioned 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 in the 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 in 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 the 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 value 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 estates 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 Fad 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 so made. If the board proceeded intelligently upon any theory practical oridemonstrable 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 v. Burton, 65 N. Y. 452; People v. Commissioners, 73 N. Y. 437 ; People 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, ” (Code Civil Proc. § 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 v. Commissioners, etc., 106 N. Y. 64, 12 N..E. Rep. 641.) 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 the results produced; because it appears that, by the application made of the decimal process, alike to the assessed valuations 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. 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 in the discharge of his duty, he is given his official character by the people of the town which he represents in the board. The conclusion seems to be required that the town of Ontario-may have been prejudiced by the equalization as made, by reason of the erroneous manner in which it was accomplished.

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; nor can the court make any correction or grant any relief to the relator’s town by way of correcting the error or injury complained of. And any determination which the 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: “(1) Where the right to it is expressly conferred, or its issue is expressly authorized, by statute; (2) 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 court to issue it, is not expressly taken away by statute, (Code Civil Proc. § 2120;) and that, except as otherwise expressly pre.scribed by a statute, .a writ d¥ certiorari cannot be issued,—when the determination can be adequately reviewed by an appeal to a court, or to some other .body or officer.” Id. § 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 eqúalization, and, if there had been, to have the requisite •correction made. Laws 1859, c. 312, § 13; Laws 1874, c. 351; Laws 1876, c. • 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 purpose 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 v. Dennison, 28 Hun, 328; People v. Cobb, 14 Abb. N. C. 493; People v. Chapin, 104 N. Y. 369, 5 N. E. Rep. 64, 11 N. E. Rep. 383. It is, however, urged on the part of the relator that the statute does not have the effect to deny to him the right of review by certiorari; because (1) the provision of the constitution that “there shall be the •existing supreme court, with general jurisdiction in law and equity,” (article -6, § 6,) is in the way of such legislative inhibition; and (2) 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 gen•eral jurisdiction. De Hart v. Hatch, 3 Hun, 375; People 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 rule or practice usually applied in such case. People 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 a 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. 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 re.quired 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.  