
    The United States Telegraph Co., App’lt, v. Hugh J. Grant, Sheriff, Resp't.
    
    
      (Court of Appeals,
    
    
      Filed January 17, 1893.)
    
    1. Taxes — Electric companies — Action to restrain collection — Laws 1884, oh. 534; 1885, ch. 499; and 1886, ch. 503.
    A telegraph company, assessed under the statute for its share of the expenses incurred in building a subway under the streets of the city and placing its wires there, has an adequate remedy at law and cannot maintain an action in equity to restrain the collection of the assessment. If the statutes are unconstitutional the state officer is liable for any action he takes thereunder in the way of seizing plaintiff’s property.
    3. Same.
    If the statutes are valid, and the officer disobeyed and varied from their terms, and did not lawfully and regularly make the assessment, the plaintiff had an ample and sufficient remedy by certiorari.
    
    Appeal from judgment of the supreme court, general term, first department, affirming judgment entered upon decision of the court at special term, dismissing complaint.
    
      Andrew Wesley Kent, for app’lt; S. W. Rosendale, att’y-gen., for resp’t.
    
      
       Affirming 45 St. Rep., 701.
    
   Finch, J.

This action was brought in equity to obtain an injunction restraining the sheriff of the city and county of Hew York from executing a warrant of collection issued by the comptroller of the state to enforce the payment of an assessment imposed upon the plaintiff under and by virtue of the act of 1884, chap. 584, and that of 1885, chap. 499, amended in 1886, chap. 503. The assessment was for the plaintiff’s share of the expenses incurred in building a subway under the streets of the city, and placing therein the electric wires which overhang such streets and imperil the safety of the people. The complaint has two aspects. .It alleges, first, that the statutes whose authority was invoked are unconstitutional; and second, that if not, their directions have been materially disregarded in the action taken under them, and the grounds, on which equitable relief is sought are that there is no adequate remedy at law, that a collection of the warrant, as threatened, will produce an irreparable injury to the plaintiff's business, and that the money, when collected and paid into the treasury of the state, cannot be recovered back. The complaint was dismissed, and that judgment has been affirmed by the general term.

I think the decision was right. There was an adequate remedy at law, and no sufficient ground for the demand of equitable relief. If the subway statutes are unconstitutional, they are null and void for every purpose, and simply do not exist as authority for any act, and the plaintiff may resist, in the ordinary way, any trespasser who interferes with its property. There is no such authority in a state officer as to protect him from the fate of a trespasser when he directs the seizure of the citizen’s property without the shadow of a legal right, and he is no more safe when he acts under a void statute than when he acts without any. Where he has an authority but deviates from it erroneously, and when acting judicially, he has protection, but he cannot act judicially where he has no authority to act at all. In Merritt v. Read, 5 Denio, 352, the liability of an officer issuing process absolutely void was explicitly and fully recognized, and in Bellinger v. Gray, 51 N. Y., 610, we held a supervisor liable as a trespasser for issuing an illegal and unauthorized tax warrant.

Hot only the comptroller issuing the void process, but the sheriff, also, -would have been liable for a seizure of the plaintiff's property. The protection given to the collecting officer is where his-process emanates from a competent judicial authority and is regular on its face. He is not bound to look beyond it and may assume its validity. But the comptroller has no general judicial authority so as to bring his warrant within the rule of Hallock v. Dominy, 69 N. Y., 239, where the officer was protected under-process regular on its face, although the law under which it was issued was unconstitutional, because the magistrate had a' general judicial authority. Here the warrant was void on its face, if' plaintiff’s theory is correct. It recites, in terms, the authority upon which it was founded, as being the act in question, and the comptroller had no general judicial power under which to pronounce it constitutional. Ho law made him the judge of that question. In Patrick v. Solinger, 9 Daly, 151, the rule was correctly stated, that when it appears on the face of the process that the court or officer issuing it had not jurisdiction of the subject-matter of the suit, and of the person of the party, it is void, not only as against the court or magistrate and party suing it out, but affords no protection to the officer.

In Woolsey v. Morris, 96 N. Y, 311, the officer was protected because some of his process was valid, and he could justify a mere levy under that. Here the process issued to the sheriff was void on its face, if the authority which it recited was merely an unconstitutional law, and where the process is so void it gives no protection to the officer. Van Rensselaer v. Witbeck, 7 N. Y, 517. Beyond that, if the plaintiff’s property should be sold on the warrant the purchaser would get no title unless he could show constitutional authority for the issue of the warrant, and the plaintiff by replevin or action of trespass could' retain his property or recover its value, and the action would bring up the precise question of the constitutionality of the acts assailed. Lennon v. Mayor, 55 N. Y., 361. There was thus a complete and adequate remedy at law. Hothing in the complaint or in the facts shows that the mere collection of the warrant would be an irreparable injury to the plaintiff’s business. To hold that would be to expose every execution to an injunction. Hor is it of any consequence if the state could not be sued for a restoration of the money collected. The cases in the federal circuit court, of which Woolsey v. Dodge, 6 McLean, 142, is an example, in which injunctions were issued to restrain the collection of a tax imposed by an unconstitutional law, went distinctly upon the ground that the levy would be an annually occurring grievance until the state law should be repealed, and involve a multitude of suits at law. Nothing of the kind exists here. The assessment is not a tax, nor is it annual, nor is there any collision between state and federal adjudication to complicate the situation. Assuming, therefore, what we are very far from admitting, People v. Squire, 107 N. Y., 593; 12 St. Rep., 832; 145 U. S., 175, that the acts assailed were unconstitutional and void, no case was made for equitable relief..

As it respects the second ground of the action, which Concedes the constitutional validity of the. statutes, but urges that the officer disobeyed and varied from their terms, and did not lawfully and regularly make the assessment, it is sufficient to say that the plaintifi had an ample and sufficient remedy by certiorari. Code, § 2140; Mayor, etc., v. Davenport, 92 N. Y., 604; D. & H. Canal Co. v. Atkins, 121 id., 246; 30 St. Rep., 928. It is no answer to urge that the allowance of the writ is discretionary. That discretion is not arbitrary, and it must be assumed - that the writ will always issue where there is a proper subject for review.

There was no sufficient ground for a suit in equity, and the complaint was properly dismissed.

The judgment should be affirmed, with costs.

All concur, except Maynard, J., not sitting.  