
    The People, ex rel. Mygatt, against The Supervisors of Chenango County.
    Assessors have not jurisdiction to assess a person for his personal estate, where he is not a resident of their town at the time when the assessment is made.
    One assessor cannot make the assessment; it must be made by all the assessors, or by a majority of them upon a meeting of all.
    And where one of the assessors, while engaged in ascertaining the names of the taxable inhabitants and the taxable property, called in May upon a person then a resident of the town, and made an entry of his name and the value of his taxable personal estate at $10,000 and so informed him, and such person soon thereafter removed to another county; and afterwards and in July the assessors prepared and completed the assessment roll, in which he was assessed for personal property to the value of $10,000; Held, that the assessment was not made till July, and that the assessors had no jurisdiction to make it.
    Where, on such an assessment, the board of supervisors of the county impóse a tax upon the party, which is collected by a seizure and sale of his property upon their warrant issued to the collector, the assessors are liable to him in an action for the amount of the tax and expenses of collection.
    But, in such a case, the supervisors-cannot be compelled by writ of mandamus to audit and allow to the person thus wrongfully assessed, the amount of the tax collected from him, and direct it to be levied upon the town or county.
    As a general rule, the writ of mandamus will not lie where the party aggrieved has an ample remedy by an action at law.
    This -writ lies to give effect only to a clear legal right.
    
      Appeal from a judgment of the supreme court, directing a peremptory mandamus to issue against the supervisors of Chenango county.
    In November, 1848, an alternative mandamus was issued out of the supreme court, on the relation of William Mygatt, directed to the supervisors of the county of Chenango. The writ recited th.at it was represented that, in the summer of 1846, Mygatt, then being a resident and inhabitant of the town of Oswego in the county of Oswego, was assessed by the assessors of the town of Oxford in the county of Chenango, and subjected to a tax of $100 for his personal property for that year; that his personal property was seized and sold by the collector of taxes of Oxford to the amount of $108.29, for the satisfaction of the tax and the fees of collecting the same; that he was’assessed and paid taxes, on his personal property for the year 1846, in the town of Oswego; that he had applied to the supervisors' of Chenango county to audit and allow said sum of $108.29, and assess the same on the county of Chenango, or the town of Oxford, which they refused to do, and commanded the supervisors to audit and allow the claim of Mygatt to $108.29, as a just charge or claim against the town of Oxford or the county of Chenango, and direct it to be collected by tax accordingly and paid to him, or, in default thereof, that they make return to the court why they had not done so, at the ensuing January term. There was a return and an amended return made by the supervisors to the writ. By these the supervisors alleged, as cause for not complying with the command of the writ, the following facts: that the assessors of the town of Oxford for the year 1846 divided it into three assessment districts, and that John Y. Washburn, one of their number, on the 22d of May, in that year, while engaged as such assessor, in ascertaining by diligent inquiry the names of the taxable inhabitants and the taxable property, real and personal, in one of the districts, called at the dwelling house of Mygatt in said district, where he and his family were then residing, and informed him that he had come to make an assessment of hisn-eal and personal property. Mygatt at first replied he had nothing to say on the subject; but after the assessor had assessed his real estate and requested information concerning his personal property, he stated that he had intended before that time to remove, and was about to remove to Oswego, in the county of Oswego, and objected to being assessed for his personal property in Oxford. The assessor then said to him that he was assessing that part of his district, and as he found him residing there, and an inhabitant thereof, it was his duty as assessor to assess him; and thereupon the assessor entered and assessed the personal property of Mygatt at $10,000, and so informed him. To this Mygatt made no reply, but during the conversation he stated that his personal property had theretofore been assessed too high, and that if it should be assessed at $10,000 he would be satisfied. Soon after this and during May, 1846,- Mygatt removed from Oxford to Oswego, and resided there until 1847. That subsequently, and after the removal of Mygatt to Oswego, and in July, 1846, the assessors of Oxford prepared an assessment roll for the town, and completed the same prior to the first day of August^ 1846. In this the name of Mygatt was inserted by the assessors, and in the proper columns opposite thereto they inserted $2800 as the value of his land, and $10,000 as the value of his personal property. That a copy of this assessment roll was made and left with one of the assessors, and they caused "notice to be given pursuant to §§ 19 and 20 of article 2, title 2, chapter 13, part 1st of the revised statutes ; that the assessors met pursuant to the notice to review the assessment, but that no objection was then or there made to it by Mygatt; and that they then signed the assessment roll and attached thereto the certificate in that behalf required by the statute, and delivered it to the supervisor of the town. The return further alleged, that the assessment roll was delivered to the board of supervisors of Chenango county at its annual meeting in November thereafter, -at which the proceedings as to the same prescribed by article third of the aforesaid title of the revised statutes were had, and the board caused to be entered in the appropriate column thereof, opposite the name of Mygatt and the sums set down as the valuation of his real and personal estate, the sum. of $128 as a tax to be paid thereon. That the board of supervisors delivered to the collector of the town of Oxford the assessment roll with the warrant annexed, as prescribed by law, commanding him to collect from the persons respectively therein named the amounts set opposite their respective names as taxes upon their property, and to pay out of the moneys so collected, (1.) To the superintendent of common schools, such sum as was raised for the support of common schools; (2.) To the commissioners of highways, such sums as were raised for the support of highways and bridges; (3.) To the supervisor of the town, all other moneys which had been raised to defray any other town expenses; (4.) To the treasurer of the county, the residue. That Mygatt refused to pay his tax, and the collector made the same by seizing and selling his property by virtue of the warrant, as he lawfully might; wherefore the tax was lawfully collected, and the supervisors refused to do as commanded. It appeared by the return as amended that Mygatt, after his removal to Oswego, was there in the year 1846 assessed for his personal property, and paid a tax thereon, and that he presented his claim mentioned in the alternative writ to the board of supervisors of Chenango county in November, 1847, and that it was denied and rejected.
    The relator, demurred to the return as amended, and the cause, was heard by the supreme court at general term in the sixth district. Judgment was given that a peremptory writ of mandamus issue, directed to the supervisors of the county of Chenango, commanding them to cause the claim or account of the relator to be audited and allowed according to the command of the alternative writ. The supervisors appealed to this court.
    
      Samuel Beardsley, for the appellants.
    I. Assuming that the relator, as he contends, was a non-resident of the town of Oxford, and so not liable to be taxed for his personal estate in that town; the seizure and sale of his property to pay the tax complained of was illegal, and for which he had a certain remedy by action at law. (1.) The assessors of Oxford were liable to an action. It was an illegal act to put the relator’s name in the assessment roll of that town as liable to be taxed on his personal property, as set out in the roll, and by which they made themselves liable for all the consequences which followed from that act. It was an affirmation that he was liable to be thus taxed, and a virtual request and direction to have the tax imposed and collected. This, therefore, on a familiar principle, made the assessors parties to the illegal seizure and sale of the relator’s property to pay the tax. (1 Ch. Pl. 91, ed. 1837 ; 1 Arch. N. P. 304, 305; Flewster v. Royle, 1 Camp. 187; Weaver v. Price, 3 Barn. & Adol. 409; Davis v. Newkirk, 5 Denio, 92; Prosser v. Secor, 5 Barb. 607; Freeman v. Kenney, 15 Pick. 44.) (2.) The supervisors were, upon the same principle, liable to an action for the seizure and sale of the relator’s property. They imposed the tax and issued the warrant for its collection, and so were directly connected with the illegal seizure and sale. They had no power to do what they did, but acted without any jurisdiction or authority whatever. The supervisors cannot justify by what appears in the assessment roll, as a collector may by what is contained in his warrant. (Abbott v. Yost, 2 Denio, 86; Van Rensselaer v. Cottrell, 4 How. Pr. Rep. 376; Noble v. Holmes, 5 Hill, 194.) The supervisors, therefore, were trespassers. (See the authorities under subdivision 1, last above.) (3.) An action for money had and received, would lie in this case against the town of Oxford, for that share of this tax which was received by the town officers for town purposes ; and perhaps, as suggested by Justice Mason in the court below, the relator might recover against the town for the whole of said tax, as well that which was for 'county as for town purposes. But however this might be as to the share paid into the county treasury for county purposes, an action would certainly lie against the county for that money. (1 R. S. 356, § 1; 357, §§ 2—8; 384, §§ 1-6; 364, §§ 1-4; 376, § 4; 367, § 4; 2 id. 473, § 95; 474, §§ 102, 103; Amesbury v. Amesbury, 17 Mass. R. 461; 
      Sumner v. First Parish in Dorchester, 4 Pick. 361; Ingle v. Bosworth, 5 id. 498; Preston v. The City of Boston, 12 id 7; Baker v. Allen, 21 id. 382; Boston v. Boston, 4 Metc. 181; Dow v. First Parish in Sudbury, 5 id. 73.)
    II. Here was a clear legal right, and a certain remedy, by an action at law, for its violation. A mandamus will not lie where such a remedy exists, however clear the right may be. (3 Bl. Com. 110, 264, 265; 3 Steph. Com. 680-685. Bur. Law Dic. tit. Mandamus; 1 Chit. Gen. Pr. 787, ch. 10, 789, 790, 791, 802 ; Ex parte Fleming, 4 Hill, 581; The King v. The Bank of England, Doug. 506 ; The King v. The Bishop of Chester, 1 D. & E. 396; The King v. The Arch. of Cant., 8 East, 219; The King v. The Margate Pier Co., 3 B. & Ald. 220; S. C. 2 Chit. R. 256; Boyce v. Russell, 2 Cowen, 444 ; The People v. The Superior Court of N. Y., 18 Wend. 575; The People v. The Supervisors of Albany, 12 John. 414 ; The People v. The Judges of Oneida, 21 Wend. 20; The People v. The Judges of Dutchess, 20 id. 658; Ex parte Lynch, 2 Hill, 45; The People v. Stevens, 5 id. 617; Ex parte The Fireman's Ins. Co., 6 id. 243; The People v. The Supervisors of Columbia Co., 10 Wend. 363; The People v. The Mayor &c. of New- York, Id. 393; The People v. The Corp. of Brooklyn, 1 id. 318; Thompson v. Ebbets, Hopkins’ Ch. R. 272; In the matter of Morris, Shipley, &c. 10 John. 484.)
    III. A mandamus lies only to give effect to a clear legal right. This is indisputable, and that right must be set up in the alternative writ, which is in effect a declaration. This writ claims that the amount of the Oxford tax on personal property and costs, $108.29, should be raised on that .town or on the county of Chenango, and the judgment so directs. What right is there to have this sum raised on a town or the county ? Further, had the relator a right to have the whole of said sum made of either the town or the county ? What right had he to have the costs, $8.29, which were paid to the collector, made of either the town or the county ? (The People v. Ransom, 2 Coms. 490; Dow v. First Parish in Sudbury, 5 Metc. 73.)
    
      
      N. Hill, Jr., for the respondent.
    I. No person can be legally assessed and compelled to pay taxes on his personal property, excepting in the town whereof he is a resident, when the assessment is made. Nor can he be compelled to pay a tax more than once, on the same property, in the same year. (1 R. S. 443, § 5; Laws of 1850, p. 142; 12 Pick. 10.)
    II. The assessment of property, which regulates the amount of the tax, must be the act of all the assessors. The statute contemplates the exercise of their common discretion and judgment. It empowers assessors to divide the town or ward, by mutual agreement, into districts, not exceeding the number of assessors. This is for the purpose of inquiry and obtaining information, which may be performed by each assessor separately, but the assessment is the result of such inquiry and information, and must be the act of all the assessors. (1 R. S. 390; 7 Barb. 138; 1 Comst. 82; 4 Denio, 127; 3 id. 598; 21 Wend. 175; 7 Cowen, 530 ; 2 R. S. 641, § 28.)
    III. The visit of inquiry of the assessor, on the 22d of May, 1846, to the respondent, and the transactions on that day, were not an assessment. The assessment was not actually made until the assessors met on 24th of July, 1846, and compared information and prepared their assessment roll. The respondent at that time was a resident of a distant county. .(Sise cases cited under last point.)
    
    IV. The county of Chenango, or the town of Oxford, or both, have through their public officers wrongfully collected and received §100 and over from respondent. This, in justice and equity, should be refunded by the body enjoying the benefit of • it. The facts constitute a just claim against the town and county in favor of respondent. The cases show that Massachusetts’ courts consider these cases in the light of money had and received, by the body receiving benefit of it. (Thorndike v. The City of Boston, 1 Metc. 242; Dow v. The Inhabitants of the First Parish in Sudbury, 5 id. 73; The Boston and Sandwich Glass Co. v. The City of Boston, 4 id. 181; The Amesbury Woolen and Cotton Manuf. Co. v. The Inhab. of Amesbury, 
      17 Mass. R. 461; Inglee v. Bosworth et al. 5 Pick. 498, 461; Sumner v. The First Parish in Dorchester, 4 id. 861.)
    V. The appellants possess the power to audit and allow this claim of respondent, and they have been rightfully ordered to collect and refund the same. (1 R. S. 418.) The account of respondent was duly presented to board of supervisors. They exercised no discretion in regard to it, as contemplated in some of the reported cases. It was not a question of amount with them. They refused to audit same as unlawful, for reasons set out in return. The supreme court are right in instructing them as to the law, and enforcing same by mandamus. (1 R. S. 418 ; 6 Hill, 464; 13 John. 242; 19 id. 259; 5 Wend. 114.)
    VI. The supervisors having refused to proceed and pass upon the account, the mandamus in this case is properly ordered by the supreme court. “ A mandamus is proper where a party has a legal right, and there is no other appropriate legal remedy.” “ A mandamus must regularly be directed to those persons by whose authority the party was deprived of the right, to which he applies to be restored.” (Esp. Dig. 672 ; 3 Dig. of N. Y. R. 454 ; 2 Barb. S. C. R. 397; 1 id. 34; 3 Hill, 42.) (1.) The respondent, with a clear legal right, has no other appropriate or adequate legal remedy. (10 Wend. 397.) (2.) The collector is not liable. The warrant, fair on its face, protects him. (5 Wend. 171; 7 Barb. 127.) (3.) No action lies against assessors. The assessment, though wrong, was a “ judicial act.” (Weaver v. Devendorf, 3 Denio, 117; 10 Wend. 47; 7 Barb. 139; 3 Coms. 467; 1 East, 555, and note p. 163; 11 John. 114, 158; 2 Caines, 312; 8 Wend. 468; 5 Denio, 595.) (4.) If an action against the assessors could be maintained, it would be no answer to relief in mode sought. To deprive a party of his remedy by mandamus, the remedy proposed must be not only appropriate, but adequate and specific. (See all cases cited; Ang. & Ames on Corp. 2d ed. 579; 1 Barb. 34.) (5.) If action were brought against town and county, remedy would not be adequate or specific. Both have enjoyed the fund arising from taxation. Both must be sued, to recover full amount. Multiplicity of suits is not favored in law. A judgment against town or county could only be enforced in the mode adopted in this case, by mandamus. (1 R. S. 409, § 8 ; Id. 437, § 6; 10 Wend. 397; 4 Barb. 77.)
    VII. The existence of another remedy, if one exists, does not interfere with the remedy by mandamus in case like this. (23 Wend. 461; 2 Barb. 419; 2 Hill, 46; 6 Wend. 567; 1 Term, 145; 6 East, 369; 2 Burr. 1045; 3 id. 1265.)
    VIII. The writ of mandamus is a prerogative writ. It lies in the discretion of the court. The supreme court having ordered it, this court will not interfere with the exercise of their discretion, unless there has been a gross abuse, even were precedents wanting. But authorities are abundant to sustain the writ. The most accomplished judges have granted it in like cases, to put supervisors in motion, or to correct their practice. (18 John. 242; 19 id. 259; 3 Cowen, 358; 5 Wend. 125; People v. Supervisors of Columbia Co., 10 id. 363; 4 Barb. 77; 5 Wend. 125; 4 Paige, 400 ; 9 id. 186; 2 Barb. 417 ; and cases cited 18 Wend. 91.)
   Parker, J.

At the time Mygatt was called upon by Wash-burn, one of the assessors of Oxford, in the county of Chenango, for the purpose of obtaining the necessary information to enable the assessors to make the assessment, he was a resident of that town, but soon thereafter, in the same month, he removed to the county of Oswego. The statute requires that the owner of personal estate should be assessed for it in the town where he resides, (1 R. S. 389, § 5 ;) and the first question to be determined in this case is, whether the assessment of Mygatt was made at the time he was called upon by Washburn.

One assessor cannot make an assessment; it is the joint act of all, or at least of a majority of the assessors. (2 R. S. 555, § 27; 7 Cowen, 530 ; 21 Wend. 175 ; 3 Denio, 598; 4 id. 127; 1 Comst. 82.) In accordance with a provision of the statute, (1 R. S. 390, § 7,) the assessors had divided their town into convenient assessment districts, and Washburn was assigned to the one in which Mygatt then resided. The statute requires the assessors, between the first days of May and July in each year, to proceed to ascertain by diligent inquiry the names of all the taxable inhabitants within the town, and all the taxable property, real and personal, within the same. (1 R. S. 390, § 8.) It was for the purpose of making such inquiry, that Washburn called upon Mygatt at the time mentionedand the statute seems to imply,- by giving the assessors till the first of July to make such inquiries, that the assessment is not to-be made till after that time. After giving such time, it proceeds in the next section to require that they, the assessors, shall prepare an assessment roll, and prescribes the form of it, and what it shall contain. It subsequently requires that such assessment roll shall be completed on or before the first day of August. The assessment roll is thus to be made out between the first of July and the first of August. That roll is the assessment, which may afterwards be reviewed or corrected in the manner prescribed by the subsequent provisions of the statute.*

All that is done by the several assessors, in taking down names and entering descriptions and amounts in their respective districts, previous to the first of July, is merely the obtaining of information, preliminary to the assessment to be made when all the assessors meet in July, and examine and correct and alter such memoranda when they make out the assessment roll.

If I am right in this construction of the statute, the assessment was not made on the 22d of May, but in July, and Mygatt was a resident of the county of Oswego when the assessment was made. It follows that the assessors of the town of Oxford erred in assessing him for personal property, and that the relator has been subjected to the payment of an illegal tax.

But it is denied that the relator is pursuing the appropriate remedy, and it is contended that he can have no relief by mandamus, because he had, as is alleged, a complete remedy at law. If the relator had a remedy by action, it was not against the town of Oxford. It was decided in Lorillard v. The Tovm of Monroe, (12 Barb. 161,) that an an action will not lie against a town for an error made by the assessors of taxes of the townand the judgment in that case was affirmed by this court. (1 Kern. 392.) It may now, therefore, be considered as settled, that such officers are not the agents of towns, so as to render the torvns liable, in their corporate capacity, for the mistakes of such officers.

But had not the relator a remedy against the assessors 7 I think they acted without jurisdiction, and that their proceedings were void. In assessing personal property, they had jurisdiction only over residents. I concede that assessors act judicially. If Mygatt had been a resident when assessed, and they had erred as to the amount, they would not have been liable for error. (Weaver v. Devendorf, 3 Denio, 117; 7 Barb. 137; 3 Comst. 466.) But if they had no jurisdiction to act at all, they are liable. It is only when acting within their limited jurisdiction that they can be protected as acting judicially. (Prosser v. Secor, 5 Barb. 607.) If this is so, they were liable, and might have been prosecuted for their act in subjecting the relator to the payment of an unfounded and illegal tax. The relator had, therefore, a legal remedy by action.

The general rule has been held to be, that a party could not have a remedy by mandamus, when he had a legal remedy by action. (1 Tenn. R. 104; 2 Cow. 444; 1 Wend. 325; 10 John. 484; 10 Wend. 367; 6 Hill, 243 ; 12 John. 415 ; 19 id. 259.) It has been said that this is not universally true in relation to corporations and ministerial officers (McCullough v. The Mayor of Brooklyn, 23 Wend. 459;) and in that case, where it appeared the common council had neglected its duty in omitting to issue a warrant to collect a tax, Bronson, J., said, that an action on the case would perhaps lie in favor of the plaintiff, who would be entitled to the money when collected, but that a mandamus would be a more appropriate remedy.

The remark that corporations and ministerial officers were excepted from the general rule, was repeated in 2 Barb. 399 upon the authority last cited, and a case in 10 Wend. 393, which seems to warrant no such conclusion. On the contrary, Nelson, J., in that case says, The proposition is, I believe, universally true, that the writ of mandamus will not lie, in any case, where another legal remedy exists, and it is used only to prevent a failure of justice. If such an exception exists, it can extend, I think, no further than was expressly recognized in McCullough v. The Mayor of Brooklyn, viz: if there be a refusal to perform a duty expressly devolved on the corporation, though an action on the case would perhaps lie, a mandamus may be awarded; and that is hardly more than saying, if the remedy by action be doubtful, a mandamus will lie.”

But a mandamus will only lie to give effect to a clear legal right. (2 Comst. 490; 5 Metc. 73.) What right has the relator in this case to insist that the defendants, shall compel the town of Oxford to refund the money thus illegally levied? The act by which the relator was deprived of his property was a tortious one. We have seen that the town was not liable in its corporate capacity for the tortious act of its assessors. It cannot be indirectly subjected to that for which it is not directly liable. The board of supervisors has no duty imposed on it by statute to redress grievances of this description ; nor is power given by statute to compel towns to refund money in compensation for the wrongful acts of the town officers. Power is conferred “ to audit the accounts of town officers and other persons against their respective towns; (1 R. S. 367, §4;) but this claim is not an account within the meaning of the statute, nor is it a legal claim against the town.

It is a plausible view of the claim of the relator, to say that the .town has had the benefit of the money so illegally collected. And that I concede to be true, whether the money raised was applied to town, or county, or state purposes, or part to each; because it was applied to pay so much money, that the town was required to raise by tax. It may therefore seem equitable that the town should refund. But the answer to this is, that the town was in no way a party to the transaction, nor was the money applied to its use with its assent. No more debt or obligation to repay has been created, than where money is voluntarily paid for another without his request or knowledge, and not in pursuance of any duty. True, it was compulsorily obtained, but that compulsion was exercised, not by the town or its agents but by third persons, for whose acts it is in no respect responsible ; (12 Barb. 161;) and if those third persons have paid it voluntarily for the use of the town, it has created no liability as between the town and the relator, so long as the relator is not pursuing the specific property taken.

I think the relator has no legal right to the remedy sought to be enforced. It was not the duty of the board of supervisors to determine the question of the relator’s residence. It had no power to hear the proofs and sit in judgment on the case, and to decide whether and by whom a tortious act had been committed. It had no legal control over the delinquent parties to compel them to make restitution. It is only where a board of supervisors stops short and refuses to perform a duty plainly devolved upon it, that a mandamus will be awarded. The judgment of the supreme court should be reversed.

All the judges concurred.

Judgment accordingly.  