PEOPLE ex rel. DELAWARE & H. CANAL CO. v. PARKER

et al.

(Court of Appeals of New York, 1889. 117 N. Y. 86, 22 N. E. 752.)

Appeal from Supreme Court, General Term, Third Department. FINCH, J. The relator complains of the judgment of the General Term, which dismissed its writ of certiorari issued under the act of 1880.82 The illegality which was asserted as sufficient to invalidate and annul the assessment upon its corporate property was founded upon an inquiry into the title of the assessors to their office, and a denial of their right to act as such at all. The trial court found that the two who alone made up and certified the roll were not in truth assessors, either de jure or de facto. Assuming that to be true, the appellate court nevertheless held that the wrong could not be redressed in the proceeding adopted, and we agree with that conclusion.

The function of the writ of certiorari is to review the judicial action of inferior officers or tribunals. It assumes their existence, and the fact of official action, but draws in question the legality or correctness of that action. It is wholly unsuited to a case in which there is no officer and no tribunal, and where, as a consequence, there could not have been any judicial action, or anything to review. In People v. Covert, 1 Hill, 674, that doctrine was settled in an opinion unusually brief and curt, but which touched the precise difficulty. It is said of that case, and of others like it, that they dealt only with a commonlaw certiorari; that it was competent for the Legislature to extend the range of the writ, and broaden its application; and that such was the operation of the act of 1880. But a correct view of that enactment will not justify such a construction. The statute allows the writ to be issued upon the petition of a person "assessed," and who is aggrieved by that assessment, and desires to review it. There must be an allegation that the assessment is illegal or erroneous. When the writ is granted, it will not stay the proceedings of the assessors; and if, thereby, the relief of a judgment is not reached before the collection of the tax, the remedy provided is a reimbursement in the next year. The writ is to run to the assessors, who are to return the assessment roll, or copies thereof, and their official proceedings. In all this we observe that an old writ, whose function and character was well settled and understood, was applied to a new purpose, and moulded so far, and only so far, as was necessary to accomplish the review desired. But it remained a writ of review. It

82 Laws N. Y. 1880, c. 269, provides that "a writ of certiorari may be allowed by the Supreme Court, on the petition, duly verified, of any person or corporation assessed, and claiming to be aggrieved, to review an assessment of real or personal property for the purpose of taxation, made in any town, * when the petition shall set forth that the assessment is illegal," etc.

**

assumed the existence of the officers whose judicial action it sought to examine, and was not changed into a plough to root up a trespass. In its application to the present case, it usurped the functions of a writ of quo warranto. It challenged the titles of the two assessors. It pronounced then intruders and usurpers, and denied their official character and rights.

When we remember that the writ of quo warranto has been abolished, and an action substituted; that such action is at law, and entitles the officer to a trial by jury; and that, under the Code, his title can only be challenged in that manner-we shall see that a writ of certiorari can of necessity perform no such office. It is quite true that the act of 1880 gives redress against not only an erroneous, but also an illegal, assessment, and in the latter case cancels and annuls the tax. But it contemplates an assessment made by proper officers, and which, although illegal in some respects, is not wholly and altogether void; for in the latter event there is abundant remedy open to the taxpayer, and a certiorari will rarely issue where other sufficient and adequate remedy exists. People v. Supervisors, 1 Hill, 198. The act of 1880 was intended to furnish a remedy where none before existed, and to reach error and illegality for which there was no adequate redress. As this case stood at special term, the relator was in no danger, and exposed to no risk. The collector would levy at his peril, for his warrant was void on its face. This court has held that the collector's authority consists of the assessment roll, and the formal warrant annexed; and these must be read together, in determining the officers' power and protection. Van Rensselaer v. Witbeck, 7 N. Y. 517. If, then, no assessors, and, so, no assessment roll, existed, the warrant would be void on its face, and confer no authority whatever. The collector could be sued if he levied, and the usurpers who directed him be held responsible; for the Special Term decided that the two men who signed the roll were not even assessors de facto. If they were such, the ground of the judgment would disappear; and, if they were not, the remedy was elsewhere.

Another suggestion, however, was made on behalf of the relator. Assuming that the titles of the two assessors could not be assailed in this proceeding, and so that we are bound to regard them as lawful officers, it was yet found that they acted illegally in fixing the assessed values without notice to Bogart, who was the third assessor. Such action by the majority is unlawful, and vitiates the whole assessment. Doughty v. Hope, 3 Denio, 598; People v. Supervisors, 11 N. Y. 563. But we are of opinion that the act of 1880 was not intended to, and does not, furnish the remedy, where the complaint is not of some error or illegality in one or more assessments, and the judicial action which evolved them, but asserts that there never were any valid assessments at all, and that the whole roll is utterly void; for in such case there is no judicial action to be reviewed and corrected, but an unauthorized wrong and trespass.

There never was any defect of remedies, in such a case, which made necessary a new enactment; and all the provisions of the act of 1880 seem to contemplate both assessors and an assessment roll, by whom or in which illegal steps may have been taken, or errors may exist, for the correction of which a certiorari should be awarded. Only in that manner could judicial action which was illegal or erroneous be reviewed. The act provides for striking an unlawful tax from the roll, but not the annulment and destruction of the roll itself. If that be wholly and absolutely void, it can confer no authority, and give no protection, and the remedies of the taxpayer against the offenders are ample, and have long existed.

The General Term were therefore right in their reversal, and the judgment should be affirmed, with costs. All concur, except PECKHAM, J., not sitting.

STATE ex rel. SCHAEFER v. SCHROFF.

(Supreme Court of Wisconsin, 1904. 123 Wis. 98, 100 N. W. 1030.)

Appeal from circuit court, Racine county.

Certiorari by the State, on the relation of Leonard G. Schaefer, against Henry J. Schroff, to review the action of the city council of Racine repealing a certain ordinance granting a liquor license. From a judgment in favor of the latter, defendant appeals. Reversed.

The relator obtained an ostensible license in July, 1903, to sell liquor in a part of the city of Racine, where an existing ordinance required the consent of certain neighbors as a condition precedent. In October it was represented to the council that such consents had been obtained by fraud and misrepresentation, and reversal of their action in granting the license was prayed; whereupon the council caused notice to be given to the relator to appear and show cause why his license should not be declared void for the specified reasons. Thereafter, in December, after some hearing and investigation, the council adopted a resolution that said ordinance "be and is hereby declared void and of no effect, and that the city clerk be and hereby is ordered to notify said Leonard Schaefer of the adoption of this resolution, and, further, that the money tendered by said Leonard Schaefer will be returned to him." The relator sued out writ of certiorari to review the validity of this resolution, to which return was made by the respondent as city clerk, showing substantially the situation above stated. The circuit court held, as matter of law, that the council had no jurisdiction or power to declare said license void, except upon the grounds and by the procedure specified by section 1558, Rev. St. Wis. 1898, for a revocation, and entered judgment, reversing, annulling, vacating, and setting aside the resolution of the council.

DODGE, J. (after stating the facts). We deem it entirely plain, upon inspection either of the return or petition, that the council was in no wise attempting to exercise the jurisdiction conferred upon it by section 1558, Rev. St. Wis. 1898, to revoke a license, valid at its inception, but which, by reason of subsequent misconduct, the common council is authorized to recall. The petition of neighbors, the notice to Mr. Schaefer, the facts investigated, and the final resolution mark an inquiry and attempt to decide upon the question whether the license was valid originally, or void by reason of fraud perpetrated upon the council in obtaining it. Hence we need not consider whether the council acquired jurisdiction to act in revocation of this license under section 1558, or, by improper proceeding, lost such jurisdiction. The act done was to declare that the license was, and always had been, void. And it may be conceded to the relator that there is much in the record indicating the idea, both on the part of the petitioners and on the part of the council, that such resolution might have conclusive effect as an adjudication of the invalidity of the ordinance. As relator urges, however, there is nowhere in the statute or charter any authority given to the city council to make any such decision. Of course, there is an inherent power in the city to investigate, and to reach conclusion as to the attitude which it will take-whether to contend for the invalidity of such a license or not to make such contention; just as there is the right in any individual to investigate facts, and make up his own mind as to his attitude with reference to the legal validity of an act done by him. But, in absence of some authority of law, the city council could go no further. The license was neither more nor less valid by reason of the resolution here assailed. Such resolution concluded no one, and might not only be attacked collaterally, but wholly disregarded by any forum in which the validity of the license might be presented for consideration and decision.

To this view both parties accede, and of its correctness we can have no doubt. As a result, however, it is obvious that it does no injury to the relator. It took away no right which he previously had. Its utmost effect was to notify him that the council purposed to contend that his ostensible license was invalid. But, if that question was ever presented in a judicial forum for investigation or decision, his right to have the same tried as an independent and original one was not in any respect affected by the decision. Certiorari is a discretionary writ, which should issue only when necessary to prevent injustice or unlawful injury. Courts will not concern themselves, by this extraordinary writ, to declare the invalidity of nonjurisdictional acts when the relator suffers no injury thereby. Knapp v. Heller, 32 Wis. 467; State ex rel. v. Mayor, etc., 101 Wis. 208, 77 N. W. 167. In both of these cases the issue of the writ by circuit court was reviewed, and reversed on the ground that the cases presented failed to show equity in the relator; hence, that the issue

of the writ was an abuse of the discretion of the lower court. In State ex rel. Anderson v. Timme, 70 Wis. 627, 36 N. W. 325, on an application to the original jurisdiction of the Supreme Court for a writ of certiorari, it was decided that the writ should not be issued, because the action of the land commissioners in investigating and declaring void a land patent was so entirely beyond their jurisdiction as to be wholly innocuous.

Complete analogy exists between the action of the land commissioners there considered and the action of the council now before us; at least from the standpoint of the relator. The action in each case was wholly without jurisdiction, could be of no possible force save as the mere gratuitous declaration of the opinion of the body from which it emanated, or at most a notification of that opinion and of their intended attitude; in one case toward the patent, in the other toward the license. We deem the reasoning of that case conclusive here that it would be so needless an exercise of a court's power to review and pass upon the validity of that declaration that no court, in the proper exercise of its discretion, should issue its extraordinary writ of certiorari. Upon the same reasons it became the duty of the court, having issued the writ, upon being perhaps further enlightened as to the situation by the return, to have dismissed the proceedings.

Judgment reversed, and cause remanded, with directions to quash the writ and dismiss the proceedings. 83

(Supreme Court of Arkansas, 1841. 3 Ark. 585, 36 Am. Dec. 468.)

RINGO, C. J., delivered the opinion of the court.

The pleadings, although they are in some respects rather uncertain and informal, are believed to be substantially good, if the facts disclosed are such as in law authorize the writ, or enable the state to

88 The following additional cases in this collection are cases of certiorari: Hartman v Wilmington, 1 Marvel (Del.) 215, 41 Atl. 74 (1894); Queen v. Bowman, [1898] 1 Q. B. 663: Van Nortwick v. Bennett, 62 N. J. Law, 151. 40 Atl. 689 (1898); State (Morford) v. Board of Health of Asbury Park, 61 N. J Law, 386, 39 Atl. 706 (1898); People ex rel. Copcutt v. Board of Health of Yonkers, 140 N. Y. 1, 35 N. E. 320, 23 L. R. A. 481, 37 Am. St. Rep. 522 (1893); People ex rel. Shuster v. Humphrey, 156 N. Y. 231, 50 N. E. 860 (1898); Tomlinson v. State Board of Equalization, 88 Tenn. 1, 12 S. W. 414. 6 L. R. A. 207 (1889): Joyce v. Chicago, 216 Ill. 466, 75 N. E. 184 (1905); Queen v. Wood, 5 El. & Bl. 49 (1855).

84 The remedy of quo warranto (in the modern practice, in the form of an information in the nature of a quo warranto) is not generally available