People ex rel. Rochester Telephone Co. v. Priest

Appellate Division of the Supreme Court of New York

People ex rel. Rochester Telephone Co. v. Priest

88 N.Y.S. 11

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 11, 1904

StatusPublished

This text of 88 N.Y.S. 11 (People ex rel. Rochester Telephone Co. v. Priest) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People ex rel. Rochester Telephone Co. v. Priest, 88 N.Y.S. 11 (N.Y. Ct. App. 1904).

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Opinion

CHASE, J.

Certiorari, except as it has been enlarged and ex-by statute, is a common-law writ. In its office, it is confined to reviewing proceedings of inferior courts, officers, boards, and tribunals, where there is no other remedy provided by statute. The writ, in terms, directs inferior courts, officers, boards, or tribunals to certify to the superior court the record of their proceedings for ■ inspection and review, and the writ can run only to persons or tribunals that have acted in the determination [12]*12to be reviewed. The purpose and extent of a statutory writ is defined by the statute authorizing it. The writ of certiorari authorized by article xx of the tax law (chapter 908, p. 882, Laws of 1896) is a special statutory writ: '

The Court of Appeals, in Mercantile National Bank v. Mayor, etc., of N. Y., 172 N. Y. 37, 64 N. E. 758, say:

“With the enactment of chapter 269 of the Laws of 1880, there was created a new and complete system for reviewing upon certiorari, and for thereby correcting the errors of assessing officers. People ex rel. Wallkill Valley R. R. Co. v. Keator, 101 N. Y. 610, 3 N. E. 903. It rendered inapplicable the provisions of the Code of Civil Procedure' relating to the writ of certiorari (People ex rel. Church of the Holy Communion v. Assessors, 106 N. Y. 671, 12 N. E. 794; Matter of Corwin, 135 N. Y. 245, 32 N. E. 16), and resumed within itself the remedies available to a taxpayer aggrieved by the action of the assessing officers. What was discretionary at common law now became a right. I think that that act became the only authority for the review of errors in assessments for purposes of taxation.”

Chapter 269, p. 402, of the Laws of 1880, was repealed when the tax law was enacted, but the language of the court quoted is applicable to sections 250 to 256 of said article 11 of the tax law. We must look to the statute, therefore, to ascertain whether the city of Rochester was properly made a party to the proceeding.

By section 251, art. 11, of the tax law, it is provided:

“The justice or court may allow a writ of certiorari to the officers making the assessment to review such assessment.”

By section 45 of said tax law, as amended by chapter 254, p. 510, Laws 1900, it is provided:

“An assessment of a special franchise by the State Board of Tax Commissioners may be reviewed in the manner prescribed by article eleven of this chapter, and that article applies so far as practicable to such an assessment in the same manner and with the same force and effect as if the assessment had been made by local assessors. * * * Such writ must run to and be answered by said State Board of Tax Commissioners and no writ of certiorari to renew any assessment of a special franchise shall run to any other board or officer unless otherwise directed by the court or judge granting the writ. An adjudication made in the proceeding instituted by such writ of certiorari shall be binding upon the local assessors and any ministerial officer who performs any duty in the collection of said assessment in the same manner as though said local assessors or officers had been parties to the proceeding.”

While the writ of certiorari to review a local assessment can run to the officers making the assessment only, the statute would seem to recognize that, in reviewing an assessment of a special franchise made by the State Board of Tax Commissioners, it may be necessary to have before the court the record of some other board or officer, and the court is consequently given authority to direct that the writ shall run to such other board or officer, to the end that such other board or officer can return to it such record as to the court or judge shall seem necessary for the review of the assessment of said special franchise; but there is nothing in said act, particularly wh'en interpreted in the light of the law and practice as applied to common-law certiorari, to authorize the court to bring before it a municipal corporation as such as a party defendant. No express or implied author[13]*13ity for making a municipal corporation a party defendant in this proceeding having been called to our attention, we are of the opinion that the order as made was without authority.

The order should be reversed, with $10 costs and disbursements. All concur.

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CHASE, J.

Certiorari, except as it has been enlarged and ex-by statute, is a common-law writ. In its office, it is confined to reviewing proceedings of inferior courts, officers, boards, and tribunals, where there is no other remedy provided by statute. The writ, in terms, directs inferior courts, officers, boards, or tribunals to certify to the superior court the record of their proceedings for ■ inspection and review, and the writ can run only to persons or tribunals that have acted in the determination [12]*12to be reviewed. The purpose and extent of a statutory writ is defined by the statute authorizing it. The writ of certiorari authorized by article xx of the tax law (chapter 908, p. 882, Laws of 1896) is a special statutory writ: '

The Court of Appeals, in Mercantile National Bank v. Mayor, etc., of N. Y., 172 N. Y. 37, 64 N. E. 758, say:

“With the enactment of chapter 269 of the Laws of 1880, there was created a new and complete system for reviewing upon certiorari, and for thereby correcting the errors of assessing officers. People ex rel. Wallkill Valley R. R. Co. v. Keator, 101 N. Y. 610, 3 N. E. 903. It rendered inapplicable the provisions of the Code of Civil Procedure' relating to the writ of certiorari (People ex rel. Church of the Holy Communion v. Assessors, 106 N. Y. 671, 12 N. E. 794; Matter of Corwin, 135 N. Y. 245, 32 N. E. 16), and resumed within itself the remedies available to a taxpayer aggrieved by the action of the assessing officers. What was discretionary at common law now became a right. I think that that act became the only authority for the review of errors in assessments for purposes of taxation.”

Chapter 269, p. 402, of the Laws of 1880, was repealed when the tax law was enacted, but the language of the court quoted is applicable to sections 250 to 256 of said article 11 of the tax law. We must look to the statute, therefore, to ascertain whether the city of Rochester was properly made a party to the proceeding.

By section 251, art. 11, of the tax law, it is provided:

“The justice or court may allow a writ of certiorari to the officers making the assessment to review such assessment.”

By section 45 of said tax law, as amended by chapter 254, p. 510, Laws 1900, it is provided:

“An assessment of a special franchise by the State Board of Tax Commissioners may be reviewed in the manner prescribed by article eleven of this chapter, and that article applies so far as practicable to such an assessment in the same manner and with the same force and effect as if the assessment had been made by local assessors. * * * Such writ must run to and be answered by said State Board of Tax Commissioners and no writ of certiorari to renew any assessment of a special franchise shall run to any other board or officer unless otherwise directed by the court or judge granting the writ. An adjudication made in the proceeding instituted by such writ of certiorari shall be binding upon the local assessors and any ministerial officer who performs any duty in the collection of said assessment in the same manner as though said local assessors or officers had been parties to the proceeding.”

While the writ of certiorari to review a local assessment can run to the officers making the assessment only, the statute would seem to recognize that, in reviewing an assessment of a special franchise made by the State Board of Tax Commissioners, it may be necessary to have before the court the record of some other board or officer, and the court is consequently given authority to direct that the writ shall run to such other board or officer, to the end that such other board or officer can return to it such record as to the court or judge shall seem necessary for the review of the assessment of said special franchise; but there is nothing in said act, particularly wh'en interpreted in the light of the law and practice as applied to common-law certiorari, to authorize the court to bring before it a municipal corporation as such as a party defendant. No express or implied author[13]*13ity for making a municipal corporation a party defendant in this proceeding having been called to our attention, we are of the opinion that the order as made was without authority.

The order should be reversed, with $10 costs and disbursements. All concur.

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88 N.Y.S. 11, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-rochester-telephone-co-v-priest-nyappdiv-1904.

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