People ex rel. Toms v. Board of Sup'rs

On December 31,1909, a writ of certiorari was issuedi to review the action of the board of supervisors in levying the sum of $1,667.36 as taxes upon the taxable property of the town of Tonawan— da. Defendant moved the court February 15, 1910, for an order vacating the writ, upon the ground that the acts of the defendant sought to be reviewed by the writ were solely legislative in their nature; that, proceedings of a judicial nature only can be reviewed by such a writ.It is alleged in both the petition and the writ that in November, 1909,. $2,467.36, in unpaid back taxes were a lien upon 20 acres of land im great lot No. 42, town of Tonawanda, owned by the -Military Road. Company, and that in November, 1909, the defendant, as a compromise-of such taxes, canceled and discharged of record the lien of such taxes-upon said real estate, upon payment of the sum of $800 by the owner of such lands, and the defendant thereupon charged the balance of said-back taxes, to wit, the sum of $1,667.36, to the town of Tonawanda,. drew a warrant for such sum in favor of Erie county treasurer, and. included the sum of $1,667.36 in the amount to be collected in taxes-by the current tax roll and warrant from the assessed property of the-town.

There is no statutory or other authority for so taking $1,667.36 im taxes from such lands and subjecting the taxable property of the town..*637to a lien and taxation therefor. Under the circumstances stated in the petition, the defendant had no jurisdiction for this act. Such act determined and adjudicated that the taxable property of the town was liable for the payment of that Sum. It. was not a legislative, administrative, or executive act. It was not performed under any authority of law. It was an arbitrary decision adjudicating that all taxable property in the town must pay two-thirds of back taxes upon the 20 acres; that the owner could exempt his land from tax sale by paying •one-third of his taxes. The defendant assumed a discretionary power it did not possess, and under such assumed power has rendered a judicial decision of which plaintiff complains.

The defendant’s motion to vacate such writ must be denied,_ and defendant directed to make return thereto. People v. Supervisors, 43 Barb. 232; Bellinger v. Gray, 51 N. Y. 610; People v. Hagadorn, 104 N. Y. 516, 10 N. E. 891; Ne-ha-sa-ni v. Lloyd, 7 App. Div. 359, 40 N. Y. Supp. 58.