The People, ex rel. William B. Stephens, supervisor of the town of Fremont, vs. Peter Halsey, treasurer of the county of Steuben

The People, ex rel. William B. Stephens, supervisor of the town of Fremont, vs. Peter Halsey, treasurer of the county of Steuben. Where private interests only, or chiefly, are concerned, and the people are only the nominal party, the relator, who is the real party applying for a mandamus, must show that he, as an individual, is entitled to the relief sought. But on an application for a mandamus to compel a county treasurer to issue his warrant to enforce the collection of a tax assessed upon debts owing to non-residents, the relator demanding the relief, not for himself, but for the . public, the supervisor of the town, being an inhabitant of the town, and a tax-payer therein, is a proper person to appear as relator. Upon the return of a town collector showing that the taxes imposed upon debts owing to non-resident creditors remain unpaid, the statute makes it the duty of the county treasurer, after the expiration of twenty days from the return, to issue his 'warrant to the sheriff, commanding him to make of the goods and chattels and real estate of such non-residents, the amount of such tax, &c. (Lews 1851, eh. 371, % 6.) This is a mere ministerial duty which the . statute imposes upon the treasurer, and peremptorily requires him to perform upon the making of the collector’s return. He has no discretion to exercise, in the matter, and is invested with no judicial functions whatever, in regard to it. He has no power or authority to sit in judgment upon the acts of the assessors of the town, or upon those of the board of supervisors of the county. Nor can he, in answer to an application for a writ of mandamus, against him, for refusing to perform his duty, bring their proceedings into review for the purpose of establishing errors or mistakes in such proceedings. But want of jurisdiction may be alleged by way of answer to any and all judicial proceedings. Hence the county treasurer may challenge the jurisdiction of any and all of these officers and' tribunals to make the assessment, or impose the tax thereon, and show, if he can, that the assessment and the tax are, both, or either, contrary to the statute, and void. The assessors are not concluded by the verified statement of the agent of nonresident creditors, made in the prescribed form, of the amount of debts due such non-residents; but if they do not give full credit to such statement, they may go further, and make diligent inquiry for themselves, from the debtors and other sources, and thus ascertain the amount of such indebtedness from solvent debtors. And having jurisdiction to make further inquiries and investigations upon that point, their errors and mistakes, whatever they may have been, cannot be brought in question and reviewed on application for a mandamus. Jurisdiction being established, a tax, founded upon the assessment, has all the force and vigor of a judicial sentence, importing absolute verity, notwithstanding such mistakes and errors. APPEAL from an order made at a special term, directing a mandamus to issue to compel the treasurer of the county of Steuben to issue his warrant for the collection of a certain tax. B. F. Young, agent in the county of Steuben for "William, Earl of Craven, Alexander Oswald and Edmund B. Estcourt, non-residents of the state, made out and delivered to the defendant, as treasurer of the county of Steuben, a sworn statement of the debts due to them in twenty-five different towns in Steuben county, as required by section 2 of the Laws of 1851, page 722. This statement purported to be a true account of all debts owing to said Earl of Craven, Oswald and Estcourt, “-which are liable to taxation under said act.” This statement was delivered by the treasurer to the assessors of the town of Fremont. In it the amount of debts due to the individuals above named, from persons in said town, was alleged to be $6505, The assessors, notwithstanding this statement, entered on the assessment roll the names of the' above persons, as non-residents, and the sum of $50,000 as being the aggregate amount due them in the town of Fremont, and a tax of $2126.98 was charged upon that sum. That tax not having been paid, the county treasurer declined to issue his warrant for its collection, upon the ground as stated by him in his affidavit, that “ it appeared that said tax was levied on an assessment of $50,000, instead of upon $6505, which was the amount returned” by the agent to the treasurer, and by him to the assessors. Application was thereupon made, at special term, by the plaintiff, as supervisor of the town of Fremont, for a mandamus directed to the defendant, Halsey, as treasurer of Steuben county, commanding him to issue his warrant to the sheriff for the collection of the tax. The motion being granted, Halsey, the treasurer, appealed to the general term. Geo. S. Jones and D. Rumsey, for the appellant. Hakes & Stevens, for the respondent. [MAJORITY — By the Court, Johnson, J.] By the Court, Johnson, J. The first objection made to this application on the part of the defendant is, that the relator is not the proper party to make it, he having no interest in the matter other than any other citizen of this, state. But this is strictly a question of public concern, and not a mere matter of private interest. It relates to the collection of the state and county tax; to the money of the people, for the maintenance and support of their government, in which each citizen has an equal and common interest. In such a case any citizen may make the application. (The People v. Collins, 19 Wend. 56.) The people in such cases are the real party, and must necessarily act through individual information. Where private interests only or chiefly are concerned, and the people are only the nominal party, the relator, who is the real party, must show that he, as an individual, is entitled to the relief sought. The relator here demands the relief, not for himself, but for the public; and being an inhabitant of the town of Fremont, and a tax-payer, as well as the principal officer thereof, is manifestly a proper person to appear as relator. The return of the collector of the town of Fremont, showing that the taxes imposed in that town upon the debts owing to these non-resident creditors remained unpaid, appears to have been made in due form. .The statute in such cases makes it the duty of the county treasurer, after the expiration of twenty days from the return, to issue his warrant to the sheriff of the county, where the debtors reside, commanding him to make of the goods and chattels and real estate of such non-resident the .amount of such tax, &c. (Sess. Laws of 1851, ch. 371, § 6.) This is a mere ministerial duty which the statute imposes upon, the treasurer, and peremptorily requires him to perform upon the return of the collector being duly made, containing the necessary facts. He has no discretion to exercise in the matter, and is invested with no judicial functions whatever in regard to it. He has no power nor authority to sit in judgment upon the acts of the assessors of the town, or upon those of the board of supervisors of the county. The statute has not constituted that officer the tribunal for challenging their proceedings or for reviewing and correcting their mistakes or errors of judgment. Hor can he, in answer to an application for a writ of mandamus against him for refusing to perform his duty, bring their proceeding into review for the purpose of establishing mistakes or errors in such proceeding. He may, however, in such a case, I apprehend, challenge the jurisdiction of any or all of these officers and tribunals, to make the assessment, or impose the tax thereon, and show if he can that the assessment and the tax are both or either contrary to the statute,'and void. Want of jurisdiction may, I suppose, be alleged by way of answer to any and all judicial proceedings. That ground of defense is alleged and insisted upon in answer to this application, and presents the only question worthy of serious and careful consideration. The precise question is, whether the assessors are concluded by the verified statement of the agent of the non-resident creditor, made in the prescribed form, of the amount of debts due such creditor on the first of January preceding, as it appears from the abstract, a copy furnished and transmitted by the county treasurer, or whether they may go further and make diligent inquiry for themselves from the debtors, and other sources, and thus ascertain the amount of such indebtedness from solvent debtors, provided they do not give full credit to the statement furnished? The first section of the act before referred to makes all debts owing by inhabitants of this state, to persons not residing within the United States, for the purchase of real estate, personal property within the town or county where the debtor resides, and liable to taxation, “ in the same manner and to the same extent as the personal estate of citizens of this state.’’ The second section provides that the agent of the nonresident creditor, if one resides in this state, shall furnish to the county treasurer of the county where the debtor resides, the true and accurate amounts of such debts, which were owing on the first day of January preceding,. verified by his oath. By the fourth section, the county treasurer, on receiving such statement, is required to make out and transmit to the assessors of the several towns in his county in which auy such debtors reside, an abstract or copy of so much as relates to the town of the assessor, with the name of the creditor. The fifth section requires the assessors, on receiving such abstract or statement, and within the time required by law to complete their assessment roll, to “ enter thereon the name of such non-resident creditor, and the aggregate amount due him in such town on the first of January preceding, in the same manner as other personal property is entered on said roll.” It is claimed in behalf of the defendant, that the “ amount due,” which the assessors are required to enter upon their roll, must be taken from the statement furnished, and that the assessors are limited to that alone, and cannot go beyond it to any other source, to ascertain the amount due. There is no such restriction or limitation in terms, and I am clearly of the opinion there was no such in the intention of those who framed and enacted the statute. If such had been their intention, they would have been likely to have expressed it in some form, and not to have left it to uncertain inference or conjecture. If they had designed to change the duties of the assessors in regard to this species of property, they would, as it seems to me, have expressed such design plainly and clearly. Instead of this, they have not subjected this species of property “to taxation in the same manner and to the same extent ” as other personal estate, but have required the assessors to enter the “ amount due” upon the assessment roll “in the same manner as other personal property is entered.” Hot the amount according to the statement, but the amount actually due, which is taxable, according to the general provisions of law, which is, “debts due from solvent debtors.” (1 R. S. 388, § 3.) The general duties of assessors in ascertaining the amount of real and personal property subject to taxation in the respective towns, is prescribed by statute. “ They shall proceed to ascertain by diligent inquiry -the names of all the taxable inhabitants in their respective towns, and also all the taxable property, real or personal, within the same.”' (1 R. S. 390, § 8.) They are required to ascertain, by diligent inquiry, all the taxable property within the town, personal as well as real. Ho good reason can be shown why the assessors, should be precluded from making inquiries in regard to foreign creditors any more than resident ones, and as no limitation is imposed in terms, it is impossible, I think, for the court to say judicially that one was intended. The obvious design in requiring the agent to make the statement provided for, as it seems to me, was to aid the assessor in the performance of his duty, and not, to put the agent in his place, to assess his principal. The assessors may, doubtless, take the statement if they are satisfied with its correctness, as in most cases they will be quite likely to be; but if they are not satisfied with the statement, it is their plain and clear duty to go further and make “ diligent inquiry,” for the purpose of ascertaining the true state of the case. Their duties are to a certain extent judicial in their character, and these duties are not limited to domestic property holders. The conclusion arrived at—that the assessors were not concluded by the statement of the agent, but had the right, in the exercise of their general duties and powers as assessors, to go beyond—is decisive of this motion. If they had jurisdiction to make further inquiries and investigations for the purpose of ascertaining and determining to their own satisfaction, the amount of debts due from solvent debtors to those foreign creditors, within their town, whatever may have been their mistakes and errors, they cannot be brought in question and reviewed here. Conceding that the assessors mistook mere equitable claims for “ debts,” and misjudged in regard to the solvency of those who were debtors, within the sense and meaning of the statute, it cannot affect the validity and conclusiveness of the tax. Jurisdiction being established, the tax, founded upon the assessment, has all the force and vigor of a judicial sentence importing absolute verity, notwithstanding such mistakes and errors. (Van Rensselaer v. Cottrell, 7 Barb. 127. Same v. Witbeck, Id. 133. Albany and West Stockbridge R. R. Co. v. Town of Canaan, 16 Barb. 244.) There is no ground for supposing that the assessors were guilty of fraud, or were actuated by any unlawful designs, in going beyond the statement to ascertain the amount of debts owing. As the tax in: question cannot be questioned collaterally in the manner in which the defendant has sought to do it, the case should, perhaps, be rested here. But as this is an important question, and may operate as a precedent in other similar cases; some observations, obiter, of the meaning and force of the statute of 1851 may not be altogether inappropriate, though I do not intend to go beyond the points argued before me. The term “ debts,” in the statute, is to be understood in its usual legal sense, and means nothing more nor less than sums of money due from inhabitants of the state, to the non-residents mentioned, by certain and express agreements or judicial sentence, and for the purchase of real estate. Primarily, it looks to the relation of vendor and purchaser, by contract valid in law, and to no other relation. A mere assignee of a contract is in no legal sense the debtor to the vendor, unless he has expressly undertaken to pay the debt by some Valid instrument or promise. In the latter case, he may, legally speaking, be regarded as the ¡debtor of the vendor for the purchase of real estate. This, of course, must be understood to embrace cases only where the assignment is authorized and valid, of itself, or is rendered valid by some subsequent act or assent of the vendor, binding in law. Debts barred by the statute of limitation would not fall within the statute, nor would mere equitable claims, where no legal relation of debtor and creditor exists. One person may hold a contract by assignment, without being the debtor to the vendor, in any such sense as the statute contemplates. If he is mere assignee, the original contractor is still the only debtor to the vendor, and unless he is a resident of the town, and solvent, the debt cannot be assessed in such town. A “ solvent debtor” is a person who has sufficient property to pay all his debts, and against whom collection of such debts may be enforced, out of his property, by due process of law. The object of this statute, plainly, was not to discrimr mate against foreign creditors, but to subject their personal property within this state, justly and fairly, to taxation, in the same manner and to the same extent as the personal estate of citizens of the state. And in this spirit, and no other, should assessors act in the discharge of their duty in such cases. The writ must therefore be granted. And inasmuch as the assessment and tax were fair upon their face, and the defendant has no personal interest in the question, but has voluntarily undertaken, outside of his official duty, to defeat the tax, and prevent its collection, he must be charged personally with the costs of this proceedmg. [Monroe General Term, March 4, 1867. J. C. Smith, Welles and Johnson, Justices.] The above decisipn was affirmed, unanimously, by the Court of Appeals, in September, 1867. But that court did not pass upon the question whether the statement furnished by the agent, to the assessors, was conclusive as to the amount to be taxed. (See 37 N. Y. Rep. 344, 349.)