Summary
In People ex rel. Wood v. Assessors, 137 N.Y. 201, the Court of Appeals, per Judge Earl, with whom all the judges concurred, said: "The writ of mandamus is not always demandable as an absolute right, and whether it shall be granted or not frequently rests in the discretion of the court.
Summary of this case from Matter of Burke v. ConnollyOpinion
Argued January 30, 1893
Decided February 10, 1893
Frederick P. Bellamy for appellant.
William T. Gilbert for respondent.
Prior to June 1, 1888, the relator owned a tract of land in the city of Brooklyn, which had been assessed for the purposes of taxation for that year at the sum of $90,000, and a tax was imposed thereon, based upon that assessment, for the sum of $2,506.64. Afterward the relator sold about one-fifth in quantity and one-fifteenth in value of the land to Mr. Havemeyer, and he applied to the board of assessors for an apportionment of the tax imposed upon the whole tract between the portions owned by him and the relator respectively. The assessors apportioned the assessed value of the land by assigning $7,000 thereof to the lot of Havemeyer and $83,000 to the lot of the relator, and apportioned the tax by placing $194.96 upon the former lot and $2,311.68 upon the latter lot. It is not disputed that all these proceedings were regular and legal, and the apportionment of the taxes appears to have been properly entered in the records kept by the board of assessors. Their clerk, in transcribing the records for the purpose of certifying the taxes as thus apportioned to the collector of taxes and assessments, by mistake transposed the taxes so that the Havemeyer lot appeared to be taxed for $2,311.68, and the relator's lot for only $194.96. The relator had knowledge of the original assessment and the tax, and of the apportionment of the tax, and for the purpose and with the intention of escaping the burden of his just and proportionate share of the tax originally imposed upon his land, and escaping the payment of the tax apportioned to his lot he went to the collector of taxes, and without disclosing to him the mistake, paid to him the sum of $194.96, less the rebate allowed by law, and received a receipted bill therefor. Havemeyer afterward discovered the mistake and obtained from the board of assessors a certificate showing the true apportionment made by them, and he delivered the certificate to the collector of taxes and requested him to correct the entry upon his books, which he refused to do. Thereupon he, by a mandamus proceeding properly conducted, to which this relator was not a party, compelled the collector to correct his books so as to make them conform to the original apportionment, and to receive the tax thereby imposed upon his lot. Thereafter the relator's lot was advertised for sale for the non-payment of the tax upon his lot, less the amount paid by him as above stated, and he then obtained, at the Special Term of the Supreme Court, a peremptory writ of mandamus to compel the cancellation of the tax, on the ground that the correction and alteration of the books of the collector so as to make the entries therein conform to the apportionment of the tax as made was unauthorized. The General Term held that the mandamus ought not to have been granted, and the reasons given for its conclusion in the opinion there pronounced are entirely satisfactory, and we need not reiterate them here.
But there is still a further ground upon which the decision below can be upheld, even if we assume there was a technical want of adequate authority to make the alteration and correction complained of. The writ of mandamus is not always demandable as an absolute right, and whether it shall be granted or not frequently rests in the discretion of the court. ( The State ex rel. v. Commissioners of Phillips Co., 26 Kansas, 419; People v. Hatch, 33 Ill. 9, 134; People ex rel. Sherwood v. Board of Canvassers, 129 N.Y. 360.) The writ will be granted to prevent a failure of justice, but never to promote manifest injustice. It is a remedial process and may be issued to remedy a wrong, not to promote one, to compel the discharge of a duty which ought to be performed, but not to compel the performance of an act which will work a public and private mischief, or to compel a compliance with the strict letter of the law in disregard of its spirit or in aid of a palpable fraud. The relator must come into court with clean hands, and he cannot invoke this extraordinary remedy, as in this case, to evade the payment of his just portion of a tax by taking and claiming the advantage of a confessed mistake. Even if he had no other remedy he should be left to his own devices to escape the burden honestly resting upon him, and the court may properly refuse to aid him by compulsory process.
The order of the General Term should, therefore, be affirmed, with costs.
All concur.
Order affirmed.