In People ex rel. Supervisors of Ulster Co. v. City of Kingston (101 N.Y. 82) this court was asked to examine the opinion of the court making the order dismissing the writ, the claim being that thus it would be clearly made to appear that the court had not dismissed the writ in the exercise of its discretion, but it was held that the discretionary character of the order could not thus be altered.Summary of this case from People ex Rel. Coler v. Lord
Argued October 20, 1885
Decided January 19, 1886
John J. Linson for appellant.
Alton B. Parker for respondent.
The order made by the General Term on the return to the writ of certiorari, was not res adjudicata as to the validity of the assessment. It did not affirm or reverse the proceedings, but dismissed the writ. The allowance or refusal of a common-law certiorari, rests in the sound discretion of the court. The dismissal of the writ was an exercise of this discretion, and the character of the order, as a discretionary one, is not altered by the fact that the court, in its opinion, examined the proceedings and considered them regular. ( People v. Stilwell, 19 N.Y. 531; People v. Hill, 53 id. 547; People v. Board of Commissioners, etc., 82 id. 506.) It is claimed in behalf of the city of Kingston, that the statute regulating appeals to the State assessors, from the equalization of the board of supervisors, does not on the appeal being dismissed, authorize the charging against the town, city, or ward appealing the costs and expenses incurred by the board of supervisors in defending the appeal. This depends upon the construction of the statutes regulating this proceeding. The right of appeal from an equalization made by a board of supervisors, was first given by chapter 312 of the Laws of 1859. Under that act an appeal was authorized to be taken by the supervisors of any town, city, or ward, to the State comptroller, who was authorized to determine what deduction, if any, ought to be made from the valuation fixed by the board of supervisors, of the property of the town, city, or ward (§ 13). No provision was made in this act for costs to either party. The act of 1859 was first amended by chapter 327 of the Laws of 1873. This act added a section to the original act as follows: "§ 15. Whenever an appeal shall not be sustained, the costs and expenses arising therefrom and connected therewith, shall be a charge upon the town, city, or ward so appealing, which shall be audited by the board of supervisors, and levied upon the taxable property in said town, city, or ward." This provision remained unchanged up to the time of the audit in question. It will be observed that the act of 1873 made no provision for costs and expenses, in case the appeal is sustained. This was first provided for by chapter 351 of the Laws of 1874, which added a clause to section 15, making it the duty of the comptroller, in case the appeal is sustained, to certify the reasonable costs and expenses of the appellant, and providing that the amount so certified should be audited by the board of supervisors and collected from the towns and cities in the county, other than the appellant. The act, chapter 80 of the Laws of 1880, further amended section 15, by substituting the State assessors as the certifying body in place of the comptroller, and also providing that in the appeal is sustained the costs and expenses of both appellant and respondent should be audited and collected from the towns and cities other than the appellant. This was the condition of the legislation on the subject of costs and expenses on appeals in equalization proceedings, in 1883, when the audit in question was made.
The precise contention of the city of Kingston, as we understand it, is, that the provision in the act of 1873 was not intended, in case the appeal was not sustained, to charge the costs and expenses incurred by the board of supervisors against the appealing town, city, or ward, but was intended simply to protect and indemnify the supervisor by whom the appeal was brought, against the costs and expenses incurred by him in behalf of his town, and to put it out of the power of the town authorities to repudiate the claim, and saddle upon the supervisor the burden of the costs and expenses of the litigation. This construction has no support in the language of the act of 1873, and still less in the legislation which followed it. The acts of 1874 and 1880 expressly give costs to the appellant as against the county in case the appeal is sustained, and it is quite difficult to suggest any reason for exempting the town, ward, or city from a corresponding liability where the appeal fails. The construction of the act of 1873 contended for by the appellant is strained and unnatural, and moreover, if the intention of the legislature was, as is claimed, to protect the supervisor as against the town, the act failed to afford complete protection, because it makes no provision for costs and expenses incurred by the supervisor in a case where the appeal is successful. We think the act of 1873 authorized the costs and expenses incurred by the board of supervisors on the appeal to the State assessors to be charged upon the city of Kingston. The costs and expenses in this case audited by the board and charged upon the city embraced compensation to counsel, appraisers, and employes, and disbursements amounting in the aggregate to more than $17,000. It is asserted that many of the items audited were not such as would be taxed in favor of the prevailing party in an ordinary action. It is not claimed that any of the expenses audited were not incurred, or that they were incurred in bad faith. It certainly must be conceded that the preparation on the part of the board of supervisors to meet the issue presented by the appeal was very thorough. It, however, may well be doubted whether it was discreet or just to impose upon the city of Kingston and the town of Marbletown the entire expense of searching for and making abstracts of all the conveyances recorded in Ulster county for a period of five years, and of appraising every separate piece of real estate in the county. It may be assumed that few appeals will be taken to the State assessors from equalizations at the hazard of paying such enormous expenses. The mass of evidence collected by the supervisors will doubtless be very useful in future equalizations, but the equity of charging the whole cost of the information upon the appellant in this case is not very apparent. But we have to deal only with the question in its strictly legal aspects. The act (Chap. 49 of the Laws of 1876), amending the act of 1859 contemplates that evidence of valuation of real and personal property in the county shall be given, and it appears, without contradiction, that such evidence has usually been produced, and received by the State assessors. The statute of 1873 is very broad. All costs and expenses of the appeal "arising from or connected therewith" are chargeable. It constitutes the board of supervisors the auditing tribunal. What particular items shall constitute the costs and expenses mentioned are not defined. It cannot be said that the employment of necessary appraisers and searchers at a reasonable per diem compensation, and making the necessary disbursements in preparing for the investigation, were not legal items of expense chargeable under the statute. The determination as to their allowance the statute relegates to the board of supervisors, and the decision of the auditing board as to the amount, necessity, and reasonableness of the expense incurred, in the absence of fraud or collusion, is final and conclusive. ( Osterhoudt v. Rigney, 98 N.Y. 222.)
It is further objected that the legislature could not constitute the board of supervisors a board to audit the expenses chargeable against the city — the other party to the appeal — on the ground that thereby it was made a judge in its own cause. The authorities are decisive against the objection. The board of supervisors collectively had no interest to be affected by the audit, and its members as individuals had no interest other than was common to every tax payer in the county. In making the audit they were discharging a duty of public administration cast upon them by law, and were neither within the letter nor spirit of the statute prohibiting a judge from sitting in a case in which he is a party or is interested. ( People v. Wheeler, 21 N.Y. 82; FOLGER, J., Matter of Ryers, 72 id. 15; Foot v. Stiles, 57 id. 399.) It is also objected that the board of supervisors denied a hearing to the supervisors of Kingston and their counsel prior to the audit. The supervisors of the city were members of the board. The board, in its aggregate capacity in exercising the powers conferred by statute, represented not only the whole county, but each town and ward therein affected by its proceedings. The return to the certiorari, shows that the demand for a hearing was not made until shortly before the time fixed for the adjournment of the board, and that in fact the supervisors of Kingston had knowledge of the bills presented for audit for some time before the demand was made, and so far as appears might have interposed any objections thereto. We think, under the circumstances disclosed, no legal right of the defendant was invaded by the denial of the application for delay. The inclusion in the original audit of allowances to persons who were supervisors, for special services rendered, amounting in the aggregate to $1,227, is not now in question. This sum is excluded from the amount sought to be charged against Kingston, and its inclusion in the original audit, if erroneous, in the final result inflicted no injury upon the appellant. The point is also taken that the proceeding by mandamus, now under review, was never directed or authorized by the board of supervisors of Ulster county, and that for this reason the order maintaining the writ should be reversed. We entertain no doubt that the board of supervisors had such an interest in enforcing the collection of the costs audited by the board, and charged against the city of Kingston, that it could authorize any proper proceeding to be taken in its behalf, to that end. It was the party respondent in the appeal. It was its duty, as the representative of the county, to defend its equalization, if it believed it to be just, and as incident to the duty it could incur the necessary expenses in defending its action. The county incurred them, and was in the first instance liable for their payment. The expenses, when incurred, were we think county charges. The statute enumerates as among county charges (1 R.S. 385, § 3, subd. 15), "the contingent expenses necessarily incurred for the use and benefit of a county." It has been frequently held that services rendered to a county in pursuance of a legal employment, for which no specific compensation is provided, are contingent charges against the county. ( Bright v. Supervisors, etc., 18 Johns. 242; People v. Supervisors, etc., 12 Wend. 257; People v. Supervisors of Delaware, 45 N.Y. 196.) It is true that the act of 1873 declares that if the appeal is not sustained, the costs and expenses "shall be a charge on the town, city," etc. But it cannot be known until the decision of the State assessors, whether any costs or expenses will be chargeable against the party appealing. The board of supervisors must of necessity incur the expenses in the first instance on its own credit, and having done so, it has a remedy over against the town, city, or ward, in case it succeeds on the appeal. The board of supervisors, therefore, had an interest to enforce the collection of the charge against the city of Kingston. The precise point is that it did not authorize its attorney to pursue the remedy by mandamus, or take other legal proceeding to enforce its right. We think the resolution of December 4, 1883, for the employment of counsel, "in all matters in litigation," growing out of the equalization appeal, and authorizing him "to take all necessary and proper proceedings in the name of the board, in the actions and proceedings referred to," supplemented by the appointment of a committee December 12, 1883, with full power to do all things in the litigation, and incur such expenses therein as they might deem necessary in behalf of the board, conferred ample authority upon the counsel and committee to prosecute this proceeding. The criticism upon the resolution of December 4, 1883, is, that it only refers to matters "in litigation," and not to future litigation. This is quite too technical in view of the fact that no litigation was then pending, and the resolution would be without meaning unless it referred to the general controversy, and to litigations which might grow out of it.
The final objection is that the charge against the city of Kingston for the costs and expenses of the equalization appeal cannot be enforced through the ordinary statutory machinery for the collection of taxes in the city. The charter of Kingston provides a special system for the collection of taxes therein. The board of supervisors do not issue any warrant for the collection of the State or county tax chargeable upon the city. Section 72 of the charter requires the board to fix the proportionable amount of State and county charges to be paid by the city, a certificate of which is to be delivered by the clerk of the board to the clerk of the city, and it is then made the duty of the common council to raise the amount by tax, upon the warrant of the city clerk. (§ 73.) The board of supervisors in December, 1884, included in the schedule of taxes to be raised by the city its share of the expense of the equalization litigation. This we think was proper. The expenses were, as has been stated, in the first instance a county charge, but ultimately, as the event determined, to be paid by the city. The common council provided for the collection of the other items in the schedule, but omitted to take any action to levy the item in question. The mandamus proceeding was then instituted. It is now said that there was no refusal to collect this item. The omission to perform a plain duty is equivalent to a refusal, and one of the affidavits presented by the defendant in the mandamus proceeding sets forth the reasons "why the defendant will not raise the money," etc. We think the direction in the act of 1873, that the costs and expenses shall be audited by the board of supervisors and "levied upon the taxable property in said town, city, or ward," is to be carried out by causing the same to be levied in the usual way provided for levying and collecting taxes in the city.
The order should be affirmed.