Common Pleas, a court of general jurisdiction. It is regarded as an equitable proceeding appealing to the discretion of the court, and the whole tax will not be abated because a small amount of property is included not liable to assessment.1

In Arkansas the remedy is by appeal to the County Court; if none were provided for by appeal then the party would be entitled to the writ of certiorari.2

In New Jersey mere questions of valuation are decided by the commissioners of appeal, and their decision is final, and in all errors of form rather than substance, application must first be made to the commissioners of appeal, but where the questions involved are legal questions as to the principle on which the assessment is made, and involve the construction of statutes in matters of importance, certiorari is the remedy, and the Supreme Court will look into the matter both before as well as after the action of the commissioners of appeal. The granting of the writ is in the discretion of the court, and it is not ex debito justitiæ.

In Louisiana, when the roll is completed, it is delivered to the recorder of the parish, due publication is made of the fact, and for thirty days the recorder has the power to correct any error in the assessment and reduce the amount of the assessments upon notifying and conferring with the assessors. In suits for taxes a party must show an excuse for not availing himself of this remedy before he can go behind the roll to show error in it.5 Where a party was assessed with slaves at $12,000 in the first district, he showed, upon suit brought for the tax, that he had no property in the first district, and that the slaves were properly on the roll in the second district for the year for which suit was brought. The excuse was deemed sufficient, it not being the duty of a tax-payer to examine the rolls in a parish or district in which he has no taxable property.

These inferior tribunals having special powers, are confined to the special jurisdiction vested in them, and where they are authorized to review the action of the assessors, and abate taxes in a case of overvaluation, they cannot increase the valuation unless specially author

1 Selectmen v. Briggs' Petition, 9 Foster (N. H.) 547; Cocheco Manuf. Co. v. Strafford, 51 N. H. 455.

* Roberts v. Williams, 15 Ark. 48; Radler v. Williams, 18 Ark. 380; Floyd v. Gilbreath, 27 Ark. 675.

3 State v. Quaif, 3 Zabr. 89; State v. Danser, Id. 552; State v. Betts, 4 Zabr. 555; State v. Bently, 3 Zabr. 543; State v. Perkins, 4 Zabr. 409.

43 Zabr. 543.

City of New Orleans v. Lesseps, 11 La. Ann. 295; City of New Orleans v. McArthur, 12 La. Ann. 47.

ized by the statute.1 On the other hand, the party applying for relief must comply with all the prerequisites of the statute. Where the applicant is required to give a list to the assessors, he must present it in person, that he may be examined on oath, and the refusal to give a written statement required by statute is a bar to relief. So in an action for taxes, the tax-payer is not entitled to a reduction of the tax unless the assessment was made excessive, with the intent to injure and defraud. His remedy for overvaluation was to apply to the board of equalization, but that relief was dependent upon his filing his list with the assessors, and the failure to do that took away the right of reducing an assessment honestly made.

In Virginia the remedy for a party erroneously charged on the roll is by application to the court of the county or corporation in which the assessor qualified. There are no formal pleadings. The attor ney for the commonwealth is required to defend the application, and the assessor must be examined as a witness, and the facts proved must appear of record. The court may increase or diminish the assessment. as the facts seem to justify. The application must be made within two years from the time the roll goes into the hands of the collector, but the relief is not to be granted if it appear that the erroneous entry was caused by the failure or refusal of the tax-payer to furnish a list of his property to the assessor as required by statute. The order of the court exonerating the party from the tax, if it is not paid, operates as an injunction to restrain its collection, and if paid, entitles the party to a warrant on the treasury for the amount of the tax. The order is not valid unless it appear on the face of it that the application was defended by the attorney for the commonwealth, and the assessor was examined. An appeal is allowed either by the State or the applicant to the Circuit Court. License taxes erroneously assessed may be corrected in the same manner.5

Certiorari. In the States named an appeal is allowed from the designated tribunal to the courts of general jurisdiction. In other States the remedy provided is merely an application to the assessors, and upon their refusal, to a board of review, but from these tribunals

1 Lowell v. County, 3 Allen, 546; Leach v. Bleakley, 34 Vt. 134. In New Jersey, by statute, the commissioners of appeal may increase the tax upon notice. State v. Utter, 33 N. J. Law, 183. In Wisconsin the supervisors may expunge from the roll assessments not made in accordance with the statute. State v. Supervisors of La Fayette Co. 3 Wis.

712.

2 Wilson v. Co. Com'rs, 37 Maine, 561; 33 N. J. Law, 192.

3 State v. Central Pacific R. R. Co. 7 Nev. 99.

4 Code of Virginia of 1873, ch. 33, §§ 86-93, pp. 312, 313.

5 Code of Virginia of 1873, ch. 34, §§ 79-85, pp. 344, 345.

no appeal is allowed to the courts of general jurisdiction. In such cases the mode in which the question is reviewed by the courts is upon a writ of certiorari. In Wisconsin, when the board of review has authority to correct the errors of the assessors, as to valuations or omissions, or other error, and is required to reduce to writing the evidence upon an examination touching such applications, a certiorari brings up not only the question of jurisdiction of the inferior tribunal, but the evidence also may be reviewed on its merits, and if the board has acted arbitrarily in disregard of it, the error will be corrected.1

There was some doubt at one time in New York, whether upon this writ, any question except that of the jurisdiction of the inferior tribunal could be examined, but it is now definitely settled, that so much of the evidence as is necessary will be brought up, and the merits of the action of the assessors will be examined and corrected.2 It was conceded that all questions of jurisdiction, and of the power and authority of the inferior tribunal to do the acts complained of, and all questions as to whether the inferior tribunal has kept within the boundaries prescribed either by statute or by the principles of the common law, could be examined. But it was gradually extended— in Baldwin v. City of Buffalo, to examine the evidence before commissioners appointed to lay out a highway, in order to determine whether the compensation allowed for land condemned was sufficient, where the question was one of law arising upon facts as to which there was conflicting evidence; in Swift v. Poughkeepsie, to determine the validity of a tax on bank shares, where the bank claimed an exemption to the extent of its capital invested in the United States bonds; and finally to examine into the action of assessors so as to look into the evidence before the assessors and correct mere questions of valuation. The court say: "It has been finally settled that a commonlaw certiorari to review the proceedings of assessors, brings up the merits as well as questions of jurisdiction and regularity, and that where assessors have neither exceeded their powers nor been irregular in exercising them, the court will still, upon the facts appearing in the return examine and correct their decisions if erroneous." 5 The cases

1 Phillips v. The City of Stevens' Point, 25 Wis. 594; Milwaukee Iron Co. v. Schubell, 29 Wis. 51.

2 Baldwin v. City of Buffalo, 35 N. Y. 375; Swift v. Poughkeepsie, 37 N. Y. 511; People v. Assessors of Albany, 40 N. Y. 158; People v. Trustees of Village of Ogdensburg, 48 N. Y. 390; People v. Board of Ass'rs, 39 N. Y. 88.

3 35 N. Y. 375.

4 37 N. Y. 511.

5 Earl, Commissioner, in People v. Trustees of Village of Ogdensburgh, 48 N. Y. 393. This language is that of one of the Commission of Appeals, but it is based on the decisions of the Court of Appeals in People v. Assessors of Albany, 40 N. Y. 154, and other cases cited.

in other States sustain those in New York as to the functions of the certiorari.1

Although the form of the application be "to strike an assessment from the roll," and not merely to reduce the valuation, the court in reviewing the action of the assessors upon a writ of certiorari, may refuse to strike entirely from the roll, but reduce the valuation, if in their opinion the facts justify such action. But upon questions of mere valuation, courts rarely interfere to correct the decision of the assessors, regarding it somewhat in the light of the verdict of a jury, and the error must be clear and palpable.3

§ 103. Who Liable for Errors—Assessors, when not Liable.— The assessors are quasi judicial officers, but officers invested with a limited authority. When acting within the scope of their powers they are not liable for errors of judgment, but if they go beyond the limits assigned in the law which creates such officers and defines. their duties, they are trespassers and liable to those injured by their action. "Some of the duties of assessors are judicial in their nature, and as to these, when acting within the scope of their authority, they are protected from attack collaterally to the same extent as other judicial officers; but they are subordinate officers, possessing no authority, except such as is conferred upon them by statute, and it is a well settled and salutary rule that such officers must see that they act within the authority committed to them. When they have no power to act in a given case, either as to person or property, their acts are void. So, when their right to act depends upon the existence of some fact, which they erroneously determine to exist, their acts are void. So, also, in performing a merely ministerial duty, their acts are void if not in accordance with law. But having jurisdiction of the person and subject-matter, if they err in the exercise of it, they are protected." 4

There are three classes of these errors. The first is where they have jurisdiction and authority to act, and may well be styled judicial errors; the second is where they are without jurisdiction, and the third is where the act to be performed is merely ministerial, and is not performed in the manner directed by law. The difficulty in this subject arises in the application of the foregoing principles, so as to as

'Lathrop v. Dowling, 50 Mo. 134; Taylor's Adm'r v. St. Louis Co. Court, 47 Mo. 594; Benton v. Taylor, 46 Ala. 388; Floyd v. Gilbreath, 27 Ark. 675.

People v. Assessors of Albany, 40 N. Y. 154.

3 People v. Trustees of Village of Ogdensburg, 48 N. Y. 394, 395.

4 Ch. J. Church, in Nat. Bank of Chemung v. City of Elmira, 53 N. Y. 53, a perfect summary of the doctrine of the liabilities of assessors.

2

certain to which class the facts of the particular case assign it. The following cases belong to the first class: all cases of mere valuation where the question is whether the property was assessed too high, it being conceded that it should be assessed for some amount;1 the assessment of the capital stock of corporations, where it is claimed that the assessors did not deduct the value of the real estate from the whole capital stock as directed by statute, or did not value the real estate sufficiently high in making the deduction, or that the capital stock was assessed too high, by reason of the assessors having included in its valuation the assets of the corporation beyond its nominal capital stock; where lands are within their jurisdiction, but are claimed to be exempt, either as attached to a seminary, or as land devoted to agricultural purposes. So, the cases of ministers of the gospel who are exempt from taxation to a limited amount, but who have property whose value exceeds that amount; having some property not exempt, the assessors have jurisdiction, and are not liable for making the assessment too high. In one of these cases the minister owned property valued at $2,500 and was assessed at $1,050. But if a minister does not possess property to the amount of the exemption, the assessors cannot obtain jurisdiction of his person or property by deciding wrongfully that he is not a minister, and thus confer authority on themselves. The lands of a railroad within the district of the assessors is subject-matter within their jurisdiction. It is proper for them to determine the legal question whether they are to be assessed as resident or non-resident lands, and should they err in their decision they are not liable."

The legislature of New York imposed in 1865 a tax on shares in national banks, but made no provision for taxing the shares in State banks at the same rate, as provided by the act of Congress, the tax on State banks at that time being regulated by the capital of the banks. The assessors made an assessment on one Swift for the shares owned by him in a national bank, and subsequently the act of the legislature under which the assessment was made, was declared by the Supreme Court of the United States to be unconstitutional and void. Here

1

People v. Assessors of Albany, 40 N. Y. 154; s. c. 48 N. Y. 514; People v. Trustees of Village of Ogdensburgh, 48 N. Y. 390; Stewart v. Maple, 70 Penn. St. 221.

2 People v. The Board of Ass'rs of Brooklyn, 39 N. Y. 81.

St. Louis Mut. Ins. Co. v. Charles, 47 Mo. 466.

4 Chegary v. Jenkins, 5 N. Y. 376; Lee v. Thomas, 49 Mo. 113; Walden v. Dudley, 49 Mo. 419.

5 Weaver v. Devendorf, 3 Denio, 118; Barhyte v. Shepherd, 33 N. Y. 238.

Prosser v. Secor, 5 Barb. 608.

Buffalo & State Line R. R. Co. v. Supervisors of Erie, 48 N. Y. 93.

Van Allen v. Assessors, S Wall. 573; rev'g City of Utica v. Churchill, 33 N. Y. 161.