People ex rel. First National Bank v. Board of Supervisors , 1867 N.Y. App. Div. LEXIS 251 ( 1867 )

Foster, J.

But for the act of 1867, above mentioned, the relator would be without remedy against the county of Herkimer, inasmuch as no application had been made (pursuant to the statute in regard to assessments) to the assessors, for a review by them of the assessment, and because also it appears that the payment of the tax was made without coercion.

It was however a case where there was a moral obligation on" the part of the county of Herkimer and of the town of Winfield, to refund the sums so unjustly received by them from the Bank of West Winfield. And I have no doubt that the legislature had the right to pass a law to compel the board of supervisors to perform that duty.

The first section of the act declares that “ the boards of supervisors of the several counties hereafter mentioned ” (being the same mentioned in the title of the act) “are hereby authorized and empowered, upon the application of any party aggrieved, to hear and determine any claim of an assessment for taxes made in their respective counties upon United States bonds, stocks or securities, any or all of them, which by law are or have been exempt from taxation, and to repay to the proper person the amount collected or paid upon such assessment.’-’ It is claimed on the part of the board of supervisors that this act vests them with the power to hear and determine at their discretion,, and is in no sense mandatory upon them. This I think is a mistake. Upon the clearest principles it is mandatory upon the board to hear and determine whether an assessment and payment had 'been made upon United States bonds, stocks or securities, exempt from taxation, and if they find that there had been, then it was mandatory upon the board to repay the amount so erroneously assessed, to the proper party entitled thereto.

I need not cite the numerous instances in which the word “may," when used in reference to the performance of public duties, has been held to mean “must” or “ shall;” or that on authority a power to do an act, when applied to the performance of such duties, is mandatory, for they are too familiar to require it.

[Oswego Special Term, December 17, 1867.

The only subject upon which the judgment of the board of supervisors was to be exercised, was whether it was established before them that bonds, stocks or the national securities, not subject to taxation, had been taxed; and if so, the amount so erroneously taxed, and paid, and who was entitled to the repayment thereof.

In regard to all these questions there is no dispute, but the board reposes itself upon the ground that in its discretion it had rejected the claim, not upon the ground that such erroneous assessment had not been paid, or that the claim did not belong to the relator; but for the reason that they were at liberty to allow it or not, in their discretion, irrespective of the question whether the claim was established before them or not.

This, I think, will not answer the demands of the statute in question. When, under such an act as this, the board choose to reject a claim, when fully proved, it is the same as a refusal to act at all, and a mandamus will be allowed, to compel them to do what the statute commands them to do.

I think a peremptory mandamus should issue, directing them to hear and determine and pay the claim in question.

Foster, Justice.]