People v. Works, Collector of Taxes of De Peyster

By the Court, Savage, Ch. J. In England a writ of prohL bition lies in a variety of cases, and is generally directed to inferior courts, temporal as well as spiritual. It is the remedy provided by the common law against the encroachment of jurisdiction ; to keep inferior courts and tribunals within the [488] ^m‘ts anc* bounds prescribed to them. The reason of prohibitions in general, is that they preserve the rights of the courts and of individuals. The wisdom and policy of the law supPose both best preserved ' when every thing runs in its right channel; as> if one might be allowed to encroach, another might, and thus confusion be produced in the administration of justice. Jacob’s Law Diet, title Prohibition, and Comyn’s Dig. same title. By our revised statutes, 2 R. S. 587, § 61, this writ is to be applied for in the same manner as a mandamus, upon affidavit. The only necessary enquiries in this case are whether the town of Depeyster had power to vote the tax, and whether the same could legally be levied upon the taxable property of the town. By the revised statutes, I R. S. 337, each town is a corporation, and has power, among other things, “to purchase and hold lands within its own limits, and for the use of its inhabitants, subject to the power of the legislature over such limits.” The electors have power, at their annual town meetings, among other things, to make such prudential rules as-they may think proper, for the better improving all lands owned by the tdwn in its corporate Capacity, and for making fence's arotind the same, or any part thereof; 1 R. S. 341, § 5, sub. 10; and town charges include “ the monies authorized to be raised by the vote of a town meeting, for any town purpose.” 1 R, S. 358, § 2, sub. 3. Special town meetings have power to supply vacancies in certain cases; to raise monies for the support of common schools, or of the poor, when those subjects were not acted on at the annual town meetings, and to deliberate in regard to suits for or against the "town, and to raise monies therefor ; but they have no other power. 1 R. S. 341, § 7. The tax in question was voted at a special town meeting, and therefore clearly irregular and unwarranted by law. But I am also of opinion that the town has no right to raise money by tax at an atinual town meeting, to be expended in improving of fencing any lands or buildings, unless Such lands- or buildings are owned by such town in its corporate capacity. The title to the property in question is in a religious society duly incorporated ; ahd all the interest the town has, consists in-a license from the pew holders, to hold their town [489] meetings in that building. If it be conceded that the town has a right to hire a town house at the public expense, that would not justify a tax for improving property, the title to which is not in the town, in its corporate capacity. Motion granted without costs.