The relator, a taxpayer of the town of Tonawanda, in the county of Erie, seeks to review by certiorari the action of the board of supervisors of the county of Erie in assessing the general, state, county and town taxes of the town of Tonawanda for the year 1909, alleging that there had been incorporated in such assessment illegally a number of items reported by the committee on erroneous taxation. The Appellate Division, in affirming the order of the Special Term refusing to quash the writ, granted leave to appeal to this court, certifying the following questions:
1. "Was the action of the Board of Supervisors of Erie County in ordering and directing the levy of the general tax for the year 1909 on the Town of Tonawanda and issuing the usual warrant for the collection thereof, subject to review by a common-law writ of certiorari?"
2. "Was the action of the Board of Supervisors of Erie County in ordering the annual tax levy and issuing the usual warrant for the collection thereof in the Town of Tonawanda, a ministerial, legislative or judicial act?"
3. "Should the motion to quash the writ have been granted?"
The writ of certiorari issues in the discretion of the Supreme Court, and inasmuch as the jurisdiction of the Court of Appeals is limited to the review of questions of law it is powerless to review the discretion exercised by the Supreme Court. *Page 154
The action of a board of supervisors of a county in determining the amount to be raised by taxation and apportioning the same among the towns of the county is quasi-judicial and can be reviewed by certiorari. (Bellinger v. Gray, 51 N.Y. 610;People v. Hagadorn, 104 N.Y. 516, 522.) But such review will be allowed only in exceptional cases, in which the public interests may be jeopardized. Where the errors complained of are in the auditing of town or county charges, though adding somewhat to the burden of the relator, the court will not, in the exercise of its discretion, inconvenience the public by the holding up of an assessment roll for review under the writ.
In the case of People ex rel. Onderdonk v. Supervisors ofQueens Co. (1 Hill, 195, 200), BRONSON, J., says: "But if we assume that there is some defect in the proceedings which might be reached by certiorari, I still think the writ ought not to be granted. This is an attempt to review the proceedings of the board of supervisors in assessing the general town and county taxes upon the taxable inhabitants of North Hempstead; and the errors into which the board may have fallen cannot be corrected in this way without producing great public inconvenience. This subject was fully considered in People v. Supervisors ofAllegany Co., (15 Wend. 198). We thought it not a proper exercise of discretion, to allow a certiorari in such a case, and, retracing our steps, we quashed the writ which had been awarded, notwithstanding the fact that a return had been made, and the cause had been argued upon its merits. We see no occasion for departing from that decision." To the same effect is People v. Board of Supervisors of Livingston Co. (34 N.Y. 516);People ex rel. Vanderbilt v. Stilwell (19 N.Y. 531). It, therefore, appears that, while the Supreme Court has the power to review by certiorari it will not, in the exercise of its discretion, review the action of the board of supervisors in levying the general tax for town and county purposes where the alleged defects are in the auditing of town and county charges and including them in the tax roll. Besides, if the assessment is made without *Page 155 authority, or contrary to law, the relator has a legal remedy under section sixteen of the County Law. (People v. Board ofSupervisors of Livingston Co., supra.) Thus far we have considered the case upon the assumption that there were defects in the action of the board of supervisors. But we do not so hold. We have not considered the alleged defects as presented by the questions certified and have not determined them.
In view of the fact that this court is unable to review the discretion of the Supreme Court it cannot interfere with the order brought up for review, and must, therefore, affirm the same, answering the first question in the affirmative; the second question, that the act was quasi-judicial, and the third question we leave unanswered for the reason that the motion to quash involved the discretion of the Supreme Court. The affirmance, however, should be without costs to either party.
CULLEN, Ch. J., GRAY, HAIGHT, VANN, WERNER, WILLARD BARTLETT and CHASE, JJ., concur.
Order affirmed.