By the Court —
Johnson, J.It is objected by the defendant’s counsel to the writ of certiorari in this case, that the statute makes the decision of the county judge on the appeal to him ‘‘final” (Session Laws of 1855, chapter 546, § 5), and that it cannot be reviewed in this way. But this is not a valid objection. It has uniformly been held that a common law certiorari will lie to review the determination of inferior tribunals, even where the statute declares their decisions final, unless the right of review is taken away in express terms. (Lawton v. Commissioners of Cambridge, 2 Cai., 179; Le Roy v. Mayor, &c., of N. Y., 20 Johns., 430; Ex parte Mayor, &c., of Albany, 23 Wend., 277, 287.) The writ lies tn such cases for the purpose of ascertaining whether the inferior jurisdiction has kept within the power conferred upon it. The only question here, is, whether the assessors had the power or right to assess the relators upon the facts which are made to appear. In other words, whether the corporate property, in view of all the facts, was exempt by law from assessment and taxation for any and every purpose. Of course, the defendants had jurisdiction of the subject-matter, and of the body or person of the corporation for the purpose of making the assessment, but they must keep within the law, and could not make a valid assessment if the property was exempt by statute.
Here the corporation had abandoned the greater portion of the road which it built and formerly owned, and the portion *150so abandoned has become public property the same as though the corporation had never had any title to it or interest in. it, The statute before referred to (section 5) exempts such pro-perty from assessment and taxation “ until the surplus annual receipts of tolls, over necessary repairs, and a suitable reserve fund for repairs, and relaying of plank, shall exceed seven per cent per annum on the first cost of such road.” This, we think, refers to the road the corporation has, and operates, at the time the assessment is made, and to the cost of that road, and not to some other road which the corporation may have had at another time, nor to some portion of what was formerly part of the same road, but which has been abandoned to the public. The question is, what are the annual surplus receipts of tolls of the road the corporation then has and owns, and what was its first cost ? It is shown what the first cost was per mile, and what the surplus annual receipts were at the time of the assessment. This takes the case out of the exemption, and renders the property liable to assessment and taxation. It does not appear, it is true, that the corporation has any surplus fund. But that does not affect the question of exemption. For aught that appears, it might have had such fund; and if it had had it, then the surplus annual receipts of tolls should have exceeded seven per cent over that in addition to the first cost, and other expenses mentioned. But the corporation cannot continue the exemption by omitting to lay by a reserve fund. We are, accordingly, of the opinion, that the assessors kept within the statute, and that the county judge decided the case properly on the appeal to him.
The decision is, therefore, affirmed with costs against the relators.
Decision affirmed.