14 N.Y.S. 859 | N.Y. Sup. Ct. | 1891
The defendant raises three preliminary objections to this writ, and insists that it should be quashed: (1) Because the application for it was not made within 30 days after service upon the relator by the comptroller of notice of settlement of the tax in question. (2) Because the paper upon which the motion for the writ was made, and notice of motion for the writ, were not served upon the comptroller eight days before the making of the motion. (8) That the writ of certiorari should not have been issued in this case, because the determination sought to be reviewed could be adequately reviewed by an appeal to a board of state officers consisting of the secretary of state, attorney general, and state treasurer, under the provisions of section 1 of chapter 361 of the Laws of 1881.
The first point made by the defendant for the quashing of this writ, because the application therefor was not made within 30 days after the notice of the assessment, is under the provisions of section 17, e. 501, of the Laws of 1885. The part of that section to which our attention is directed upon this point reads as follows: “See. 17. No writ of certiorari to review the determination and settlement of the comptroller as to the amount of capital used within the state by any corporation, joint-stock company, or association, and as to the tax and penalty to be paid thereon, shall be granted, except application therefor be made within thirty days after service upon such corporation, joint-stock company, or association, by the comptroller, of notice of such settlement.” This statute is mandatory, and if it affirmatively appears in the
Section 17 of chapter 501 of the Laws of 1885, after providing for the time-within which a writ of certiorari must be applied for, as we have quoted, proceeds as follows: “iSTor shall any such writ be granted except the papers upon which motion therefor is to be made, including notice of motion, shall have been served upon the comptroller at least eight days before such motion.” Unless the effect of the provision, above quoted is qualified or modified by the provisions of sections 19 and 20 of chapter 463 of the Laws of 1889, then the service of the notice and papers as prescribed by the provisions of section 17, above quoted-, is a'prerequisite which must be complied with to-confer jurisdiction upon the judge to whom the application is made, and without such service, and proof thereof before him, he would be wholly without jurisdiction to make the order for or grant the writ. Upon both of the points raised by the defendant under the provisions of section 17 of chapter 501 of the Laws of 1885, there has been a failure on the part of the relator; and unless such omission has been waived by the defendant in the steps subsequently taken by him, or the effect of section 17, above quoted, is so modified by chapter
The learned attorney general raises another preliminary question which he-insists is decisive of this certiorari under the provisions of chapter 361 of the Laws of 1881. By section 1 of this chapter the comptroller, if not satisfied with the valuation returned by the corporation or joint-stock company to the' comptroller, “is authorized and empowered to make a valuation thereof, and to settle the accounts upon the. value so made by him, for the tax, penalties,
This brings us to the consideration of the question upon the merits. By the statute the comptroller is authorized and empowered to ascertain, fix, and determine the amount of capital employed within the state, and to settle an account for the taxes and penalties due the state thereon. This, it seems to me, he has done in this case, by aggregating the average balance kept on deposit in the state, the amount of annual rent paid for premises occupied by the petitioner in this state, and the annual amount of salaries paid to officers in the state. It is difficult to see why the capital so used and kept in this state is not employed here. It is true that the case discloses that the chief operations of the company were in Panama, but the deposit of money in a bank may be, and ordinarily is, employing it there, and so with paying it out for salaries and rents; and, in the absence of any explanation, it would seem to follow that the comptroller was justified in holding that it was employed in this state. The comptroller, in the determination of this question, was called upon to ascertain as a fact the amount of capital so employed, and his determination upon that subject, when reviewed, stands in some respects like the verdict of a jury, and should not be set aside except upon reasons that would justify the court in setting aside a verdict as against evidence. Code