THE PEOPLE OF THE STATE OF NEW YORK EX REL. THE CITIZENS’ GAS-LIGHT COMPANY OF BROOKLYN, APPELLANTS, v. THE BOARD OF ASSESSORS OF THE CITY OF BROOKLYN, RESPONDENTS
Court of Appeals of the State of New York
March, 1868
39 N.Y. 81 | 1868 N.Y. LEXIS 35
Opinion by MASON, J.
As against corporations, the rule of taxation is just when based upon the amount of capital paid in, or secured to be paid in, after deducting therefrom the amount of such capital actually paid for real estate, assessing the remaining capital at its actual value, and leaving the real estate to be assessed upon individuals in the town or ward where situated.
The mains, or under-ground pipes of a gas company, under the streets of a city, cannot be regаrded as real estate, under the statute, for the purpose of taxation.
The office of the writ of certiorari, sued out of the Supreme Court to review the proceedings and determinations of inferior tribunals, extends to the review of all questions of jurisdiction, power, and authority of the inferior tribunals to do the act complained of; and to all questions of regularity in the proceedings.
The judgment of the Supreme Court upon these questions of regularity, jurisdiction, etc., is reviewable in this Court.
Lucien Birdseye and Joshua M. Van Cott for Appellants.
A. McCue for Respondents.
MASON, J.—That the Assessors, in this case, have disregarded the mandate of thе statute, requiring them to put the price paid by the corporation for its real estate upon the assessment roll, is apparent from the return itself. That they have, by this error, put it out of the power of the Supervisors to assess a proper tax upon the capital of the Relators is, to my mind, equally clear. The Revised Statutes, as amended by the acts of July 21, 1853, and April 15, 1857, prescribe a complete scheme for taxing corporations. The second section (
- The real estate, if any, owned by the company, the towns or wards in which the same is situated, and the sums actually paid therefor.
- The capital stock actually paid in and secured to be paid in, excepting therefrom the sums paid for real estate, and the amount of such capital stock hеld by the State, and by any incorporated literary or charitable institution; and,
- The town or ward in which the principal office, or place of transacting the financial business of such company, is situated; or, if there be no such principal office, the town or ward in which its operations are carried on, or in which it is liable to be taxed.
By the sixth section of the said statutes, as amended by
These provisions of the statute are all of them mandatory.
The language employed in the statute is, “they shall enter” these things in the assessment roll, and nothing short of a strict compliance with these requirements of the statute will excuse them. The effect of these provisions of the statute is to require the Assessors to put the real estate of the corporation into the assessment roll at the price paid for it, and no duty is imposed upon them at all in regard to assessing the value of the real estate, except that specified by the second subdivision of the sixth section of
The duty is imposed upon the officers of the corporation to make an annual statement, on or before the first day of July, of the real estate owned by the company, and the price paid for it, and where situated. This statement must be sworn to by one of the officers of the corporation named in the statute, and forms the basis of the value of its real estate for all purposes of assessing the capital stock of the company. This scheme of the statute is to have placed in the assessment roll the amount of capital paid in, and secured to be paid in, and the amount of its capitаl paid out for real estate then belonging to such company, wherever the same may be situated, together with the amount of surplus funds exceeding ten per cent. of their capital, after deducting therefrom the amount paid for its real estate, and the amount belonging to the State, and to incorporated literary and charitable institutions (
The act of April 15, 1857, amends the fifteenth section,
These several statutes are “in pari materia,” and relating to the same subject, and must be read together in construing them, because they are considered as having one objeсt in view, and acting upon one system (Smith on Stat. Con. 752, § 639). This rule of taxation is certainly just when based upon the amount of capital paid in, or secured to be paid in, and after deducting the amount actually paid out for real estate, to assess the remaining capital at its actual value, leaving the real estate, as the law leaves it, to be assessed like other real estate upon individuals in the town or ward where situated. This, I am satisfied, is the scheme and mode of taxation of the property of corporations as prescribed by these statutes, taken and considered in their connection, which is the only legal rule of construction to be applied to them.
There is, however, another construction of section 3 of the statute of 1857, which no less clearly shows the error in the assessment under consideration. It is this: that the direction, in that section, to deduct the assessed value of the real estate, applies only to the manner of ascertaining the amount of the surplus profits—is that is to say, from the whole value of the real estate, and all shares of its stock of other corporations owned by said company which are taxable on their stock. Obviously, the balance will be the amount taxable, as capital and surplus (ten per cent. being deducted from such surplus, as previously directed).
A careful reading of this act of 1857 suggests that this mode of ascertaining the surplus was in contemplation; and yet, it remains equally certain, as under the views above expressed, that the assessment before us was erroneous, as this construction in nowise affects the duty of the Assessors to deduct the sums paid for real estate from the capital stock, before assessing the value thereof. This latter construction, nevertheless, involves the necessity, for the purpose of ascertaining the surplus, of bringing into view real estate which may be situated out of the town or ward, or even out of the State, which would, as before suggested, be impracticable. We are therefore driven to the alternative of imputing to the Legislature the enactment of a provision which, by using the term “assessed value,” means that an estimate may be put upon the real estate wherever situated, which would be impracticable, or, of using the words “assessed value” in a sense in harmony with the whole scheme and plan of the statutes, viz., to tax the capital and surplus not expended in the purchase of real estate at its value, and to tax such portions of its real estate as lie within the town or ward in which the assessment is made at its value, as other real estate is assessed, leaving its other real estate (if any) to be taxed wherever it may be situated.
This rule was wholly disregarded by the Defendants in this case, in making up the assessment roll against the Relators. In the sworn statement furnished to the Defendants by the Relators, as required by the statute, the capital paid in, and secured to be paid in, is put down at $1,000,000, and the amount paid out at $856,358.26. The Assessors refused to make the assessment roll against the Relators conformably to said statement, and determined to deduct from the amount of the capital stock only what they estimated the actual value of the real estate of the said corporation to be, instead of the sum which the said corporation actually paid for the real estate then owned by it. They assеssed the real estate only of the value of $214,800, and deducted the same from its capital of $1,000,000, leaving a balance of $785,200 of its capital subject to taxation. Now, it is no answer to say that a portion of this real estate, as embraced in the Relators’ statement
We must look to the statute, instead of the common law, in determining whether these iron mains which run under the streets of the city are to be regarded, for the purposes of taxation, as real estate or not, as it is a matter of statute regulation entirely.
The statute declares that “The term ‘land,’ as used in this chapter, shall be construed to include the land itself, all buildings and other articles erected upon or affixed to the same, all trees and undеrwood growing thereon, and all mines, minerals, quarries and fossils, in and under the same, except mines belonging to the State; and the terms ‘real estate,’ and ‘real property,’ whenever they occur in this chapter, shall be construed as having the same meaning as the term ‘land,’ thus defined” (
Under this statute was held, in the case of Boreel et al. v. The Mayor, 2 Sandf. S. C. 552; see also 4 Paige, 384, that incorporeal hereditaments were not subject to taxation as land, or real estate. These mains running under the streets of the city, not being erected upon or affixed to the Relators’ land, cannot be regarded as real estate, under the statute, for the purрose of taxation. The mains are not real estate, as that term is defined in the statute regulating the assessment of taxes, and I do not think they can be held as fixtures under the common doctrine upon that subject. The only remaining question is, whether the Supreme Court, in virtue of its supervisory power over inferior tribunals by means of the common law writ of certiorari, had jurisdiction, and ought in plain and clear duty, under the law, to have corrected this error of these Assessors.
It is claimed and insisted by the Defendants, that how far, and in what cases the Supreme Court will exercise this power of review, are questions addressed to the sound discretion of that
I cannot assent to the proposition, that when the Supreme Court have issued the writ, heard the case upon the return, and have committed a plain error in law, and have come to the conclusion, erroneously, as in this case, that the Assessors have kept within the boundaries prescribed by the statutes, and therefore hold that the Relators can take nothing by the writ, and give judgment quashing the writ, that such judgment is not subject to review in this Court. The judgment of the Supreme Court, in such a case, is not rendered upon the ground that the proceеdings ought not to be reviewed by the writ, or that it was improvidently issued, but upon the ground that the allegations of error have not been sustained in the given case. Since the decision of the several suits growing out of the tax assessments in the city of Poughkeepsie, there is no redress to the citizen against illegal assessments like
Concurring: HUNT, WOODRUFF, DWIGHT and BACON, JJ.
For affirmance: GROVER, CLERKE, and MILLER, JJ.
MILLER, J. (dissenting.)—This is an appeal from an order of the Supreme Court, in the Second Judicial District, quashing a writ of certiorari, with costs.
On a petition of the Relators, alleging certain errors in the assessment roll made by the said Board for the year 1866, the Supreme Court made an order that a writ of certiorari issue requiring the Board to return its proceedings in that behalf to the said Court.
A return having been made, and the pаrties heard on the merits, the Court quashed the writ. The Relators were incorporated as a gas company, under the general act passed in 1848.
In June, 1866, they made their annual written statement, under oath, to the Board of Assessors, in which they set forth that their nominal capital was $1,000,000, and that they had paid for their real estate $856,358.26. They returned no surplus or reserved profits, and made no claim to exemption from taxation.
The Assessors, instead of deducting the sum stated to have been paid for real estate from the actual value of the capital, put down the actual value of the capital at $1,000,000, and deducted from it only $214,800; putting that sum in the roll as the “valuation of the real estate.” It appears by the petition on which the certiorari was issued, that the sum specified in the annual statement as the price paid for the company‘s real estate was made up of two items—one, $505,928.26, being the cost of land, and the buildings and fixtures thereon; the other, $350,430, being the sum paid for iron mains, and for laying them in the streets, &c.,
In their return the Assessors state that they have estimated the capital stock of said company at $1,000,000, its actual value; that they deducted “the assessed value” of the real estate—$214,800—from the estimated value of the capital stock, and assessed it at $785,200 for personal property. Referring to the annual statement, they further say, “that the secretary included in the amount named as paid for real estate, the amount paid for pipes owned by the said company, and which were laid in the streets of the city of Brooklyn, and not upon any premises of said company, and that the amount named as aforesaid is, therefore, not the amount paid by said company for real estate, or the value of its real estate, but is, excepting the sum of $214,800, composed of items of personal property.”
The return was heard at the General Term in the Second District, in December, 1866, and an order was made quashing the writ of certiorari, with costs.
Judgment was entered, and the Relators appealed to this Court.
The fact that the Assessors have not fully and particularly stated the various items required by the statute (
Although the third section of the act of 1853 requires that the Assessors shall, in the fourth column, enter the amount of the capital stock of the incorporated company paid in, &c., “after deducting the sums paid out for all the real estate of the company,” I do not understand that this provision is entirely peremptory and controlling; for, if such were the case, therе would be no means of correcting the erroneous and false estimates made by officers of incorporated companies for moneys paid for real estate, and expenditures of this character would rest entirely, or at least to a great extent, in the judgment, and sometimes in the entire misapprehension, of the parties who made them.
Such clearly was not the intention of the law, as is especially
The effect of this enactment, I think, is, to qualify the provisions of the act of 1853, and, in connection with the general object and tenor of the statute in question, to leave it for the Assessors to place a valuation upon the real estate, without being entirely confined to the statement of the company. What is the “assessеd value,” unless it be the value put upon the property by the Assessors? It cannot mean the amount which the Assessors are required to put in the first column of the assessment roll—that is, the price paid for the real estate, as is claimed; because that is not assessed, but simply a statement of the company, which is qualified by the provision referred to, and contained in the act of 1857.
Nor does this construction interfere in any way with the assessment of the real estate in the ward where it belongs, where, as in this case, the jurisdiction of the Assessors extends over the whоle city. The question is not presented as to its effect in case the land was located in other towns, and it is not, therefore, necessary to look at it in that point of view. The effect of this interpretation would produce no injustice; for if the company were aggrieved, they had a right to apply to the Assessors to change and reduce the valuation in accordance with the provision of the statute (
Assuming that I am correct in this construction of the statute, the question then arises whether the Assessors have assessed a larger amount for personal property than was warranted upon the facts presented to them. The petition of the Relators shows that they had expended $505,928.26 for land, buildings, and works thereon, and $350,430 for iron mains, and the laying thereof, in the streets of Brooklyn.
The return of the Assessors shows that they estimated the capital stock at its par value, and, after deducting the assessed value
The return of the company, I am inclined to think, must be controlling; and we cannot, in a common law certiorari, measure the weight to be attached to conflicting statements, if the petition and return can be regarded in that light.
We are then to determine whether the mains or pipes laid in the streets were properly assessed as personal property. They were not upon the real estate, but mainly in the streets of Brooklyn, which did not belong to the Relators.
They are liable to be changed or moved at the will and pleasure of the owner, and are not so immediately connected with the real estate as to be attached to the freehold, and so as to make them appurtenances thereto, or a permanent fixture. I think, without examining the numerous cases on the subject of fixtures, that they must be regarded as machinery, so far as they are attached to the building, and were capable of removal without injury to it (Voorhies v. McGinnis, 46 Barb. 242).
Beyond the portion immediately connected with the real estate of the company, I think they cannot be considered as even attached to it, or as anything but detached personal property. I am also of the opinion that they are not included within the definition of the terms “lands,” “real estate,” and “real property,” as defined by the Revised Statutes. The statute regulating the assеssment and collection of taxes declares that the term “land,” as used therein, “shall be construed to include the land itself, all buildings and other articles erected upon or affixed to the same, all trees and underwood growing thereon, and all mines, minerals, quarries, and fossils in and under the same, except mines belonging to the State; and the terms ‘real estate,’ and ‘real property,’
It is very evident, I think, that the pipes or mains of the Relators are not, within the meaning of the statute, real estate, and were not properly to be assessed as such.
I have not discussed the question whether the decision of the General Term can be reviewed, as the views expressed render it unnecessary.
It is, perhaps, appropriate to add, that the petition upon which the certiorari was granted does not set forth any objections to, or make any complaint as to, the manner in which the assessment was made up; and even if it is not in accordance with, and upheld by, the provisions of the act of 1857, it may be questionable whether the Relators are entitled to urge these objections upon the hearing of the certiorari.
The Court below rightly quashed the writ and the order made, and the judgment entered thereon should be affirmed.
Judgment reversed.
JOEL TIFFANY,
State Reporter.