152 N.Y. 417 | NY | 1897
Lead Opinion
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The first question presented for decision is that upon which the reargument was ordered, viz.: "Whether that clause of the Constitution which provides that `No unanimous decision of the Appellate Division that there is evidence supporting or tending to sustain a finding of fact or a verdict not directed by the court, shall be reviewed by the Court of Appeals,' is applicable to this appeal." (
Let us now consider the history, nature and purpose of the constitutional provision involved and apply it to the proceeding before us.
The most difficult question before the late constitutional convention was how to relieve the overburdened calendar of this court. A Second Division of the court, organized in 1889, sat for nearly four years and afforded temporary relief, but the evil of a calendar beyond control and growing worse confronted the convention. Many plans were proposed, all of which were along the line of increasing the number of judges, or reducing the number of appeals. The latter theory was adopted and carried into effect by the second and ninth sections of the judiciary article. By the second section a new appellate court, with nearly double the number of judges, was created in the place of the old General Term, and by the ninth, the jurisdiction of the Court of Appeals was expressly limited and power was conferred on the legislature to still further restrict the right of appeal to this court. The purposes of the convention may, to some extent, be inferred from the following extracts from the report of the judiciary committee: "The Court of Appeals is overloaded with work, a very considerable portion of which is wholly outside of its proper and necessary function of settling the law. Our purpose is to draw the line distinctly around the questions which the Court of Appeals, and that court alone, ought to determine finally; to leave all other questions to the court first reviewing the cause, and to make that court fully competent to protect satisfactorily every right of a litigant. For the purpose of effectively limiting the Court of Appeals to questions of law, we have added to the general statement of that limitation a clause specifically precluding review of a unanimous decision of the Appellate Division that there is evidence *433 to sustain a finding of fact or a verdict not directed by the court. This closes the door through which, under sections 993 and 1337 of the Code, the whole question of fact, in many cases, is brought before the Court of Appeals. It does not affect cases of nonsuit, or of verdicts directed, or of reversals by the Appellate Division, or cases where there is a dissent in that court. It does require that when a trial court or jury has decided that a fact is proved, and five judges in the Appellate Division have unanimously held that it is proved, controversy about that fact shall end, and that any question of law mixed with that fact shall be separately raised and presented in order to be reviewed by the Court of Appeals." (2 Convention Documents, No. 53, p. 6.) Thus we see that the purpose of the convention was to relieve the calendar of this court by confining its labors "to its proper and necessary function of settling the law." This is the great object of a court of last resort in a judicial system that allows two successive appeals, as four separate divisions of the intermediate appellate court cannot settle the law, because it is inevitable that their judgments, to some extent, will conflict with each other. The public interest requires that the law of the entire state should be uniform, consistent and harmonious, and this makes a second appeal necessary, but it is manifest from the proceedings of the convention that it was the aim of that body to limit the last appeal to the single purpose named. Did the convention accomplish its object? This question must be answered by gleaning the intention from the language of the Constitution, read, when the meaning is doubtful, in the light of such existing facts, including statutes in force at the time, as may reasonably be presumed to have been known to the members of the convention. They first provided that the jurisdiction of this court, "except where the judgment is of death," should "be limited to the review of questions of law." At first this would seem to accomplish the entire purpose as outlined above, for it would naturally exclude any review of the facts, but the Code, as it then stood, provided that an exception to a finding of fact presented a question of law as *434 to whether such finding was unsupported by any evidence. (Sec. 1337.) This placed it in the power of the appellant, by freely excepting to findings of fact, to compel this court to read all the evidence in order to see whether there was any to support the findings excepted to. This did not advance jurisprudence by settling the law, for its effect was limited to the case in hand, and it consumed much time in argument and examination. The convention, apparently realizing this, went farther and sought to make it certain that only "questions of law," in the ordinary meaning of that phrase, should be reviewed by this court, by providing that "No unanimous decision of the Appellate Division of the Supreme Court that there is evidence supporting or tending to sustain a finding of fact or a verdict not directed by the court, shall be reviewed by the Court of Appeals." It is important to know what was meant by the word "decision" and the phrase "finding of fact," as thus used. The word "decision" appears twice in the section under review, first in the quotation already made and again, but in plural form, in the next sentence, which provides that "except where the judgment is of death, appeals may be taken, as of right, to said court, only from judgments or orders entered upon decisions of the Appellate Division of the Supreme Court, finally determining actions or special proceedings, and from orders granting new trials on exceptions, where the appellants stipulate that upon affirmance judgment absolute shall be rendered against them." As last used, the word "decisions" obviously applies with equal force to actions and special proceedings. The meaning is, that judgments finally determining actions, and orders finally determining special proceedings, "entered upon decisions of the Appellate Division," may be reviewed upon appeals taken as of right to this court. So, as it seems to me, the word "decision," as first used, has the same meaning and applies with equal force, to actions and special proceedings. It is not confined to judgments or orders, but covers both. No reason is perceived for any distinction, and presumptively the same word has the same meaning in each of the two successive sentences *435 relating to the same subject. This must be the true construction unless the makers of the Constitution intended to discriminate in favor of orders in special proceedings and against judgments in actions, by allowing the evidence to be reviewed in the former but not in the latter. If any discrimination were to be made, is it reasonable to suppose that it would have been in favor of the class of least importance, or that special proceedings would have been treated as more sacred than judgments? There is no evidence of any intention to discriminate, for actions and special proceedings are both placed on the same footing. They are treated alike in all respects.
The phrase "a finding of fact" may mean simply a finding expressed in words or, also, a finding implied from the nature of the decision. (Amherst College Case,
The action of the legislature in so amending the Code of Civil Procedure as to carry the judiciary article into effect, has some bearing on the question By section 190 it confined the jurisdiction of this court to the review upon appeal of actual determinations made by an Appellate Division, as expressed in judgments or orders finally determining actions or special proceedings, and orders granting new trials on exceptions. It thus treated actions and special proceedings alike, the same as it did in the following section, which relates to limitations, exceptions and conditions. It expressly limited the jurisdiction to the review of questions of law, and repeated the language of the Constitution in reference to the effect of a unanimous decision of the Appellate Division in relation to the facts. (Szuchy v. Hillside Coal and Iron Co.,
To the construction thus indicated, the objection is made that it would preclude the separation of questions of law from *437 questions of fact, when the findings of fact were implied or general in form. That, however, is a mere matter of practice, to be worked out by the legislature, which can prescribe a method, whenever it is deemed necessary, of separating the facts from the law. It is clearly within the domain of legislation to provide that the facts found shall be expressed in words, or to so regulate the practice that questions of fact and law will not be commingled. The fact that it has not yet done so has no bearing upon the question under discussion.
But whether the constitutional provision in relation to the effect of a finding of fact, unanimously affirmed by the Appellate Division, applies to all special proceedings or not, there are particular reasons why it should be held to apply to the special proceeding now under consideration. The method of procedure in this matter, when it reached the Special Term, did not differ in substance from the trial of an action commenced by a summons and the decision of the issues without expressing the facts found, as permitted by section 1022 of the Code. There was, in fact, a trial of the issues framed by the petition and the return. Witnesses were sworn and examined, and the testimony taken was considered by the court in making its determination. Thus, the analogy of this special proceeding to an action is perfect, and the facts impliedly found under such circumstances come, as we think, within the constitutional provision in question. No confusion should arise from the name given to the proceeding by the statute which authorizes it, for the substance or real nature of the procedure should have more weight than the name applied to it. While the proceeding is called a certiorari it is not within the lines of that writ as ordinarily used, because it permits a new valuation upon new evidence, which is, for all practical purposes, a new trial. The object was not simply to see whether an inferior tribunal had kept within the bounds of its authority, but to make a new determination as to the value of the assessable assets of the relator.
The claim is made that there was no decision by the Appellate Division, unanimous or otherwise, that there was evidence *438 supporting or tending to sustain a finding of fact. This requires brief consideration, for we have already held, although no public announcement has been made of the fact, that the effect of a unanimous judgment or order of affirmance is a decision that there is evidence supporting the findings of fact as expressed or necessarily implied. We do not think it is necessary for the Appellate Division to specify what findings of fact are sustained by evidence, when it intends to sustain them all. Such a course would make its decision cumbersome and inconvenient. Nor do we regard it as necessary for that court to repeat the language of the Constitution and apply it generally to all the findings of fact. A unanimous affirmance of the judgment or order appealed from necessarily affirms all the findings of fact, whether expressed or not, that are essential to support the decision made below, the same as the affirmance of a general verdict. No other logical inference is possible. That the vital facts exist is a necessary part of the determination, for unless they existed it could not have been made. Neither the statute nor the Constitution say an express finding of fact, but simply a finding of fact, thus meaning any, and including all findings of fact.
It is our duty, therefore, to accept the facts stated in the return as final, and in our further review of the proceeding to ascertain whether, upon the basis of those facts, the assessment in question is illegal for any reason. It appears from the return that the assessment was founded upon the report made by the relator to the railroad commissioners in January, 1895. Such a report, as suggested by this court in another case between the same parties, is "competent evidence for the commissioners or the Special Term to receive and act upon," as in the nature of an admission made by the relator. (People ex rel. Manhattan R. Co. v. Barker,
The order of the Appellate Division should be reversed and that of the Special Term so modified as to vacate the assessment and order a reassessment by the commissioners, without costs to either party.
Concurrence Opinion
The first question suggested by the argument is whether this case falls within the restriction upon appeals to this court, which has been embodied in the present Constitution. This provision of the fundamental law was framed by members of the bar, in brief language, and every word employed was in common use in the profession and had a well-settled and definite meaning. The restriction is embraced in a single sentence:
"No unanimous decision of the Appellate Division of the Supreme Court that there is evidence supporting, or tending to sustain, a finding of fact or a verdict, not directed by the court, shall be reviewed by the Court of Appeals."
It is obvious that this language embraces the class of cases and the questions that were intended to be withdrawn from the jurisdiction of this court. The cases were those where there was a finding of fact or a verdict, and the questions were whether there was evidence supporting or tending to sustain such finding or verdict when that question had been passed upon in the Supreme Court in a decision which was unanimous.
It is said that there is in this case a finding of fact against the relator, and that the court below, having decided unanimously that there was evidence supporting or tending to sustain it, the decision is final. It will be observed that the record before us does not disclose the existence of any action or special proceeding instituted by any private litigant. The controversy originated in the acts of public officers in the discharge of public duties. The jurisdiction which this court has always possessed and exercised to review the official acts of public officers and administrative and governmental boards and bodies, should not be abdicated by the court itself, nor should suitors be denied a hearing except in obedience to the *441 plain mandate of the Constitution. The acts which those officials may perform affect rights and interests of the citizen of vast consequence, and the powers which they may exercise are so liable, through mistake of law or otherwise, to result in oppression or injustice, that appeals from their proceedings frequently present the most important questions that can engage the attention of any court. They practically have charge of nearly all the machinery of government, both general and local, and their acts at almost every point affect liberty and property to such an extent that it may well be doubted whether it would be wise to withdraw them from the most complete judicial review. Certainly it would not by any close, strained or doubtful construction of the language of the Constitution.
If this case is not fully within our jurisdiction, it is difficult to see how any case originating in like official acts ever can be, since the objections to that jurisdiction now made must exist in every such case. The particular question now before us grows out of the determination of a board or body of officers that exist in every town, village and city of the state. They are charged with most important duties and exercise most extensive powers. In the city of New York, where this controversy arose, they are known and designated by a different title, and their proceedings assume more of the forms that pertain to a regular judicial body, organized for a special purpose, but in every locality of the state their powers and duties are essentially the same. They have power to decide important questions of fact and law involved in the valuation of property and the imposition of taxes, and, since the questions under consideration affect every locality, I prefer, in the course of the discussion, to use names and terms that are familiar, convenient and generally known, and, at the same time, sufficiently describe the officials who discharge the duties, in the city of New York, of ascertaining the facts and preparing the lists that form the basis of all public taxation, whether general or local. *442
There can be no doubt that the intention of the framers of the Constitution was to restrict appeals to this court, and whenever that intention is fairly expressed, with reference to the particular case, this court will not attempt to draw to its jurisdiction cases that come, plainly or even by reasonable construction, within the restriction. But the right to appeal to this court has never been regarded as such a public mischief as to warrant us in extending the restriction, by construction, to cases not fairly embraced within the language or the evident intention of the framers. The restriction clearly applies only to a case where there has been a finding of fact or a verdict, and, if we can but ascertain the precise thought sought to be expressed by the use of these words, the present contention will be determined. The words, when used, had a well-settled and well-understood meaning, both in common language and in legal phraseology, and it must be assumed that they were not used in any loose or artificial sense, but in their natural and ordinary meaning. In practice they have always been used to express the result of the decision or the deliberation of a court or jury upon an issue or question of fact involved in some litigation. (Burrill's Law Dict., Bouvier, Black, Webster.) The words always presuppose an issue of fact between litigants.
It is said that in this case there was such an issue, that some fact has been determined and that the court below has decided unanimously that such fact is sustained by evidence, and that the decision so made is final and beyond the power of this court to review. In my opinion, this contention is not correct within the true intent and meaning of the Constitution, and, in bringing it to the proper test, it is of the first importance to be able to point out clearly what the supposed fact is, and when and how decided.
On or prior to the second Monday of January, 1895, the board of assessors of the city of New York made certain entries in a book or public record prepared and kept for that purpose, and required by law. The book was divided into columns, each with the appropriate heading, and is known as *443 an assessment roll. The words, characters and figures entered in the several columns of this book, in themselves, express no distinct or intelligible idea, but, when read with the law which authorized these officers to assess and levy taxes, they possess great significance, and are the evidence of an official act in the exercise of the highest authority. In law this entry denotes that the assessors decided at least two important facts, namely, that the relator resided within the jurisdiction and owned property subject to taxation of the value specified. The decision was made ex parte in the discharge of an official duty. There was no issue, no litigation, no proofs, but the officers acted upon their own personal judgment, aided by such inspection of the property and such inquiries as they thought proper and necessary to make, and yet this decision was in accordance with all the forms of law. There was jurisdiction of the person and of the subject-matter, and this entry is the only original decision of fact or law that is to be found in the record. The facts thus determined are at the foundation of this whole proceeding, and every step since taken has had but one purpose, and that was to change or modify the facts so found. This entry is the only adjudication to be found in the record as to the facts, and, if it was stricken out, the case would disclose no fact decided, no legal liability on the part of any one, and the relator would have no grievance. There is no other paper in the record that makes any original determination of any fact whatever. This entry denotes that facts of great importance were passed upon by the assessors, and the record shows that these facts have been since reviewed in various forms by other tribunals, but the assessors alone constituted the court of original jurisdiction that tried and decided the questions in the first instance, and it is of this decision, and this alone, that the relator complains. The decision thus made was not final, however, in cases where complaint was made, but subject to review by the assessors themselves. The law required that at a subsequent time, and upon notice to the parties in interest, the assessors should organize as a board of review to examine their work, hear parties aggrieved, and correct *444 any error that had been committed. Their powers in this respect were limited. They could reduce the value, as originally fixed, but they could not increase it. They could correct manifest clerical errors in extension and computation, and then the power to interfere with the decision before made by them practically ended. In this case they reduced the valuation, and their original decision, as thus modified, stands as the final decision.
The body possessing original jurisdiction had then decided all the questions of fact and law that have ever been involved in this controversy, and the relator has ever since been seeking to change that decision by an appeal to the courts from the action of the assessors. Courts have no power to make assessments or to determine facts upon which they are based, though they have ample power to review them when made by the assessors, but the latter clearly possess the primary or original jurisdiction over the subject. It is important to keep clearly in view the point that the only evidence in the record of an original determination of facts is the entry by the assessors in the book. If anything is wanting to make that clearer, it is only necessary to look into the subsequent proceedings in the courts.
The first step in that direction on the part of the relator was to sue out a writ of certiorari, under chapter 269 of the Laws of 1880. The purpose of that writ, as plainly expressed on the face of the statute, was to review the decision of the assessors and to determine whether that decision was right or wrong. The proceeding differed from other appeals only in the method of review, since it is provided that in certain cases additional proof may be taken to aid the court in the disposition of the appeal. Whether the hearing is had upon the record of the assessors, as it may be, or upon further proof, the court is all the time reviewing the decision of the assessors. It can make no original or independent decision. It cannot act upon the parties, but only upon the assessors, by directing them to correct their own errors, if any are found. It is only where all the evidence is not produced before the assessors *445 that the court, in the exercise of discretion, permits further proof to be taken. That is a mere method of hearing the appeal that does not change the real character of the proceeding as one solely to review the action of the assessors.
The order which the court made in the decision in this case, of the questions brought before it by the writ, clearly indicates the nature and character of the whole proceeding. It does not profess to determine any fact, and no fact is even stated in it. It simply confirms the action of the assessors and directs that the writ brought to review their decision be dismissed. No one can tell, from reading the order, what the fact in controversy was. A court which does nothing more than affirm the action of some other court or body and dismiss the appeal, does not make any finding of fact or render any verdict within the meaning of the Constitution. The Special Term did precisely what the Appellate Division did. It reviewed the action of the assessors. The method of review was different, but neither court exercised original jurisdiction or made any finding of fact. Both sat in review of the action of the assessors. A finding of fact in the proper sense always proceeds from a court or body having original jurisdiction over the subject, and since the courts have no original power to make assessments, but simply to review them when made by the assessors or other officers, the original decision upon the facts in this case must be referred to the assessors and not the courts.
It is not and never was the office of the writ of certiorari to initiate any original suit or proceeding in which a finding of fact, in the proper sense, could be made. Its office is to bring up for review some decision already made. The questions to be reviewed have been enlarged and the methods and procedure changed by statute, but it is still essentially a proceeding for the correction of an erroneous decision, and the writ is generally discretionary. The decision upon this writ is an order that acts upon the court or body below that has made the decision, but it is not an original determination of any controversy. It deals with facts as all appellate courts deal with them. It uses them for the purpose of determining whether *446 the assessors were right or wrong. Certainly such an order was never known as a finding of fact, and to call it such in this case is to give to the words of the Constitution a very loose construction.
I have dwelt at some length upon the nature and origin of the decision in this case, because it seemed to me to be useful, since it clears the way for a distinct and accurate statement of the precise question we have in hand, and enables us to anticipate the answer. When the framers of this amendment to the Constitution made use of the words "a finding of fact," did they intend to include in the term or did they refer to an entry made by assessors in a book in the discharge of their duty and for the purpose of recording their decision as to the value of property for the purpose of taxation?
The answer to this question ought not to be very difficult. It seems very plain to me that the language of the restriction had no reference whatever to such a decision. The natural and obvious thought that the words express is, as already stated, the result of a judicial inquiry upon an issue of fact joined in some litigation, and not the result of an official entry by an officer like an assessor. The words employed had long been in general use and were familiar to the bar and the public, and yet, I think, it is safe to assert that no member of the convention had ever heard such an entry by assessors, upon the roll, described as a finding of fact. No one who would attempt to describe or designate such an official act as a finding of fact could make himself understood by either lawyer or layman. It is more than probable that no member of this court, or of the courts through which this case has passed, has ever, before this discussion was brought to his attention, heard an entry in a book by assessors, for the purpose of an assessment, designated as a finding of fact.
The effect of many official acts of officers and governmental or municipal boards is to determine some fact, but such acts have never been known as findings of fact, and cannot properly be expressed by the use of such terms. The expression, as used in the Constitution, can be given full effect and a very *447 wide application without such an extreme and unnatural construction. When it is applied to a case where an issue of fact was joined between parties in a court of original jurisdiction, and determined judicially by a decision, general or specific in its terms, we have pushed the restriction as far as the framers of the Constitution ever intended.
There never was a time when, if it was said that assessors had made a finding of fact, that the common mind, or even the professional mind, would have comprehended the precise meaning intended to be conveyed, and certainly no one would suppose that such an expression had reference to the formalities necessary to make an assessment. Nor is there any reason to believe that an order of the Special Term, such as appears in this record, confirming the action of the assessors and dismissing the writ of certiorari, was ever known as a finding of fact or that the members of the convention who drafted the amendment intended to refer to such an order or include it within the limitation.
To say that there is in this case a finding of fact is to give to these words a meaning and signification that they never before possessed. All that the case shows is that certain officers performed an official act which affected the relator and assumed certain facts, but it contains no finding of fact within the meaning of the Constitution or in the usual and ordinary sense in which that expression is used.
In Riggs v. Palmer (
"In order to form a right judgment whether a case be within the equity of a statute, it is a good way to suppose the lawmaker present, and that you have asked him this question, Did you intend to comprehend this case? Then you must give yourself such answer as you imagine he, being an upright and reasonable man, would have given. If this be that he did mean to comprehend it, you may safely hold the case to *448 be within the equity of the statute, for, while you do no more than he would have done, you do not act contrary to the statute, but in conformity thereto."
The fairness and good sense of this rule cannot be questioned. In its application to this case, we may now suppose the judiciary committee that framed the amendment to the Constitution and reported it to the convention to be present, and that we have submitted to them the following questions: Did you intend that a decision of assessors, entered upon the roll, should be deemed to be a finding of fact within the meaning of the restriction upon appeals to this court? Did you intend to call the order of the court, affirming the assessors and dismissing the writ, a finding of fact within the meaning of the restriction? Did you intend that official acts of public officers, boards or governmental bodies, that necessarily determine some fact, should be deemed to be a finding of fact within the meaning of the restriction? If these questions could properly be answered in the affirmative, then, of course, I must be radically wrong upon this question.
There can be little doubt, however, what the answer to these questions would be. The committee has given it already. In the report to the convention, which accompanied this proposed amendment to the Constitution, they stated the purpose and effect of the change in this language: "For the purpose of effectively limiting the Court of Appeals to questions of law, we have added to the general statement of that limitation a clause specifically precluding review of an unanimous decision of the Appellate Division that there is evidence to sustain a finding of fact or a verdict not directed by the court. This closes the door through which, under sections 993 and 1337 of the Code, the whole question of fact in many cases is brought before the Court of Appeals." (2 Conv. Doc. No. 53, p. 6.) It is seldom that a law-making body has made such a clear and concise statement of heir purpose and the effect of the change which they had in view. The committee told the convention and the people who were to pass upon their work that the new provision was intended *449 to close the door against certain practices that existed under two designated sections of the Code. We know what these practices were. They had no relation to special proceedings, and when the scheme of the Constitution was put into effect by the legislature one of the sections was repealed and the other so changed as to have no reference whatever to such proceedings, all of which proves that there never was any intention to bring such cases as this within the scope of the restriction.
If the committee had in mind any such sweeping changes in the jurisdiction of this court in cases of appeals in special proceedings as are now suggested, it is quite remarkable that they made no mention of such purpose in their report. It is apparent that if the change has been made, neither the committee nor the convention were aware of the scope of their work.
It is easy to see how such a contention with respect to jurisdiction can be made in every special proceeding, and hence the decision that we are about to render may be fraught with the most momentous consequences. It is only necessary to mention the case of a board of election officers acting as canvassers of the vote. It may be composed of the inspectors of election, or the board of supervisors, or the state officers acting as a state board of canvassers. From beginning to end, the inquiry is with respect to the number of votes cast for this or that candidate. That is an inquiry as to a matter of fact in the same sense that the value of the relator's property was in this case. By mistake of law or fact, a person may be declared elected to an office when he was not elected. The mistake or error may affect the control of the state government or even the Federal government, and yet the unanimous decision of the Supreme Court that there was evidence to sustain the finding of fact is final.
The state board of equalization, composed of the state officers and state assessors, adjust and equalize assessed values in every county of the state. The only evidence of its decision is a table in which the values are expressed in figures, and these *450 decisions have always been subject to review by certiorari, although the board deals with nothing but facts. To say that the decision of such a board, whereby the assessed valuation of one county was increased by millions of dollars and that of another county reduced correspondingly, when made without evidence of any kind, cannot be reviewed here, when the Appellate Division unanimously affirms, is to pervert the language of the Constitution. There is no finding of fact in such a case within any possible meaning of the words, and to impute to the framers of the Constitution an intention to designate such a table by such words is to cast a doubt upon their ability to give appropriate expression to their thought.
This court has just decided a case which cannot be reconciled with the view that jurisdiction in this class of cases has been withdrawn from the court by the terms of the present Constitution. I refer to In re Fairchild (
In that case the controversy originated in the action of the secretary of state in filing a certificate of a party nomination and refusing to file another certificate, and the court, at Special Term, did what has not been done in this case. It made an express finding that a certain candidate had been nominated and that a certain other candidate had not. It was plainly the determination of a fact. The order was affirmed at the Appellate Division unanimously, and that decision could mean nothing if it did not mean that there was evidence to sustain the finding of fact, and yet we reviewed and reversed both orders in this court on the facts found, as well as the law. Much more could be urged against the contention now proposed to be put upon the Constitution by reference to adjudged cases and to numerous provisions of the Code, in which the meaning of the restrictive words are very clearly indicated and used in the sense that I have stated. But if we were to enter that field the discussion would be unnecessarily extended. It is quite sufficient to say that neither in any statute nor in any adjudged case, have the words "a finding *451 of fact" been used in the sense now sought to be attached to them. I repeat that the court should not abdicate the jurisdiction which it has always maintained over this class of cases and with which it has been invested by the people through the Constitution, upon such an unwarrantable construction as to the meaning of a single expression. It is quite unreasonable, if not impossible, to suppose that the framers of the amendment to the Constitution could have had any reference to a special proceeding like this, where the facts and the law are so commingled in the decision that the question upon which it turned cannot be pointed out or identified, and where there is no method known in the practice for separating the law from the facts. There is a wide field of litigation where that can be done, and there the restriction can have full effect and can fulfill every purpose that the framers of the Constitution had in view. In such a case as this a finding of fact in the ordinary, or even in the professional sense in which these words are used, is a practical impossibility.
Special proceedings, originating in the official acts of public officers, whose functions are principally ministerial or administrative, differ widely from actions at law or in equity in their nature and character. In the latter the issues between the parties, whether of law or fact, are distinctly marked by the pleadings, and every fact determined may be specifically stated in the decision, or, if not so stated, can readily be separated or extracted from the general result. There is no difficulty in applying the words of the restriction in such cases.
Not so with the former. There is no distinct issue that can be identified by any pleading. There are no facts found in any fair sense. The facts, if any are involved in the act, can only be constructively known or formulated from the nature and character of the act itself and from the result, and it never can be said with any degree of certainty that the officer, when he performed the act, was even conscious of having determined any fact or of the nature of the fact involved. Therefore, it would be an unreasonable construction of the Constitution to impute to the convention an intent to describe anything constructively *452 decided in such a proceeding as a finding of fact. There is an appropriate place in legal proceedings for such an expression, but to apply it to cases of this character is to pervert its true meaning and to misapply the purpose and policy of the organic law.
In my opinion, there is nothing in the language of the Constitution nor in the general purpose which the convention had in mind to warrant the conclusion that cases of this character have been withdrawn from the scrutiny of this court. So, I think, we have jurisdiction to review the order in the same way and to the same extent that such orders have always been reviewed here.
But, quite apart from this question, there can be no doubt with respect to the power of this court to review the decisions of the courts below when the record shows that the assessment is based upon principles that are erroneous in point of law. I think that the return of the assessors to the writ of certiorari shows that the assessment and the valuation of the relator's property was made upon principles contrary to the rules of law applicable in such cases and which this court has applied in a recent case between the same parties. (People ex rel. M.R. Co. v. Barkeret al.,
The controversy is wholly with respect to the value of the relator's personal property or, as it is designated in the statute, the capital stock and surplus profits. The real estate, which embraces all its structures, was assessed at $15,910,900. There is no controversy here about that. The valuable franchises are not supposed to be included in the assessment at all, since they are taxed under another law. (Laws 1881, chap. 361.) The personal estate was assessed at $16,496,995. The question is whether these figures are, upon the facts appearing in the return, the result of erroneous methods of valuation. The bonded debt is conceded to be $37,164,019.10, and the capital stock, as indicated by the face value of the shares, $30,000,000. The authority for the assessment is the following provision of the statute:
"Sec. 3. The capital stock of every company liable to taxation, *453 except such part of it as shall have been excepted in the assessment roll, or as shall have been exempted by law, together with its surplus profits or reserved funds, exceeding ten per cent of its capital, after deducting the assessed value of its real estate, and all shares of stock in other corporations actually owned by such company, which are taxable upon their capital stock under the laws of this state, shall be assessed at its actual value, and taxed in the same manner as the other personal and real estate of the county." (L. 1857, chap. 456, sec. 3.)
The thing to be valued and taken was, not the shares of stock, but the capital, that is, the money, or visible, tangible, taxable property in which it was invested, or by which it was represented. (People ex rel. U.T. Co. v. Coleman,
The relator submitted proof as to the value of every item of personal property that it possessed which was subject to taxation. There was really no conflict on that point, and if the proof had been accepted by the assessors it must be conceded that the assessment made was not justified.
Without stopping to consider how far this proof was binding upon the assessors, or what property, if any, subject to taxation and representing capital stock, it disclosed, I will attempt to point out in as brief terms as possible the principle upon which the assessors proceeded in arriving at the result which they did. It is not difficult to do that, since it has been very clearly set forth by the assessors themselves in the return to the writ of certiorari. Their counsel put in evidence before them the report required by law to be made by railroad companies to the railroad commissioners, and which was made by the relator for the year ending on June 30, 1894. This was treated by the assessors as a declaration or admission by the officers of the company as to the amount, nature and value of all its property. From this report the assessors found the total gross assets of the company to be nearly seventy-three million dollars, and, after deducting debts, found that the relator was possessed, at the time of the report, of actual tangible assets in the sum of $35,623,197.38, and, after deducting the *454 assessed value of real estate and ten per cent on the capital stock, they decided that the relator had personal property subject to taxation of the value expressed in the assessment. Without attempting to be precise in the figures used, this sufficiently indicates the principle upon which the result was obtained. But this report contained one item of over fifty million dollars that indicated nothing but the cost of the road, some twenty years before, with the cost of such additions and betterments as had been made. It was shown, and on this point there was no dispute whatever, that it was not the cash cost, but the cost in stock and bonds sold at an enormous discount. This discount alone, which, of course, represented nothing, was over six millions. There was also included in the item over eight million dollars, paid as damages to abutting owners of land. This sum represented no property whatever, but was paid in order to remove a legal obstacle to the exercise of the franchise. The easements of light, air and access for which this sum was paid were of only nominal value, and the expenditure may be regarded as made to remove or extinguish an incumbrance upon the franchise to operate a railroad. Apart from the franchise, which could not have been considered, this item represented no element of actual value. In the report of the gross assets to the railroad commissioners is another item of over fourteen million dollars, which was paid by issuing stock to other railroad corporations in the city of New York which had been leased to the relator, and this stock was issued to them for the purpose of extinguishing the lease, acquiring their franchises to operate railroads in the streets, and to merge their privileges and rights in the relator. The company had no actual tangible property on hand, except the real estate assessed, to represent the stock so issued, and so far as it represented things intangible, as privileges and franchises, they could not be considered.
The principle of valuing the relator's property upon the admissions of such a report, accompanied as they were by these explanations, was erroneous. The assessors could consider everything that had a legitimate bearing upon the actual *455 value of the relator's property at the time, but to decide that the property was worth what was stated in the report, because the officers had said it cost that sum, and to ignore all other proofs on that subject, was to adopt a method of ascertaining value that cannot be defended upon any legal principle.
They assumed, as a fundamental fact, that the gross assets of the relator amounted to seventy-three millions since that sum had been expended upon the property many years ago. The cost of property at some remote period of time is not the legal rule for estimating the present value in any case; but when it is shown, without dispute, that nearly thirty millions of that cost is not now represented by any tangible property subject to taxation, and never was, in fact, it is legal error to adopt the cost of the property made up of such items as the rule of valuation.
Moreover, the report was not intended by the law, or by the officers who made it, to evidence the then value of the property, but simply to state the facts with respect to the cost of the road, and such cost, made up in the manner stated, could not properly have been regarded by the assessors as controlling proof of value. It is impossible, I think, to carefully consider the assessors' return, in which they set forth the principles upon which they arrived at the value of the property, without reaching the conclusion that they included in the estimate the valuable franchises possessed by the relator.
This is quite clearly indicated by another statement in the return, to the effect that they had ascertained that the relator's operations, after defraying all fixed charges, yielded a profit in the form of dividends, and from this they concluded that the capital stock was unimpaired and represented actual taxable property equal to the face value of the shares.
This reasoning, I think, involves an erroneous principle. The business success of a corporation, as indicated by profits or dividends, does not prove that it has property equal to the face of its capital stock. It does prove, or tend to prove, the earning power of the company, which is quite another thing. That may be due to the skill and ability of the management, *456 and in many cases to the possession of privileges and franchises. It cannot be doubted that the franchises of this company, which are represented by the capital stock, constitute an important element in its earning capacity It is impossible to treat this case in the various phases in which it has been presented in the arguments of counsel, and which have great weight and force in the process of reasoning, by means of which the proper result is established. I have not referred to the fact that there does not appear to be any property to represent the so-called surplus of over five millions. It was a mere device of bookkeeping, but the company have no tangible property to show for it. It is only necessary to repeat that the return shows that the assessors adopted the report to the railroad commissioners as the guide and fundamental rule of evidence which was to control and did govern their action. It was, under all the circumstances, misleading, unreliable and plainly productive of a result that appears to be unjust and contrary to law. The assessment upon the personal property cannot be evolved from the facts and figures in the record without either changing the assessed value of the real estate or including the franchises, a method of valuation which the law does not permit.
The order appealed from should be reversed and the proceedings remitted to the assessors for further action.
BARTLETT, HAIGHT and MARTIN, JJ., concur with VANN, J., for reversal; ANDREWS, Ch. J., and GRAY, J., vote for reversal on the ground that improper evidence was considered by the tax commissioners in making the valuation of relator's property and formed the basis in part of the assessment. O'BRIEN, J., reads for reversal.
Order reversed, etc. *457
