58 N.J.L. 295 | N.J. | 1895
The opinion of the court was delivered by
The Riverton and Palmyra Water Company, the prosecutor, complains of a tax imposed upon it by the authorities of the borough of Riverton for its paid-in capital stock.
This imposition is clearly erroneous. It is settled that such a corporation is to be taxed, not upon its capital stock, but upon its real and personal estate, as any individual person would be. Rev. Sup., p. 170, § 93; Gen. Stat., p. 935; Gaslight Co. v. Jersey City, 17 Vroom 194; New Jersey Hedge Co. v. Craig, 22 Id. 437; Merchants’ Insurance Co. v. Newark, 25 Id. 138; S. C., 26 Id. 145; Society, &c., v. New Brunswick, Id. 65.
The result is that the assessment upon prosecutor must be vacated and set aside, so far as it exceeds the amount for which prosecutor might have lawfully been assessed, for, by the act of March 23d, 1881 (Gen. Stat., p. 3404), fhis court is required to make an assessment upon prosecutor for the taxes of 1894, if it was then liable to be assessed in the borough of Riverton.
Prosecutor was then liable to be thus assessed for taxation.
The statement preceding this opinion asserts that prosecutor had no property in the borough of Riverton in 1894, except its water-pipes under the streets and the fire-plugs connected therewith.
It is contended that this is an incorrect deduction from the stipulation of counsel. This contention is put upon the ground that the act of the legislature creating the township of Palmyra and including therein a part of the borough of Riverton, in which prosecutor’s water works stand, was within the prohibitions of the constitution, and therefore not within the power of the legislature to pass. The claim is that the borough of Riverton retained the right to tax all property within its original bounds, notwithstanding the act.
But it is obvious that the legal existence of the township of Palmyra cannot be thus collaterally attacked. Prom the stipulation of counsel it appears that that township exists de facto, for it has imposed a tax upon prosecutor in respect to its lands. It would be extraordinary indeed, if, under a claim of a right to impose taxes on. private property, one municipality could question the legal existence of another municipality having, at least, a defacto existence, and that in a proceeding to which the latter is not a party.
It results that we must restrict ourselves to the consideration of the water-pipes and fire-plugs in the borough of Riverton, and inquire whether prosecutor was taxable therefor in that borough in 1894.
Pipes laid by a corporation under the soil in which an interest had been acquired from the owner by grant, are held in this state to be taxable as real estate. Pipe Line Co. v. Berry, 23 Vroom 308 ; S. C., 24 Id. 212.
The status of pipes laid for the purpose of carrying gas or Water under the public streets seems not to have been considered here. In other states it has been much debated and with variant results.
In my judgment, it is quite unnecessary to the decision of the question before us to settle whether such pipes under public streets have the quality of real or of personal estate, for in either case they were taxable in the borough of River-ton in 1894.
If they are personal estate they were then taxable as visible personal estate found in that borough, within the meaning of the act of March 19th, 1891. Pamph. L., p. 189, § 6; Gen. Stat., p. 3345. By that section a distinction is made, for purposes of taxation, between personal propérty which, like credits or choses in action, cannot be seen, but are only evidenced by acknowledgments, promises or undertakings express or implied, and personal property which can be seen. The former is to be taxed at the residence of the owner; the latter is to be taxed where it is found. Personal property, to be included in the latter class, need not be actually seen by the assessor, but may be taxed by him if actually in his taxing district and capable of being seen if obstacles are removed.
If they are real estate, they were equally taxable there. It is true that they are connected with the water works and form part of prosecutor’s plant essential to its business. They are not easements or appurtenances, but, if real estate, a part of the plant severed from it for the purposes of taxation by the fact that they are found in another taxing district. The reason which induced the legislature to enact that a farm or lot thus severed shall be assessed as a whole in the taxing district in which the owner resides may apply to this case.
The result is that the pipes and fire-plugs belonging to prosecutor, and found in the borough of Riverton, in 1894, were there assessable for taxation, and this court must impose an assessment on prosecutor therefor, accordingi to their value. If counsel cannot agree on their taxable valuation, there will be a reference to a commissioner to determine it. When determined, either by stipulation or by reference and confirmation, this court will impose a tax thereon at the rate appearing in the case.
The excess of the imposition upon prosecutor brought up by this writ will be set aside, and, as prosecutor sought every other mode of relief without success, the vacation will be with costs.
