
    The Brooklyn Elevated Railroad Co., Plaintiff, v. The City of Brooklyn, Defendant.
    (Supreme Court, Kings Special Term,
    March, 1896.)
    1. Taxes — Assessment — Assessors cannot impeach, validity of;
    Assessors will not be heard to .impeach .the good faith and verity of their acts.
    2. Same — Designation of property by lot and block number.
    The requirement in the charter of Brooklyn that property shall be designated in the assessment:roll by lot and block' number applies only to lots, and not to railroad tracks and telegraph lines.
    3. Samé — Review of.
    A review of assessments for alleged inequality or excessiveness cannot be had in a collateral proceeding, but only by certiorari.
    4. Same — Reduction.'
    The court has no power to reduce taxes or assessments upon the consent of city, officials.
    5. Same — Excessive assessment — Railroads.
    An. assessment against a railroad will not be held.to be excessive on the ground that it is unable to pay the tax out of its net income, where such inability is the result of an excessive issue of stock and bonds. ■
    Motion to continue .a temporary injunction.
    W. 0. Cohen and M. L. Towns, for plaintiff.
    Henry Tonge, assistant corporation counsel, for defendant.
   Gaynor, J.

This railroad corporation brings this action to obtain an injunction to prevent the registrar of arrears of the city of Brooklyn from selling its structure for nonpayment of its taxes. The alleged grounds upon which it seeks to evade payment of its share of taxes for the ■ support of government, and throw the same upon the other taxpayers, "are without merit. It says' that two assessors did not together examine its structure each year before valuing the same for taxation. It is ■ enough to say in answer that each assessment-roll is attested by the affidavit of two assessors,' as required by law, that they did so examine all taxable property therein set down. The papers before me show the apparent willingness of at least two of the assessors to make doubtful, if not to contradict, this solemn attestation and oath by them of public duty done; but the law, for reasons of sound public policy, does - not permit public officers-charged with the doing of duties- in their nature judicial .to-impeach the good faith and verity of their acts. Assassors act under the law upon a notice of hearing to all persons interested, and after hearing all who come before them. Their attestation of the-assessment-rolls in the form and words prescribed by law is a judicial act of unquestionable verity. Barhyte v. Shepherd, 35 N. Y. 238; Cooley on Taxation, 260. If they were allowed to impeach it by their testimony, no tax levy, however exactly and legally cast, would be safe. But beyond this, it is clear as a matter of fact that at least two of the assessors did together examine the plaintiff’s property in each ward. It is also claimed! that the taxes are void because the sections of stricture of the-, plaintiff in each ward have not been designated upon the assessment-roll by lot and block numbers. The requirement of such designation in the charter, of Brooklyn applies only to lots. It-was not intended to apply to railroad tracks, telegraph lines and', .the like in the streets, and the obstacles in the way of so applying: it are obvious. It is also alleged that the valuation is excessive. It would be enough to say that that is not and never was ground' for maintaining an action like this. The courts have no power to review assessments for general taxation for alleged inequality or excessiveness, except under a writ of certiorari as allowed by chapter 269 of the Laws of 1880, which statute is part and parcel of our process of taxation, and to be invoked at the time. Delaware & H. Co. v. Atkins, 121 N. Y. 246; Delaware & H. Co. v. Parker, 117 id. 86. That act was passed only because • prior to that time the courts had no power in the premises at all, except such as could be exercised strictly upon a return to a common-law writ of certiorari of the record of the assessors’ proceedings. People ex rel. Ulster & Delaware R. R. Co. v. Smith, 24 Hun, 66; People ex rel. Youmans v. Supervisors, 60 N. Y. 381. Something is said in the papers before me of this company’s-taxes having been reduced several years ago by a judgment upon consent of certain city officials. There must be some inaccuracy or inadvertency about this, for this court has no power to reduce taxes upon consent of officials. If the power to reduce ta.xes were possessed by officials, the way would be open to more political favoritism and greater official corruption than has yet been known.

But it seems timely to notice upon the actual' figures and the ¡merits the claim of this company that its structure is excessively valued for taxation, especially as it is urged that, the assessors did not duly consider the earnings of the company in fixing such valuation.' The twenty miles, of structure of the company is valued. upon the assessment-rolls at a total valuation of only $2,903,965, making a tax of about- $80,000 each year. And yet the company is bonded for $12,968,0-00, and stocked for $13,283,000, making a total of,over $26,000,000. If the company’s structure is not worth the assessors’ valuation of $2,903,965, what is' to be said of this total of $26,000,000 in bonds and stock? What was it issued for? If this assessed value were doubled, and put at $6,000,000 (for illustration), or trebled, and put at $9,000,000, in order to get the actual value, the disparity between the actual value and the amount of bonds and stock would still be striking. And due consideration in this connection of the earnings of the road makes no better case for the company. The papers before me show that during the time in question it has been carrying an average of upward of 95,000 passengers a day. This enables the gross receipts to be accurately stated.' In fact, the company’s report to the railroad commissioners in 1893 (the. year in question) gives the gross receipts from operation as $1,935,683.84. If 55 per cent, be allowed for ■ operating expenses, including ■ repairs, the remainder will be net earnings. But the said report gives the 'net earning as $843,970.28, which sum I take. This is a net income of over 28 per cent, on the value which the assessors have placed upon the company’s structure (viz., ■ $2,903,965, or in round numbers, $3,000,000), or of over 14. per cent, on double that value (viz., $6,000,000), or-of over 9 per cent, on treble that value (viz., $9,000,000). There is no house, store or factory property in Brooklyn favored like this in taxation. To say that this company cannot pay its taxes out of its net income, because it is all consumed- in paying interest upon its said excessive issue of bonds, is not a permissible, answer. If it was, it has only to continue to issue more1' bonds, and never pay any taxes. These bonds áre not upon the actual property of the company alone, which it says the assessors have excessively valued at less than $3,000,000, but >also upon the valuable franchises which have been given to it by government. For the company to issué bonds on such franchises, the gift of government to it, and then say to government that it cannot or shall not pay any taxes upon, its actual taxable property, out of its income upon actual investment, because it first has to pay interest upon such bonds, is a position which cannot be justified either in law or in morals. The excessive issuing of bonds and stock by corporations enjoying public franchises naturally leads to the unjust cutting down by them of all natural and just expenses, as well as the refusal to pay just taxes, in order that interest and dividends may be paid upon such excessive obligations. The first duty of this company is to the government which gave it life and endowed it with valuable privileges and franchises. If all taxpayers should follow the example of this company and refuse to pay their taxes, government would be brought to a downfall. I find no truth or merit whatever in the assertion of the company that its property is overvalued. That it has over-bonded and overstockéd itself, thereby to create inflated values, or unearned fortunes, is no reason why its obligation to pay its just share of taxes upon its actual property should be made second to. its obligation to pay interest upon such bonds or dividends upon such stock. It is no reason why its share toward the support of government should be thrown upon the other taxpayers.

The motion to continue the temporary injunction is denied, and the said injunction is vaeatéd.

Motion denied and injunction vacated.  