
    The People of the State of New York ex rel. New York, Ontario and Western Railway Company, Appellant, v. The State Board of Tax Commissioners, Respondent.
    Third Department,
    May 21, 1909.
    Certiorari to review assessment of franchise tax — pleading — scope of return — power of court to take further evidence.
    On certiorari to review the assessment of a special franchise tax, the tax Commissioners should he required to specify in their return the records and papers upon which the determination was made, the evidence presented befprg the board in open session, and to state the separate valuations placed upon real property in the street and upon the use of the street, if separate valuations were made, together with the material facts which enter into their determination.
    Although the board of tax commissioners in making such assessment may obtain information apart from the record and may have its own experts make an - examination of facts bearing upon the value of the franchise, it should not be required to make a return of specific information-acquired apart from the open session or through agents and experts,
    On certiorari under the Tax Law the court has power to take further evidence' or direct such evidence to be taken before a referee, and hence there is not the same necessity for a full and complete return that exists in the case of the ordinary writ.
    Sewall and Kellogg, JJ., dissented in part, with opinion.
    Appeal by the relator, the New York, Ontario and Western Railway Company, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 1st day of December, 1908, denying the relator’s motion to require the defendant to make an amended or further return to a writ of certiorari to review an assessment under the Special Franchise Tax Act.
    The relator, f cl aimin g to be aggrieved by a special franchise assessment of $15,000 for its railroad in one of the streets of the village of Hamden, Delaware county, procured a writ of certiorari directed to the Tax Commissioners commanding them to make return of their proceedings, decisions and actions in the premises, and all and singular the evidence, documents, records or papers before them or which were submitted to them concerning the sáid matter, together with all the protests, affidavits and papers offered or filed with them in relation thereto “to the end that such decisions and actions of said board may be reviewed and corrected on the merits by this court and the aforesaid error of said board may be corrected according to law and as to the court may seem just.”
    The return to the writ traversed the averments of the petition as to the injustice, overvaluation and inequality of the assessment and averred “ that at and previous to the time of making such assessment they had before them certain facts and information other than those communicated to them on behalf of the relator. That at and previous to the time when the assessment and valuation of the special franchise of the relator was made by your respondents, they had made inquiry, examination and investigation as to the value of the special franchises of the yelator in said town.’ That such inquiry, examination and investigation was made by and on behalf of this board and through its agents and employees who had obtained knowledge and information and formed opinion as to the value of the special franchise of the relator assessed, and in connection therewith of the value of the property of the relator, real and personal, in said town.; and. from such inquiry, examination and investigation, together with the papers and documents produced before it, it. decided the value of the special franchise of the relator to be the' sum of $15,000. * * * That the facts pertinent and material ¡to show the value of the property assessed on the roll which were considered by your respondents and the grounds for the valuation of such special franchise by.them, included the value of the real estate of such corporation situate in the streets, highways and public places in said town, aside from and irrespective of the use and right to use such streets, highways and public places, together with the value of the use and the right to use .said streets, highways and public places of said town by the relator, as such value has been fixed and determined upon the, evidence, papers and documents before said board; which papers and documents give, among other tilings the cost of the property, the income therefrom and other facts going to show the value thereof; and from examination, investigation and inquiry made by and on behalf , of the Said board as to the value of said property.”
    Upon the petition, writ and return a motion was made at Special Term for a further return and that the defendants be required ■ to return all the facts and information, other than such as were Communicated to them on behalf of the relator, that they had before them 'at and previous to the time of making the assessment, all papers, records and proceedings showing the inquiry, examination and investigation made by them as to the valuv of the special franchise, all reports, certificates, opinions and statements made and given to the respondent by its agents, servants or employees, all facts and circumstances relating to the value of the property or the special franchise, considered by the board in making the assessment, the valuation placed upon each special franchise in said town, the value of the rehator’s real estate as found by the board included in such franchise and the value of the use and the right to use the streets and public places included therein.
    The motion was denied, and from the denial this appeal is taken,
    
      C. L. Andrus, for the appellant.
    
      Edward H. Letchworth and Edward R. O'Malley, for the respondent.
   Sewell, J.:

The merits of the controversy are not involved upon this áppeal, sis it is simply an appeal from an order denying a motion that the State Board of Tax Commissioners ■ make a further return to the writ.

Section 45 of the Tax Law (Laws of 1896, chap. 908, added by Laws of 1899, chap. 712, and amd. by Laws of 1900, chap. 254) provides that an assessment óf a special franchise by the State Board of Tax Commissioners may be reviewed in the manner prescribed by article 11 of that chapter. Section 252' of the act which is in article 11 requires the officers making a return to return the papers acted upon by them or such portions thereof as may be called for by the writ, and alsi provides that The return must' concisely set forth such other facts as may be pertinent and material to show the value of the property assessed on the roll and the grounds for the valuation made by the assessing officers.”

It is very evident that the return falls far short of showing a compliance with the requirements of the writ or of the statute. It does-not contain the evidence upon which the commissioners acted. It set forth their conclusion as to the value of the special franchise; but this is insufficient. “ Whenever the act of assessors is challenged they must, in addition to setting forth the conclusion reached by.them, set forth the evidence upon which that conclusion is based, to the end that the court may determine whether the conclusion was fairly drawn from the facts established or whether they acted arbitrarily in the matter.” (People ex rel. Consolidated Gas Co. v. Feitner, 78 App. Div. 313.)

Ho fact pertinent and material to show the value of the property, other than the facts communicated to the tax Commissioners on behalf of the relator, appears in the return although it-admits that the commissioners had before them and acted upon certain other facts and information which they obtained through their a-gents and employees,

In People ex rel. Edison E. I. Co. v. Barker (139 N. Y. 62) it was said that the commissioners cannot avoid the legal effect of the information communicated to them on behalf of the relator by stating in their return to a writ of certiorarithat they had made ‘ due inquiry as to the value of the capital owned by the relator,’ and had come to a certain decision in regard to it. If they made inquiries other tliah the questions contained in the written statement and. upon winch they acted, they should, when required by the terms of the writ of certiorari, give the court some information as to the nature, extent and direction of such inquiries^ .and they should. state what the information was which they obtained and upon which they based their decision. Otherwise the commissioners might always return that they had made 6 due inquiry ’ and had come to a certain decision, and the court would be powerless to give relief notwithstanding the decision might be clearly against the evidence which was: sworn to and uncontradicted on the part of the applicant, and, .if believed, entirely.sufficient to warrant and¡ demand the correction claimed by such applicant.”

It will also be observed that the return, does not purport to contain the grounds for the' valuation made by the commissioners. It is' clear the Legislature intended by this provision that the return should' set forth the facts and circumstances which constitute the. value of the property so that it may be seen on the face of the return that the judgment of the commissioners was not a.capricious or arbitrary one.

If the tax Commissioners were vested with absolute authority in making an assessment, then the wholesale statement that they had included the value of the tangible property situated in the highway with the value of the franchise, as such, value has been fixed and determined upon the evidence,, papers and documents showing “ the cost of the property, the income therefrom and other-facts going to show the value thereof ;■ and from examination, investigation and inquiry made by and on behalf of the said board as to the value of said property/’ woúld without doubt be. sufficient; but when the Legislature has given the court power to review and ' revise the action of the commissioners upon the merits, something more is required. The return must set forth what the information was which the commissioners obtained from their agents and employees and from the papers and documents before them, as to the cost, income and value of the property. In the absence of these, facts it is very evident that the court cannot determine,, as it must, upon what theory of valuation the commissioners proceeded or whether they arrived at a just conclusion.

It is no answer to the application of the relator that the statute does not in terms require that the commissioners shall separately state the valuation of the tangible and intangible property constituting the special franchise, for it is apparent that in determining their value as a unit the value of each is an important element and must in the nature of things be considered. But. however this may be, the power of the court to direct the commissioners to return any valuation actually made by them in determining the value of the property as a totality cannot be doubted. It is for the court and not the commissioners to determine what facts are pertinent and material to show the value of the property assessed.

These views lead to the conclusion that the return fails to show a compliance with the writ or the statute^ and, therefore, the Special Term erred in denying the motion for an amended return.

The order appealed from should be reversed^ with ten dollars costs and disbursements, and an order entered directing the respondent to return all the documents, records and papers acted upon by it, and to' concisely set forth such other facts as may be pertinent and material to show the valuation made by it, to the end that the court may determine whether the conclusion of the relator was fairly drawn from the facts before it.

Kellogg, J., concurred; Smith, P. J., concurred in opinion in which Chester and Cochrane, JJ., concurred.

Smith, P. J. (concurring in part):

Under the ordinary Code certiorari, the determination must be made upon the writ and return and the papers upon which the writ was granted.' (Code Civ. Proc. § 2138.) In the certiorari under the Tax Law, however, the court has the power to take further evidence, or to direct that further evidence.be taken before the referee. • The same necessity, therefore, for a full and complete return does not exist in the certiorari proceeding under the Tax Law as in. one under the Code. Nevertheless, section 252 of the Tax Law requires that, in addition to ¡the papers that are certified, “ the return must concisely set forth such other facts as may be pertinent.and material to show the value of the property assessed on the roll, and the grounds for tire valuation made by the assessing officers.” This provision of the statute must receive a reasonable. interpretation.The State board, in making the assessment, is authorized to .obtain information apart from the record, to have its own experts make thorough examination of all the facts which would bear in any way. upon the value of the special franchise. It would be impracticable that the return of ¡the State board should contain every piece of. information obtained by the expert and by him communicated to the board. Nor do I think that the return need be so specific. If the board has valued separately the real property upon the street, and the special right to use the street and public ways, it would be. proper to compel the board to return what valuation had been placed upon. each. . If, however, the valuation was made simply in; gross- it might so state. If there be any material fact apart from' the records, that fact, should properly be stated. The relief asked for in the motion is that the respondents;.shall return “'all the facts and information .other than such as were communicated to. them on behalf of .the relator,” and that they should return the “ opinions and statements, made or given to the said respondent by ■ its agents, servants or employees, and particularly all and singular the evidence,papers and documents before said board,- referred to in the eighth and tenth subdivisions or paragraphs.of said return, other than such as communicated or given to said board on behalf of the relator.’ And further, “ all the facts and circumstances relating to the value of the property or special franchise * * * referred to in the petition herein and considered by said board in making the assessment of the special franchise against relator.” To require the. board to make a return -so -specific, in my judgment, is both unreasonable and unnecessary. A return which, in addition, to specifying - the records and papers upon. which the determination was made, and the evidence presented before the board in open session, shall state the separate valuations of the real- property in the street, and the special right, if such separate valuations had been made, and the material facts which entered into their determination, would in my judgment be in full compliance with the statute, without stating other specific information or opinions acquired by the board apart from the open session or through their agents and experts. The statute thus read becomes practical and reasonable and one capable of enforcement. The case of People ex rel. Edison E. I. Co. v. Barker (139 N. Y. 62) arose upon the New York Consolidation Act, in which there is no provision for the taking of evidence by the court or under its direction.

Chester and Cochrane, JJ., concurred:

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, directing tiie respondent to ■ return all the documents, records and papers acted upon by it and to concisely set forth such other facts as may be pertinent and material to show the valuation made by it, to the end that the court may determine whether the conclusion of the relator was fairly drawn from the facts before it.  