
    The People ex rel. The Edison Electric Illuminating Company v. Edward Wemple, as Comptroller, etc.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 25, 1890.)
    
    Taxes—Com? orations—Cektioh ap.i .
    By § 2122, sub. 3, Code Civ. Pro,, a writ of certiorari cannot issue-where the officer making the determination is expressly authorized by statute to rehear the .matter, unless the determination to be reviewed was made upon a rehearing, or the time within which the relator can procure a rehearing has elapsed, and by ch. 463 of 1889, an amendment is made to ch. 361 of Laws of 1881, authorizing the Comptroller, at any time, to revise and readjust any account there! afore settled against any corporation for taxes under the latter act, and that such revision may be reviewed by certiorari at general term, and in the court of appeals. Reid, that a certiorari obtained by the relator to review a tax imposed under said act of' 1881, without first seeking a rehearing, was improperly granted.
    Certiorari to review a tax imposed upon the relator under Laws of 1880, chap. 542, as amended by laws of 1881, chap. 361, etc.
    
      Éugene II Lewis, for relator; Isaac H. Maynard, for resp’L
   Learned, P. J.

By the Code of Civil Procedure, § 2122, subdivision 3, no writ of certiorari should issue “ where the body or officer making the determination is expressly authorized by statute to rehear the matter upon the relator’s application, unless the determination to be reviewed was made upon a rehearing, or the time in which the relator can secure a rehearing has elapsed.”

The present proceeding was commenced in March, 1890, and is Intended to review a determination of the comptroller made in February, 1890, by which he stated and settled an account against the relator for taxes due the state on its franchise or business under chapter 542, Laws of 1880, chapter 361, Laws of 1881, and the subsequent acts amending that statute.

By chapter 463, Laws of 1889, two sections, to be called 19 and 20, are added to the aforesaid chapter 361, Laws of 1881. These sections provide that the comptroller may, at any time, revise and readjust any account theretofore settled against any corporation for taxes under this act; that evidence may be submitted to him that the account has been illegally paid or made so as to include taxes which could not have been lawfully demanded. Section 20 provides that the action of the comptroller on any application for such revision and resettlement may be reviewed upon the law and the facts upon certiorari by the supreme court, and that an appeal from the determination of the supreme court may be taken to the court of appeals. Provision is made for the return to the supreme court of the evidence taken before the comptroller.

It is thus evident that the relator can, by express language of the statute, have a rehearing before the comptroller of the matter he is now seeking to review. Therefore under the Code no certiorari should issue until such rehearing has been had.

Even aside from the section of the Code above cited it would be reasonable that under these sections, 19 and 20 of the act of 1889, this court should refuse a certiorari until the review had been applied for and a decision made on the application as authorized by those sections.

It was stated on the argument that since these proceedings were commenced the relator has applied to the comptroller for such review and the comptroller has declined to hear the matter on the ground of the pendency of this present application. That matter does not appear on the papers. Even if it be true, it would not affect the restriction imposed by the section of the Code above cited.

The certiorari must be quashed, with fifty dollars costs and disbursements.

Landon and Mayham, JJ., concur.  