
    The People of the State of New York ex rel. Troy Gas Company, Respondent, v. Benjamin E. Hall and Others, State Board of Tax Commissioners, Defendants, Impleaded with The City of Troy, Appellant.
    Third Department,
    March 8, 1911.
    Tax—assessment of special franchise tax—apportionment between school districts of city — date of filing certificate.
    The assessors of the city of Troy, a city of the second class, having two school districts, may apportion the assessed value of a special franchise tax between the school districts, for by the city charter they possess the powers of town assessors.
    The provision of section 40 of the 'Tax Law, regulating the time within which the certificate of such apportionment of assessment -must be filed, is directory merely.
    Houghton, J., dissented.
    
      Appeal by the defendant, The City of Troy, from a final order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 16th day of November, 1910, declaring the relator’s special franchise assessment unauthorized and void, and directing that it be stricken from the assessment roll of the city of Troy and canceled.
    In 1907 the State Board of Tax Commissioners assessed the special franchise of the relator in the city of Troy for the year 1907 at $640,500, and certified the same to the proper officers of the city of Troy. The relator appeared before the State Board and filed objections, to wit: That the property was overvalued and was unequally assessed. The State Board overruled the objections and certified the assessment as originally made to the city clerk of the city of Troy, who in turn delivered the same to the local assessors of the city of Troy. The local assessors thereupon entered in the assessment rolls of the third ward of the city of Troyan assessment of the relator to the amount of $600,000, and in the seventeenth ward of the city of Troy an assessment to the amount of $40,500. The relator made no complaint to the local assessors and did not appear before the board.
    In 1900 the village of Lansingburg was annexed to the city of Troy and became a part thereof by chapter 665 of the Laws of 1900. By the act enlarging the city to include the village of Lansingburg it was provided that the territory within the old village of Lansingburg thus annexed to the city of Troy should constitute a separate union free school district. So that within the enlarged city there were two school districts, one comprising the territory of the old city of Troy and the other the territory of the old village of Lansingburg. The third ward is a part of the old city of Troy. The seventeenth ward is a part of the old village of Lansingburg. Thereafter certiorari proceedings were commenced against the State Board of Tax Commissioners to review the said assessment for inequality, and also to declare the assessment illegal because of this apportionment by the assessors of the enlarged city of Troy between the different school districts in said city. The referee to whom the matter was referred held against the relator upon the question of inequality, and also held that the whole assessment was void because the apportionment between the different school districts should have been made by the State Board of Tax Commissioners and not by the assessors of the city of Troy. This conclusion of the referee was affirmed by the Special Term, which declared the assessment void, and directed that it be canceled, and from the final order entered upon such decision this appeal is taken by the city of Troy, which has been duly made a party to the proceeding by order of the court.
    
      G. B. Wellington, for the appellant.
    
      H. D. Bailey, for the respondent.
   1 Smith, P. J.:

The referee and the Special Term properly held that the relator did not show inequality in the assessment of its special franchise. The sole question, therefore, remaining for discussion is whether the assessment has been rendered void by the apportionment made between the different school districts of the city by the city assessors.

By section 39 of the former Tax Law (Gen. Laws, chap. 24; Laws of 1896, chap. 908), which is now section 40 of the present Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62), the assessors of each town in which a railroad, telegraph, telephone or pipe line company is assessed upon property lying in more than one school district therein are required to apportion the assessed valuation of the property of each of such corporations among such school disti'icts. By section 42 of the former Tax Law (added by Laws of 1899, chap. 712, as amd. by Laws of 1904, chap. 382), which is now section 43 of the present Tax Law (as amd. by Laws of 1909, chap. 275, and Laws of 1910, chaps. 7, 458), it is provided that the State Board of Tax Commissioners shall annually fix and determine the valuation of each special franchise subject to assessment in each city, town or tax district. Provision is then made for the apportionment of the valuation of the franchise where a part of such franchise is in a village and part in a town, and also where the franchise is located in a village which is situated in more than one tax district. The section further provides: “ The town assessors shall make an apportionment among school districts at the time and in the manner required by section thirty-nine (forty) of this chapter.” So that if the property of the relator had been in a town in which were two school districts, there is no question as to the authority of the town assessors to apportion the valuation of that franchise between the two school districts. By section 261 of the “ White ” charter (Laws of 1898, chap. 182, as amd. by Laws of 1900, chap. 415), which was in force in 1907, it was provided that city assessors “ shall possess all the powers conferred, be subject to all the obligations imposed and perforin all the duties appertaining to the office of assessor in the towns of the State or the office of assessor in any of the cities affected by this act at the time when the same shall take effect.” This provision of law was applicable to the city of Troy, and gave to the assessors of the city of Troy the power and the duty to apportion among the different school districts in said city the special franchise valuation as made by the State Board of Tax Commissioners.

It is claimed, however, that the local assessors have not conformed to the requirements of former section 39 or present section 40, as made applicable by section 42 of the former law and section 43 of the present law, and have not filed with the city clerk the proper certificate. The assessors have judicially determined the apportionment of valuations, have placed them in the assessment rolls of the two school districts, which rolls have been signed by them, and which rolls have been filed in the city clerk’s office. The time within which the certificate may be filed with the city clerk is directory, and if necessary such certificate can now be filed so as to conform to the letter of the statute.

The order declaring the assessment void should, therefore, be reversed on law and facts, with costs, and the writ quashed, with fifty dollars costs and disbursements.

All concurred, except Houghton, J., dissenting.

Final order reversed on law and facts, with costs, and writ quashed, with fifty dollars costs and disbursements.  