
    The Central Trust Company, v. The New York City and Northern R. R. Co.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 2, 1888.)
    
    1. Taxation—Franchise tax not a charge on real estate of corporations—Laws 1880, chap. 343, Laws 1881, chap. 361.
    The franchise or business tax on the earnings of certain corporations, imposed by Laws 1880, chapter 343 as amended by Laws 1881, chapter 361, is not a charge upon the real estate of said corporations.
    3. Same—Proceedings to collect—1 Rev. Stat, (6th ed.) 983, § 33-4, Laws 1857, chap. 456, § 5.
    The proceedings for the collection of this tax referred to and rendered applicable by the last clause of section 7 of chapter 361, Laws 1881, are to be taken against the corporation itself. And they are to be instituted by petition, upon which the court has authority to sequestrate such part of the property of the company as shall be deemed necessary for the purpose of satisfying the taxes in arrears, with costs of the proceedings. In its discretion the court may proceed further and enjoin the company and its-officers from any further proceedings under the charter or act of incorporation, to enforce the payment of the taxes.
    3. Same—Proper parties—Receiver of corporation a proper party— Receiver may be ordered to pay.
    The receiver of a corporation should be made a party to these proceedings against the corporation, as an officer having in his possession and subject to his control, all the property of the corporation, and being in receipt of all its earnings. If the proceedings which the law has provided for against the corporation shall prove for any reason to be ineffectual, then he may be absolutely directed to pay these taxes out of the earnings of the company received by him.
    4, Same—Statutes relating to strictly construed.
    Enactments of this description are to be restricted to the proceedings which they provide for and not enlarged by a construction for which no arrant or authority is to be found in the act.
    
      5. Statute—Construction of.
    When a right has been created by statute and the remedies prescribed for its enforcement, such remedies are exclusive.
    Appear by Joel B. Erhardt, receiver of the New York City and Northern Railroad Company, from an order directing him to pay the sum of $8,540.95 into the treasury of the state of New York, for taxes upon the earnings of the railroad company, for the years 1883, 1884, 1885 and 1886, and to issue receiver’s certificates to obtain money for that purpose.
    
      Artemus H. Holmes, for app’lt; Charles F. Taber, attorney-general, and Wm. A. Poste, deputy, etc., for resp’ts.
   Daniels, J.

The taxes which were directed to be paid, were imposed upon the railroad company, under the authority of section 6, chapter 361, of the Laws of 1881, amending chapter 542 of the Laws of 1880. No objection has been taken to the amount of the taxes directed to be paid by the order, but the chief objection relied upon is that the order itself was wholly unauthorized by the statutes. The appellant was preceded as receiver, by the appointment of Arthur Leary, which was temporarily made in creditor’s proceedings on the 24th of May, 1882, and confirmed and continued on the 27th of the same month. He was authorized to operate the railroad, and did so under the authority of the orders until on or about the 3d of February, 1885, when the appellant was appointed in a foreclosure action brought by the plaintiff, as a trustee, for the benefit of the holders of bonds issued and secured by mortgages executed by the railroad company. By his appointment, he was vested with all the property of the railroad company, and authorized to continue its business by the use and operation of the railroad. And that he has done, and together with the preceding receiver, realized from the earnings of the company the sum upon which the taxes for each year remain imposed.

The proceedings which the act of 1881 have provided for, in case of the non-payment of the taxes by the company are prescribed in sections 7 and 9 of the act. By the former of these sections it has been declared in case the taxes shall remain unpaid for the period of thirty days after becoming due, that an addition of ten per cent may be made thereto, which taxes and addition, “ Shall be collected for the use of the state as other taxes are recoverable by law, from such corporation, joint-stock company, or association.” And by the other section it has been further provided for a neglect or refusal to pay the taxes by this act required to be paid, the same may be sued for in the name of the people of the state and recovered in any court of competent jurisdiction, in an action to be brought by the attorney-general, at the instance of the comptroller.”

This latter section, it is clear, did not provide for the proceeding which, in this instance, has been taken against the receiver, resulting in the order directing him to pay the taxes and to raise the amount in case of necessity, by issuing receiver’s certificates. The point in the case, therefore, to determine is whether this is such a proceeding as was authorized by section 7 of the act. The act has provided for no other mode of procedure, for the collection of the taxes, than one, or both, of those enumerated and prescribed in this manner. The statute has not, in any form, made these taxes a charge upon the real estate of the company, but they are what the act itself denominates, businesss, or franchise, taxes, and they have been so considered and sustained by the courts. People v. Home Insurance Co., 92 N. Y., 328.

The liability to pay this franchise, or business tax on the earnings of the company was first created by chapter 342 of the Laws of 1880, and these remedies were' then provided for the collection of the taxes in case of default or refusal to Eay on the part of the company. And when a right has een in this manner created, and the remedies prescribed for its enforcement, such remedies, by a well-settled construction of the law proceeding upon the apparent intent of the legislature, have been held to be exclusive. Dudley v. Mayhew, 3 Com., 915, 916; Renwick v. Morris, 7 Hill, 575; Dodge v. Stevens, 94 N. Y., 209, 217.

Enactments of this description are to be restricted to the proceedings which they provide for, and not enlarged by a construction for which no warrant or authority is to be found in the act. Jessup v. Carnegie, 80 N. Y., 441, 456, 457.

As this proceeding is not by action under the authority of section 9 of chapter 361 of the Laws of 1881, it therefore must be maintained, if that can be done at all, under the last clause of section 7, as one provided for the collection of taxes for the use of the state, as other taxes were recoverable by law, from corporations.

This could not have been intended to refer to, or include proceedings for the sale of real estate upon which taxes have been imposed and remain unpaid. For here the taxes were imposed only upon the earnings of the company, and not upon any other description of its property. For their collection the proceedings prescribed for the sale of real estate of the company are inapplicable. Such proceedings relate wholly and solely to taxes upon that species of property; while the proceeding authorized by this portion of section 7, of the act of 1881, is one for the collection of the taxes for the use of the state, and that is the same, as previously had been provided for the collection of other taxes, recoverable by law from corporations. This reference _ has-been briefly made in this section of the act, without indicating otherwise than by a very general description. What. proceedings may be taken for the collection of these taxes ? But as no others adapted to this end have been prescribed than those previously authorized for the collection of taxes owing by incorporated companies, it is reasonable to presume that they were the proceedings within the intention of the legislature, referred to, and rendered applicable, by this part of section 7 of the act of 1881. Those proceedings, as the law was amended by chapter 456 of the Laws of 1857, are to be taken against the corporation itself. And they are to be instituted by petition, upon which the court has been authorized to sequestrate such part of the property of the company as shall be deemed necessary for the purpose of satisfying the taxes in arrear with the costs of the proceedings. And in its discretion the court may proceed further and enjoin the company and its officers from any further proceedings under the charter or act of incorporation, to enforce the payment of the taxes. 1st R. S. (6th ed), 983, §§ 22, 24; Laws of 1857, chap. 456, § 5. That has been deemed by the legislature an efficient mode of proceeding to secure the payment of the delinquent taxes, and it would probably turn out to be so, in as much as the mortgages and judgments against the company should be held to be subordinated to its liability to pay the taxes. Certainly a proceeding to annul the corporate existence of the corporation would appear to be adequate to produce this result.

The cases of Gormley’s Appeal (27 Penn., 49), limited by City, etc., v. Cooke (30 id., 56) and Harish v. Bird (28 Fed. Rep., 180), do not conflict with this measure of liability. For they rest' upon peculiar statutory provisions of other states, and in the latter of the cases the proceeds, which were the subject of contention, had been realized on the foreclosure of a mortgage, no part of the object of which was to collect, or provide for the collection, of the unpaid taxes, and they were necessarily left to depend upon the statutory remedy of proceeding against the property itself. And as the remedy provided by the laws of this state for the collection of these taxes has riot been made to include an independent proceeding carried on against the receiver, that which has been prosecuted in this case appears to have been carried on without authority.

The receiver might very well be brought into, and made a party to, the proceeding against the corporation, and certainly should be as an officer having in his possession, and subject to his control, all the property of the corporation, and also being in the receipt of all its earnings. He is an officer of the court, placed in this position by its authority, and is subject to its lawful directions. And if the proceeding which the law has provided for against the corporation shall prove, for any reasons, to be ineffectual, then he may be absolutely directed to pay these taxes out of the earnings of the company received by him. For by section 6 of chapter 456 of the Laws of 1857, the court has been authorized, as it previously to that act had been, to “order and direct such other proceedings as shall be deemed necessary to compel the payment of such taxes and costs.” And a proceeding controlling a receiver in this manner, and to this end, would appear to be within the authority created and conferred by this language. Surely it was the purpose of the law to avoid the evasion of the obligation created by the statute, either by the corporation or its officers, or any person placed in charge of its property and receiving its earnings by the authority of the court. And the provisions of the statutes are sufficiently broad to prevent successful evasion of the obligation which they have created.

There was no authority in the court, at the instance of the attorney-general, to direct the receiver to issue certificates to raise money upon them for the amount of these taxes. That has not been provided for as an incident of any authority created to obtain payment of these obligations, and being without authority in this respect, this part of the order clearly transcended the province of the court. Metropolitan Trust Co. v. Tonawanda Valley R. R. Co., 103 N. Y., 245; 2 N. Y. State Rep., 69; Raht v. Attrill, 106 id., 426; 11 N. Y. State Rep., 9.

The proceeding which has been authorized is one to be taken for the collection of the taxes against the corporation, and as its property and means of payment have passed into ■the hands of the receiver, he may very well, and should be, made a party to it so far as to be required, in case of necessity, to perform the final order of the court which may be made in it. That, however, was not the proceeding carried on in this instance, and the order should be reversed and the application denied, without prejudice to the further proceeding authorized by the statute and under the circumstances, without costs.

Van Brunt, P. J., and Brady, J., concur.  