
    The People of the State of New York ex rel. Jamaica Water Supply Company, Appellant, v. The State Board of Tax Commissioners, Respondent.
    Third Department,
    September 17, 1908.
    Tax—special franchise of water company—rules for determining value — assessing intangible property.
    In assessing a special franchise tax, the value of the franchise should be ascertained in the same manner as.the value of any other property, so far as its nature permits.
    
      On the assessment of a franchise tax against a water supply company .which . owns tangible property outside the street and both tangible and intangible property in the street, each of these three classes of property should be considered as contributing pro rata, to the net earnings of the company according to its respective value.
    On determining the value of tangible and intangible property, actual value, not • the cost, is the true basis for taxation; and hence intangible property in a public street, consisting of a mere right to lay water mains, must he determined by treating it as part of the plant and basing its value upon the net earnings and then capitalizing such earnings.
    Such intangible property has a taxable value on the theory that it is earning an income for the company, and if with good management there is no adequate return, such intangible property has little value.
    The value of the property of a water company for the purpose of taxation, and especially its franchise, and good will, cannot he ascertained until the franchise tax and all other taxes and a proper replacement or upkeep fund have been deducted from the current earnings.
    In determining'the value of the property of such corporation based principally upon its earnings,, the earnings and expenses for one year alone should not he considered, but the average earning and expense for a series of years, or for such time as is reasonably available, should be taken.
    The correct method of arriving at the value of the intangible property of a water supply company in a public street is as follows: From the earnings should be deducted salaries and other expenses of maintenance, all taxes including the' approximate amount of the special franchise tax to be assessed, such, percent•age of thé earnings as is shown to be a reasonable and proper fund for replacements and upkeep not ordinarily covered by the current maintenance account, and the balance of the earnings remaining should be treated as the actual net earnings of the company. Six per cent should then be deducted as a fair return upon the value of the real estate and other tangible property, and the surplus earnings should then be capitalized at six per cent, which result represents the fair value of the intangible rights in the street. To this should be added the ' value of the tangible property in the street, the result representing the value of the special franchise.
    Appeal by the relator, the Jamaica Water Supply Company, 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 Albany on the 9th day of April, 1908.
    Upon a certiorari to review the decision- of the State Board of Tax Commissioners assessing the special franchise tax against the relator for the year 1907, an order was made at the Albany County Special Term confirming the report of the referee and the said assessment, and this appeal is brought to review such order and assessment.
    
      
      F. H. Van Vechten, for the appellant.
    
      Francis K. Pendleton [David Rumsey, Curtis A. Peters of counsel], for the City of New York.
    
      James T. Walsh, Deputy Attorney-General, for the People.
   Kellogg, J.:

The report of the referee sustaining the assessment fixes the value of the tangible property of the relator in the streets at $396,244.90, its tangible property outside the streets at $316,018 28 and the gross revenues of the company at $102,055.62, from which, is deducted: Salaries, $8,000 ; clerks and office expenses, $4,114.01; legal expenses, $1,185.55; pumping expenses, $12,229.56; general expenses, $2,596.82; maintenance, $3,789.37. Total deductions, $32,005.91, leaving net earnings, $70,049.71; from which the referee deducted five per cent return (which includes taxes) on cost to reproduce tangible real estate in streets in Queens county 1 ($417,099.90), $20,854.99. He also deducts five per cent return (which includes taxes) on cost to reproduce buildings and machinery, stand pipe, etc. (pumping stations 1 and 2) ($245,000), $12,250. He also deducts five per cent return (which includes taxes) on original cost of all land owned by relator ($25,162.01), $1,258.10. Total deductions, $34,363.09, leaving final net return of $35,686.62; which said last sum he capitalized at seven per cent giving the value of the relator’s intangible part of the special franchise in the county of Queens, $509,808.85; to which, is added the tangible property in the street, making the total value of the special •franchise $906,053.75.

The relator’s real e'state was found to be actually worth $71,018.28, exclusive of the plant, but its actual cost was $25,162.01.

The 17th finding of fact is as follows: “That the increment of value of the relator’s land, which accrued to the relator and which amounts- to $45,856.27, is a further sinking fund owned by the relator.”

The increase in value arose from the general improvement of real estate values in that locality, and not by any special uses to which the real estate was put.

The special franchise tax was not intended as an instrument for the punishment or torture of corporations, but .is part of a just and equitable system of taxation devised to require every person and corporation to pay - a fro rata share of the public expenses based upon the fair valuation of property. The value of a franchise should, therefore, be ascertained in the same manner as the value of any other property, so far as its nature permits. It is manifestly unfair to treat this intangible property in the! street, which, is of no use to the public, except as it may sell it if it has a value, as earning ■ the greater part of the net income of a corporation. In a water-pumping plant we may assume that its real estate, its pumping station, its mains, its special franchise and each particular item of property perform their proper offices in producing the net earnings, and it would be unfair to say that any one piece- of property necessarily employed in such a business produces a greater per cent of earnings than any other piece of property so employed. The net result comes from the use of the entire property and each part of * it, and each part of the property is a necessary instrument in producing the result. It -is manifest that the intangible property in the street,, which is the mere right to lay the water mains under the street, cannot be considered as the chief revenue producer of the relator. Here are three distinct classes of property, the use of which produces the net -earnings; the tangible property outside the street; the tangible property in the street, and the intangible prop-, erty in the street. Each of these classes of property should properly be considered as contributing fro rata, according to their respective values, to the net earnings of the company. In determining the value of. the tangible property the cost, of reproduction was considered by the Commission and the referee as a proper basis; but it is difficult to understand upon what ground they refuse to give tó the relator the actual value of its real estate. The term “increment of value” to be used as a sinking fund has no place in the assessment of a special franchise. The question is; what is the. relator’s property, tangible and intangible, actually worth ? Actual value and not cost is the true basis for taxation. .

It was, therefore, clearly error to refuse to recognize the actual value of the real estate owned by the relator. The intangible prop- • erty in the street has no market value, and there is no way to deter- ' mine. its true value except by basing its value upon the earnings which such rights produce, and such value can only be determined by treating it as a part of the plant and basing its value upon the net earnings and then capitalizing such earnings. It is common experience that a long term bond, properly and amply secured, bearing four per cent, produces a fair return upon an investment the safety of the principal of which is beyond question.

The water company has no exclusive right to occupy the streets. The same privilege may be granted to another water company and ruinous competition may follow. A public water plant may be established, or condemnation proceedings may be instituted to acquire the relator’s property for public use. The prosperity of the relator is limited by circumstances and local conditions; its rates and kind of service may be more or less within the regulation of the public. If by competition or otherwise its business is rendered unprofitable, its plant has little value for use elsewhere. It is evident that the stock of such a company, with such an uncertain tenure, to be marketable at par ..should produce a greater return than a first-class bond. Perhaps, without discussing it, we may assume, until the evidence shall furnish us a better guide, that such a stock must earn at least six per cent in order to be worth par, or in order that the business may be considered profitable or successful. If a water company can pay but six per cent upon the actual value of its tangible property, it is probable that the intangible lights yhich it has in the streets would not be very desirable and could not be considered as revenue producers. Such intangible property is given a value for taxation, because it is supposed to be earning an income for the company, but if the company earns no adequate return with good management, such intangible rights have but little value. The intangible rights attach to the fixed property in the streets and form the special franchise which is to be taxed, and if the business is a losing venture and is not producing, an income of at least six per cent it is perhaps accorded a full value- in treating the tangible property in the streets as producing equally with the other tangible property of the company.

The net income of a corporation for dividend purposes cannot be determined until all taxes, depreciation, maintenance and up-keep expenditures have been deducted. Otherwise the dividend is not paid from the earnings but by a depreciation of the capital account To earn a dividend and be honest with itself, its stockholders, its creditors and the public it has to serve, a corporation cannot distribute earnings at the expense of its. capital. If a corporation, year after year, should distribute its earnings, after deducting expenses, making no allowance for taxes or the replacement or up-keep requirements of the plant, in time its entire capital would be gone by the payment of unearned dividends. The value of the property of the company, especially its franchise and good will, cannot be ascertained until the franchise tax and all the other taxes and a proper replacement or up-keep fund has been deducted from the current earnings. If this is not done, an attempt to arrive at the value of property, based upon its net earnings, is deceptive.

In this case the special franchise tax is fixed at $10,597.55 ; the tax. upon other real estate was $1,022.51; the taxes paid the State Comptroller, $609.85. These items were not deducted from the gross earnings in determining the net earnings of the company. .It is manifestly impossible to determine what the net earnings of the company are until all taxes and charges are first deducted or provision made therefor.

It is apparent from the report and the opinion of the referee that in allowing the relator five per cent return upon the actual cost of • its real estate and five per cent return upon the value of its other tangible property, he feels that the relator can afford to pay the taxes from such return. Such conclusion is not in accord with the ordinary business experience of the country, when we see the best industrial and manufacturing stocks .paying from six to seven per cent free of tax, with a reasonable allowance for up-keep and maintenance, selling at par or less. In determining the value of. property based principally upon its earnings, the earnings and expense for one year cannot alone be considered, but it is the average earnings and expense for a series of years, or for such time as is reasonably available. Perhaps the evidence would justify the conclusion that the amount allowed for maintenance is. sufficient to replace from time to time as may be necessary, the mains, hydrants and some of the other tangible property of the company. But it must have expensive pumps and machinery and other property which is liable to serious depreciation by use, and in time to actual destruction, so that prudence would require- that each year a certain reasonable sum be laid aside as a replacément or up-keep fund for such contingencies as are not covered by the' ordinary maintenance charges. If such fund is not maintained the property is being robbed for the purpose, of paying.the dividends or exaggerating its paper value.

For the purposes of this case these conclusions lead to the following basis as a correct means of arriving at the value of the intangible property in the street: In addition to the items deducted by the referee from the earnings, there should also be deducted all taxes, including approximately the amount of the special franchise tax to be assessed. There should also be deducted such percentage of earnings as the evidence upon a further hearing may show to be a reasonable and proper fund for the replacement and up-keep of the plant in respects which are not ordinarily covered by the current maintenance account, and the balance of earnings remaining should be treated as the actual net earnings of the company for the purpose of determining the value of its intangible property in the street. Six per cent should then be deducted as a fair return upon the value of the real estate and other tangible property. The surplus earnings should then be capitalized at six per cent, and the result represents the fair value of the intangible rights in the streets, to which should be added the value of the tangible property in the streets, and the result represents the value of the special franchise. The record shows that the property in the locality is assessed at eighty-nine per cent of its actual value. Eleven per cent, therefore, of the value of the special franchise should be deducted to equalize it with the assessed value of other property. This latter result is the value of the special franchise for the purpose of taxation.

The order appealed from and the determination of the State, Board of Tax Commissioners should be annulled and the matter remitted to the State Board of Tax Commissioners for further consideration.

All concurred, except Cochrane, J., not voting.

Order reversed on law and facts and determination of State Board of Tax Commissioners annulled and the matter remitted to the State Board of Tax Commissioners for .further consideration.  