
    People ex rel. N. Y., O. and W. R’y Co. et al., Appl’ts, v. Alfred Chapin, Comptroller, et al., Respt’s.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed November, 1886.)
    
    1. Taxes and assessments—Railroad' commissioners—Expenses op,
    ASSESSED ON RAILROAD BY ASSESSORS AND COMPTROLLER—THEIR ACT QUASI JUDICIAL—Laws 1883, CHAP. 353, § 13.
    By Laws 1883, chapter 353, section 13, the comptroller and state assessors are to assess on each of the railroads in this state the expenses of the railroad commissioners. The assessment is to be one half in proportion to the net income of the corporation and one-half in proportion to the length of the main track or tracks of the road. EM, that in so doing, the comptroller and assessors act in a quasi judicial character.
    3. Erroneous assessment—Determination may be modified—Restitution MAY BE AWARDED.
    In the case of an erroneous assessment, if the payments have been voluntarily made by the railroad, restitution may be awarded and the determination modified, as in an appeal from, a judgment.
    3. Main tracks—Meaning op the words used in the statute.
    In ascertaining the proportion of the assessment to be laid on each road; as directed in the latter part of the section, the comparison was to be made between the aggregate of the lengths of the several main tracks of each road and not merely a single one.
    4. Appeal prom determination—Who entitled to be heard.
    On an argument to modify the determination made, all of the parties interested were entitled to be heard.
    
      John B. Kerr, for app’lts; D. O’Brien, attorney general, for resp’ts.
   Learned. P. J.

By section 13, chapter 353, Laws of 1882, the comptroller and state assessors are to assess on each of the railroads in this state the expenses of the railroad commissioners (which, by a previous section, are to be audited by the comptroller). The assessment is to be one-half in proportion to the net income of the corporation, and one-half in proportion to the length of the main track or tracks of the road.

It seems to us thai the respondents act in a quasi judicial character. They are to ascertain and determine how much is the net income; how long are the main tracks, and this determination further involves (as appears by this action) the disputed question, what is the meaning of “main track or tracks.” Their decision takes from one railroad and imposes on another, a charge, according as they estimate the net income and the main tracks of one or another at a greater or less amount.

Exercise of judgment and discretion in a public agent, it is true, does not make him a judicial officer. People v. Walter, 68 N. Y., 411. Because ministerial officers are not required to act like idiots.

_ But where a burden is to be borne by each of several parties in a proportion, dependent on facts and law, and a board is to make the apportionment according to facts and law, such board has to decide law and fact between conflicting parties. That is judicial.

Is it too late for the relators to obtain relief? The respondents are not required to issue any warrant. They are merely directed to assess. Then the assessment is to be collected as provided for collection of taxes upon corporations. That would seem to refer to the taxation under chapter 542, Laws 1880. And the mode provided for the collection of those taxes appears to be an action by the people. Section 9 of that act.

Therefore the position of these respondents does not seem to be like that of supervisors, who issue a warrant on their tax roll and deliver that to the collecting officer. Hence, the case of People v. Supervisors (82 N. Y., 275), is not quite applicable. There is no tax roll or warrant in this case which is beyond the reach of the respondents. If some of the railroads have paid their assessed amounts, the-payment may have been voluntary and restitution may be awarded. Code, § 2142. As may be done on appeal from a judgment. Section 1323. For the determination need not be reversed; It may be modified. Section 2141. And these two new provisions seem to relieve cases like this from some difficulties.

The return of the respondents only shows that several railroad companies have paid their proportions as assessed. Any party interested in upholding the decision may'come in. Section 213L And in fact the railroads that have paid appeared on the argument. So that the parties who claim. that a reversal or modification would affect them have been heard.

It is not shown in the return that the respondents have delivered to any one, or parted with, the assessment which they made. Nor does it appear by the statute that they should deliver the same to any one. So that they do not stand in the position of the assessors of taxes, (People v. Delaney, 49 N. Y., 655), or of the commissioner of taxes, People v. Commissioners, 10 Sup. Ct., (9 Hun.), 609 or of the supervisors, as in People v. Supervisors, ut supra.

They are, so far as appears, in fact and legally the custodians of the assessment which is sought to be reviewed. Code, § 2129. And they have made return to the writ, setting forth their assessment by reference to the schedule attached to the petition; and thus they have not claimed that the assessment is not still in their custody.

On the merits it seems to us that the relators are right. As the fact did not appear distinctly on the return, it was admitted upon the argument, (to prevent any doubt upon this point), that the assessment was made in proportion to the one main track on a road bed, and not in proportion to the several main tracks on a road bed.

The intention of the legislature seems to have been, in the first place, to apportion one-half according to net income; which would be equitable, so far as the roads were profitable. But inasmuch as some roads might not be profitable and yet ought to bear their share, the other half was to be apportioned on a different basis; on a basis of what might be considered, approximately, the magnitude of the road, and a basis which would also measure, approximately, the labor of the railroad commissioners in respect thereto. That basis is “the length of main track or tracks of road.”

Now the respondents, in assessing, take into account only the main track. As for instance, the New York Central and Hudson River Railroad Co., has in fact 2,130.43 miles of main tracks. But, inasmuch, as in some places four, and in other places two, of these main tracks are parallel, that company is assessed on only 993.29 miles. These facts appear in the schedules, and were practically admitted on the argument.

Now the argument of the respondents is that the legislature intended that the test should be the value of the property, based upon the earnings and income.

But plainly the legislature did not mean this. They meant that one half should be assessed in proportion to net income; but that the other half should be assessed in another proportion. The very use of the words “or tracks ” in the statute shows that all the main tracks, and not merely a single one, was to be estimated. If the statute had meant what the respondents claim, it would have said “in proportion to the length of one main track on road.”

This construction is sustained by the specifications required in annual reports. Chapter 575, Laws 1880 There several tracks on main line are spoken of, and are distinguished from sidings and turnouts. Notice especially table C, No. 45, “miles of steel rails (reduced to single track) in main fine.” That certainly includes several parallel main lines.-

It is urged by the respondents that the assessment is according to the statute to be made on the roads “according to their means.” If this expression were to be taken as explaining the more definite language which follows, would it not be reasonable to hold, if there were two roads having road-beds of equal length, and one road had one main track and the other two, that the “means ” of the latter were double that of the former?

Indeed, the argument of the respondents expressly says that the intention of the legislature was to assess this remaining one-half “upon the length of their respective road-beds.” Thus the respondents show that different language would accurately express what they claim to have been intended.

We think that the assessment upon the relators should be reduced in accordance with these views. The amounts are a matter of calculation and will be stated in the order. Fifty dollars, costs and disbursements, to relators.

Landon, J, The relators have been assessed for too much. It is no answer to their complaint that others have been assessed too little, unless it appear that the public interests would by correcting this wrong suffer greater wrong. It does not so appear in this case. The relators’ assessment can be reduced to its proper amount, and should be.

Assessments modified and reduced, with fifty dollars costs and printmg disbursements.  