
    People ex rel. Equitable Gaslight Co. of New York v. Barker et al., Commissioners of Taxes.
    
      (Supreme Court, General Term, First Department.
    
    November 18, 1892.)
    1. Taxation—Cebtiobari to Review—Assessment.
    Laws 1880, o. 269, § 4, provides that certiorari to review a tax assessment is allowable “when the petition shall set forth that the assessment is illegal, specifying the grounds of the alleged illegality, or is erroneous by reason of overvaluation, ” Held, that a petition by a corporation which states that the commissioners have illegally and erroneously included in their valuation the market value of petitioner’s capital stock, “to wit, 112 per cent, upon the whole of said capital stock, ” is sufficient.
    2. Same—Cancellation—When Allowed.
    The assessment will not be reduced in the absence of evidence that the corporation has been aggrieved thereby, though the principle or method adopted to determine the amount of taxable stock was erroneous and illegal.
    Appeal from special term, New York county.
    Petition by the Equitable Gaslight Compariy of New York for a writ of certiorari to reduce and cancel the assessment of their capital stock by Edward P. Barker and others, commissioners of taxes. Appeal by the relator from an order confirming assessment. Affirmed. -
    Argued before Van Brunt, P. J., and,O’Brien and Lawrence, JJ.
    
      Coudert Bros., (F. R. Coudert, of counsel,) for appellant. William. H. Clark, (George S. Coleman, of counsel,) for respondents.
   O’Brien, J.

The relator, upon petition, obtained a writ of certiorari to obtain a reduction and cancellation of the assessment placed by the tax commissioners in taxing the capital stock of the relator. The petition states that the commissioners “have illegally and erroneously included in their valuation of the personal property of the said corporation on said roll for taxation the following: The then market value of the capital stock of said corporation, to wit, 112 per cent, upon the whole of said capital stock.”' The law provides (chapter 269, Laws 1880) that this writ is allowable “when the petition shall set forth that the assessment is illegal, specifying the grounds of the alleged illegality, or is erroneous by reason of overvaluation,” etc.; and “if it shall appear * * * that the assessment complained of is illegal, erroneous, or unequal, for any of the reasons alleged in the petition, the court shall have power to order correction of the assessment, in accordance with law.”

It is insisted by the respondent that the ground of illegality specified in the petition was an overvaluation of the capital stock to the extent of 12 per cent. This, however, would be rather a limited and confined view to take of the relator’s objection. We think it was intended to, and did, fairly apprise the respondent of the objection urged below, and urged here, that the method or principle upon which the assessment was placed was illegal and erroneous, and resulted in an injustice to the relator. Upon an examination of the record, we think it is placed beyond doubt that the method or principle , adopted by the commissioners was erroneous and illegal, under the decision ' of People v. Coleman, 126 N. Y. 433, 27 N. E. Rep. 818. It was therein held: “First, the subject value or valuation and assessment is never the share stock, but always the company’s capital and surplus; second, such capital and surplus must be assessed at its own value, and, when that is correctly known and ascertained, no other value can be substituted for lb.” And it appearing in that case from the statement of assets and liabilities of the company that there was nothing subject to taxation, it was held error for the assessors, for the purpose of determining the value of the capital of the corporation, to take as such the value of the share in such corporation; and for these reasons the assessment was vacated and canceled.

Here we think the relator is sustained in the contention that in determining the value of its capital the assessors were guided principally, if not wholly, by a consideration of the market value of the shares of the corporation, which, as we have shown, was an erroneous method or principle to apply. We do not agree, however, with the argument addressed to us by the appellant, that such facts show that the assessment has been levied upon the property of others, not upon the property of the corporation, and that, therefore, there was a total absence of jurisdiction; because, while this is specious, it is not sound, for the reason that what the commissioners did, having jurisdiction over the property of the corporation, was to adopt an erroneous method in fixing the value of the capital of such corporation, which did not take away their jurisdiction or power to act with respect to taxing such capital.

Assuming, therefore, that the commissioners, having jurisdiction, did adopt a wrong method or principle, the question presented is whether this would render the assessment void. This would leave the action of the commissioners subject perhaps to the criticism that they have never acted and fixed the value of the capital, and that, therefore, the assessment laid is illegal and void. We have not, however, been .referred to any authority which goes to the extent of holding that the adoption of an erroneous principle by commissioners in fixing the amount of a tax made the tax itself void, in the absence of evidence showing that the party was thereby aggrieved; and, conceding the erroneous method adopted, we think that the test to be applied as to whether it should be further reduced or canceled is to be determined by the answer to the question whether or not the relator has been aggrieved. Eor this purpose we will assume that every item presented in relator’s statement upon which a claim for reduction could be based, if considered by the commissioners, would have been allowed. In other words, we will assume that, in respect to the actual value of the real estate as. distinguished from its assessed value, it correctly appears in relator’s statement; and we will further assume that the indebtedness claimed to exist did exist and was a proper subject for consideration by the commissioners in determining the value of the capital of the corporation; and with these assumptions in relator’s favor, if it could be shown that it was aggrieved, then we should favor the reduction, if not the annulment and cancellation, of the assessment.

For the purposes, therefore, of our examination, let us take the statement furnished to the department of taxes and assessments by the relator, and which is contained in the record, as follows:

“Statement made and delivered to the commissioners of taxes and assessments of the city and county of New York, for and in behalf of the Equitable Gaslight Company of New York, showing its condition for the purpose of assessment on the second Monday of January, 1891:

Total gross assets, - - - - - - $6,740,666 62

Capital stock actually paid in, or secured to be paid in, 4,000,000 00

Amount of surplus earnings, - 161,421 87

Bate of dividend for last year, or last annual dividend, 320,000 00

“Is the company assessed by the state under chapter 361, Laws 1881, and the amendatory acts ? Yes.

“Liabilities in detail, as follows:

Capital stock, - $4,000,000 00

Certificates of indebtedness, - 933.000 00

Bonds, - - 1,000,000 00

Bills payable, - 150.000 00

Purchase-money mortgages, 400.000 00

Accrued interest on bonds, etc., 33,006 66

Deposits from consumers, 18,959 00

For supplies, etc., 44,278 99

“Costs of 125 4102-5280 miles of mains, (including $18,000.paid for new pipes not laid,) $1,291,427,78.

“Assessed value of real estate, (1891,) describing particularly by ward numbers:

Assessed value of mains, - $429,000 00

19th Ward, 1st Ave., E. 40th St.;E. 41st St.; Nos. 1 to 20; 31 to 50,...... 300.000 00

19th Ward, 1st Ave., E. 41st St.; E. 42d St.; Nos. 1 to 20; 31 to 50,...... 350.000 00

21st Ward, 1st Ave., E. 39th St.; E. 40th St.; Nos. 4,956 to 4,981,....... 200.000 00

22d Ward, S. E. cor. 11th Ave. and 59th St.; Nos. 61 to 64, 0 22d Ward, bet. 10th & 11th Aves., 58th to 59th Sts.; Nos. 5 to 20; 45 to 60. 205,000 00

$1,484,000 00

Amounts invested in the stocks of other corporations which are taxed upon their capital, - - - - - 0 00

Amount invested in U. S. securities, - - - - 0 00

“(If the stock of the company is worth less than par, state the actual value, and give the facts under oath which will justify such estimate of its value.)

(The market value of stock 1890, .... 125 00 “ “ “ 1891, --- 115 00)"

The commissioners started with a valuation of $4,000,000, or the par capital of the relator, to which was originally added the 12 per cent., which, however, we need not consider, because it has since been stricken out; and therefore we have, as a starting point in determining the question now presented to us, $4,000,000, an amount equal to the par value of the capital of the relator. As shown above,,the total gross assets were $6,740,666.52, from which, if we deduct the indebtedness as -claimed by the relator, which aggregated $2,579,244, there still remains an amount in excess of $4,000,-000, with which the commissioners had a right to start, and from which they were to deduct the amounts exempted by the statute. This they did by deducting the assessed value of the real estate.

But it is insisted—and this is the ground of the grievance claimed—that, instead of the assessed value of the real estate, the actual value thereof should have been deducted; or, in other words, that if for the purpose of fixing the value of the capital stock we have regard to the total gross assets of the corporation, here stated to have "been six millions and over, an examination by the commissioners would have disclosed the facts which are now presented to the court, namely, that five millions and over of these gross assets represented money invested in real estate, land, buildings, mains, etc., separately taxed-.

We think that the error into which the learned counsel for the relator has fallen is in assuming that, for the purpose of determining the value of the capital, only personal property is to be considered. As said in People v. Asten, 100 N. Y. 597, 3 N. E. Rep. 788: “It is not a controlling fact in the assessment of the capital stock of a corporation that the whole capital was originally invested in real -estate. It is the duty of the assessors to ascertain the present value of the stock, and from this to deduct the assessed value of the real estate and such other items as are specified. This case and that of People v. Commissioners of Taxes, 95 N. Y. 554, we think, are authority for the view that for the purpose of ascertaining the value of the capital of a corporation it is competent for the commissioners to take the quantity or actual value of the real estate, together with the other property of the corporation; and, after the value thereof is found, they are not required to deduct therefrom the actual value of the real estate which has been included in estimating the value of the capital, the exemption of the real estate being only to the extent that it has been assessed. Therefore, if we assume here that all the property of the relator was real estate,—that its gross assets consisted entirely of real estate,—it would make the valuation of the capital stock, after deducting the indebtedness, exceed the par value thereof, namely, $4,000,000. And if the commissioners, under these circumstances, were to be obliged to deduct the actual value of the real estate, and not its assessed valuation, we concede that there would be nothing upon which an assessment could be laid or predicated. But as the commissioners were directed, not to deduct the actual value of the real estate-, but only the assessed value thereof, as exempted, it would be their duty to make only that deduction which the statute allowed.

We think the relator, upon the figures submitted, shows that the capital stock was unimpaired; that there remained a surplus of $161,421.87 after deducting an 8 per cent, dividend on the par capital for the preceding year; and that the commissioners were bound to adopt at least a par value of the capital as the actual valuation of the capital stock for the purposes of assessment; and upon examination, if the indebtedness as claimed and the assessed valuation are deducted before determining what amount is taxable, it will be found that the amount as fixed by the commissioners was not excessive. For the reason, therefore, that we do not see that the relator was aggrieved or could be aggrieved by the method pursued, and the amount, after the deduction made by the learned judge at special term, having been fair and just to the relator, we are of opinion that the disposition made by the special term was proper, and should be affirmed, without costs.

Van Brunt, P. J.

I concur in the result of the foregoing opinion, except to costs. I see no reason why an affirmance should be had without costs. I think we should affirm, with costs.

Lawrence, J.

I think that the affirmance should be with costs.  