
    The People ex rel. The Brush Illuminating Electric Co., App’lt, v. Edward Wemple, Comptroller of the State of New York, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 11, 1891.)
    
    Taxes—Domestic corporation—-Electric Light Co—Not exempt under Laws 1880, chap. 542.
    An electric light company is not a manufacturing company, and is not within the exceptions and exemptions from taxation upon its franchise or business, under Laws 1880, chap. 542, as amended by section 3 of chap. 361 of the Laws of 1881, as it is not yet made clear by scientific research as to whether electricity as accumulated by relators and dispensed in the form of electric light is or is not a manufactured article or product, and the comptroller having decided that it was not. it remains a question of fact with which this court will not interfere.
    This'is a certiorari to review an assessment and taxes imposed by the comptroller upon the relator, under chapter 542 of the Laws of 1880, and the various acts amendatory thereof. The relator is a domestic corporation, doing business in the city and state of New York, and was incorporated under the general laws of the state of New York, in February, 1881.
    
      The taxes were assessed and imposed by the comptroller upon the claim and assumption by that officer that the relator was not a manufacturing corporation doing business within this state, and was not, therefore, entitled to exemption upon its franchise under § 3 of the act referred to.
    The relator claims exemption under that act, and, after the imposition of these taxes, applied to the comptroller to reversé and readjust such assessment and taxes, which the comptroller refused to do, and, after such refusal, the relator sues out this writ to review the action of the comptroller.
    
      Eaton & Lewis (Engene H. Lewis and John W. Houston, of counsel), for app’lt; Charles F. Tabor (I. H. Maynard, of counsel), for resp’t.
   Mayham, J.

—The attorney-general objects to proceeding under this writ to review the action of the comptroller on the ground that by § 1 of the above mentioned act the relator had a remedy by appeal to a board of state officers therein referred to, and having failed to apply to such officers it is precluded by § 2122 of the Code of Civil Procedure from resorting to the writ of certiorari for redress. . ■.

We have held at this term in the case of The People ex rel. The Edison Illuminating Co. of New York v. Edward Wemple, comptroller, ante, that it was not clear that the appeal given by this section to the board of state officers designated therein applied to a case where the right to impose any tax was denied, as in this case; but whether or not that was so, § 20, which was added to this act and made a part of it, clearly authorized a review by certiorari from the determination of the comptroller on an application for a revision or re-adjustment of the taxes provided for in this act, and was, therefore, an available remedy.

But we reached a conclusion in that case upon facts similar to those presented in this, that an electric light company was not shown to be a manufacturing company, and was not within the exceptions and exemptions from taxation upon its franchise or business under § 3 of chap. 361 of the Laws of 1881.

The expert evidence in that case, as in this, is in conflict as to whether electricity as accumulated by the relators and dispensed in the form of electric light is or is not a manufactured article or product The comptroller, as the taxing officer, upon all the evidence now before the court, had determined it was not, and that determination was by no means unsupported by evidence. This controversy being presented to the comptroller as a question of fact, we do not think that there was such a preponderance of proof in favor of the contention of the relator as to justify this court to reverse his determination and hold as matter of law that electricity is such a manufactured article, commodity or force as to bring the company applying it within the designation of a manufacturing corporation under the statute, against the expressed of necessarily 'implied determination of the comptroller as the taxing officer of the state.

. Electricity is used in a great variety of forms; for telegraphic and telephonic communications in which the communications dispatched are matters of commerce and a source of revenue to the companies using the same, and as power in the propulsion of railroad cars from which the company derive an income, and we are not aware that in such uses of electricity it has been claimed or held that its production or use as thus applied has been held to be á manufactoring, so as to exempt the companies using it from taxation under the exemption in the statute. Future developments in science may settle definitely this disputed question. But until it is settled the determination of the comptroller in imposing this tax should not be reversed by the court. Our attention has been called by the relator to several acts of the legislature in which companies have been characterized as corporations to manufacture, use or supply electricity, or similar expression, from which it is urged that there is a legislative recognition of electricity as a manufactured article. But it is quite apparent from an examination of these acts that the legislature in using these expressions never had in contemplation any legislative determination of the question involved in this controversy.

In People ex rel. Edison Electric Illuminating Co. v. Edward Wemple, Comp., supra, this court held that to reverse an assessment made by a public officer charged with the duty of making an assessment and having jurisdiction of the parties and subject matter, it must be made to appear affirmatively that the assessment is in part or in, whole erroneous ; and this rule is fully supported by authority. People v. Commissioners of Taxes, 99 N. Y., 154. We think this rule applies with equal force in this case. The relator assumes the burden of showing this tax erroneous, and must affirmatively establish thát proposition. Cooley on Taxes, 146 ; Academy of Fine Arts v. Philadelphia County, 22 Pa. State, 496; People v. Commissioners of Taxes, 99 N. Y., supra.

In this we think the relator has failed. The action of the comptroller in making this assessment and in collecting this tax is confirmed, and the writ of certiorari quashed, with fifty dollars costs and disbursements against the relator.

Landon, J.

—This case also comes before us upon a writ of certiorari, to review the proceedings and determination of the comptroller, in imposing taxes upon the franchise and business of the relator with penalties added, and his refusal to revise and resettle the same.

The relator was incorporated under chapter 40, Laws 1848, the so-called manufacturing act. It is engaged in business like that of the Edison Electric Illuminating Company. The case differs in details, but not in principle, from that of the People ex rel. Edison Electric Illuminating Company v. Wemple just decided. For the reasons stated in the opinion in that case, a like order must be entered.

Determination of the comptroller modified by deducting from the aggregate of the taxes and penalties, the aggregate of the excess of the penalties above ten pereentum, and as so modified affirmed, without costs, and the said excess must be restored to the relator.

Learned, P. J., concurs.  