
    The People ex rel. The Edison Electric Illuminating Company, App’lt, v. Edward Wemple, Comptroller, Resp't.
    
    
      (Court of Appeals,
    
    
      Filed May 3, 1892.)
    
    -Corporations—Comptroller to credit amount of taxes assessed in excess—Laws 1889, chap. 463.
    The comptroller has no power under chap. 463, Laws 1889, to pay back to corporations taxes when he is of the opinion that they were illegally assessed. The corporation is merely given the benefit of having the sum paid in excess of what might have been lawfully demanded applied upon future taxes, with interest on such excess from the time of such payment.
    Motion to amend remittitur so as to direct comptroller to pay back excess of taxes illegally assessed upon relator, with interest.
    
      Eugene H. Lewis, for app’lt; S. W. Rosendale, att’y-gen’l, for xesp’t.
    
      
       See 42 St. Rep., 280.
    
   O’Brien, J.

The remittitur should be amended so as to allow interest on the sum paid by the relator from the time of such payment, but there is no authority for a judgment directing the money to be refunded. Chapter 463 of the Laws of 1889 gives to corporations a new and important remedy. It permits them to apply to the comptroller for a revision of any tax levied upon them under the law providing for the taxation of certain corporations. They are not limited as to time within which the application is to be made. Any corporation that ever paid a tax under the law may now apply for a revision and re-adjustment But the legislature did not confer power upon the comptroller or the courts to direct the refunding of any tax paid into the treasury to the corporation that paid it. There may be cases where it would be just and perhaps necessary to refund the money paid, but such cases are reserved for the action of the legislature itself. Taxes once paid into the treasury under this statute cannot be paid back without an appropriation. All the comptroller is authorized to do in an application for revision and re-adj ustment is to re-settle the account, and to charge or credit, as the case may require, the -difference, if any, resulting from such revision “ upon the current

accounts ” of the corporation filing the petition. The courts are authorized to review the action of the comptroller, and to correct, it when found erroneous upon the facts or the law. But upon such review the court can give no judgment that the comptroller could not have given when the application was before him. The party paying the tax and applying for a review perhaps many years after has no remedy except what the statute gives him. The legislature never intended to clothe the comptroller with power to' pay back to corporations taxes when he was of the opinion that they were illegally assessed.

It was supposed that justice would be done by permitting the comptroller to give the corporation credit upon its account. This leaves the money collected in the treasury, but gives the corporation the benefit of any sum paid in excess of what might have-been lawfully demanded by applying it upon future taxes. It. was assumed that the corporation would have such an account, and in this case it has. This corporation has an account with the-comptroller, because since 1889 it was liable to taxation. In a. case where there was no liability to taxation, and consequently could not be any account between the corporation and the comptroller, the legislature must carry out the decision of the court by making a proper appropriation of the money. The motion,, except as to the interest, must be denied.

All concur.  