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People ex rel. Ontario & W.R. Co. v. State Board of Tax Com'rs

Supreme Court of New York, Appellate Division

May 21, 1909

PEOPLE EX REL. ONTARIO & W. RY. CO.
v.
STATE BOARD OF TAX COM'RS.

Appeal from Special Term, Albany County.

Certiorari by the People, on the relation of the Ontario & Western Railway Company, against the State Board of Tax Commissioners, to review an assessment under the special franchise tax act. From an order denying a motion to require respondent to make a further return to the writ of certiorari, relator appeals. Reversed.

[117 N.Y.S. 82] The relator, claiming to be aggrieved by a special franchise assessment of $15,000 for its railroad in one of the streets of the village of Hamden, Delaware county, procured a writ of certiorari, directed to the Tax Commissioners, commanding them to make return of their proceedings, decisions, and actions in the premises, and all and singular the evidence, documents, records, or papers before them, or which were submitted to them, concerning the said matter, together with all the protests, affidavits, and papers offered or filed with them in relation thereto, " to the end that such decisions and actions of said board may be reviewed and corrected on the merits by this court, and the aforesaid errors of said board may be corrected according to law and as to the court may seem just." The return to the writ traversed the averments of the petition as to the injustice, overvaluation, and inequality of the assessment, and averred " that at and previous to the time of making such assessment they had before them certain facts and information other than those communicated to them in behalf of the relator; that at and previous to the time when the assessment and valuation of the special franchise of the relator was made by your respondents they had made inquiry, examination, and investigation as to the value of the special franchise of the relator in said town; that such inquiry, examination, and investigation was made by and on behalf of this board, and through its agents and employés, who had obtained knowledge and information and formed opinion as to the value of the special franchise of the relator assessed, and in connection therewith of the value of the property, in said town, and from such inquiry, examination, and investigation, together with the papers and documents produced before it, it decided the value of the special franchise of the relator to be the sum of $15,000; *** that the facts pertinent and material to show the value of the property assessed on the roll which were considered by your respondents, and the grounds for the valuation of such special franchise by them, included the value of the real estate of such corporation situate in the streets and highways and public places in said town, aside from and irrespective of the use and right to use such streets, highways, and public places, together with the value of the use and the right to use said streets, highways, and public places of said town by the relator, as such value has been fixed and determined upon the evidence, papers, and documents before the board, which papers and documents give, among other things, the cost of the property, the income therefrom, and other facts going to show the value thereof, and from examination, investigation, and inquiry made by and on behalf of the said board as to the value of said property."

Upon the petition, writ, and return a motion was made at Special Term for a further return, and that the defendants be required to return all the facts [117 N.Y.S. 83] and circumstances, other than such as were communicated to them on behalf of the relator, that they had before them at and previous to the time of making the assessment, all papers, records, and proceedings showing the inquiry, examination, and investigation made by them as to the value of the special franchise, all reports, certificates, opinions, and statements made and given to the respondent by its agents, servants, or employés, all facts and circumstances relating to the value of the property, or the special franchise, considered by the board in making the assessment, the valuation placed upon each special franchise in said town, the value of the relator's real estate as found by the board, included in such franchise, and the value of the use and the right to use the streets and public places included therein. The motion was denied, and from the denial this appeal is taken.

Under Tax Law (Laws 1896, p. 883, c. 908) § 252, requiring officers making a return to a writ of certiorari to review an assessment to return the assessment roll and original papers acted on, and to concisely set forth such other facts as may be material to show the value of the property assessed and the grounds for the valuation, a return by the State Board of Tax Commissioners to a writ to review a special franchise assessment for a railroad in a village street, which, in addition to specifying the records and papers on which the determination was made and the evidence presented in open session, states the separate valuations of the real property in the street and the special right, if such separate valuations had been made, and the material facts which entered into the determination of the board, is sufficient, without stating other specific information or opinions acquired by the board apart from the open session or through their agents and experts, since on certiorari under the tax law the court may take further evidence, or direct that further evidence shall be taken before the referee, though, under Code Civ. Proc. § 2138, under the ordinary Code certiorari, the determination must be made on the writ and return and the papers on which the writ was granted.

C. L. Andrus, for appellant.

Edward H. Letchworth, for respondent.

Argued before SMITH, P. J., and CHESTER, KELLOGG, COCHRANE, and SEWELL, JJ.

SEWELL, J.

The merits of the controversy are not involved upon this appeal, as it is simply an appeal from an order denying a motion that the State Board of Tax Commissioners make a further return to the writ.

Section 45 of the tax law (chapter 908, p. 795, Laws 1896, as added by Laws 1899, p. 1590, c. 712, § 2) provides that an assessment of a special franchise by the State Board of Tax Commissioners may be reviewed in the manner prescribed by article 11 of that chapter. Section 252 of article 11 requires the officers making a return to return the papers acted upon by them, or such portions thereof as may be called for by the writ, and also provides that:

" The return must concisely set forth such other facts as may be pertinent and material to show the value of the property assessed on the roll and the grounds for the valuation made by the assessing officers."

It is very evident that the return falls far short of showing a compliance with the requirements of the writ or of the statute. It does not contain the evidence upon which the commissioners acted. It sets forth their conclusion as to the value of the special franchise; but this is insufficient. " Whenever the act of assessors is challenged, they must, in addition to setting forth the conclusions reached by them, set forth the evidence upon which that conclusion is based, to the end that the court may determine whether the conclusion was fairly drawn from the facts established, or whether they acted arbitrarily in the matter." People ex rel. Consol. Gas Co. v. Feitner, 78 A.D. 313, 79 N.Y.Supp. 975.No fact pertinent and material to show the value of the property, other than those communicated to the tax commissioners on behalf of the relator, appears in the return, although it admits that the commissioners had before them, and acted upon, certain other facts and information which they obtained though their agents and employés.

In People ex rel. E. E. I. Co. v. Barker, 139 N.Y. 62, 34 N.E. 724, it was said that the commissioners cannot avoid the legal effect of the information communicated to them on behalf of the relator by stating in their return to a writ of certiorari:

" That they had made ‘ due inquiry as to the value of the capital owned by the relator,’ and had come to a certain decision in regard to it. If they made [117 N.Y.S. 84] inquiries other than the questions contained in the written statement and upon which they acted, they should, when required by the terms of the writ of certiorari, give the court some information as to the nature, extent, and direction of such inquiries, and they should state what the information was which they obtained and upon which they based their decision. Otherwise the commissioners might always return that they had made ‘ due inquiry’ and had come to a certain decision, and the court would be powerless to give relief, notwithstanding the decision might be clearly ...

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