its answer only emphasizes respondent's contention that, if the state had intended to contribute to this burden, some provision could and would have been made in the general tax law, whereby the state would be protected from a yearly deficiency which is the inevitable result of the appellant's construction of the law. Nor can appellant answer that the state may as well suffer the deficiency as the county. In the first place, the county always must provide for some deficiency. Under the general tax law, the tax collectors pay to the localities in fuil the moneys collected for them and the balance is paid to the county. If, then, any taxes for any reason are unpaid, the loss comes to the county, to be made up by the next tax levy. But the county need suffer no deficiency. The board of supervisors have official knowledge of the amounts of railroad property, the taxes from which are to go to this sinking fund. The tax rate fixed in view of this knowledge could lead to no deficiency on account of this diversion of those taxes.

This problem in its final solution comes to the actual intent of the legislature, whether to make both state and county contribute to the help of the bonded towns, or to require the county alone to make the contribution. It will not do to say that it was the intent of the statute to make the property which it created pay the debt of the towns by which in part it was created. This railroad property assessed is not property created by the statute. The real property, which forms a large proportion in value of the property assessed, has, before the incorporation of the railroad, been property assessed within the town and compelled to bear its share of the public expense. It is not unnatural that the statute should compel a county to come to the rescue of an overburdened town within its borders, It might well be assumed that the property within the county is to an extent benefited by the improvements within the towns within that county. Upon the same principle, not many years ago, it was provided in certain cases a county should bear part of the expense for the construction of bridges, which would otherwise be town charges. Is it not much less probable that the legislature ever intended that the state at large should contribute to the burdens of these bonded towns? The benefit to the state at large is too remote upon which to base any such presumption.

Again, as has been stated, the liability of the state to contribute to the burdens of these towns must be found in some implied modification of the statutory machinery for the collection of state taxes. The rule of statutory construction has been long settled that the state will never be presumed to have surrendered any rights, and that such surrender must be found in express statutory enactment. In Black, Interp. Laws, at page 316, the rule is stated:

"In general, however, the rule is well settled that statutory grants of property, franchises, or priveleges in which a government has an interest, are to be construed strictly in favor of the public and against the grantee, and nothing will pass except what is granted in clear and explicit terms."

In the same authority, at page 119, the rule is stated:

"General words in a statute do not include nor bind the government by whose authority the statute was enacted, where its sovereignty, rights, pre

and 114 New York State Reporter

rogatives, or interests are involved. It is bound only by being expressly named or by necessary implication from the terms and purpose of the act." The author proceeds:

"If the government is not expressly referred to in a given statute, it is presumed that it was not intended to be affected thereby, and this presumption, in any case where the rights or interests of the state would be involved, can be overcome only by clear and irresistible implications from the statute itself. Generally speaking, therefore, the state is not bound by the provisions of any statute, however generally it may be expressed, by which its sovereignty would be derogated from, or any of its prerogatives, rights, titles, or interests would be devested, save where the act is specifically made to extend to the state, or where the legislative intention is too plain to be mistaken."

It is the same principle which holds statutes of exemptions to a strict construction. This principle of construction negatives the intention claimed by the appellant to make the state a joint contributor with the county for the benefit of these towns. For the county to recover in this action, it must appear from the law that the state has voluntarily surrendered part of the property from which it derives revenues, thereby increasing the burdens upon other property throughout the state. In my judgment, it does not so appear, and the judgment of the court below should be sustained.

CHESTER, J., concurs.

(39 Misc. Rep. 474.)

PEOPLE ex rel. NEW YORK EDISON CO. v. FEITNER et al., Com'rs. (Supreme Court, Special Term, New York County. December, 1902.) 1. CERTIORARI-TAX ASSESSMENT-REFERENCE.

Tax commissioners of a city assessed in their annual record, without locating them, "the foundations, sub and super structures, conduits, pipes, wires, cables, and connections," of an electric light company, as located on private property. The company insisted that the foundations, etc., were not taxable locally, because located in or under highways, and taxable only as special franchises by the state board of tax commissioners, under Laws 1899, c. 712, § 47. Held to present a question of fact requiring evidence for its determination, and therefore a reference was necessary for that purpose.

2. SAME-APPLICATION TO CORRECT ASSESSMENT.

The necessity of a prior application to have an assessment corrected before review by certiorari does not arise where the tax is void because the tax officials had no right to make it.

Certiorari by the people, on the relation of the New York Edison Company, as the successor of the Edison Electric Illuminating Company of New York, against Thomas L. Feitner and others, commissioners, to review an assessment. Order of reference made.

Beardsley & Hemmens, for relator.

George L. Rives, Corp. Counsel (E. Crosby Kindleberger, of counsel), for respondents.

SCOTT, J. This is the usual tax certiorari to review the assessment of relator's property for purposes of taxation. The Edison Electric Illuminating Company of New York, predecessor of the

relator, was assessed for the year 1901 at $1,664,850, value of its capital stock, and $80,000, value of its real estate. The certiorari calls in question both assessments. The entry respecting the valuation of the real estate, as it appears in the “annual record" for the year 1901, shows that the subject-matter assessed was "foundations, sub and super structures, conduits, pipes, wires, cables, and connections." Where these were situated, does not appear in the record. The relator insists that the property thus assessed as real estate must be deemed to be the conduits, cables, etc., in or under the public streets and highways, and that they are exempt from assessment and taxation for local purposes under the franchise tax law, which provides that "tangible property subject to a special franchise tax situated in, upon, under or above any street, highway, public place or public waters as described in subdivision three of section two shall not be taxable except upon the assessment made as herein provided by the state board of tax commissioners." Laws 1899, c. 712, § 47. The respondents, on the other hand, assert that the real estate thus assessed consisted of conduits, cables, etc., in, upon, under, or affixed to the land on private property, and hence was not exempted from local assessment under the section of the franchise tax law above quoted. Manifestly here is a question of fact, requiring the taking of evidence for its determination. The respondents, however, insist that as to the assessment of the real estate the writ should be quashed, because the relator made no application to the tax commissioners for the correction of the assessment.

Section 895 of the charter of the city of New York provides that: "During the time that books shall be open to public inspection as aforesaid application may be made by any person or corporation claiming to be aggrieved by the assessed valuation of real or personal estate, to have the same corrected. If such application be made in relation to the assessed valuation of real estate, it must be made in writing, stating the grounds of objection thereto."

And section 250 of the general tax law provides that petitions for the writ of certiorari shall show "that application has been made in due time to the proper officers to correct such assessment."

It is well settled that the court will not entertain applications to correct assessments unless application has first been made to the commissioners. People v. Feitner, 45 App. Div. 542, 61 N. Y. Supp.

Such an application however, presupposes that the commissioners have jurisdiction to make the assessment in the first place, and that they have acted erroneously in exercising that jurisdiction, and that their assessment is therefore open to correction by them. When, however, the assessment is absolutely void, because the commissioners have no jurisdiction to make the assessment at all, there is nothing to correct, and it is not necessary that any application should be made to the commissioners as a foundation for the writ of certiorari. People v. Feitner, 30 Misc. Rep. 641, 64 N. Y. Supp. 321. That is the case presented here, on the relator's statement of the facts. the conduits, cables, etc., assessed as real estate, were situated as is alleged by the relator, they are wholly exempt from local taxation, and the commissioners were without jurisdiction to assess them at all.

If

and 114 New York State Reporter

If, upon the evidence to be taken, it appears that the real estate assessed consists exclusively of property exempted from local taxation by the franchise tax law, the assessment must, of course, be vacated. If, however, it should appear that the relator does own real estate consisting of conduits, cables, etc., wholly upon private property, and not, therefore, exempted by the franchise tax law, the assessment must stand, and cannot even be reduced, however much its value may have been overestimated by the commissioners, for as to such property the commissioners had jurisdiction to fix an assessment, and their decision as to its value cannot be reviewed, because no application for a correction of the assessment was made to them. The necessity for a prior application to the commissioners failed only as to property absolutely exempt from assessment, as to which they were consequently without jurisdiction. The motion to quash must therefore be denied. As to the assessment upon the capital stock, the relator duly made application for its correction, and the commissioners did largely reduce it. In that application certain statements were made, which, as the commissioners state in their return, they disbelieved and disregarded. Their action in so doing was equivalent to a denial of the statements thus disregarded. Hence arises an issue of fact upon which evidence should be taken. An order of reference may be presented and settled on notice.

Ordered accordingly.

(39 Misc. Rep. 463.)

PEOPLE ex rel. EDISON ELECTRIC ILLUMINATING CO. OF BROOKLYN v. FEITNER et al., Tax Com'rs.

(Supreme Court, Special Term, New York County. December, 1902.)

1. CERTIORARI-TAX ASSESSMENT-WAIVER OF OBJECTIONS.

A corporation claiming to be aggrieved by the assessment of its real estate applied in writing to the tax commissioners of New York under Laws 1897, c. 378, § 895, for its reduction. The application undertook to allege that the assessment was illegal for overvaluation and irregularity. The allegation as to irregularity was insufficient as a basis for action by the commissioner. The petition for certiorari under Laws 1896, c. 908, made no allegation as to irregularity. Held, that such objection was waived.

2. SAME-REVIEW.

Certiorari brings up for review only the objections to an assessment made before the tax commissioners.

8. SAME-STATEMENT.

A statement in an application for certiorari to review a tax assessment stated that the relator's real estate had been assessed at a valuation of $905,000, whereas, in accordance with its market value, it should not have been assessed at more than $500,000. Held not an allegation of overvaluation as a fact, but a mere opinion of one not shown to be qualified as an expert in regard to such overvaluation.

4. SAME-REFERENCE.

Statement on application for certiorari that real estate in relator's judgment should not have been assessed above a certain sum does not allege such overvaluation as a fact, so as to raise a question of fact within Laws 1896, c. 908, § 253, so that testimony is necessary for its proper disposition requiring a reference to determine such fact.

5. SAME.

An application for certiorari to review an assessment for an underground electrical conduit, alleging that much of the system had been in the ground for many years, and was worth a part of its original value, with no statement as to how much of the system had been underground, or what its original value was, or what part of its original value remained, was insufficient to show an overvaluation.

Certiorari by the people, on the relation of the Edison Electric Illuminating Company of Brooklyn, against Thomas L. Feitner and others, commissioners of taxes, to review an assessment of the relator's underground conduit system. Motion for reference. Denied. Sheehan & Collin (John L. Wells, of counsel), for relator.

George L. Rives, Corp. Counsel (George S. Coleman and Curtis A. Peters, of counsel), for respondents.

SCOTT, J. This is an application to review by certiorari the assessment as real estate, for the purposes of taxation, of the relator's underground conduit system. The relator moves for a reference to take testimony, and the respondents move to dismiss the writ. The relator, as required by the charter, made written application to the respondents for a reduction of the assessment. That application undertook to allege that the assessment was illegal, both on account of overvaluation and irregularity. The allegation as to irregularity was not stated in the application in such form as to constitute a basis for action by the commissioners, and in its petition for the writ of certiorari the relator makes no claim of irregularity. That objection. to the assessment is, therefore, to be deemed waived. People v. Tierney, 57 Hun, 357, 10 N. Y. Supp. 940. This leaves to be considered only the allegation as to overvaluation. Under section 805 of the Greater New York charter of 1897, which was in force when this assessment was made, a person feeling aggrieved by the assessed valuation of his real estate was required to make an application for the correction of the assessment in writing, stating the ground of objection thereto. The writ of certiorari is essentially a writ of review, and its function in matters of taxation is to review the action or refusal to act of the tax commissioners. Consequently, no objections are brought up for review, except such as were presented to the commissioners upon the application for correction. In re Winegard, 78 Hun, 58, 28 N. Y. Supp. 1039; People v. Neff, 15. App. Div. 8, 44 N. Y. Supp. 46. The objection to the assessment cannot, therefore, be expanded by the petition for the writ. In the present case the application to the commissioners is attached to the petition, and, by reference, made a part of it. The question presented by the motion and countermotion is whether or not the objection made to the assessment as contained in the application for correction addressed to the commissioners is sufficient to call for the taking of evidence. Under section 253 of the general tax law the granting of an application to take evidence is not a matter addressed to the discretion of the court, but is a substantial right if issues of fact are raised by the petition and the return, the issuable allegations of the petition being those which were contained in the application to the commissioners. People ex rel. Thomson v. Feitner, 168 N. Y. 441, 457, 61 N. E. 763.