#### The People of the State of New York ex rel. Queens County Water Company, Respondent, *v.*State Board of Tax Commissioners, Appellant. The City of New York, Intervenor, Appellant.

Third Department,

May 22, 1913.

Tax valuation of franchise of water company—earnings subsequent to assessment — land considered part of plant — expense of business — net profits—unpaid taxes—reproductive cost of laying pipes—cost of relaying pavement.

The State Board of Tax Commissioners in fixing the value of the franchise of a water company is not confined to the earnings of such company prior to the assessment, and moneys received at the time of the hearing under a contract to supply water to a city should be considered as a part of the earnings of the company.

Land bought by such company and used solely for its business should be treated as a part of the plant and its value considered in determining the return to be received from the property.

Money expended in maintaining such land should be allowed as an expense of the business.

In determining the net profits for a certain year, taxes levied for such year, but unpaid, should not be disallowed.

In determining the reproductive cost of laying pipes in streets which were thereafter paved, the cost of relaying the pavement should be allowed, although such paving may not cost the company anything.

Appeal by the defendant, the State Board of Tax Commissioners, and The City of New York, intervenor, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 18th day of June, 1912, reducing special franchise taxes assessed against the relator for the year 1905.

*Thomas Carmody, Attorney-General,*and *Archibald R. Watson, Corporation Counsel [William A. McQuaid, Curtis A. Peters*and *Addison B. Scoville*of counsel], for the appellants.

*Lord, Day & Lord [Henry de Forest Baldwin*and *Franklin B. Lord*of counsel], for the respondent.

*166Kellogg, J.:

The State Board of Tax Commissioners assessed the relator’s special franchise at $190,000. The Special Term found that the tangible property in the street was worth $125,190.67, and that the intangible part of the franchise was without value. Equalizing the assessment with that of other property in the tax district, which is assessed at only about sixty per cent of its value, made it $75,114.40. The court finds the reproductive cost of the tangible property $711,422.75, and that the actual net earnings of the previous year were $31,732.98, which did not give a fair return upon such cost.

The assessment of a special franchise is an effort by fair-minded men to arrive at the value of the property so that it may bear its just proportion of taxation. There is no hard and fast rule by which assessors are bound in fixing the value of property. In many cases the net-earnings rule is a convenient and fair way of determining value; in other cases it would not bring about a fair result. We do not know what rule the Board followed. It may have considered various rules and methods; we have only the result. From the value of the tangible part of the franchise, as the court finds it, we infer, as the referee did, that the Board valued the intangible part of such franchise at $64,809.33.

It must be conceded that for the year 1904, and prior years, the business had not been profitable, and had not earned a fair return upon the value found, and any assessment against the relator on account of the value of the intangible part of the special franchise would have been unjust. In August, 1904, the relator made a contract with the city of New York by which it was to lay a new conduit to connect its water system with the pipes of the .city, and was to furnish the city 3,000,000 gallons of water per day at $30 per 1,000,000 gallons, subject to certain reductions and upon certain conditions. Prior to the second Monday of January, 1905, the relator began to furnish water under this contract, but no compensation had become due thereon; during 1905 it received under it $32,082.

The real contention in this case is whether the Board of Tax Commissioners, in fixing the value of the franchise, was confined to the earnings prior to the assessment or might take into *167consideration this contract. It is urged that the contract was somewhat of an experiment, and it was not known whether the water would be furnished for the whole year or what the result of the venture would be. And we may assume that is true. In reviewing the action of the Tax Board in making the assessment the presumption is that in some way the Board has arrived at a fair result, and the party claiming to be aggrieved, in order to have relief, must satisfy the court that the assessment is unjust. As a matter of fact the Board committed no error in determining that the business of the company for 1905 was to be more profitable than it had been theretofore. Whether the Board acted upon sufficient data or not is not material, so long as the result arrived at is just. It is true that the pipes in the street did not contribute toward earning the money paid by the city, and perhaps the money would have been earned if there had been no special franchise. But if we are to value the relator’s property by the net-earnings rule, the physical property, both in and out of the street, is to be assessed and accorded a fair return upon its value before any value is attributed to the intangible part of the special franchise. The pumps, engines and certain pipes were employed in earning this money, and, therefore, such money should properly be considered in according to the physical property a fair return on the investment. We are not at the beginning of the year trying to determine whether it would be just to allow this item as a part of the earnings, and fearing that the action may be wrong because the money may not be received. At the time of the hearing the money had been received, and it was clearly apparent that the Tax Commissioners had not misjudged the earning capacity of the system. The receipts from this contract should, therefore, be considered as a part of the earnings of the company. It is quite probable that the company was put to some additional expense in supplying this water to the city. The amount received evidently was not all profits, and it will be a prqper subject of inquiry how much of it was actual profits.

These conclusions lead to a reversal or modification of the order. If in fairness to the parties the order could be modified that would be the better way, but its modification in the respect *168indicated would not do justice between the parties. The referee made certain specific findings of fact which were approved by the Special Term; the relator has not appealed, and, so far as those findings are erroneous, a modification of the judgment would be an injustice to it. The relator purchased from time to time 435.533 acres of land of the value of $347,707, as the referee properly finds, *“*for the purpose of its water business and the operation of its franchise, and all its land was purchased, and all of its improvements were constructed for said purposes, pursuant to the advice of engineers.” The referee felt constrained by a former decision, as he understood it, to disallow this item as a part of the value of the physical property. The officers charged with the management of the company deemed it necessary to make these purchases in order to properly conduct its business and to protect its property. The water distributed by the company is pumped from the earth, and it was necessary to secure a proper drainage area which would place its supply beyond any liability of failure or contamination and to prevent others from interfering with it, and to provide for the present and probable future needs of the company. Landowners were claiming that drawing the water from the' earth injured the farming value of their land, and suits were pressing for damages and injunctions. The city of New York was adopting plans which, if carried out, would have encroached upon the company’s drainage area, and as its engineers and officers felt, would have been destructive to its interests. The relator produced expert witnesses upon the trial who swore that all this land was necessary properly to protect the drainage area of the company. The referee found that it was wise and prudent for the relator to own these lands. Its motive in making the purchase is not questioned. The facts which led up to these purchases appear more fully now, and render the former decision not controlling upon the present record. A water company can only act through its officers. Whether the business is profitable or unprofitable depends, in part, upon the plant and its location, but to a great extent upon the wisdom and business capacity of the officers managing it. I think it is generally acknowledged that the personal equation has much to do with the success of any business, and that a *169mere plant alone will not bring success, but the requirement of success is a proper plant, properly managed.

The law creating the Board of Tax Commissioners does not make it the manager of the relator’s business, nor require that its business should be run according to the judgment of the Board; the management of the business is left entirely with the officers of the company. The duty of the Board is solely to determine the value of the property as a going concern.

If, in assessing the value, the net-eamings rule is applied, the business of the company as conducted must be considered, in so far at least as it is conducted in good faith, with fair intelligence and reasonably within bounds. Clearly the company cannot load itself up with useless property for the purpose of avoiding payment of its just taxes. It is also equally clear that for the purpose of increasing the tax the Board cannot refuse to consider property as a part of the plant which the company, in its judgment, purchased in good faith for the use of and is using in the company’s business. The managers of this business deemed it necessary for the business to own this land; there is at least a reasonable question if its ownership was not proper and necessary for the company; the finding is that the business was well managed. Perhaps it might have been managed by some other people in a better way; but in determining whether the business is or is not profitable the results flow from the plant and the business management. I am satisfied that this land having been bought and used solely for the business of the company, and without any other purpose, should be treated as a part of the plant and its value considered in determining the return to be received from the property.

This is not a case of abandoned property, or property which had outlived its usefulness to the company. It was bought because the company believed it necessary for its use, and it was in fact being used for the very purpose for which it was bought. Opinion, perhaps, might vary with reasonable men as to whether the company did not have too large an engine or too many engines; too large a pump or too many pumps; too expensive an office or too extensive a drainage area. But all of these matters, within reasonable bounds, were for the com*170pany to decide, and have in good faith been determined by it. Its managers determined a matter in which they were vitally interested, and in the direct line of its business, and perhaps their judgment upon such a question is better than that of the Tax Commissioners or of the court. They determined the matter according to their best judgment and in the best interest of the company, as they understood it. They paid the company’s money for the property in the belief that it was a necessary part of the plant. That judgment, so arrived at, should not now be overruled upon technical grounds for the sole purpose of enhancing the taxation of the company.

In owning this land as a part of its watershed and for the protection of its water supply the company could not allow it to grow wild and to become unsightly. To do so would be a poor advertisement for a water company. It cannot be criticised for keeping its land in proper condition and properly mowed. There was no experimental farming attempted, but the company owning this land as a part of its plant sought t© keep it sightly, and it used the hay growing upon it for the use of its horses. It cost more each year to do this than the actual earnings from the land itself as land. There is no suggestion that the expenses were made for any other purpose than for the reasonable protection of the property of the company and to keep it from becoming unsightly and detrimental to the interests of the company. This expense should be allowed as an expense of the business.

In determining the net profits for the year 1904 the taxes which had been levied for that year were disallowed because not yet paid. This was error.

When the pipes were laid in certain streets they were unpaved and afterwards the city paved the streets. In determining the reproductive cost of laying the pipes in those streets the cost of relaying the pavement was not allowed. We think it should have been. The fact that the paving, cost the company nothing is immaterial. The costs of engineering and of necessary supervision are also proper items for consideration.

We are satisfied with the order with reference to the other matters presented upon this appeal.

*171The order appealed from, is, therefore, reversed, the determination of the Tax Commissioners annulled and the matter remitted to them for further consideration, without costs.

All concurred.

Order reversed and the determination of the Tax Commissioners annulled and the matter remitted to them for further consideration. No costs.