#### The People of the State of New York ex rel. American and Foreign Marine Insurance Company of New York *v.*William Sohmer, Comptroller of the State of New York.

Third Department,

September 9, 1914.

Tax — franchise tax ■— deductions in favor of insurance companies holding State bonds — when insurance company entitled to deduction although payment made before amendment to Tax Law — effect of subsequent repeal.

When section 190 of the Tax Law, entitling certain insurance companies to deductions from their franchise tax in case they were owners of certain State bonds, was amended so as to increase the amount of credit to which bondholders were entitled and allowing them credit on other State bonds held by them, an insurance company holding such bonds is entitled to the deductions provided for in the amendment, although it paid its tax before the date of the amendment, and although the amendment was repealed within two months after its passage, where by the delay as permitted by statute, the insurance company could have paid its tax within the period said amendment was in force. This, because the insurance company should not be punished for its'promptness and diligence in paying its franchise tax as originally assessed.

The amendment giving additional credit to insurance companies holding State bonds took effect immediately and applied, not only to bonds to be purchased in the future, but to those already held. H ence the subsequent repeal of the amendment was ineffective to take away the rights thereby created.

Kellogg, J., concurred in result, with opinion.

*779Application by the American and Foreign Marine Insurance Company of New York for a writ of certiorari directed to William Sohmer, as Comptroller of the State of New York, to review a determination of said State Comptroller whereby he refused to revise and readjust the petitioner’s franchise tax for the year 1913.

*William H. Hotchkiss,*for the relator.

*Thomas Carmody, Attorney-General [Joseph A. Kellogg*and *Claude T. Dawes*of counsel], for the respondent.

Howard, J.:

The relator is a domestic insurance company. Under section 187 of the Tax Law it is now, and was in 1913 compelled to pay a franchise tax. Under section 190 of the Tax Law, prior to April 24, 1913, certain insurance companies were entitled to certain deductions from their taxes in case they were the owners of State bonds bearing interest at a rate not exceeding three per cent. The Comptroller was required to credit them with an amount equal to one per cent of the par value of all such bonds held by them; this credit to apply on the payment of their taxes. (Consol. Laws, chap. 60 [Laws of 1909, chap. 62], § 190.) On April 24, 1913, section 190 of the Tax Law was amended so as to increase the amount of credit to which these companies were entitled by reason of holding these bonds, from one to one and one-half per cent. The amendment also required that these companies be given credit equal to one-half of one per cent of the par value of all other State bonds held by them, bearing interest exceeding three per cent but not exceeding four per cent. (Laws of 1913, chap. 357.) The relator held $60,000 of registered three per cent State bonds and $140,000 of four per cent registered State bonds. It paid its tax March twenty-ninth; it need not have paid it until June first. (Tax Law, §§ 187, 197.) The amendment was passed April twenty-fourth; it was repealed June seventeenth. (Laws of 1913, chap. 794, amdg. Tax Law, § 190.) It lived less than two months. After it was passed and before it was repealed the relator applied to the Comptroller for a readjustment of its tax and asked for an additional credit of $1,000 to which *780it claimed to be entitled under the amendment. Acting on the advice of the Attorney-General, the Comptroller refused to make any readjustment or to give the relator the extra credit of $1,000. The refusal of the Comptroller was based solely upon his supposed lack of power, under section 198 of the Tax Law, to grant relief to the relator. At the time the relator paid its tax it was not entitled to the $1,000 credit. The amount paid included nothing except what could have been lawfully demanded at the time it was paid, and the Comptroller considers himself bound down by section 198 of the Tax Law to grant relief only in those cases where the tax includes charges “ which could not have been lawfully demanded ” by him.

We believe this strict construction of section 198 to be narrow, unwarranted and repugnant to justice and equality. The purpose of the section is to empower the Comptroller *to*grant relief where relief ought to be granted. If the State has obtained money from the taxpayer which it ought to give back, under section 198 the Comptroller must revise his books and accounts to the effect that the money may be returned to the rightful owner. No strict reading of the section or technical construction of it should defeat this plain purpose of the law. The Comptroller recognizes that, had the relator delayed the payment of its tax until after April twenty-fourth it would have been entitled to the $1,000 credit. But, under the amendment, this credit is to be given irrespective of whether payment of the tax has been made. Payment of the tax forms no obstacle to the credit. Because, by chance, the relator paid its tax promptly, that in no manner affects its rights under section 190 as amended. Surely the law will not permit the relator to be punished for its promptness and diligence. More than twenty companies entitled to credit just as the relator was, but no more so — companies slothful in the payment of their taxes — have been allowed these credits. Must the law be so construed as so allow these companies to profit by their sluggishness while the relator for its promptitude must suffer loss ? If the tardy companies were entitled to the credit provided for by the amendment to section 190, so also were the prompt companies. The Comptroller should have acted upon this principle, for no canon of construction requires a statute *781to be so read as to work out inequality or injustice. After hearing an appeal this court is empowered to do, not only what ought to have been done, but what ought to be done, in order to effect exact justice. (See Code Civ. Proc. § 1317, as amd. by Laws of 1912, chap. 380.)

It only remains to determine whether any of the insurance companies were entitled to the credit. The amendment to section 190 of the Tax Law provides that every corporation which shall own State bonds of a certain character shall have credited to it annually to apply upon or in lieu of the payment of its franchise tax, an additional amount equal to one-half of one per centum of the par value of all bonds of that character owned by such corporation on the 30th day of June, 1912. Shall have the additional one-half per cent credited to it when ? Immediately, that is to say, as soon as the law takes effect. The first annual credit must be made at once for the law takes effect at once. This law was passed, perhaps, to create a demand for State bonds; but the additional credit was made to apply, by the terms of the amendment, not only to the bonds to be purchased in the future, but to those already held. The credit could have been limited to the future purchase of bonds; but it was not so limited. Why not is unaccountable. The Legislature soon regretted its unwisdom; it repented of its folly and hastened to repeal the law. But it was too late; it had reduced the. relator’s taxes; it had legislated away the money of the State. The courts cannot cure the improvidence of the Legislature. They must observe the law as much in their decisions as the citizen does in his transactions. The law was to take effect immediately. What was to be this immediate effect ? The additional credit of one-half of one per cent—there could be no other immediate effect. As soon as the law became a law the companies were entitled to this credit. That was the effect intended; that was the effect which we must give it.

It follows that the writ of certiorari should be granted and that the account of the relator for its franchise tax of 1913 be corrected by the Comptroller so that the relator be- given credit for $1,000.

All concurred; Kellogg, J., in result, in opinion.

*782Kellogg, J. (concurring in result):

The tax became due June first, and the relator’s right to the credit must be determined as of that date.' Section 190 of the Tax Law provides that .the corporation, on account of the ownership of certain State bonds, shall have a stated amount “credited to it annually to apply upon or in lieu of the payment of such tax.” This I think contemplates that the tax is to be stated and audited without reference to the credit and that the credit is to be allowed at the time of payment. If relator had sold the bonds before June first it would not be entitled to a credit on account of them. The determination under review has allowed the relator certain credits which it is entitled to under section 190, but relator has not been allowed all the credit fairly due it. It, therefore, has paid the State a greater amount than it owed, and in some proper remedy is entitled to be reimbursed. If it had not paid its tax until it matured the adjustment would have been easy. Having paid the tax before maturity there may be some question about the right to review the statement of the tax by the Comptroller on certiorari. Upon the argument the only question presented was whether the repeal deprived the relator of the right to the credit it claims. Under the circumstances, therefore, and in view of the stipulation filed, I concur in the result.

Writ granted and determination of the Comptroller modified in accordance with the opinion of Howard, J., with fifty dollars costs and disbursements.