#### The Mercantile National Bank of the City of New York, Plaintiff, *v.*The Mayor, Etc., of the City of New York and David E. Austin, as Receiver of Taxes in the City of New York, Defendants.

(Supreme Court, New York Special Term,

March, 1899.)

Assessments — Remedy in New York city where an assessment of bank stock is illegal because excessive — Certiorari.

A national bank whose stock was assessed in 1896 by the commissioners of taxes of the city of New York at its full value, although they assessed city real estate at only 60 per cent, of its value, cannot, after the taxes have been confirmed and spread according to such valuations, maintain an action in equity to compel the city receiver of taxes to accept such a reduced sum as the tax would have been had the' real estate of the city been assessed at its full value as required by law, and to restrain the collection of the excess.

Semble, that, it being conceded by a demurrer to the complaint that the tax commissioners had grossly violated their statutory duty when they assessed the city real estate at only 60 per cent, of its value, the-bank might, if it had proceeded in time, have reviewed their action by a writ of certiorari issued under section 8É1 of the Oonsolidation Act of 1882, as amended by chapter 311 of the Laws of 1885.

Demurrer to complaint.

Brownell & Patterson (Brown & Wells, James W. M, Newlin,. Silas B. Brownell and George S. Coleman, of counsel), for plaintiff.

John Whalen, corporation counsel (James M. Ward and David Rumsey, of counsel), for defendants.

Laughlin, J.

This is an issue of law arising on the defendants’ demurrer to the complaint on the ground that it appears on the face thereof that'the same does not state facts sufficient to constitute a cause of action. ' The plaintiff is .a banking corporation, organized and existing under the acts of congress authorizing and' regulating- national banks. It is doing ’ business in the city of New York and its capital stock is $.1,000,000, divided into 10,000 *33shares held by more than 100 persons, some of whom were residents of other states. In 1896, this stock was assessed at $143 per share, making a total valuation for the purposes of taxation of $1,430,000. . The total assessed valuation of property in New York county for that year was $2,106,484,905, of which $1,731,-509,143 was on real estate, $82,624,193 was on bank stock and $292,351^569 was on other personal property. The plaintiff al-leges that all real estate in the county of New York was deliberately and intentionally assessed for the year 1896 at not more than 60 per cent, of the actual value thereof, while the shares of stock of the plaintiff were deliberately and intentionally assessed at their full or actual value after making proper allowance for the plaintiff’s real estate, and that if all real estate had been assessed at its - actual value as required by the statute, the amount which the stockholders of the plaintiff would have been required to pay would not have exceeded 65 per cent, of the amount so assessed upon their stock. In the month of April, while the tax-rolls were before the commissioners of taxes and assessment and open to examination and correction, the plaintiff, on behalf of its stockholders, duly applied to such commissioners and demanded that' the assessments on said stock be reduced to 66 2-3 per centum of the value as then assessed, in order to equalize the same with the assessments on the other property on the same rolls. Such application was denied and the assessments were confirmed. as originally' levied.' The assessments upon real property were not changed to the statutory rate. The rolls were delivered to and confirmed by the board of aldermen and the state and city taxes were spread according to such valuations. . After the assessment-rolls. were.' delivered to the receiver of taxes he presented a bill to the plaintiff for the taxes upon its capital stock, aggregating $21,541.70. The plaintiff, in behalf of its stockholders, before any interest accrued on such taxes, duly tendered to the receiver of taxes the sum of $14,002.11, being' 65 per centum of the taxes, and" demanded; .that he apply the same *pro rata*on the taxes on such stock, and offered to keep the tender good. The receiver of taxes declined to accept any sum less than the full amount of the taxes and is proceeding to enforce payment thereof by levy upon and sale of the shares of stock or other personal property of the sharer holders. The plaintiff alleges that many stockholders have notified" it not to pay the taxes levied against their stock; that if the collection of the excess of said taxes over 65 per centum thereof .he *34not 'enjoined, it will be subjected to great loss of standing and credit and will sustain other injuries; that its franchises will be greatly impaired in, value by reason of the premises ;■ that if it should' pay the taxes from dividends, declared in favor of its shareholders it will be subjected to a multiplicity of suits by them; that it "has no adequate remedy at law and that it should be permitted to maintain this suit in equity to compel the receiver of taxes'to accept 65 per centum of the taxes, that being the amount heretofore tendered, and to enjoin the collection of the taxes in excess of said amount.

It is not alleged in the complaint, but it was. conceded on the ' argument that the taxing officers followed the statutory rule and assessed all personal property at its full and true value, and such would be the presumption in the absence of an allegation to the contrary. The case was argued and submitted on the theory that this demurrer sufficiently presents the question as to the jurisdiction of a court of equity, and since all parties desire a decision ' on the merits, it will be so given.

Section 5219 of the United States Revised Statutes authorizes the. legislature of each state to determine and direct the manner and place of taxing national bank stock, but provides that such taxation “ shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such State, and that the shares of any national banking association owned by nonresidents of any State, shall be taxed in the city or town where the bank is located and not elsewhere.”

Section 312, of chapter 409, of the Laws of 1882,— the state statute authorizing the assessment of both state and national, bank stock at the time this assessment was made,— provides that such stockholders “shall be assessed and.taxed on the *value of their shares*of stock ” and, that such shares shall be included in the valuation of their personal property, and it contains the same provisions, in effect, with respect to the rate and place of taxation, as are contained in the federal statute hereinbefore quoted. The state standard of valuation of real and personal property for the purposes of taxation has always been substantially the same. It is as follows: “All real and personal estate liable to taxation shall be estimated and. assessed by the assessors, at its full and true value, as they would appraise the same in payment of a just, debt-due from a solvent debtor.” § 17, art. II, tit. II, chap. XIII, part I, R. S.; re-enacted in § 21, General Tax Law, chap. 908,. L, 1896.

*35Sections 814, 817 and 818 of the Consolidation Act and § 9 of art. II, tit. II, chap. XIII, part I, of the Revised Statutes merely prescribe the duties of the deputy tax commissioners in New York city and of assessors elsewhere respectively and the form and manner in which the assessment-rolls shall be prepared, and it was not intended thereby to change the rule of valuation from that already quoted.

There is no provision of the national or state Constitution which requires that taxation shall be equal in both real and personal property, and there is no federal statute imposing such condition as to taxation of national bank stock. People ex rel. Griffin v. Mayor, 4 N. Y. 419; Matter of McMahon v. Palmer, 102 N. Y. 176; 133 U. S. 660; Magoun v. Ill. Trust *&*Svgs. Bank, 170 U. S. 295; Mercantile Nat. Bank v. Mayor, 28 Fed. Rep. 776; 121 U. S. 138.

Notwithstanding its undoubted right to prescribe a different rule of valuation for real estate from that for personal property for. the purposes of taxation, our legislature has not seen fit to do so, but, with certain exceptions not here involved, it has expressly provided for equality of taxation-on real and personal property.

The demurrer admits that the taxing officers have deliberately, and intentionally disregarded and departed from the statutory rule, thereby naturally increasing the taxes upon all personal property.

According to recent well-considered cases in the federal courts a tax based on a wilful general violation of a statute requiring equality of taxation, is illegal as to the excess over the amount ' that would have been assessed had the. statute been borne in mind and followed by the taxing officers, and if there be no other remedy the collection of such excess will be enjoined. Railroad *&*Telephone Cos. v. Board of Equalizers, 85 Fed. Repr. 302, 315-320; Nashville, C. & St. L. R. Co. v. Taylor, 86 Fed. Repr. 168.; affirmed as to this point, 60 U. S. Ct. App. 166; Cumming*s*v. Nat. Bk., 101 U. S. 153; Stanley v. Supervisors of Albany, 121 U. S. 550-552.

It does not necessarily follow, however, that a court of equity is the proper tribunal to afford relief. Tó now enjoin the collection of the excess in this case would equalize the taxes between the plaintiff’s stockholders and the owners of real estate, but would produce inequality of taxation as between such shareholders and all others assessed for personal property to the prejudice of the *36latter. If, therefore, the parties' aggrieved had an adequate remedy at law they should Lave resorted to such remedy when, the violation, of the statute could haye. been completely. corrected^ and a court of equity may not intervene even though through misconception of the law. or lapse of time they have now lost such remedy. If the- collection of general taxes were.enjoined to any great extent, the city and state governments would be unable to . meet their obligations and thereby serious public inconvenience or loss-would be occasioned. If’applied, for in time, ordinarily in such eases an appropriate, adequate remedy is afforded by certiorari for the protection, of every constitutional or statutory right . for" the protection of which 'the aid of the courts may be' invoked. Public policy, therefore, forbids the granting- of injunctions in tax cases’ unless, facts are shown clearly bringing the., case under some acknowledged head of equity jurisdiction, as the necessity ■ for the intervention of the court to prevent a multiplicity of suits or -irreparable- damage, where there is no adequate remedy at law, • or to remove a cloud on title.. Mut. Benefit Life Ins Co. v. Board of Supervisors (Ct. App.). 2 Abb. (N. S.) 233; Rome, etc., R. R. Co. v. Smith, 39 Hun, 337; Susquehanna Bk. v. Board of Supervisors, 25 N. Y. 312; Western R. R. Co. v. Nolan, 48 N. Y. 514; United States Trust Co. v. Mayor, 144 id. 492-493; Messeck v. Board of Supervisors, 50 Barb. 190; N. Y. Life Ins. Co. v. Supervisors, 4 Duer, 192; Pacific M. S. Co. v. Mayor, 57 How. Pr. 511.

Section 819 of the ETew York-City Consolidation Act, in force • .at the time this assessment was mad,e, provides as follows -: “ The commissioners (meaning, of taxes, and assessments) may, at any timé before the-second day qf "April in.each-year,, increase-or may diminish, at any time before the. closing of 'the books of annud.1 record on the first day of May in each year, the assessed valuation of any real or personal estate in said city, as in their judgment may be necessary for the- equalization of taxation; but. they shall not increase such valuations after said-books are open for' correction and review, except upon notice being given -to the- party affected by such- increase, twenty days before the closing of -said books.”

Section 820- of the same "act provides- that “any person considering, himself aggrieved by the assessed valuation’ of his -real Or personal estate ” -may apply to: the commissioners- of taxes’and assessments to have the same corrected.

*37It thus appears that the commissioners of taxes and assessments were vested with ample authority at the time their attention was drawn to their violation of the law by the plaintiff in behalf of its stockholders, to correct their error by increasing the valuation of all real estate, to the statutory rate, and if that was impracticable on account of the difficulty of giving notice to all owners of real estatej then by reducing the valuations of personal property to the percentage of valuation adopted as to real estate and thereby secure the equalization of taxation required by the statute under which they were acting.

Section 821 of the Consolidation Act originally provided that *“A*certiorari to review or correct on the merits any decision or action of the commissioners under either of the two preceding sections shall be allowed by the supreme court or any judge thereof directed to the said commissioners on the petition of the party aggrieved.” ,

This provision authorized the court to review the judgment of the commissioners on all questions of inequality in valuations» between the real or personal property of one person and the real or personal property of others and .to equalize such valuations whether they were over or under the statutory rate. Probably on account of the congested condition of litigation in the city of Eew York and the amount of litigation without merit wherein it was sought to review the judgment of assessors as to equality of valuations under the statutory rate, the legislature, by chapter 311 of the Laws of 1885, amended said section 821 of the Consolidation Act so as to read as follows: “A certiorari to review or correct on the merits any decision or action of the'commissioners, under either of the preceding sections, shall be allowed by the supreme court or any judge thereof, directed to the said commissioners on the petition of the party aggrieved, but only on the grounds, which must be specified in such petition, that-the assessment is illegal, and giving the particulars of the alleged illegality; or is erroneous by reason of over-valuation.”

In the case of People ex rel. Second Ave. R. R. Co. v. Coleman, 21 N. Y. St. Repr. 178, it was held, under this amendment, that the' right to review an assessment for the purposes of taxation, is confined-to the grounds of illegality and over-valuation. The question in that case was whether the relator could, in- a certiorari proceeding, offer evidence as to the value of its property which was not assessed higher than the statutory rate, and as *38to the value of other property, and thereby obtain a reduction in its assessment to equalize it with others. The- referee held that the amendment to section 821 was constitutional and deprived the court of jurisdiction to grant such relief, and the General Term ' affirmed on the opinion of the referee.

The Court of . Appeals, in People ex rel. Broadway Imp. Co. v. Barker, 155 N. Y. 324, expressly .refrained from.passing on this, constitutional question oh the ground that it was not necessarily involved, although it had been considered Below and was argued on the appeal. While the constitutionality of the..act has, therefore, been settled so. far. as this court is concerned, it -is not.-so free from doubt that thé amendment should be given an interpretation sufficiently broad and liberal to preclude the court'.from granting a writ of certiorari to review -the action of. the taxing ’officers in deliberately and intentionally violating the statutory rule as to Valuations. The facts so distinguish this case from that of People ex rel. Second Avenue R. R. Co. v. Coleman, *supra,*that I do not regard it as á precedent on, the question now presented. The amendment expressly authorized a review by certiorari where the tax is illegal. While ordinarily that word in the Tax Laws has been understood and construed as relating to a tax illegal *in toto,*yet under the federal decisions these' taxes are illegal as to the excess. "But if these assessments were not.illegal within the contemplation pf that amendment, I think a common-láw writ would lie to-review "such a gross, violation of this statutory duty by the taxing officers.

The decisions of. the Court of Appeals are not in harmony on the question as. to the extent that the proceedings of hoards of assessors and other tribunals of inferior jurisdiction can. be reviewed 'for errors or irregularities by a common-law writ. of certiorari; hut I think it may safely he said" to have been áuthoritatively settled that questions of jurisdiction or relating to the rule or principle upon which the taxing officers proceeded could be fully presented" and reviewed by such writ and their proceedings could be annulled and new. assessments ordered in accordance with the statutory rule. People ex rel. Gas Co. v. Board of Assessors, 39 N. Y. 88-89; People ex rel. W. R. R. Co. v. Board of Assessors, 40 id. 154-158; People ex rel. Gallatin Nat. Bk. v. Commrs. of" Taxes, 67 id. 521; People ex rel. G. F. Ins. Co. v. Ferguson, 38 id, 89; People ex rel. Miller v. Board of Police (Ct. App.), 52 How. Pr. 289; People ex rel. Cook v. Board of Police, 39 N. Y. *39506; People ex rel. Haines v. Smith, 45 id. 776-777; Swift v. City of Poughkeepsie, 37 id. 516.

In the absence of fraud or the adoption on application of a wrong rule or principle in fixing the valuation of property for the purposes of taxation prior to the enactment of chapter 269 of the Laws of 1880, there was no remedy against an over-valuation or a valuation higher proportionately than other property on the same roll. That act, the provisions of which were re-enacted in the Tax Law of 1896, affirms the common-law remedy by certiorari in cases of illegal taxes and extends the remedy to cases of errors of judgment on the part of assessors in estimating the value of property by which it is either- valued higher than the statutory rate, or higher proportionately than other property on the same roll. The conclusiveness of the return -on those questions is destroyed and evidence may be taken. Davies on Taxation, 15, 16; Matter of Corwin, 135 N. Y. 249; People ex rel. Grace v. Gray, 45 Hun, 243.

I believe that the amendment of 1885 was designed to withdraw from New York city taxpayers the enlarged right to the writ to review the honest but erroneous judgment of the commissioners of taxes and assessments as to the valuation of property within the statutory rule and not to deprive them of all redress for an admitted deliberate and intentional departure from such rule.

It doubtless would have been competent for the legislature to have taken away the right to the common-law writ of certiorari (People ex rel. S. & U. H. R. R. Co. v. Betts, 55 N. Y. 600), but an intention so to do is not expressly or clearly shown by the language employed in the amendment of 1885 and such intention is not to be presumed. Sub. 2, § 2120, Code Civ. Pro., which took effect after the Certiorari Act of 1880, and Throop’s Note; Lyman v. Gramercy Club, 28 App. Div. 33; People ex rel. Sheridan v. Andrews, 52 N. Y. 448-449; Sutherland on Stat. Construction, §§ 289, 290-291; Endlich on Interpretation of Statutes, § 127.

The legislature having, by section 819 of the Consolidation Act, expressly authorized the commissioners of taxes and assessments to increase or diminish the assessed valuations of real or personal estate during the period of review so as to produce equalization of taxation,— the considerations of public policy and convenience which formerly led the courts to refrain from granting the writ, and the cases on that subject (People ex rel. Williams v. Board of Assessors, 2 Hun, 583; People ex rel. R., W. & O. R. R. Co. v. *40Dixon, 8 id. 178; People ex rel. Beadle v. Newton, 2 Alb. L. J. 437), if they were otherwise in point, are no longer controlling.

Probably it would not have been practicable to have compelled an increase of' real estate valuations On' .account of the notice required to be given,' and such an increase would have been prejudicial to the taxpayers of New York, including the plaintiff’s shareholders, as it would have increased New York county’s share of the state taxes. Prom the efforts of such taxpayers before .the state board of equalization and in the courts to obtain a more equitable apportionment it would seem that the percentage of valuations adopted by the taxing officers of New York is quite as high as' anywhere in. the state. People ex rel. Mayor v. McCarthy, 102 N. Y. 630.

The question as to what percentage of valuations was adopted, materially affected the taxpayers of New York only in equalizing assessments throughout the state, and the lower the percentage the less would be their proportion of the state taxes;' Until the assessors in all counties follow the statutory rule, or until the state board of equalization remedies this abuse, it is doubtful whether the court shbuld compel the officers of one county alone to observe ■ the statute to the prejudice of the taxpayers of such county. All of the taxpayers of a county are, however, interested in having a uniform percéntage of valuation adopted and applied to all real and personal property. A legal remedy should be and I think was afforded by mandamus or by certiorari to compel the assessors to follow the same rule of percentage of valuations as to both real and personal property and thus produce the equality of taxation required by law. Wilson v. Mayor, 4 E. D. Smith, 691.

One proceeding, if . 'effectual, would have, inured to the benefit of all aggrieved taxpayers. People ex rel. Haskin v. Board of Supervisors, 57 Barb. 377.

The question remaining to be considered is whether the plaintiff, as distinguished' from its stockholders, had this remedy by certiorari. Sitch a remedy having been afforded to the individual stockholders, I 'am not prepared to hold that the plaintiff ..can maintain this suit, even if it could not have obtained a writ to review the .assessment. I am of opinion, however, that the bank could have maintained a certiorari proceeding. Eormerly the banks reviewed such assessments by certiorari without the question having been raised (People ex rel. Gallatin Nat. Bk. v. Commrs. of Taxes, etc., 8 Hun, 536; 67 N. Y. 516;'People ex rel. Tradesmen’s *41Bank v. Commrs. of Taxes, 9 "Hun, 650; 69 N. Y. 91), but it was held in People v. Wall St. Bank, 39 Hun, 525, and in People ex rel. Merchants Nat. Bk. v. Coleman, 41 id. 344, that neither a bank nor its receiver was a party aggrieved as to assessments against its stockholders on capital stock and that neither could maintain certiorari to review the same., The law has been materially changed since these decisions. The only .duty then'enjoined upon banks with respect to such taxes, was to withhold dividends declared in favor of stockholders until they paid the taxes imposed on their stock. Notice of the assessment is required to be given to the bank and not to the stockholders, and the statute now provides that “ every such bank or banking association shall retain dividends until the delivery to the collector of the tax-roll and warrant of the current year, and within ten days after such delivery *shall pay*to such collector so much of such dividend as may be necessary to pay any unpaid taxes assessed on the stock upon which such dividend is declared.” The plaintiff • alleges that it held dividends applicable-; that it knew of the violations of the statute by the taxing officers; that its stockholders' forbade its appropriating their dividends to pay the taxes, notwithstanding the mandatory language of the statute, and that it will be subjected to suits' by them if it does, and its chartered rights will be impaired if the courts do not grant relief.

The Consolidation Act, sections 819 and 820, uses synonymously the xords “ affected ” and “ aggrieved ” as applied to the parties entitled to a hearing or review. If the bank should pay the taxes, neither it nór its stockholders could recover back the same, for, although the assessors did .not have jurisdiction to assess according to the arbitrary rule adopted by them; they did have jurisdiction of the subject-matter. Bank of Commonwealth v. Mayor, 43 N. Y. 184; People ex rel. State Line R. R. Co. v. Board of Supervisors, 48 id. 93; Tripler v. Mayor, 125 id. 617.

This state of facts and lav clearly distinguishes the case under consideration from those last cited and should, I think, upon principle, give thé bank a standing to obtain a review by certiorari and have the valuations determined according to the rule and principle prescribed by the statute, or, if that should be impracticable, then,' according to some uniform rule or principle that will result in substantial equality of the burdens of taxation as contemplated by law, before it is compelled to pay the taxes. § 318, chap. 409, former Banking Law; § 72, chap. 908, Laws 1892, new *42Banking Law; Cummings v. National Bank, 101 U. S. 156-157; National Bank v. Commonwealth, 9 Wall. 353.

These considerations lead to the conclusion that the complaint-fails to state a cause of action for equitable relief and the demurrer thereto must be sustained, andf inasmuch as "the defect cannot be obviated by amendment, final judgment is directed dismissing the complaint, with costs.

. Complaint dismissed, with costs.. •