#### Matter of the Application of The L. E. Waterman Company for a Writ of Mandamus Directed to Theodore P. Gilman, State Comptroller, and John P. Jaeckel, State Treasurer.

(Supreme Court, Albany Special Term,

January, 1901.)

Comptroller — Cannot, without legislation, return to a corporation a tax declared illegal — Const., Art. Ill, § 31.

The Comptroller cannot, without legislation, return to a corporation a deposit of am. assessment made by it, under section 197 of chapter 908 of the Laws of 189©, for the purpose of reviewing the same and which the Appellate Division subsequently declared to be illegal, as section 21 of article III of the State Constitution forbids it.

Motion for a peremptory writ of mandamus.

Logan, Demond *&*H'arby, for motion.

John 0. Davies, Attorney-General; Robert E. ¡Steele, Deputy Attorney-General, opposed.

Chester, J.

The Appellate Division has reversed a determina-

tion of the Comptroller assessing a tax against the relator under chapter 542 of the Laws of 1880, as amended by chapter 908 of the Laws of 1896. See People ex rel. Waterman Co. v. Morgan, 48 App. Div. 395.

As a condition of the right to apply for the writ of certiorari under which the Appellate Division reviewed the determination of the Comptroller, the relator deposited with the State Treasurer the full amount of the taxes assessed against it, pursuant to the requirements of section 197 of the Tax Law. Laws of 1896, chap. 908. This tax now having been determined to be illegal, the re*570lator seeks, by this motion, to procure a refund of the moneys *so*deposited. The Comptroller refused to draw his warrant upon the Treasurer for the amount because of the prohibition contained in section 21 of article HI of the Constitution, which provides that *“*No money shall ever be paid out of the treasury of this State, or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law.”

It seems to me clear that this prohibition applies, and that the Comptroller cannot lawfully draw his warrant as requested.

The fact that the moneys were, in the language of the statute, “ deposited ” with, instead of “ paid,” to the Treasurer, makes them none the less funds under his management and, therefore, they cannot be taken out of the treasury except in pursuance of an appropriation. They must be taken out by legislative and not by judicial authority.

The Comptroller very properly consents to' include the amount of this tax "in the next appropriation hill he presents to the Legislature, with the recommendation that he be authorized to refund the same to the relator. This will undoubtedly secure the payment of these moneys to the relator at an early day, but, 'as several applications of this character have been made before me, I venture to suggest that, instead of the Legislature mating an appropriation to cover each specific case as it arises, that justice requires an amendment to the Tax Law which will authorize the Comptroller to refund moneys of this character upon the order of the court, in cases where the tax has been finally adjudged to he illegal, thus preventing the injustice to corporations from whom taxes have been unlawfully exacted of waiting upon legislative action for the refunding of moneys deposited as a condition for obtaining a review of the assessment.

The motion is denied, but, under the circumstances, without costs.

Motion denied, without costs.