People Ex Rel. Mutual Union Telegraph Co v. Commissioners of Taxes , 99 N.Y. 254 ( 1885 )

There was jurisdiction in the commissioners of taxes to make the assessment in question. The capital stock of the relator was subject to assessment in some amount under the act of 1853, under which the relator was incorporated. The third section of the act, for the purpose obviously of putting into the possession of the assessing officers information requisite for an accurate ascertainment of the amount of the stock of the corporation subject to taxation, requires a telegraph company whose line is partly within and beyond the limits of the State, to render "to the proper officer a true report of the cost to such company of their works within the State." The officer referred to must mean the assessing officer, or body which makes the assessment. The relator omitted to make any report as required by this section, between the first day of September, 1880, and the first day of May, 1881. Meanwhile the deputy tax commissioner having ascertained from the certificate of incorporation of the relator, that its capital stock was $600,000, inserted this sum in the assessment list as the valuation of the relator's property for the purpose of taxation. The board of tax commissioners entered this sum in the "annual record," and gave the notice that the books were open for examination and correction, as required by the act of 1859 (Chap. 302). The relator did not appear or make any objection to the assessment during the time limited, nor until after the right of the tax commissioners to correct the assessment, had expired. (See Clark v. Norton, 49 N.Y. 243;Overing v. Foote, 65 id. 263.) The eighth section of the act of 1859, declares that on the first day of May the books "shall be closed" to enable the commissioners to prepare the assessment-rolls for delivery to the supervisors. It was not until the 6th day of June, 1881, that the relator objected to the assessment. The failure of the relator to make the report required by the act of 1853, did not deprive the tax commissioners of jurisdiction to assess the relator's property, and they were authorized, we think, in fixing the amount of the assessment, to proceed upon such information as they might have, and the assessment cannot be avoided for want of jurisdiction. The case made by the relator does not entitle it to relief under chapter 269 of the Laws of 1880. The assessment was regular. The relator did not avail itself of the opportunity to apply for a correction of the assessment, either on the ground of overvaluation, or of irregularity. The act of 1880 gives a remedy by certiorari to review and correct an illegal, excessive, or unequal assessment. But it would, we think, be an unwarrantable construction of the statute to permit a party complaining of an assessment, to lie by, without availing himself of the opportunity to remedy his grievance by application to the tax commissioners, under the statute of 1859, and after the assessment had become confirmed by lapse of time, to arrest the collection of the tax by a proceeding under the act of 1880. There is an apparent injustice in compelling the relator to pay a tax on its whole capital, but it is an injustice brought about by its own negligence, first in omitting to make a report in compliance with the statute, and then in neglecting to apply to the tax commissioners within the time limited, for a correction of the assessment.

The order should be affirmed.

All concur.

Order affirmed.