People ex rel. Commercial Mut. Insurance v. Tax Com'rs

O’BRIEN, J.

Generally speaking, it is correct to say that a petition and return upon certiorari proceedings are like pleadings in an action; but from this it does not follow that in all cases the rules of construction applicable to pleadings will be applied in such proceedings. It has been many times held that in all special statutory proceedings the statutory directions must be complied with, or the proceedings will not be effectual. Here the power of the court to grant a writ of review is limited by the provisions of chapter 269 of the Laws of 1880, section 1 of which act reads as follows:

“A writ of certiorari may be allowed by the supreme court on the petition,, duly verified, of any person or corporation assessed and claiming to be aggrieved, to review an assessment of real or personal property for the purposes of taxation made in any town, ward, village or city of this state, specifying the grounds of the alleged illegality, or is erroneous by reason of overvaluation, or is unequal. * *■ *”

Where the relief sought is based upon the ground of overvaluation or inequality, such a statement is sufficient to present the question to the court for review. But it will be noticed that where the basis upon which relief is sought is the illegality of the assessment, then the act provides that the petition must specify “the grounds of the alleged illegality.” And this difference between the contents of a petition upon an erroneous or unequal assessment and one that is. illegal is enforced, so far as the county of New York is concerned, by chapter 311 of the Laws of 1885, amending section 821 of chapter 410 of the Laws of 1882 so that the latter should read:

“Sec. 821. A certiorari to review or correct the merits of any decision or action of the commissioners * * * shall be allowed by the supreme court or any judge thereof, directed to the said commissioners on the petition of the party aggrieved, hut only on the grounds which must tie specified in such petition, that the assessment is illegal, ahd giving the particulars of the alleged illegality, or is erroneous hy reason of over-valuation.”

It is certain, therefore, that unless a proper petition is presented, the court is without jurisdiction to entertain the proceeding.

In the petition under review we find a statement of what occurred before the tax commissioners, which is entirely proper,, because necessary to show that the relator was diligent in asserting its claim, and for the additional reason that evidence should be offered that the grievances now complained of are the same as those urged upon the assessing officers; the rule being that only such can be corrected on certiorari. In this connection the petition states:

“That prior to the 1st day of May, 1889, the said corporation petitioner duly protested, claimed, insisted, and demanded from said commissioners of taxes and assessments that all the personal property and bank shares of the said corporation was on the second Monday of January, 1889, by the laws of the state of New York, exempted, and now is exempt, from assessment or taxation, * * * upon the ground that all the personal property, and bank shares of the said corporation is exempted from assessment or taxation by the laws of the state of New York.”

The petition further recites that, notwithstanding the proceedings had before the commissioners, they duly transmitted, as required by law, the assessment rolls of real and personal estate to the board of aldermen, which latter board received the same, and thereafter directed the commissioners to proceed with the levying of the tax, which they did by publishing notice to the effect that the assessment rolls had been finally completed and delivered to the board of aider-men, and that they would remain open to public inspection in the office of the clerk of the board for a period of 15 days. Then follows what we regard as the crucial and controlling part of the petition, viz.:

“And your petitioner shows that the said assessment upon the said valuation of personal property and bank shares for the purpose of taxation, and said assessment, is illegal, invalid, and void and erroneous, and that your petitioner will be injured by such illegal and erroneous assessment; and your petitioner specifies the following grounds of illegality and error: That the said commissioners have overestimated the valuation of scrip representing the capital and surplus for the purpose of taxation, and illegally and erroneously included in their valuation of the personal property of the said corporation on said roll the following sums, to wit,” etc.

It will thus be seen that all the recitals in the petition lead up to the one last quoted, in which the errors sought to be reviewed by certiorari upon this proceeding are clearly and specifically pointed out. That the relator did not intend to raise the question of illegality, but only that of overvaluation, plainly appears, not only from what follows in specifying the respects in which there was an overvaluation, but in omitting to specify any grounds of illegality, which would be necessary if it were intended to raise such question. Though it is clear that if the relator were held to a statement of his grievances which he thus desires to present by the writ, he could not test the illegality, because the grounds are not specified, it is insisted that there is sufficient in the statement of what took place before the tax commissioners to enable the court to review the question of the illegality of the assessment. The answer to this seems to us to be patent. Whatever questions were raised before the tax commissioners, the relator had the right to waive any, or to waive some and insist on other, objections there presented. Thus, by way of illustration, though they had sought exemption on the three grounds of inequality, overvaluation, and illegality, they could waive any of these; and in determining the questions sought to be presented for review resort must be had to that portion of the petition which sets forth just what injury or injustice has been done that the relator seeks to have reviewed. If we apply this test to the petition here, it will be seen that, whatever questions may have been raised before the tax commissioners, the relator intended to waive all except that of overvaluation; and the raising of the question of illegality upon this petition was" clearly an afterthought, the result of a decision by the court of appeals favorable to the exemption claimed by insurance companies. It is' immaterial, therefore, what took place before the tax commissioners, except as showing what was there urged entitling the relator, if he so elected, to present by proper averments in his petition the same questions to the court for review. If we assume that the averments in the petition were sufficient to show that the question of illegality was one of those presented to the tax commissioners, this at best but gave the right to the relator, if he assigned illegality as an error, to present by proper averments the same questions to the court for review. Our conclusion, therefore, is that, while a recital of what took place before the tax commissioners is proper, and in one respect that we have pointed out necessary, this is not all that the petition should contain if the question of illegality is sought to be reviewed, the statute expressly requiring for this purpose a specification of the grounds of illegality. It is unnecessary to resort to definitions as to the meaning of the word "grounds,” as used in the law of 1885, because the law of 1882 (chapter 410, § 821), which was in force at the time the present writ was sued out, removes all doubt on the subject by providing in express language that the relator in the petition must give "the particulars of the alleged illegality.” No general statement, therefore, is sufficient; the particulars or specifications of the illegality being required. The intention of the legislature in thus requiring a specific, as distinguished from a general, statement, is clear. It was to apprise the assessors of the true ground of the grievance, and not to permit a relator, by concealing this, to await the action of the commissioners, and then, upon some indefinite statement susceptible of different meanings, to bring up their action for review. Applying these tests to the petition, we think it' was insufficient, and for the reasons stated by the learned judge at special term. The order should be affirmed, with costs.

VAN BRUNT, P. J., concurs.