Opinion
Argued February 26, 1894
Decided March 6, 1894
Eugene H. Lewis for appellant.
T.E. Hancock, Attorney-General, for respondent.
The relator was organized under the general law of 1848 (and the various acts amending the same) providing for the formation of gas light companies (Chap. 37 of the Laws of 1848).
Pursuant to the provisions of the law providing for the taxation of certain corporations, the relator annually before Nov. 15, in each of the years 1886, 1887 and 1888, made a report to the comptroller, for the purpose of enabling that officer to make a valuation of the capital stock of the relator, and thus to ascertain the amount of the tax which the company was supposed to be liable to pay. The comptroller did make this valuation, and he ascertained therefrom the amount of the tax upon the relator for each of above-mentioned years, and notice of the amount thus fixed each year was sent by the comptroller to the relator, and the relator then paid the amount so fixed each year into the state treasury, without objection or protest. Subsequently the relator made application to the comptroller for a revision and re-adjustment of these accounts, which application was denied in November, 1890. The relator, considering the action of the comptroller to be erroneous, and believing that it was itself exempt from taxation for those years under the State Corporation Tax Act, because it was a manufacturing corporation, sued out a writ of certiorari to review the action of the comptroller in refusing to re-adjust the accounts mentioned. The General Term upon the return of the writ held that the payments of the relator were voluntary payments, and that, therefore, the relator had no remedy under the statute, and dismissed the writ with costs. The statute under which the relator has proceeded is chapter 463 of the Laws of 1889, which amends the Corporation Act of 1880, as amended in 1881, by adding sections 19 and 20 to the act.
The amendments of 1889 are as follows:
"Sec. 19. The Comptroller may at any time revise and re-adjust any account theretofore settled against any person, association, corporation or joint-stock company, by himself or any preceding Comptroller for taxes arising under this act or the act to which it is an amendment whenever it shall be made to appear by evidence submitted to him that the same has been illegally paid or so made as to include taxes which could not have been lawfully demanded, and shall re-settle the same according to law and the facts and charge or credit as the case may require the difference, if any, resulting from such revision and re-settlement upon the current accounts of such person, association, corporation or joint-stock company.
"Sec. 20. The action of the Comptroller upon any application made to him by any person or corporation for a revision and re-settlement of accounts as provided in this act, may be reviewed, both upon the law and the facts upon certiorari by the Supreme Court at the instance either of the party making such application or of the Attorney-General in the name and in behalf of the People of this State, and for that purpose the Comptroller shall return to such certiorari the accounts and all the evidence submitted to him on such application, and if the original or re-settled accounts shall be found erroneous or illegal by that court, either in point of law or of fact, the said accounts shall be there corrected and re-stated by the said Supreme Court, and from any such determination of the Supreme Court an appeal may be taken by either party to the Court of Appeals as in other cases.
"Sec. 2. None of the provisions of this act shall apply to any taxes heretofore paid by any person or corporation in pursuance of a judgment or order of a court or by virtue of any stipulation."
Under the decisions of this court in 129 N.Y. 543 and 664, the taxation upon the relator for the years above mentioned was illegal. The corporation was not subject to the exaction, and although it paid the same there was in reality no legal liability imposed upon it to make the payment. The question now for us to determine is whether the statute above quoted gives the relator any remedy whatever.
The learned General Term has held that no relief could be given under that act because the payments made by relator were not made under coercion, but were what is termed voluntary payments, that is, payments which relator made under a claim from the taxing authorities that the law compelled it so to do. We think the act provides for just such cases as the relator's. The comptroller is to revise and re-adjust any account for taxes whenever, among other things, it shall be made to appear that the tax has been illegally paid or so made as to involve taxes which could not have been lawfully demanded. Here the payment was made in regard to taxes which could not have been lawfully demanded because as we have held the corporation was entirely exempt from any taxation under the Corporation Tax Law as it stood during these years. Language cannot as it seems to us be plainer, and we are at a loss to know when the act would apply if it be not applicable to such a case as this. The various cases cited by counsel holding that voluntary payments cannot be recovered back are not in point where the question is as to the meaning of this statute. We have no doubt as to what that meaning is, nor any that it includes such a case as the relator has here proved.
Nor does the case of the relator come within the exception contained in section 2 of the act of 1889. The payments were not made in pursuance of a judgment or order of any court, nor was the report that the relator made in each year containing facts upon which the amount of the tax was ascertained and imposed, a "stipulation by virtue of which such tax was paid." We think the relator was entitled to the relief which it sought. ( People, etc., v. Wemple, 133 N.Y. 617.)
The determination of the comptroller should be reversed and the accounts of the relator for the years mentioned should be revised and re-adjusted by him, and the full amounts paid by the relator into the treasury of the state with interest should be credited by the comptroller upon the current accounts of the relator as provided for by the act.
For that purpose the order of the General Term quashing the writ of certiorari should be reversed, with costs and further proceedings taken in accordance with this opinion.
All concur.
Order reversed.