Postal Telegraph Cable Co. v. Grant — 33 N.Y. St. Rep. 997

Majority

p. 997

The Postal Telegraph Cable Co., App’lt, v. Hugh J. Grant, Sheriff, Resp’t.

(Supreme Court, General Term, First Department,

Filed October 24, 1890.)

Headnote

1. Taxes—Action to_ restrain collection.

An action will not lie to restrain the collection of a tax on the bare ground that the assessment was illegal.

2. Same—Electric companies—Laws 1885, chap. 499.

The collection of the tax imposed under chap. 499, Laws 1885, will not work greater injury to the company assessed therefor than would the collection of any tax from a person against whom it had been assessed, and an action to restrain its collection cannot be maintained on the ground that the act was unconstitutional, especially where the party has allowed the time for review to expire.

Appeal from judgment dismissing complaint after trial at special term.

Plaintiff brings this action to obtain a judgment declaring the acts under which the assessment was made void for unconstitutionality, and perpetually enjoining the defendant from executing the warrant of the comptroller.

The answer of the defendant puts in issue all the material allegations of the complaint, affirms the constitutionality of the acts referred to, and the regularity of the proceedings of the comptroller thereunder, and alleges that the plaintiff has an adequate remedy at law.

Laws of 1885, chap. 499, provide, among other things, that the salaries of the commissioners of electrical subways in New York and Brooklyn shall be paid by the comptroller; that the comptroller shall pay the salaries and expenses of the board, and the expenses shall be assessed by the comptroller upon, and collected from, the several companies operating the electrical conductors, and requires the amount of such assessments to be paid to the comptroller quarterly or oftener, as required by him (Laws of 1886, chap. 330); the appropriation act of that year provided for the services and expenses of the commissioners of electrical subways $80,000, also as much thereof as may be necessary to be assessed in one assessment by the comptroller upon, and collected from, the several companies operating electrical conductors in the cities of this state, which, under the law, are, or shall be, required to place and operate any of their conductors underground.

The assessment was levied under this act on plaintiff in August, 1886, and the warrant for its collection issued in December, 1887.

Appellant contends that the provisions of these acts are void, because they violate the constitutional provision that no person shall be deprived of his property without due process of law. They provide no legal method for determining the amount of the assessment nor for notice by or hearing of the companies before the amount was determined, and that it has no adequate remedy at law, as the sheriff is required to pay the money to the state treasurer, from whom it cannot be recovered by any legal proceedings.

Respondent contends that defendant has an adequate remedy at

p. 998

law if the assessment is illegal or erroneous, and an action for a perpetual injunction will not lie. If the comptroller had no lawful authority to make the assessment in question, or if he made the assessment upon an incorrect basis, or upon insufficient evidence, the plaintiff had an ample and effective remedy by certiorari to correct the alleged wrong, which should have been brought within four months ; instead of doing which plaintiff waited sixteen months and until after the warrant was issued.

A. Wesley Went, for app’lt; J. H. Maynard, for resp’t.

This action was brought to restrain the defendant, as sheriff of the city and county of ¡New York, from collecting an assessment levied against the property of the plaintiff, upon the ground that the provisions of the acts authorizing the imposition of the assessment were unconstitutional and in violation of law and void.

We are of the opinion that the action will not lie, because the plaintiff has not brought itself within any acknowledged head of equity jurisprudence. It was distinctly held in the case of the Susquehanna Bank v. Supervisors of Broome Co., 25 N. Y., 312 , that an action will not lie to restrain the collection of a tax on the bare ground that the assessment was illegal, which is all that is established by the record in the case at bar. To the same effect is the case of Rome, Watertown & Ogdensburgh R. R. Co. v. Smith, 101 N. Y., 684 .

It is claimed, however, that the levy of the tax would produce irreparable injury to the plaintiff, and that, therefore, it has brought itself within an acknowledged head of equity jurisprudence ; the cases being numerous in which injunctions have been granted where the injury to be restrained would be irreparable. But the collection of the tax imposed in the case at bar would not work any greater injury to the plaintiff than would the collection of any tax from a person against whom the same had been assessed..

It is urged that the case of The Insurance Co. v. Supervisors, etc., 3 Keyes, 182, cited by the court below, has no application because no constitutional question was raised and remedies at law were open to the plaintiff.

In the case at bar it is clear that remedies at law were open to the plaintiff; and it has resorted to this action it would appear because it had lost its right of review in the manner provided by the laws of the state.

We think, therefore, that the judgment should be affirmed, with costs.

Yan Brunt, P. J., Brady and Daniels, JJ., concur.