By section 250 of the Tax Law (Laws of 1896, chap. 908) any person assessed upon an assessment roll, claiming to be aggrieved by an assessment for property therein, may present to the Supreme Court a verified petition setting forth, among other things, the inequality of the assessment “ in that the assessment has been made at a higher proportionate valuation than the assessment of other property on the same roll by the same officers.” Upon said petition the court or a justice thereof may issue a writ of certiorari to review such assessment. (Tax Law, § 251.)
By section 42 of the same law (added by Laws of 1899, chap. 712, and amd. by Laws of 1902, chap. 112) it is provided that the State Board of Tax Commissioners shall annually fix and determine the valuation of each special franchise subject to assessment. It is therein further provided: “ The valuations of every special franchise as so fixed by the State board shall be entered by-the assessors or other officers in the proper column of the assessment roll before the final revision and certification of such roll by them, and become part thereof with the same force and effect as if such assessment had been originally made by such assessor or other officer.”
By section 45 (added by Laws of 1899, chap. 712, and amd. by Laws of 1900, chap. 254) an assessment of a special franchise by the State Board of Tax Commissioners “ may be reviewed in the manner prescribed by article eleven of this chapter, and that article applies so far as practicable to such an assessment in the same manner and *226with the same force and effect as if the assessment had been made by local assessors; á petition for a writ of certiorari to review the assessment must be presented, within fifteen days, after the completion and filing of the assessment roll, and the first posting or publication of the notice thereof as required by law. Such writ must run to and be answered by said State Board of Tax Commissioners and. no writ of certiorari to renew* any assessment of a special franchise shall run to any other board or officer unless otherwise directed by the court or judge granting the writ. An adjudication made in the proceeding instituted by such writ of certiórari shall be binding upon the local assessors and any ministerial officer who performs any duty in the collection of said assessment in the same manner as though said local assessors or officers had been parties to the proceeding.”
Article 11, referred to in this act, includes section 250, before quoted.
The provisions of section 45 of the Tax Law above quoted would seem to give full warrant for directing the issuance of this writ to the board of assessors of the city of Rochester. The criticism that the order, instead of directing the issuance of the writ to the board, has made the members of the board parties defendant, goes to the form and not to the substance of the order; There is no provision in the statute that the direction of the issuance of the writ to another board should be made in the original order directing the writ. I assume, therefore, whenever it shall appear in the proceeding that the presence of any other board than the State Board of Tax Commissioners is necessary or advisable, the writ may be directed to be issued to such board either by the court or by the judge who granted-the original-writ. ISTor is there any specification in the statute upon whose application this writ should be directed to any other board. Without such specification the order would seem to be properly made at the instance of any party to the proceeding, or of the local board whose judgment is assailed by the charge of inequality, or even of the -court itself.
If, then, under section 45 of the Tax Law, this assessment is subject to review with like force and effect as. if it were an assessment by the local assessors upon the local roll, the relator can properly *227challenge the assessment for inequality. If this inference be otherwise a doubtful one, it is confirmed by the fact that the writ may be directed to run to some other board. It is difficult to conceive what board other than the local board of assessors could have been in the mind of the Legislature in the framing of this provision of the statute, or of any reason for the issuance of the writ to such local board except upon a challenge of the assessment as unequal. Permission to make such challenge is given not only by the letter df the statute, but is entirely consonant with the policy of our tax laws. The first requirement of a just system of taxation is equality. It cannot matter whether property be assessed at one hundred per cent of its value, at seventy-five or at fifty, if it all be assessed at the same percentage of value. In any case, if proportionately assessed, each piece of property will bear its just proportion of taxation. The rule requiring assessors to assess at full value is, therefore, simply a rule of uniformity. The cardinal principle to be followed is equality of taxation, which must rest upon proportionate valuations in assessments. Our attention has been called to the case of Mercantile Nat. Bank v. Mayor (172 N. Y. 35). In that case it was ' held that under the Consolidation Act governing the review of assessments in the city of Hew York an assessment for personal property could not be reviewed as unequal in that it was made at a greater valuation than was the assessment of real estate in that city. It was further held that notwithstanding the failure of the statute to authorize a review on that ground, nevertheless equity had jurisdiction to correct the assessment if unjust, but that such injustice did not exist merely by reason of inequality with the assessment of another class of property. The assessment there sought to be corrected was of bank stock. At page 46 the opinion reads : “ Underlying the governmental power of taxation for the raising of revenues is the principle * * • * that taxation should be equal, in the sense that there shall be no discrimination against persons, nor any classification which results in discrimination, and that the common burden shall be sustained by common contributions, regulated by some fixed general rule which operates impartially. Is this a case where that principle has been violated? I think not. A general statutory rule has been disregarded by the assessors in the exercise, presumably, of an honest and reasonable judgment, as *228nothing’ is charged to the contrary ; but their action was impartial and with reference to the whole community. Wh'at "discrimination was exercised was solely as to the basis of valuation for each of the two classes of property, into which all of the property of the community was divided. That there may be a different basis of valuation in the assessment of real estate from that in the cases of personal estate is, indeed, intimated by the Legislature in the statutory provision above cited from, and also in that relating to the taxation of the capital stock of corporations that their real estate shall .he deducted at its assessed value. (Chap. 409, Laws 1882, § 312; Tax Law of 1896, § 12.) I think we may fairly assume that the assessors were influenced by the consideration that an assessment of personal estate is subject to a deduction for the debts of its owner, while real estate is not, and that the' latter form of property bears the greater proportion of taxés, for the reason that, unlike personal. -estate, it cannot be concealed. It is a fact of common knowledge •and discussion that a disproportionate share of the public burdens is thrown on certain kinds of property because they are visible and tangible, while others are of a nature to elude vigilance. (Commonwealth v. P. F. C. S. Bank, 5 Allen, 428, 436.) Such considerations may well influence a board of assessing officers to assess real estate upon a different basis of valuation in order to equalize the burdens of taxation. Equality is unattainable and can never be but •approximative.”
But the franchise here taxed is by subdivision 3 of section 2 of the Tax Law (as amd. by Laws of 1899, chap. 712) deemed real estate. Lts assessment is asked to be made equal with the assessment of •other real estate upon the same rolk Like the assessment of real -estate, to its valuation no offset can be made. Nor is it a class of property, a part of which can be concealed. None of the reasons which justify the refusal of the State to allow the assessment of personal property to be reduced as unequal can apply to this class of property. Toehold that the assessment of this propérty cannot be «equalized would be to read into the statute an exception not therein written as against the well-established legal rule that every presumption of law is in favor of the taxpayer, while the injustice to the taxpayer must be conceded.
If the right of the local board to.be brought into the'proceed*229ing by an order that the writ should be issued to the members thereof be found, and if the right of the relator to question its assessment for inequality be granted, we reach the question of the relative rights of the State Board of Tax Commissioners and the local board of assessors in defending the writ. It is probably true-that this question was not necessarily before the Special Term, and is not necessarily here. We might rest this appeal upon a determination as to the right of the local assessors to be made parties to the proceeding without discussing the extent of their right in defending the writ. The question, however, is a public one of large importance which the Special Term has assumed to pass upon. In view of the importance of the question and of its early deterinin'ation, we think it is proper that we should express our opinion thereon at this time.
By section 45 of the Tax Law this writ of certiorari is required to “ run to and be answered by said State Board of Tax Commissioners.” The same section further provides : “ No writ of certiorari to renew* any assessment of a special franchise shall run to any other board or officer unless otherwise directed hy the court or judge granting the writ.” While ordinarily a public board exercising judicial functions has no interest to protect its own determinations, it seems to have been generally recognized that a board of assessors, upon challenge of its assessment, has the right and duty to answer such challenge and to establish the validity and equality of those assessments. (People ex rel. Cornell S. Co. v. Dederick, 161 N. Y. 195; People ex rel. Met. St. Ry. Co. v. Tax Comrs. 174 id. 417.)
It is argued that the only province of the State Board in defending this writ is to show that its assessment was regular and valid, and that such board has no authority to make proof that the assessment of the local board was at full value in answer to the relator’s charge of inequality. If this be true, and the writ be not directed to the local board, the claim of inequality made by the relator must prevail as upon default. If the local board only can defend a challenge for inequality, it would seem that it would by the statute have been made á necessary party to the writ wherever the charge of inequality was made. Nothing, however, is found in the statute *230which indicates that in any instance is the local hoard a necessary party to the writ. The contrary .intendment is indicated. The direction to the State Board ti> answer the writ is a direction to make full answer. The inevitable legal inference from this statutory requirement is that such State Board not only must answer fully but may support the answer which it serves with appropriate proofs.
While recognizing the right and duty of the State Board to make full defense to the writ, whatsoever may be the challenge made,where the assessment is charged to be unequal in that the assessments upon the local roll are at less than.-full value, it is appropriate that the members of the local board be made parties to the proceeding by the issuance of the writ to them also.. Their assessment of the local property has been made for reasons known to them only upon evidence which was before them.. They are' undoubtedly the best qualified' to defend those assessments as properly made at the full vallie. Where the State Board is of opinion that the local assessments were made at a percentage only of real value, the presence of the local assessors is the more important that they may prove the contrary fact to the end that the relator may not be unjustly relieved of a portion of the tax which it should lawfully pay. The right qf the local assessors whén made parties to the writ to make answer thereto that the relator’s assessment was not unequal because of undervaluation of the assessment upon the local roll would seem to be undoubted. Such right would seem to be a necessary sequence of the issuance of the writ to them.
The order in the case at bar, however, goes further than this, and authorizes the local board to show in defense of the relator’s application that, even though the assessments upon the local roll were at a percentage only of the real value of the property assessed, nevertheless the relator’s assessment by the State Board was at no greater percentage, and, therefore, was not unequal. The relator contends that it was not the intention of the Legislature to give this right to the local assessors. This denial raises probably the most-important question for determination upon this appeal.
In determining whether this right exists in the local assessors, it is important-to consider the practical effect of the granting of such right. The local assessors would in such case be put in the position of attacking the action of another public board by allegation and *231proof that its assessment was not made as directed by law. The natural impulse of the State Board, also a party to the proceeding, would be to defend its assessment. ' There would the.n be presented to the" court the unseemly spectacle of a contest between two public boards,' the one striving to impeach and the other to sustain the action of one of them, while the relator might sit by an interested spectator only of the contest. Such legislation would be not only unprecedented but would be anomalous. Again, the assessment of special franchises was by the statute given to the State Board of Tax Commissioners, because of the impracticability of their assessment by the local boards, both through lack of experience in such matters and the impossibility of their securing the proper data upon which ' they should be based. In People ex rel. Met. St. Ry. Co. v. Tax Comrs. (174 N. Y. 437), Judge Vane, in discussing this law and the reason for the assignment of this function to the State Board, says: “ It (the Legislature) found that the valuation of this new kind of property, intangible, invisible and elusive, but of great value, would be attended with peculiar difficulties, which would require a degree of knowledge and skill not possessed by local assessors, but belonging only to experts who had long and carefully studied the subject of taxation in all its varied aspects. The problem was to place a just and adequate value upon a right capable of valuation, but which was unseen, without form or substance, and, as it were, the mere breath of the Legislature. * * * The system thus, created had never been known before, and, as its main subject, the act dealt with special franchises, which had never been taxed before. Property unknown as the subject of taxation to the framers of any of our Constitutions was brought into the system, which required new methods of valuation and the exercise of functions which had never belonged to local assessors. The property was sui generis, • <md from, its nature could not be valued by local officers.” It will be seen, therefore, if in defending this writ the local assessors may prove the relator’s assessment to have been undervalued' by the State Board, that while the Legislature has denied to the local board the right to make the original assessment because local assessors were incapable of making the same, nevertheless in the same statute they have been given the right to allege and prove that such assessment was incorrect in defending a challenge *232for inequality. How are they any more qualified to allege and prove such undervaluation than to make the,original assessment? A statute so interpreted would clearly be incongruous and.'inconsistent." Against such an interpretation the law will, in my judgment, conclusively presume.
Respondent argues that because the State Board is, under the statute, allowed to make full defense of the writ, the local board, when made a party to the proceeding, should have the’ saíne right. But the State Board, in defending, their assessment against the .charge of inequality, offers proof to sustain the valuations of the local board,"while the défense of the local board would go to impeach the valuations of the State Board in their effort to jn-ove that the valuations of the State Board were at no greater percentage than their own.' To hold that the State Board may defend against the charge of inequality by offering proof to sustain the assessment of the loc'al’board as at full value is quite different from holding ■ that the local board when admitted to the proceeding may make such defense by impeaching the. assessment of the franchises by the State Board. Moreover, the members of the State Board are members of the State Board of Equalization, to which is assigned hy law the duty of equalizing between, the several counties the State taxes. (Tax .Law, § 173.) In exercising this function, they become possessed of a general knowledge of the percentage of value at which property is assessed-in different localities of the State. On the other hand, members of the local board have, and can have, no knowledge of the fairness of a valuation of, a special franchise made by the State Board.
Respondent further argues that it is not natural to suppose that the State Board, in defense of the charge of inequality, will concede or show that its own assessment was at less than full value,- and that unless such defense be permitted by the local board the relator may-secure a reduction in the assessment to which it is not fairly entitled. Such a possibility, however, cannot change the rule of law. The law is zealous to protect each individual taxpayer that he shall not be- overassessed. The law-is not so zealous to protect the public. It furnishes no remedy to the public for an assessment at part only of full value. The injury to the 'public is deemed so minute- that the law will not take cognizance of the fact that the individual has not *233paid his full share of the tax. In no instance does the law permit an assessment when finally made hy the board of assessors to be increased. In this respect the public interest has been intrusted to the protection of the State Board, and with the legal presumption that that board will do its full duty.
Under the interpretation of the statute here indicated a mass of litigation is precipitated upon the court. It is doubtful if there is a single county in which, upon the judgment of the State Board, the property upon the local roll is assessed at full value. Every corporation assessed for a special franchise must proceed by certiorari to equalize its assessment. To that certiorari proceeding the local board in each instance will probably be admitted. To justify the oath attached to the local rolls it will defend the writ. Hundreds, if not thousands, of contested proceedings are thus made necessary, and the court is, in fact, made in the first instance an equalizing board to equalize the assessment of the special franchise with the assessment of other real estate upon the roll. Hot only will this mass of litigation embarrass the courts, but it will also greatly hinder the orderly execution of the law in the Collection of taxes. While these considerations should not lead to a construction which would deny to a relator the right to an- equal and just assessment, the Legislature might well consider whether upon the appeal to the State Board by a corporation assessed for a special franchise power should not be given to that board to equalize the assessment with the assessment of other real estate in the tax district in which the corporation is taxed. The general information possessed by the State Board of values in the different localities would seem to give to that board special qualifications for such a task. Moreover, such a task is more in the nature of an administrative than a judicial function, and the proposition is not without authority that such an administrative function cannot constitutionally be given to the court.
While entertaining these views, I am of opinion that it is not the province of this order directing the issuance of the writ to the local assessors to define what shall be their rights thereunder. The order should be modified, therefore, so as to direct that the writ granted herein on the 6th day of May, 1903, be amended by directing it to run to Oliarles F. Pond, Joseph C. Wilson, Frank Fritchie and diaries H. Judson, as assessors of the city of Rochester, as well as *234• to. the State Board of Tax Commissioners, coiinnandi'ng the assessors of the city of Rochester to return their proceedings with respect to. the assessment of real property in said.city with the samé force and ■ effect as if the writ had originally been directed to them, o
Houghton, J., concurred; Chase, J., concurred in result in opinion ; Parker, P. J., wrote for reversal; Chester, J., voted foraffirmance.
Sic. It is “ review ” in statute of 1899 and “ renew ” in the act of 1900.—[Ref.
Sic. It is “ review ” in statute of 1899, and “renew” in the act of 1900.— [Rep.