(concurring):
By the express terms of the Tax Law (Laws of 1896, chap. 908, and .' subsequent amendments) local assessors aré required to assess real and taxable personal property at its full value. (Id. §§ 21, 37, as amd. by Laws of 1899, chap. 712.) The State Board of Tax Commissioners are required, to “ fix and determine the valuation of each special franchise subject to assessment in each .city,, .town or tax district.” (Id. § 42, added by Laws of 1899, chap. . 712, and amd. hy Laws of 1902, chap 112.) The value of such special franchise is to be fixed and determined, and the intention of the statute is that such board shall, fix and' determine the. full value thereof. The time provided for. the annual valuation of special franchises is prior to the time provided for making assessments .by local assessors, and the determination of the State Board of Tax Commissioners should not be affected in any way by what they'assume of believe to have, been the' basis of valuation of prior assessments made by local assessors or by 'what they assume or believe will be the basis of valuation of such assessments for the current, year. If, therefore, the several boards of' local assessors and the State Board of Tax Commissioners perform their duty as provided by the statute, . there will be relative equality of assessments upon all classes of property. Each board is presumed to have performed its duty. .(People ex rel. Manhattan R. Co. v. Barker, 146 N. Y. 304.) , Provision is made in- the Tax Law, however, for tile-correction- of errors by a review of the action of local assessors and of the State Board' of Tax Commissioners, and' the. review so provided is. exclusive of the common-law remedy by certiorari and of other reme<dies. (People ex rel. Rochester Telephone Co. v. Priest, 95 App. Div. 44; People ex rel. Thomson v. Feitner, 168 N. Y. 441; *235Mercantile Nat. Bank v. Mayor, 172 id. 35.) We must look " to the Tax Law, therefore, to ascertain not only the purpose for which a writ of certiorari should be issued, but to ascertain what authority is given, or duty imposed upon the several boards or Officers to whom the writ is directed, in.regard to the hearing, and also the extent of the remedy to be obtained by the writ. By section 250 of the Tax Law any person assessed upon any assessment roll, claiming to be aggrieved, may present to the Supreme Court a verified petition setting forth that the assessment is illegal, erroneous by reason of overvaluation, “ or if unequal 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, specifying the instances in which such inequality exists and the extent thereof.” On such petition a writ of certiorari may be allowed to the officers making the assessment to review such assessment. A return to the writ “ mtist be made and served upon the relator's attorney ” by the officers making the assessment. (Tax Law, § 251.)
The determination of the court is made after a hearing at which testimony necessary for such determination can be taken, and the determination made by order of the court has the same force and effect as if it had been made by the proper assessing officers within the time prescribed by law for making such assessments. (Tax Law, § 253.) In reviewing the action of local assessors there is no provision of the statute permitting the writ to run to any other board, officer or person. The interest of the public at large is intrusted to the assessors, and other persons assessed on the same roll by the same officers, although personally interested in the result, cannot become parties to the proceeding. Similar statutory authority existed for reviewing assessments made by local assessors before the said Tax Law was enacted (Laws of 1880, chap. 269), and sections 250 to 256 inclusive of the Tax Law were not changed when sections 42 to '47 inclusive of the Tax Law were added by chapter 712 of the Laws of 1899. By section 45 of the Tax Law, as so added, and as it exists at the present time pursuant to an amendment made by chapter 254 of the Laws of 1900, it is provided that an assessment of a special franchise by the State Board of Tax Commissioners may be reviewed in the manner prescribed by article 11 of said Tax Law, and that such article, applies so far *236as practicable with the same force and effect as if the assessment had been made by local assessors. Sections 250 to 256 inclusive of the Tax Law are included in said article 11. By said section 45 it is provided : “ Such writ must run to and be answered by said State Board of Tax Commissioners, and no unit 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 adjudicationfin such proceeding is binding. upon 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. (Tax Law, §. 45, as amd. supra.) That the writ which runs to the State Board of Tax Commissioners may also run to any other board or officer when so directed by the court .or judge granting the writ, seems to be within the plain language of the statute itself.' Just what relief may be obtained through a writ of certiorari, obtained pursuant to said section 45 of the Tax Law, and just what authority the State Board of Tax Commissioners^ and any other board or officer to whom the writ shall run, has, on the trial of the proceeding, is not so clearly expressed.' When said section 42 was added by chapter 712 of the Laws of 1899, it did not contain the provision that the valuations of special franchises fixed by the State Board when entered by the assessors or other officers ilithe assessment roll should become part thereof “ with the same force and effect as if such assessment had been originally made by such assessor or other officer.” By chapter 254 of the Laws of 1900 said section 42 of the Tax Law was amended, in which amendment it is provided : “ The valuations of every special franchise as so fixed by .the State board shall be entered by the assessors or other officers in tile 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.” This provision was continued in the amendment made by chapter 112 of the Laws of 1902, which was in force' when. the tax herein ivas levied. From a reading of these statutes it is clear that a review *237of the assessment of the local assessors in comparison with the assessments of the State Board of Tax Commissioners cannot be had on a writ to review the assessment of a special franchise unless the said provision of section 42, as amended by chapter 254 of the Laws of 1900 and chapter 112 of the Laws of 1902, providing that the valuation of a special franchise when placed upon the assessment roll of the local assessors shall “ become part thereof with the ■same force and effect as if such assessment had been originally made by such assessor or other officer,” is construed to make the special franchise assessment on the same roll and made “ by the same officers ” within the. meaning of said section 250 of the Tax Law. The assessment of special franchises by the State Board of Tax Commissioners when entered on the local assessment roll has the ■same force and effect as if the assessment had been made by local assessors so far as the apportionment and collection of taxes is concerned, but I have grave doubt whether it was the intention of flle Legislature by such language to provide that the assessment of the special franchises should be considered as “ on the same roll hy the same officers” for the purpose of reviewing the relative value of property assessed foj different officers. If it was the intention of the Legislature to construe the assessment of special franchises as made by the same officers as local assessments for the purpose of reviewing the assessment by certiorari, it will be claimed that a person assessed in a local tax district may by a petition alleging that the local assessors have assessed the real property of the petitioner and that of all other owners of real property within the tax district •at its full value, and that the State Board of Tax Commissioners have assessed the special franchises in the tax districts at an amount less than their full value, obtain a writ by which all the assessments then on the roll, including those of special franchises, can be reviewed to ascertain whether the assessments are relatively equal. If a writ can be obtained under sections 250 and 251 of the Tax Law for such purpose a hearing would be had without the presence of the State Board of Tax Commissioners, for concededly the writ under that section can only run to the local assessors.
Special franchises are held to be a new character of property. (People ex rel. Met. St. Ry. Co. v. Tax Comrs., 174 N. Y. 417.) The Court of Appeals have said in referring to a case where personal *238property was taxed at a different ratio of valuation from that of real property, “ there is no complaint of inequality in the assessment of the taxable personal estate; it is that the taxable real estate is assessed.' at a different ratio of valuation from that adopted as to personal estate. I do not think that this is an inequality which can constitute a legal grievance; as would be the case if there had been' an unequal valuation of property of the same class.” (Mercantile Nat. Bank v. Mayor, 172 N. Y. 35, 46.) If it was- the intention of the Legislature on a review of a' special franchise assessment by writ of certiorari to determine whether the two assessing boards had made ■ their assessments with relative equality, it should have been expressed in' the' statute in plain terms. So far ás I am aware, the question of the authority of the court under the Tax Law to review and change individual assessments made 'by different boards in the same tax district by reason of relative equality has never been considered where the authority of the court has been seriously disputed. . In the case ,of People ex rel. Met. St. Ry. Co. v. Tax Comrs. (supra) a reduction of the special franchise assessment was directed by .ex-Judge Eabl, as referee, to conform the basis of the assessments of the special franchises to that found to have been adopted by the local assessors, and the opinion of Judge Eabl was generally approved by the Court of Appeals. without a discussion of the question here involved. Similar adjudications have been made in other cases at Special Term. In view of the precedents thus established, I will, until a contrary decision by the Court of Appeals, assume that the court has authority by writ of certiorari to correct assessments for the purpose of making such assessments relatively equal. Assessing "officers are authorized to defend assessments made by them. They are an exception to the general rule, that .boards exer-. cising judicial functions cannot be heard in defense of their deter-, minafions. Assessing officers have, without exception, been heard' in defense of their assessments and the great- body o'f persons assessed are compelled to rely upon the' boards or officers making assessments defending their assessment whenever challenged. The right of local assessors to defend their assessments after a return to a writ issued to them as provided in sections 250 and 251 of the Tax" Law and the right of said -State Board of Tax Commissioners to defend their assessments after a return- to a .writ issued to them *239pursuant to section 45 of the. Tax Law is conceded. If, in addition to defending their assessments, each board assessing property in the same tax district is allowed to attack the work of the other board, the local assessors will be compelled to seek evidence as to a class of property not left to such board for valuation and the State ■ Board will be compelled to seek evidence as to property in particular tax districts in every part of the State, making a burden that will seriously complicate the practical work of the assessing officers. The impracticability of enforcing the Special Franchise Tax Law (Laws of 1899, chap. 712, as amd.) has been urged from the time of its enactment and the court should not increase the complications arising out of its enforcement by straining the language of the sections relating to a review of the assessment so as to allow either board to litigate questions other than such as are in defense of their own assessments. As we have seen, it is the duty of the State Board of Tax Commissioners to assess the special franchises at their full value. A defense of their assessments when challenged only extends to the presentation of evidence relating to the value and relative value of the several franchises assessed by them. So the duty of the local assessors in the defense of their assessments when .challenged only extends to presenting evidence relating to the value and relative value of the property so asssessed by them. The defense of their assessments respectively does not in any way extend to a consideration of work performed by another and independent board. I am not aware that an assessing board has ever been allowed to litigate question's upon a return to a writ of certiorari other than such as relate to the legality of the assessment or the value or relativé value of the property assessed by it. Under the Tax Law each board to which the writ runs is bound to answer it, but there is nothing in such law requiring that the bounds of the authority of either board in litigating the questions involved shall be extended beyond the practice in such cases as long established. On a proper petition for a writ of certiorari against the State Board of Tax Commissioners the writ must be granted. (Mercantile Nat. Bank v. Mayor, supra.) When by the petition it appears that a comparison of the assessments of the -two assessing boards is desired, the provision of section 45 of the Tax Law by which the court or judge may let the writ run to another board *240or officer should be deemed mandatory, and ho relief arising from inequality of assessment as between the two assessing boards should be granted unless the writ runs to the local board of assessors as well as to the' State Board, of Tax Commissioners and such local' board are given an opportunity to defend their assessment so challenged. So if a person assessed upon any assessment roll makes application fór a Writ of certiorari against the local board of assessors, by which petition'it appears that a comparison of the assessments of the two assessing boards is desired, the court should compel such petitioner to raise the question, if, at all, by a writ running to the State Board of Tax Commissioners' under said section 45, where such State Board of Tax'Commissiohers as well as the local board of assessors can have an opportunity to defend .their assessments so challenged. If the Tax Law is so construed'and the State Board of Tax Commissioners as, well as the local board of assessors are confined in the proceeding to a defense of the assessments made by them respectively, all interests will be fully protected and the possibility of having a workable system in the review of assessments will be largely increased. I see no reason for granting tq the State Board of Tax Commissioners, greater authority for the presentation of evidence in the proceeding. than is granted to local assessing boards when-they are properly beforé the court in answer to a writ running to them. Each board will be presumed to be more competent to defend the assessments made by it than any other board or person. The unseemly spectacle of two .bodies of public officers ■each challenging in. court the .work of the other'would ,be but slightly less unseemly if the State Board of Tax Commissioners are allowed to attack the work of the local assessors in an attempt to show that they had performed their duty as faithfully as the local board of assessors and the local board, of assessors were denied the right to attack the work of the State Board of Tax Commissioners for a like' purpose. I concur in the modification of the order sug-' gested by Mr. Justice Smith. The question of the rights and duties of the respective boards after a return to the writ will not be fixed and determined by the amended order.
Sic. It is “review” in statute of 1899.— [Rep.