The relator is an electric surface railroad and operates and owns property in Erie and Chautauqua counties in the State of New York and in the State of Pennsylvania. .On November 1, 1906, it executed a ■ trust mortgage to secure an issue of bonds in the amount of $12,000,000, covering the property situated in both States, and such as might be acquired in the future. At the time this mortgage was recorded $1,500,000 had been advanced, and there not having been any determination of the State Board of Tax'Commissioners as to the relative proportional value of the mortgaged property within the State and without, the relator filed a statement, as provided by section 260 of the Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62) setting forth that approximately one-third of the. property of the relator covered by the mortgage was situated within the State of New York and the mortgage tax on that portion of the money which had been advanced was paid. About one year later the State Board of Tax Commissioners, after a hearing had been had, determined that only approximately one-fifth of the property covered by the mortgage was located within the State and fixed the recording tax at a less amount and directed that the overpayment be returned to the relator. Thereafter and during the years 1907, 1908 and 1909," various advancements under the mortgage were made aggre*814gating $1,870,000, and as these advancements were made and bonds issued the relator paid the recording tax at the rate which had been fixed by the Tax Board.- The original advancement and the subsequent ones were used by the relator in purchasing additional properties, the proportion of such purchase being greater in the State of New York than in the State of Pennsylvania. Thereupon the State Board, of Tax Commissioners, of its own motion, upon notice to the relator, but against its protest, proceeded to redetermine the relative value of the property located within the State, and it decided that at the time of the last advancement on the 21st of April, 1909, the proportion within this State was slightly more than two-thirds of the total value of property in both States, and directed the relator to pay $16,765.76 as a recording tax in addition to what it had already paid. This conclusion was reached by ascertaining. such proportional value at the time of the last advancement, ignoring the prior determination when the first advancement was made and disregarding the proportional values at the -time the intermediate advancements on the mortgage were made.
The relator sued out certiorari to review such determination and insists that the State Board of Tax Commissioners had no power of its own motion to redetermine the proportion of property .within the State ©r to readjust the tax, and that if it did have such power it had no right to set aside its former determination, which was binding as to all advancements' prior thereto as well as to all advancements under the mortgage ■made subsequently, the recording tax upon which had .been paid in reliance thereon and without objection; and, if this position is not wholly sound that at least the first determination was binding to all-advancements on the mortgage made prior thereto.
The respondent maintains that the first determination had no binding force because the mortgage must be considered as an entirety, and that the State Board of Tax Commissioners has the right to readjust and fix the recording tax from time to túne as advancements are had, giving credit for such payments as have been made thereon.
Section 259 of the Tax Law provides that where a trust *815mortgage is executed to secure the payment of bonds issued or to be thereafter issued, if the total amount thereof has not been advanced before such mortgage is recorded, the recording tax may be paid upon the amount advanced and as advanced from time to time.
Section 260 provides that where the real property covered by the mortgage is located partly within the State and partly without the State, it shall be the duty of the State Board of Tax Commissioners to determine what proportion shall be' taxable under the Recording Tax Act by determining the relative value of the mortgaged property within this State as compared to the. total value of the entire mortgaged property, and that-if a mortgage shall be presented for record before such determination has been made the mortgagor shall file a verified statement specifying the relative value of the property within and without the State, and that upon receipt of such statement the State Board of Tax Commissioners, on notice, shall “ proceed to determine what proportion of the principal indebtedness secured by the mortgage shall be used as the measure of taxation within the State under the provisions ” of the Recording Tax .Act.
Although section 259 provides that, the recording tax upon a trust mortgage may be paid from time to time as advances thereon are made, section 260 does not specifically provide that where the mortgaged property lies partly within' and partly without the State the State Board of Tax Commissioners may apportion the same as advances on such a mortgage shall he made. The strict reading of section 260 confines the board in such case to a determination made at the time the mortgage is given. That section in another part, however, does provide that it shall be the duty of the State Board of Tax Commissioners, where a mortgage covers property situated in more than one county, to apportion the recording tax to be paid to the respective recording officers, and where one recording officer has received the tax, they may determine what proportion of the tax he shall pay to the several counties in which parts of the mortgaged property may be situated, and also the proportion of the tax to be distributed to, each town or city within the county.
*816The property of the relator is situated in two counties of the State and in various tax districts therein... The State Board of Tax Commissioners clearly had the right, and it was its duty, to determine the proportional amount of tax paid by relator which each town should receive and to which each tax district ■ was entitled.
The situation arising in the present case is one which the Legislature did not specifically provide for, but. we are of the' opinion that the State Board of Tax Commissioners, either as an incident to their duty to apportion the tax or by general fair intendment of the law, had the power to determine the relative value of the property situated within the State covered by relator’s trust- mortgage, and that that right extended to advancements thereunder as they were made from time to time. Such right, however, did not give the board the power to annul of its own motion a determination which had been made respecting particular advancement or advancements. When it fixed the recording tax, which the relator should pay after the $4,500,000 had been advanced upon the mortgage, that determination was final unless it was procured by some fraud or through some ..clear mistake. The board could not, as it attempted to do, say that that sum of money had been used to buy- property situated within this State, and when another ádvancement under the mortgage-was made readjust the whole tax as of the last advancement. Nor was the apportionment which the board first made controlling as to all subsequent advancements as the relator urges. Such arbitrary rule would be unjust both to the State and the mortgagor. The value of the property-in the two States at the time the mortgage was recorded might have been equal and, therefore, the proportional value situated in this State would have been fifty per cent. The remaining $7,500,000 might have been all used to buy property in the State of Pennsylvania, in which case it would be manifestly unjust to compel the relator to pay a recording tax upon half that'amount. On the other hand, such remaining sum may have been used to purchase property' within the State of New York and it would have been unfair, to the State that' the relator should pay only according to the prior rate. A wholly equitable way, which is fair to both parties,, *817is to treat each advahcement as a new mortgage, readjusting the tax to be paid on such advancement according to the relative value of the property within and without the State at the time such tax is paid. The law attempts to favor a trust mortgage by permitting the recording tax to be postponed until advancements thereunder shall be made. Such privilege should not be permitted to open an avenue of escape from taxation nor furnish a means of imposing an unjust tax.
This view is strengthened and the spirit of the law illustrated by the provision of section 255' which exempts supplemental mortgages from the recording tax.
As has been suggested the exact situation presented is not specifically covered by the language of the statute and the intention of the Legislature must be gleaned by reasoning from analogy, acting upon the spirit of the statute imposing the recording tax so far as we may gather it from its other provisions.. Section 255 of the Tax Law relating to supplemental mortgages .was intended to cover a situation substantially like the present, although not directly the same. By that section a new mortgage securing the old indebtedness and the new one and covering the property embraced in the former mortgage and other property, is only taxable on the basis of the value of the added mortgage debt. When the subsequent installments under the . present mortgage were made and the other property added, the original property and the subsequently-acquired property became security for the entire mortgage debt, that represented by the old as well as the new. The rights of the parties are nearly the same as if the first installments were treated as a closed mortgage and a new mortgage issued to cover the present situation, in which case we would .entirely disregard the original mortgage indebtedness in fixing the tax. Applying the spirit of the provisions of section 255 to the transaction in question, an intent is shown to treat the entire tax on the first mortgage debt or advancement as paid and not a subject for further consideration. The section speaks of a mortgage pursuant to a provision or covenant in the original mortgage.' Here the original mortgage contained a provision which makes the subsequent advancements a lien upon the original property, *818and the original indebtedness is secured also by the subsequent property. The spirit, therefore, of the section as. to supplemental mortgages may be fairly construed as covering the transactions under the mortgage in question.
When first called upon to say what, tax the relator should pay the tax board solemnly determined that only one-fifth of the entire property covered by the mortgage was located within the State, and when less than $2,000,000 had been thereafter from time to time advanced under the mortgage it determined that not only then but at the time of its former deterinination, two-thirds of the relator’s property covered by the mortgage was situated within this State. Such a determination may have. been entirely proper when the last advancement was made, -or even when intermediate advancements were made, but could not be just as of the time of the recording of the mortgage in view of the determination then made that only one-fifth of the property was so. situated within this State. The rule suggested of treating each advancement as a new mortgage and apportioning the tax as of that time is much less complicated than the one suggested by the respondent of readjusting as a whole and giving credit for the tax paid, for it might transpire in the practical outcome of such a rule that "a' mortgagor might be entitled to a credit in a greater amount than the last tax imposed, in which case there would be no means of refunding the tax which had been paid.
Our conclusion is that the State Board of Tax Commissioners had jurisdiction to determine the proportional amount of property situated within this State covered by the mortgage at the time the first advancement was made, and that it has jurisdiction to make such determination as each subsequent advancement is made, and that such determinations as are made are final until reversed or set aside for fraud or mistake or like cause.
It follows that the determination of the State Board of Tax Commissioners must be annulled and the matter remitted- to them for determination in accordance herewith, with fifty dollars costs and -disbursements to the relator.
All concurred, except Bitts, J-., who. dissented in an opinion.