(dissenting)The insists that section 1 of chapter 361 of the Laws of 1881 furnishes a tribunal to which tile relator could have appealed within a given time after the assessment and notification *714of this tax, and, having failed to make such application, no certiorari will lie to review the action of the comptroller. Chaptei 361 of the Laws of 1881 amends chapter 542 of the Laws of 1880 by substituting the act of 1881 for the act of 1880, so that the latter act as amended stands in the place of the former. Section 1 of chapter 361 of the Laws of 1881 provides a general method for ascertaining or making a valuation by the comptroller, and settling an account upon the valuation so made for the taxes, penalties, and interest due the state thereon. “And any association, corporation, or joint-stock company, dissatisfied with the account so settled, may within ten days appeal therefrom to a board consisting of the secretary of state, attorney general, and state treasurer, which board, on such appeal, shall affirm or correct the account so settled by the comptroller, and the decision of such board shall be final; but such appeal shall not stay proceedings, unless the full amount of the taxes, penalties, and interest due on such account, as settled by the comptroller, be deposited with the state treasurer.” It will be observed that this appeal is provided for. When the comptroller is not satisfied with the valuation made and returned by the company, he is authorized and empowered to make a valuation thereof, and settle the account upon the valuation so made, and impose the taxes, penalties, and interest due the state thereon; and the corporation, dissatisfied with the account so made, may appeal to the officers above specified. It would seem from this case that the comptroller did not dissent from the report of the company when made, but the report of the commissioner was based upon the enforced reports made by the company under protest, and his final imposition of tax and interest was predicated upon these reports; and the dissatisfaction does not appear to be so much with the account settled as with rights or power of the comptroller to impose tax upon it, upon the assumed ground that it was a manufacturing corporation, doing business wholly within this state.
The power of appeal given by section 1 of chapter 361 of the Laws of 1881 is confined to cases where the company is dissatisfied with the account so settled; that is, settled by the comptroller, where he is not satisfied with the valuations returned to him by the corporation. It is not clear, therefore, that the appeal given by this section is applicable to a case of this kind. If it is, and is the only remedy provided by law, the relator would be compelled to pursue it, or be remediless; at least, it could not ignore this remedy, and resort to one by certiorari, as that writ could not issue, but would be expressly prohibited by section 2122 of the Code of Civil Procedure, which prohibits the issuance of the writ of certiorari “when the determination can be adequately reviewed by an appeal to a court, or to some other body or officer.” The language of this provision of the Code is .plain, and the rule which it declares is the settled law, as established by a uniform current of decisions, both before and since the enactment of the .Code. But if this case shall be held to come within the provisions of section 1, above quoted, authorizing an appeal to the officers therein named, has not sections 19 and 20, which were added to this chapter by the provisions of chapter 463 of the Laws of 1889, made a certiorari applicable to this case? Section 19 of this chapter authorizes the comptroller to readjust any account tlierétofore settled by him in a proper case therein specified; and section 20 provides that the action of the comptroller upon application made to him by any person or corporation for revision and resettlement of accounts may be reviewed, both upon the law and the facts, upon certiorari by the supreme court at the instance either of tile party making the application, or the attorney general in the name and in behalf of the people of the state, and for that purpose the comptroller shall return to such writ of certiorari the accounts of all evidence submitted to him on application.
In the case at bar the relator applied to the comptroller for a revision and readjustment of the several accounts for tax, and the comptroller made an *715order denying such revision or readjustment; assuming to base his action upon chapter 542 of the Laws of 1880, and the several acts amendatory thereof, of which section 20, above quoted, is one of the last amendments. We are therefore inclined to the opinion that a writ of certiorari may properly be resorted to by the relator to review the action of the comptroller in this case. This brings us to the consideration of the main or most important question in this case upon the merits: Is this corporation taxable under the provisions of section 3 of chapter 361 of the Laws of 1881? That section provided that “every corporation, joint-stock company, or association whatever, now or hereafter incorporated or organized under any law of this state, or now or hereafter incorporated under the laws of any other state or country, and doing business in this state, except savings banks and institutions for savings, life insurance companies, banks, and foreign insurance companies, and manufacturing corporations carrying on manufacture within this state, which exceptions shall not be taken to include gas companies or trust companies, shall be subject to and pay a tax as a tax upon their corporate franchise- and business,” etc. The relator claims that it is a manufacturing corporation doing business in this state, and therefore exempt from this tax by the terms of the statute. On the other hand, the comptroller insists that the relator is not a manufacturing corporation, within the just meaning of that term, and is not within that exception in the statute; and this contention between the parties the court seems called upon to consider and decide. The relator, although incorporated as a gas company, (the effect of which we may consider later,) is, as it alleges in its petition, engaged as a manufacturer and seller of electric currents for the purpose of illumination. The relator in its petition, which was presented to the comptroller on the application for the revision and readjustment of this tax, describes the process in use by the relator for the carrying on of its business of electrical illumination substantially as follows: A st am-engine is used as a motive-power for the propulsion of machinery which is attached to a driving-wheel, which, by means of a belt connected with another wheel or pulley of the dynamo, turns or re-, volves the armature. The armature is a coil of wire wound on a metal core and mounted on a shaft, and is revolved by the power communicated from the engine through the means of the belt. The armature is revolved within or between the ends of a large horse-shoe magnet, the opening of which is downward. The magnet is made by winding a soft iron horse-shoe or soft curved horse-shoe shaped iron with a coil of conducting wire, and sending through the coil a current of electricity. When once vitalized by such current, the magnet never loses this magnetic property, even after the current stops, but is ever afterwards available for the purpose of electric currents upon the armature being revolved between the poles of this magnet. By the rapid revolution of the armature, within what is termed the “held of force” between the poles of the magnet, this mysterious force or energy is accumulated, known as “electricity,” and is thence conducted over copper bars or mains throughout the territory or city in which it is used, and is distributed on smaller wires or mains to the houses or places which are to be lighted. On the part of the relator it is claimed that the electricity and electric light thus collected or produced does not'come into being until the revolution of the armature in the held of force, as above described; that it has no existence until such revolution, and when the revolutions begin, the electricity is developed in a minute quantity; and that the electricity thus produced isa new body; and this contention is sought to be reinforced by the claim that the latent energy in the coal, by the combustion of which heat is produced, is a factor in electricity, and that it is not unlike the production of gas which is generated from coal when heated in a retort. But this reinforcing argument fails when we consider that the power which revolves the armature could be as effectually produced by water or horse power as by steam. It is not, there*716fore, the latent energy that may exist in coal, but that subtle and mysterious power or energy which either exists in Nature, and is drawn by these appliances from the Nature’s store-house, or is the product manufactured by them from some impalpable, intangible, and unknown raw material.
As this is a corporation, and must, if relieved from the payment of tax, bring itself within the exceptions, the burden is, we think, upon it to establish its exemption by proving itself to be a manufacturing corporation. It is quite clear that the common and usually accepted signification of the words or phrase “manufacturing corporation” is a corporation organized for the production of some merchantable commodity out of raw materials, or the change of the form of one material substance into another. Webster defines the word “manufacture” to mean “to make or fabricate raw materials by hand, by art, or machinery, and work into forms convenient for use,” and, when used as a noun, “anything made from raw materials by hand, or by machinery, or by art.” Within these definitions, it is difficult to see how electricity, even when utilized by means of ingenuity and brought into service, can be termed a “manufactured commodity,” or how the process of its utilization can be held to be manufacturing electricity or manufacturing electric lights. Electricity is defined by Webster as “a power in Nature.” Linch, one of the defendant’s witnesses, says: “The force or current that is given forth upon the circuit cannot, therefore, be spoken of as a manufactured product, but is always referred to as a result.” And be adds: “The generation of electricity may be considered as a power drawing a supply of electricity from Nature’s well; and the nearest practical illustration would be a series of pumps drawing water from a well, and sending the same through a series of pipes.” And, as another illustration, he says: “It would be the controlling of the flow of the natural gas wells, and sending the same to some distance, as practically illustrated at Pittsburgh.” Another witness says: “ While the nature of electricity is not thoroughly understood, it is admitted to be a mere form of energy, and not a material substance in any sense of the word, and therefore not capable of manufacture.” It is quite clear that the legislature in imposing this tax, and creating the exemptions therefrom, intended to use the words “manufacturing corporations” in their ordinary sense, and so the courts of this state have uniformly held that, where the corporation is engaged in gathering natural products or material existing in Nature, it is not a manufacturing corporation.
In People v. Ice Co., 99 N. Y. 182, 1 N. E. Rep. 669, the court distinctly held that the collection of an article existing in Nature, such as ice, and storing it for use and sale, was not a manufacturing company within the meaning of this statute. To the same effect is the case of People v. Dry-Pock, Co., 92 N. Y. 487, and where similar questions have arisen in other states the rule contended for by the comptroller in this case has been sustained. Byers v. Coal Co., 106 Mass. 131; Dudley v. Jamaica Pond Aqueduct Corp., 100 Mass. 183; Frazee v. Moffitt, 20 Blatchf. 267, 18 Fed. Rep, 584. And in the recent case of Com. v. Electric Lighting Co., 7 Pa. Co. Ct. R. 90, (decided in June, 1888,) the court, in an elaborate opinion, pronounced upon a statute similar to the one under consideration in this case, and by cogent argument demonstrated that neither electricity nor light produced by it is a material substance, capable of manufacture, and that the electric light company was not, therefore, a manufacturing company within the meaning of the statute exempting manuiacturing companies from taxation upon its capital stock and franchise. Holding, as it does, the affirmative upon this subject, and assuming, as it must, the burden of bringing itself within the exemption it claims, (Cooley, Tax’n, 146; Academy of Fine Arts v. Philadelphia Co., 22 Pa. St. 496; People v. Commissioners, 99 N. Y. 154, 1 N. E. Rep. 401.) we think the relator has failed in its contention upon this2 point; especially when we take into account the legislative intent, as manifested by *717the amendment of section 3 of chanter 361 of the Laws of 1881, as amended by chapter 353 of the Laws of 1889, which expressly provides that the exemption from taxation “shall not include gas companies, trust companies, electric or steam heating, lighting, and power companies,” and therein expressly provides that they shall pay a tax upon their franchise and business. It is true that the amendment was passed after the time of the accruing of the taxes imposed by the comptroller in this case; but it appears to be a clear legislative expression of the intent with which the original act was passed, and, being a statute in pari materia with that act, may be taken as indicative of the legislative intent, in aid of a construction of its provisions, when doubt has been cast upon the true meaning of the original act. In People v. Davenport, 91 N. Y. 592, the court, in discussing this subject, says: “The force winch should be given to subsequent, as affecting prior, legislation, depends largely upon the circumstances under which it takes place. If it follows immediately and after controversies upon the use of doubtful phraseology therein have arisen as to the true construction of the prior law, it is entitled to great weight. ” But, independently of this apparent legislative interpretation, we are of the opinion that the corporation seeking exemption in this case does not come within the exception contained in the original act. The comptroller, as a public officer, is charged with the duty of imposing the taxes and penalties provided for in these acts of the legislature, and his acts and determinations cannot be reversed by the courts unless it clearly appears that his determination was against the weight of evidence upon questions of facts, or unless it clearly appears that his conclusions of law were erroneous. Code Civil Proc. § 2140. In support of a claim to reduce or modify an assessment made by a public officer having jurisdiction of the party and subject-matter, it must be made to appear affirmatively that the assessment is, in part or in whole, erroneous. People v. Commissioner, 99 N. Y. 154, 1 N. E. Rep. 401.
It is insisted by the relator that a part of the tax imposed is upon patents granted by the United States, which are exempt from taxation under state laws or state authority. If this were a property tax, there might be great force in the contention of the relator upon this point; but it is not, but a tax upon the franchise. The franchise is a grant from the state; and the legislature has, by virtue of its jurisdiction over corporations organized under its laws, authority to impose such a tax; and the court of appeals have expressly held that in taxing corporations under chanter 542 of the Laws of 1860, as amended, the state authorities are not required to deduct the amount of stock which the corporation holds in United States bonds from the total amount of its capital stock, and to compute the tax only upon dividends derived from the remainder. People v. Insurance Co., 92 N. Y. 328. Upon all the questions raised by the relator by the certiorari, and presented in this case, we think no substantial error is shown to have been committed by the comptroller in the imposition of this tax. Nor do we think the additions of interest annually was improper. The language of section 15 of chapter 501 of the Laws of 1885 is as follows: “All accounts hereafter settled by the comptroller agreeably to the provisions of this act shall bear interest from a date thirty days after sending notice of settlement hereinafter provided for, until full payment thereof shall be made.” This provision is mandatory on the comptroller, and we think was executed by him according to its legal effect. I think the action of the comptroller should be confirmed, and the writ of certiorari quashed, with $50 costs and disbursements against the relator.