The People ex rel. The Edison Electric Illuminating Company of New York, Appellant, v. Edward Wemple, as Comptroller, etc., Respondent

The People ex rel. The Edison Electric Illuminating Company of New York, Appellant, v. Edward Wemple, as Comptroller, etc., Respondent. There is no limitation as to the time in which a corporation may apply to the comptroller for the revision of a tax levied upon it, under the provision of the act providing for the taxation of certain corporations (§ 19, chap. 542, Laws of 1880), as amended in 1889 (chap. 463, Laws of 1889), which authorizes that officer to revise and readjust tax accounts against corporations theretofore settled. No power is conferred upon the comptroller by said act, or upon the court in reviewing his decision as authorized by it (§ 20), to direct the refunding of any tax paid into the state treasury pursuant to the act. All that the comptroller may do is to resettle the account and charge or credit to the corporation, as the case may require, the difference, if any, resulting from the revision “upon the current account.” Upon review by the court it may give no judgment that the comptroller might not have given. It seems that in case the corporation is not liable to taxation and so, has no account with the comptroller, it is for the legislature to carry out the decision of the comptroller or the court by making an appropriation to refund the illegal tax. (Argued February 29, 1892; decided May 3, 1892.) This was a motion to amend a remittitur. The case is reported in 129 N. Y. 664. The following is the opinion in full; “ The remittitur should be amended so as to allow interest on the sum paid by the relator from the time of such payment, but there is no authority for a judgment directing the money to be refunded. Chapter 463 of the Laws of 1889 gives to corporations a new and important remedy. It permits them to apply to the comptroller for a revision of any tax levied upon them under the law providing for the taxation of certain corporations. They are not limited as to time within which the application is to be made. Any corporation that ever paid a tax under the law may now apply for a revision and readjustment. But the legislature did not confer power upon the comptroller or the court to direct the refunding of any tax paid into the treasury to the corporation that paid it. There may be cases where it. would be just and perhaps necessary to refund the money paid, hut such cases are reserved for the: action of the legislature itself. Taxes once paid into the: treasury under this statute cannot be paid back without an appropriation. All the comptroller is authorized to do in an application for revision and readjustment is to resettle the account and to charge or credit, as the case may require, the-difference, if any, resulting from such revision ‘ upon the current account’ of the corporation iilirig the petition. The; courts are authorized to review the action of the comptroller, and to correct it when found erroneous upon the facts or the law. But upon such review the court can give no judgment that the comptroller could not have given when the application was before him. The party paying the tax and applying, for a review, perhaps many years after, has no remedy except what the statute gives him. The legislature never intended-to clothe the comptroller with power to pay back to corporations taxes when he was of the opinion that they were illegally assessed. It was supposed that justice would be done by permitting the comptroller to give the corporation credit upon its account. This leaves the money collected in the treasury, but gives the corporation the benefit of any sum ■ paid in excess of what might have been lawfully demanded, by applying it upon future taxes. It was assumed that the corporation would have such account, and in this case it has. This corporation has an account with the comptroller, because, since 1889, it was liable to taxation. In a case where there was no liability to taxation, and, consequently, could not be-any account between the corporation and the comptroller, the legislature may carry out the decision of the court by making-a proper appropriation of the money. “ The motion, except as to the interest, should be denied.”1 Eugene II. Lewis for motion. Simon Wl Eosendale, Attorney-General, opposed. [MAJORITY — O’Beibn, J.,] O’Beibn, J., reads for denial of motion, except as to interest. All concur. Motion denied.