People Ex Rel. Manhattan Railway Co. v. Barker

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 419 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 420 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 421 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 422 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 423 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 424 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 426 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 427 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 429 The first question presented for decision is that upon which the reargument was ordered, viz.: "Whether that clause of the Constitution which provides that `No unanimous decision of the Appellate Division that there is evidence supporting or tending to sustain a finding of fact or a verdict not directed by the court, shall be reviewed by the Court of Appeals,' is applicable to this appeal." (150 N.Y. 585.) In order to answer this question it is necessary to clearly understand the nature of the proceeding now before us for review. It is founded on chapter 269 of the Laws of 1880, entitled "An act to provide for the review and correction of illegal, erroneous or unequal assessments." The text of the act closely follows its title and seeks to remedy three evils that may arise with reference to taxation by correcting assessments that are (1) illegal for any reason, (2) erroneous because of overvaluation, or (3) "unequal in that the assessment has been made at a higher proportionate valuation than other real or personal property on the same roll." (Sec. 1.) While the first ground may, the second and third grounds must, involve a question of fact. The mode of procedure specified is by writ of certiorari with new and unprecedented powers, authorizing the determination of questions of fact upon further evidence taken in the court of first review. The statute provides for a return to the writ that must include copies of the assessment roll and other papers acted upon by the assessors, if called for, and may include "such other facts as may be *Page 430 pertinent and material to show the value of the property assessed on the roll and the grounds for the valuation made by the assessing officers." (Sec. 3.) If any one of the three evils, which it is the object of the statute to redress, appears by the return, the court has power to order the assessment, "if illegal, to be stricken from the roll, or if erroneous or unequal, to order a reassessment * * * or the correction" thereof, "in whole or in part, in such manner as shall be in accordance with law, or as shall make it conform to the valuations and assessments applied to other real or personal property in the same roll and secure equality of assessment. If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, the court may take evidence or may appoint a referee to take such evidence as the court may direct, and report the same to the court, and such testimony shall constitute a part of the proceedings upon which the determination of the court shall be made." (Sec. 4.) "A new assessment, or correction of an assessment, made by order of the court, shall have the same force and effect as if it had been so made by the proper assessing officers within the time originally prescribed by law for making such assessment." (Sec. 5.) Thus we have a writ of certiorari with novel functions hitherto unknown to such methods of review. The common-law writ brings up the record for inquiry into jurisdiction and regularity, and, in criminal or quasi-criminal cases, the evidence also, "to see whether, as a matter of law, there was any proof which could warrant a conviction of the relator." (People ex rel. C.G.L. Co. v.Board of Assessors, 39 N.Y. 81; People ex rel. Cook v. Boardof Police, 39 N.Y. 506, 512, 518.) The general statutory writ brings up both record and proceedings for examination, not only as to jurisdiction and method of procedure, but also to see whether there was a violation of any rule of law, or any competent proof of all the essential facts, or a preponderance of proof against the existence of any of those facts. (Code Civ. Pro., secs. 2120 to 2148; People ex rel. Coyle v. Martin,142 N.Y. 352.) The special statutory writ now *Page 431 before us differs from its predecessors in one remarkable respect, in that it permits a redetermination of all questions of fact upon evidence, taken in part at least, by the Special Term, or under its direction. (People ex rel. U. and D.R.R. Co. v.Smith, 24 Hun, 66, 71; People ex rel. Grace v. Gray, 45 Hun, 243, 245.) As was well said by one of the learned counsel for the relator in his argument before us upon the merits, the "provision that testimony may be taken in the judicial proceeding which the act authorizes, implies that the judicial tribunal shall examine, consider and give due effect to the same in determining the question of illegality or erroneous overvaluation or other issue of fact arising upon the petition and return; in short, that the judicial tribunal shall deal with the testimony as courts deal with evidence, and not in the manner of mere administrative tribunals like a board of tax commissioners." What is called a review may thus become a proceeding in the nature of a new trial. The return is not conclusive, as in the common-law and Code writs. (People ex rel. Miller v. Wurster, 149 N.Y. 549; Harris on Certiorari, § 126.) The provisions of the Code do not apply to it. (People ex rel. Church of H.C. v. Assessors,106 N.Y. 671.) The petition is regarded as the complaint, the return as the answer, and, in deciding the issues joined thereby, the court may call witnesses to its aid and their testimony becomes a part of the proceedings upon which the determination of the court is to be made. That determination is a revaluation and it may be a different valuation of the property assessed. Such was the method of procedure in this case. A new trial was had, somewhat like the new trial in County Court upon appeal for that purpose from Justices' Court. New evidence was taken, which, by command of the statute, the court was bound to consider in making its determination. In other words, it was the duty of the court to retry the questions of fact and decide them over again, and whether its findings were written out or left to necessary implication, there is no escaping the conclusion that the facts are conclusively presumed to have been decided de novo. (Amherst College v. *Page 432 Ritch, 151 N.Y. 282.) Thus, the writ under consideration may be a writ of review, merely, and hence properly called a writ of certiorari, and it may be in the nature of a venire de novo, and utterly foreign in function to the writ of certiorari as known in the history of the law. Let us now consider the history, nature and purpose of the constitutional provision involved and apply it to the proceeding before us. The most difficult question before the late constitutional convention was how to relieve the overburdened calendar of this court. A Second Division of the court, organized in 1889, sat for nearly four years and afforded temporary relief, but the evil of a calendar beyond control and growing worse confronted the convention. Many plans were proposed, all of which were along the line of increasing the number of judges, or reducing the number of appeals. The latter theory was adopted and carried into effect by the second and ninth sections of the judiciary article. By the second section a new appellate court, with nearly double the number of judges, was created in the place of the old General Term, and by the ninth, the jurisdiction of the Court of Appeals was expressly limited and power was conferred on the legislature to still further restrict the right of appeal to this court. The purposes of the convention may, to some extent, be inferred from the following extracts from the report of the judiciary committee: "The Court of Appeals is overloaded with work, a very considerable portion of which is wholly outside of its proper and necessary function of settling the law. Our purpose is to draw the line distinctly around the questions which the Court of Appeals, and that court alone, ought to determine finally; to leave all other questions to the court first reviewing the cause, and to make that court fully competent to protect satisfactorily every right of a litigant. For the purpose of effectively limiting the Court of Appeals to questions of law, we have added to the general statement of that limitation a clause specifically precluding review of a unanimous decision of the Appellate Division that there is evidence *Page 433 to sustain a finding of fact or a verdict not directed by the court. This closes the door through which, under sections 993 and 1337 of the Code, the whole question of fact, in many cases, is brought before the Court of Appeals. It does not affect cases of nonsuit, or of verdicts directed, or of reversals by the Appellate Division, or cases where there is a dissent in that court. It does require that when a trial court or jury has decided that a fact is proved, and five judges in the Appellate Division have unanimously held that it is proved, controversy about that fact shall end, and that any question of law mixed with that fact shall be separately raised and presented in order to be reviewed by the Court of Appeals." (2 Convention Documents, No. 53, p. 6.) Thus we see that the purpose of the convention was to relieve the calendar of this court by confining its labors "to its proper and necessary function of settling the law." This is the great object of a court of last resort in a judicial system that allows two successive appeals, as four separate divisions of the intermediate appellate court cannot settle the law, because it is inevitable that their judgments, to some extent, will conflict with each other. The public interest requires that the law of the entire state should be uniform, consistent and harmonious, and this makes a second appeal necessary, but it is manifest from the proceedings of the convention that it was the aim of that body to limit the last appeal to the single purpose named. Did the convention accomplish its object? This question must be answered by gleaning the intention from the language of the Constitution, read, when the meaning is doubtful, in the light of such existing facts, including statutes in force at the time, as may reasonably be presumed to have been known to the members of the convention. They first provided that the jurisdiction of this court, "except where the judgment is of death," should "be limited to the review of questions of law." At first this would seem to accomplish the entire purpose as outlined above, for it would naturally exclude any review of the facts, but the Code, as it then stood, provided that an exception to a finding of fact presented a question of law as *Page 434 to whether such finding was unsupported by any evidence. (Sec. 1337.) This placed it in the power of the appellant, by freely excepting to findings of fact, to compel this court to read all the evidence in order to see whether there was any to support the findings excepted to. This did not advance jurisprudence by settling the law, for its effect was limited to the case in hand, and it consumed much time in argument and examination. The convention, apparently realizing this, went farther and sought to make it certain that only "questions of law," in the ordinary meaning of that phrase, should be reviewed by this court, by providing that "No unanimous decision of the Appellate Division of the Supreme Court that there is evidence supporting or tending to sustain a finding of fact or a verdict not directed by the court, shall be reviewed by the Court of Appeals." It is important to know what was meant by the word "decision" and the phrase "finding of fact," as thus used. The word "decision" appears twice in the section under review, first in the quotation already made and again, but in plural form, in the next sentence, which provides that "except where the judgment is of death, appeals may be taken, as of right, to said court, only from judgments or orders entered upon decisions of the Appellate Division of the Supreme Court, finally determining actions or special proceedings, and from orders granting new trials on exceptions, where the appellants stipulate that upon affirmance judgment absolute shall be rendered against them." As last used, the word "decisions" obviously applies with equal force to actions and special proceedings. The meaning is, that judgments finally determining actions, and orders finally determining special proceedings, "entered upon decisions of the Appellate Division," may be reviewed upon appeals taken as of right to this court. So, as it seems to me, the word "decision," as first used, has the same meaning and applies with equal force, to actions and special proceedings. It is not confined to judgments or orders, but covers both. No reason is perceived for any distinction, and presumptively the same word has the same meaning in each of the two successive sentences *Page 435 relating to the same subject. This must be the true construction unless the makers of the Constitution intended to discriminate in favor of orders in special proceedings and against judgments in actions, by allowing the evidence to be reviewed in the former but not in the latter. If any discrimination were to be made, is it reasonable to suppose that it would have been in favor of the class of least importance, or that special proceedings would have been treated as more sacred than judgments? There is no evidence of any intention to discriminate, for actions and special proceedings are both placed on the same footing. They are treated alike in all respects. The phrase "a finding of fact" may mean simply a finding expressed in words or, also, a finding implied from the nature of the decision. (Amherst College Case, 151 N.Y. 321.) Both kinds were known to the law when the convention sat, for section 1022 of the Code, which was then in force, provided that the decision, upon a trial of the whole issues of fact, might separately state the facts found and the conclusions of law, or it might state concisely the grounds upon which the issues were decided, and direct the judgment to be entered thereon. The latter kind was similar, both in form and effect, to the general verdict of a jury, and commingled fact and law in the same way. We have recently held that all the facts warranted by the evidence and necessary to support the judgment, are presumed to have been found by a decision that does not state the facts. (AmherstCollege Case, supra.) The legislature, as the convention is presumed to have known, had done away with findings of fact, absolutely, as formerly made upon request, and in all cases, as a matter of right, yet with this knowledge, it used language that applies with equal force to all findings of fact made by courts or referees, whether written out in words or not, the same as it applies to all findings of fact made by a jury, whether general, without expressing the facts, or special, by expressing them in full. It cannot be that the legislature, by prohibiting express findings of fact, could practically abolish the constitutional provision in question, yet this would be possible, unless it applies to implied *Page 436 findings, as well as those written out in extenso. In view of the primary object of the judiciary article to confine this court to the great duty of settling the law, and to give it time to do the work well, I think that the convention used the phrase "finding of fact" in no narrow or technical sense, but with the broad and liberal meaning which, alone, would accomplish its important purpose. The action of the legislature in so amending the Code of Civil Procedure as to carry the judiciary article into effect, has some bearing on the question By section 190 it confined the jurisdiction of this court to the review upon appeal of actual determinations made by an Appellate Division, as expressed in judgments or orders finally determining actions or special proceedings, and orders granting new trials on exceptions. It thus treated actions and special proceedings alike, the same as it did in the following section, which relates to limitations, exceptions and conditions. It expressly limited the jurisdiction to the review of questions of law, and repeated the language of the Constitution in reference to the effect of a unanimous decision of the Appellate Division in relation to the facts. (Szuchy v. Hillside Coal and Iron Co., 150 N.Y. 219, 223.) Of necessity, "the actual determination" referred to in section 190 has the same meaning as the "decision" of section 191. Both refer with equal force to actions and special proceedings, without discrimination in favor of the or against either form of decision or determination. The phrase "finding of fact" is repeated from the Constitution, and obviously refers to both kinds of decisions authorized by section 1022. The reasoning of the court in Otten v. Manhattan Railway Co. (150 N.Y. 395, 399), as to the effect of the same word, when used in the Constitution and a statute, applies with greater force to the same word or phrase when used a second time in the same statute. As neither the Constitution nor the statute confines the findings of fact to judgments, we have no power to do so. To the construction thus indicated, the objection is made that it would preclude the separation of questions of law from *Page 437 questions of fact, when the findings of fact were implied or general in form. That, however, is a mere matter of practice, to be worked out by the legislature, which can prescribe a method, whenever it is deemed necessary, of separating the facts from the law. It is clearly within the domain of legislation to provide that the facts found shall be expressed in words, or to so regulate the practice that questions of fact and law will not be commingled. The fact that it has not yet done so has no bearing upon the question under discussion. But whether the constitutional provision in relation to the effect of a finding of fact, unanimously affirmed by the Appellate Division, applies to all special proceedings or not, there are particular reasons why it should be held to apply to the special proceeding now under consideration. The method of procedure in this matter, when it reached the Special Term, did not differ in substance from the trial of an action commenced by a summons and the decision of the issues without expressing the facts found, as permitted by section 1022 of the Code. There was, in fact, a trial of the issues framed by the petition and the return. Witnesses were sworn and examined, and the testimony taken was considered by the court in making its determination. Thus, the analogy of this special proceeding to an action is perfect, and the facts impliedly found under such circumstances come, as we think, within the constitutional provision in question. No confusion should arise from the name given to the proceeding by the statute which authorizes it, for the substance or real nature of the procedure should have more weight than the name applied to it. While the proceeding is called a certiorari it is not within the lines of that writ as ordinarily used, because it permits a new valuation upon new evidence, which is, for all practical purposes, a new trial. The object was not simply to see whether an inferior tribunal had kept within the bounds of its authority, but to make a new determination as to the value of the assessable assets of the relator. The claim is made that there was no decision by the Appellate Division, unanimous or otherwise, that there was evidence *Page 438 supporting or tending to sustain a finding of fact. This requires brief consideration, for we have already held, although no public announcement has been made of the fact, that the effect of a unanimous judgment or order of affirmance is a decision that there is evidence supporting the findings of fact as expressed or necessarily implied. We do not think it is necessary for the Appellate Division to specify what findings of fact are sustained by evidence, when it intends to sustain them all. Such a course would make its decision cumbersome and inconvenient. Nor do we regard it as necessary for that court to repeat the language of the Constitution and apply it generally to all the findings of fact. A unanimous affirmance of the judgment or order appealed from necessarily affirms all the findings of fact, whether expressed or not, that are essential to support the decision made below, the same as the affirmance of a general verdict. No other logical inference is possible. That the vital facts exist is a necessary part of the determination, for unless they existed it could not have been made. Neither the statute nor the Constitution say an express finding of fact, but simply a finding of fact, thus meaning any, and including all findings of fact. It is our duty, therefore, to accept the facts stated in the return as final, and in our further review of the proceeding to ascertain whether, upon the basis of those facts, the assessment in question is illegal for any reason. It appears from the return that the assessment was founded upon the report made by the relator to the railroad commissioners in January, 1895. Such a report, as suggested by this court in another case between the same parties, is "competent evidence for the commissioners or the Special Term to receive and act upon," as in the nature of an admission made by the relator. (People ex rel. Manhattan R. Co. v. Barker, 146 N.Y. 304, 316.) By that report, in the language of the return, "the relator itemized its total gross assets and fixed them at the sum of $72,787,217.13," and upon examining the items that make that aggregate the following appears: "Cost of lease, $14,014,000." It appears from another part of the return *Page 439 that the original issue of capital stock by the relator was $13,000,000, of which one-half went to the stockholders of the New York Elevated Railroad Company in payment for the lease of its line to the relator, and the other half to the stockholders of the Metropolitan Elevated Railroad Company for the like purpose. In addition to this issue of stock the relator discharged certain obligations by cash payments to said two railroad companies amounting to the sum of $1,014,000, thus making the total cost of the leases $14,014,000. The lease of a line of railroad necessarily includes the use of the franchise of the company owning it, for without it the lessee would have no right to operate the road. It is that which authorizes the use of the streets for the erection of the permanent structure and the operation of trains thereupon. The cost of the lease, therefore, embraces the value of the use of the franchise during the period of the lease, and an assessment based in part upon the cost of the lease is based in part upon the value of the franchise. Some years after the making of these leases an agreement of merger was entered into by the three companies, and in pursuance thereof more capital stock was issued by the relator and a portion of it divided between the stockholders of the other two companies. In 1891 the Suburban Rapid Transit Company was leased and merged with the relator. No amount was paid separately for the structures of the constituent roads, but by the leases and the agreements of merger the relator apparently acquired their entire property, franchises included. Whether the relator is regarded as lessee or owner in fee, it is evident from the return that the item of $14,014,000 for the "cost of lease," of necessity embraces to some extent the value of the franchise. Under the act in question, however, franchises cannot be valued or included in the assessment, as they are taxed under another statute. (Peopleex rel. Union Trust Co. v. Coleman, 126 N.Y. 433; People exrel. Manhattan R. Co. v. Barker, supra.) The value of the franchise should, therefore, have been deducted before the assessment was made, or the valuation should have proceeded upon a basis that did not include the franchise. *Page 440 The order of the Appellate Division should be reversed and that of the Special Term so modified as to vacate the assessment and order a reassessment by the commissioners, without costs to either party.