The opinion
Parker, P. J.
(dissenting)':
I cannot concur with the conclusion reached in this cáse.
In my judgment the act in ¡question does not authorize the relator *241 to ask for a correction of the assessment of its franchise on the ground that it has been made, at a higher proportionate valuation than that at which the local assessors have assessed the property on their roll. Such an equalization between the work of the different boards is.not given by this statute; and, inasmuch as all the other questions raised by this writ have been decided against the relator, the writ should be dismissed.
Section 250 of the Tax Law (Laws of 1896, chap. 908) is the only ■one which specifies the grounds upon which a review of any assessment may be liad by certiorari. As to the first and second grounds therein specified, the court has decided against this relator in this case. As to the third, and only other ground therein specified, the inequality which is the basis of the alleged grievance must arise from an unequal valuation of property assessed “ on the same roll” and “ by the same officers.”
In this case comparison is made between the valuation of the relator’s special franchise, assessed by the State officers, and that of the real estate in the city, assessed entirely by the board of local assessors. Inequality in such valuations is very clearly not included in the third ground for which a review may be had.
This plain exclusion from review by certiorari of an assessment made by one board with that made by the other board, it is claim'ed has been entirely modified by the provisions of sections 42 and 45 of the Tax Law (added by Laws of 1899, chap. 712, and amd; by Laws ■of 1902, chap. 112, and Laws of 1900, chap. 254 respectively). I can discover nothing in either of such sections that assumes to change the grounds for which a writ of certiorari may be issued to review an assessment, or that indicates a purpose to strike out, under any circumstances,-from section 250 the words “ on the same roll by the same officers.” The assessment of a special franchise, made by the State Board of Tax Commissioners, may be given the “ same force and effect ” after being certified to the -local board and placed upon its roll as if made by the latter board, but that by no means changes the fact that it had been actually assessed by the State Board, nor indicates an - intent to strike out from section 250 the phrase above quoted.
Moreover, the whole structure of the act indicates", that it was *242 enacted without'reference to any remedy for inequality of Assessment by the two boards.' Thus, in the case before us, section 250 provides that the petition for a writ of certiorari “ must show- that application has been made, in duetime to the proper officers to’correct súclr assessment.” The proper time to complain of an assessment’ of this special franchise Was February eighteenth. Such was the day advertised by the State Board for correcting their assessment of this special franchise. But the relator could not then know of the inequality now Complained of, because the local board had not then made its assessment; and thus it is apparent that the Legislature had no" expectation that a petition would ever be used which asked for relief because' of such an equality.
If it be considered that the local board were the ’ proper officers to apply to for a correction of such assessment, it is apparent that such application Would be a mere idle ceremony. The local board could on “grievance day” change an assessment made by themselves so that it would be equal .with other assessments made by them, but it is hardly to be expected that the' Legislature intended to permit the local board,, upon such an- application, to practically reassess the special'franchise on the theory that .it had been Assessed by the ■ State' Board at a higher proportionate valuation than the local board had. assessed other property. The special franchise lias been''held to be . a kind of property peculiar to itself, and one which the ".local board is unfitted to value and assess. Hence the constitutionality of the law-creating a State Board to assess it. (People ex rel. Met. St. Ry. Co. v. Tax Comrs., 174 N. Y. 417 .) In no. point of view is the requirement that the petitioner must first apply to the proper officers for a correction of its assessment' before suing out the writ consistent with the idea that it'may have such writ, to review an inequality arising from the action of both boards. . It is incredible that the Legislature intended that in. any "case either board, might review the action of the other.
So also it is clear that no method'can be discovered in this, act for granting relief against inequalities, Arising from a comparison of the .assessments of the two boards, that Will not present the'unseemly spectacle of two public, boards at variance over the question which board is responsible for the error charged in the petition.
This question,' although it has been indirectly presented and *243 assumed in several decisions in the lower courts, has never, so far as I can ascertain, been passed upon by any court which is controlling upon us. In the case above cited, although the referee assumed that such an inequality was ground for review by the certiorari issued in that case, and gave relief based thereon, yet neither this court nor the Court of Appeals expressed any opinion nor gave any judgment thereon. The People did not appeal, and so that questian was not presented to either of the appellate courts. Upon this appeal the question is squarely before us, and I am of the opinion that we should now decide it in the manner above stated.
If, however, an inequality in the ratio of valuation by the two boards is to be deemed a good ground for a writ of certiorari under the law as it now is, in my judgment the inquiry necessary to determine that question calls for a review of the work of each board ; and so the relator who seeks relief upon that ground must take out his writ of certiorari to both boards. Tims, in the case at bar, this relator complains in its petition, not only that the assessment of its franchise by the State Board was illegal and that it was overvalued, but that it was unequal, in that it was valued at its par value, while the real estate generally throughout the city was valued by the local board at not over eighty per cent of its actual value. Necessarily, to determine the truth of this last proposition, a writ of certiorari must be issued to the State Board. It is their assessment that is sought to be changed and corrected; hence that board must necessarily be before the court. But, manifestly, such board is not the only one whose work is to be reviewed under such a complaint. The work of the local board must also be inquired into, because the charge is that, owing to the fact that it has assessed the real estate twenty per cent below its actual value, the unjust inequality complained of has arisen. Therefore this relator conceives himself “ aggrieved ” by reason of the action of the local board in assessing the property within its jurisdiction at a figure lower than the law allows* to wit, at less than its actual value. Therefore, under the provisions of sections 250 and 251 of the Tax Law, it should also procure a writ of certiorari against the local board. In other words, the relator complains of the action of both boards, and, therefore, must review the action of both, and so it should sue out its writ against both boards.
*244 This is apparent by noticing the practical operation of the case before ns.. One writ is issued; to the State Board alone. That board -makes return, full and complete, as to all its own proceedings, and it appears from it that it had valued the relator’s' special franchise at its just and correct par value. But as to the charge/in the relator’s petition, that the local board had assessed the property within its jurisdiction at eighty per cent oiily of its actual value, the State Board returns that it knows nothing about it. And naturally such must be its return. It has no part in making that assessment, no duty concérning it. All the State Board’s work in the city is • finished before the local board’s work of assessment is begun'. Hence it is beyond the kno.wledge of the State Board either to affirm or deny the truth of such charge. Clearly the return of the State' Board can give the court no information upon that subject; and it is not its duty to attempt to do so, or to raise any. issue with the relator • 6 upon that subject. And', therefore, it has not done so in this case. But this leaves the subject-matter of' the relator’s complaint only half presented to the court. Has the local board assessed at only eighty per cent or at any "figure less than one hundred per cent ? If it lias,, then the inequality of which the relator complains exists. If it has not, then the relator’s assessment should not be'changed. Manifestly, the return of the local board alone can give the court information on that subject. Clearly it alone can raise an issue over that charge.
Therefore,.if the relator would obtain relief.from the court by reason of this' alleged ynequality, it was its duty to procure this writ of certiorari to be issued against both of the boards, to the end. that a return be ’made which could cover the whole work of which complaint is made, and inform the court .of the whole proceeding to be reviewed. Then the real issues, if any exist, are defined, and the court' can direct such evidence to be taken as it shall find necessary. :
In short, I am of the opinion that, in 'order to obtain a decision, upon the question which the relator here presents, it should have made the local board’a party to this writ. The authority,to. do so is found in the provisions of the law that any person feeling aggrieved by the action of either board on • either • of the three grounds specified in section 250 of the Tax Law, may have a *245 writ of certiorari against the board complained of, to determine the justness of such complaint. And if the complaint is against both boards, then the writ of certiorari must go to both. The provisions of section 45 of the Tax Law which have been invoked as authority for bringing in this local board apply to instances where one seeks to review the work of the State Board only. When it is sought to compare the work of the State Board with that of the local board, and thus it becomes necessary to procure a writ against each, two proceedings are not necessary. One writ may be issued to both, but section 45 in no way controls its issuance, nor the return to the same.
Assuming, then, that the local board of assessors is a necessa/ry party to this proceeding, the question is presented, what disposition should be made of this case ?
The relator having neglected to make such board a party, and objecting now that it be brought in, although manifestly until a return from it is received no intellegent disposition of this case upon this question can be had, it seems to me that the orderly method of procedure requires a dismissal of the writ.
I can see no propriety in allowing the local board to force itself into this proceeding against the opposition of this relator, and thus insist upon an inquiry that the relator has the clear right to abandon. If we are to assume that this inquiry is permissible under this statute, and that the local board is a necessary party to it, I conclude that the local board may move the court that. either the writ be deemed abandoned as to this particular inquiry, or else that it be amended so as to run to both. The local board has an interest in the matter sufficient to warrant such a motion on its part, to the end that it may make return to so much of the relator’s petition as requires a review of its work. But it has no right to the order from which this appeal is taken. That order should be reversed ; and, unless the relator itself now asks to so amend the writ, it should^ be dismissed on application to the court below.
Order modified by substituting therefor an order directing that the writ granted herein on the 6th day of May, 1903, be amended by directing that it run to Charles F. Pond, Joseph 0. Wilson, Frank Fritchie and Charles H. Judson as the board of assessors of *246 the city of Rochester, as well as to the State Board of Tax Commissioners, commanding said board of assessors of the city of Rochester .to return their proceedings, with respect to the assessment of real property in said city with the same force and effect as -if the writ had originally been directed to them'. '