Opinion of the Court, per VANN, J. [Vol. 196. and hence is a bar in these proceedings to a cancellation of the assessments for any prior failure to give notice and hearing. (People ex rel. Kilmer v. McDonald, 69 N. Y. 362; Town of Duanesburgh v. Jenkins, 57 N. Y. 177; Tifft v. City of Buffalo, 82 N. Y. 204; 1 Cooley on Taxn. [3d ed.] 512; Cowgill v. Long, 15 Ill. 202; State v. Squires, 26 Iowa, 340; Dittoe v. City of Davenport, 74 Iowa, 66; City of Clinton v. Wallicker, 96 Iowa, 655; State v. Norwood, 12 Md. 195; Miller v. Graham, 17 Ohio St. 1; State v. Apgar, 31 N. J. L. 358.) The bank had no authority under the Tax Law to institute the proceeding, because the assessments sought to be canceled were made, not upon the bank, but against the shareholders upon their shares of stock, and the proceeding was not brought in behalf of the shareholders assessed. (0. Nat. Bank v. Owensboro, 173 U. S. 669; People ex rel. M. Nat. Bank v. Coleman, 41 Hun, 344; People ex rel. Blakeslee v. Comrs., 135 N. Y. 447; People ex rel. Kohler v. Feitner, 71 App. Div. 572.) VANN, J. By this proceeding the relator, a national banking association, seeks to set aside an assessment made upon the stock of its shareholders for the year 1907 by the board of taxes and assessments of the city of New York. The method of assessment and the entire procedure were substantially the same as was pursued in the case of People ex rel. Bridgeport Savings Bank v. Feitner (191 N. Y. 88), recently decided by us. We there held that the statute, under which the assessment was levied in that case as well as in this, was valid, bat as the notice and opportunity to be heard required thereby were not given, the assessment was voidable for that reason and for that reason only. We distinctly announced that while we held the statute valid we were compelled "on account of the irregularity in failing to give notice, to reverse the orders of the Appellate Division and of the Special Term and to cancel the assessment against the relator." In other words, we upheld the Tax Law so far as it applied to that case as constitutional, but reversed the action of the taxing officers on N. Y. Rep.] Opinion of the Court, per VANN, J. account of their failure to give notice, which we held upon authority was merely an irregularity. Our decision in that case was handed down on the last day of January, 1908, and the writ to review the assessment involved in this case was issued on the 11th of April in the same year, but the final order of the Special Term sustaining the assessment was not made until the 5th of April, 1909. In the meantime an act, claimed to be curative in its effect, was passed, known as chapter 74 of the Laws of 1909, and although the proceeding herein had been previously submitted to the Special Term for decision, as it was undecided on the 27th of February when that law took effect, a rehearing was granted so that the effect of the new statute might be considered. After due consideration, the Special Term held the statute a bar to this proceeding, which was dismissed, without costs, and upon appeal to the Appellate Division the order was affirmed, one of the justices dissenting. The relator now comes before us, and the main question presented by its appeal is the validity and effect of the statute, which, for convenience at least, we shall call the curative act. Several preliminary questions should be considered before the main controversy is passed upon. 1. Had the relator the right to institute this proceeding in its own name, or should it have been commenced by some shareholder claiming to be aggrieved? We do not regard this question as open. (Matter of First National Bank of Ossining, 182 N. Y. 460, 462.) In the case cited the proceeding was commenced by the bank alone, no shareholder having joined therein, and it was contended, both at Special Term and in this court, that the relator was not injured by the assessments because they were not made against it or its property but against the shareholders upon their shares of stock. Judge GRAY, speaking for all the judges, answered this contention as follows: "That the bank was aggrieved, within the meaning of section 250 of the Tax Law, and, therefore, was entitled to sue out the writ of certiorari is, in my opinion, beyond question. The Tax Law makes the bank the . Opinion of the Court, per VANN, J. [Vol. 196. agent for the collection of the tax and subjects it to a penalty for failure to pay over the same to the county treasurer, or, in the city of New York, to the receiver of taxes. The representative capacity of a bank to maintain a suit in behalf of its stockholders, in relation to the assessment and taxation of its shares of stock, was sufficiently declared in the recent case of Mercantile National Bank v. Mayor, etc., of New York (172 N. Y. 35, 45), and it can, undoubtedly, institute such a proceeding as this. Such was the procedure as far back as the case of People ex rel. Gallatin National Bank v. Commissioners of Taxes (67 N Y. 516)." While the writ in that case was dismissed at the Special Term and the Appellate Division affirmed, we decided that "as there was no ground for the dismissal of the writ, except that the determination of the board of assessors was correct, the order should be amended so as to read that it affirms the proceedings of the board of assessors and dismisses the writ of certiorari." The language of Judge GRAY, therefore, was not, as the respondents contend, the mere expression of his own opinion, for, as the proceedings were affirmed, the point was necessarily involved and decided. 2. Was the proceeding brought within the period prescribed by law? The statute authorizing the writ provides that the application therefor must be made "within fifteen days after the completion and filing of the assessment roll and the first posting or publication of the notice thereof as required by" the Tax Law. (8 251.) It is further provided that the completed roll shall be filed by a date named and notice given by posting and publication that it has been so filed and is open to public inspection. (Id. § 38.) One object of the notice is to set in motion the period of fifteen days so that it will begin to run, and as no notice was given in the case before us, the period of limitation prescribed by section 251 had not expired when application was made for the writ. (People ex rel. Rome, Watertown & Ogdensburgh Railroad Co. v. Haupt, 104 N. Y. 377, 381.) In thus holding that there was no N. Y. Rep.] Opinion of the Court, per VANN, J. limitation as matter of law, we do not wish to intimate that the Supreme Court might not well, in the exercise of its discretion, when there has been long delay in applying for the writ, dismiss it on account of laches. In this proceeding, however, the writ was dismissed because the curative act was regarded as a bar. 3. Was payment of the taxes without protest before the writ was issued a bar to the proceeding? The taxes in question, amounting to the sum of $96,000, were paid by the relator without objection on the 31st of December, 1907, and this proceeding was instituted on the 11th of April, 1908. The statute commands every bank to pay the taxes assessed upon the shares of its stockholders from the fund devoted to dividends, and imposes a penalty in case of failure. The tax is not only made a lien on the shares. until it is paid, but it is expressly provided that "if the stock is transferred it shall be subject to such lien." (Tax Law, § 72.) Some of the stockholders of the relator were not satisfied with such payment of the taxes on their shares, for the return shows that twenty-three instituted proceedings to review, which are now pending. We have held, under circumstances quite analogous to those in this case, that payment under the compulsion of a statute making the tax a direct lien upon shares of stock in a banking association is an involuntary payment as to stockholders. (Etna Ins. Co. v. Mayor, etc., of New York, 153 N. Y. 331, 341.) As the bank can institute a proceeding for the benefit of its stockholders in order to avoid a multiplicity of proceedings, and as the tax is made a lien upon the shares of stock which follows them into the market, we think the payment should be held involuntary, so that the stockholders may derive the same advantage from the review at the instance of the bank as if each one of the thirteen hundred stockholders of the relator had instituted a separate proceeding at great expense to themselves and with unnecessary sacrifice of the time of the courts. The peculiar circumstances make the payment in question an exception to the general rule. Opinion of the Court, per VANN, J. [Vol. 196. We now reach the question whether the curative act is constitutional and if it is, what effect it had upon the assessment in question. That act empowers the board of taxation and assessment of the city of New York to cancel or reduce assessments for taxation of the shares of stock of banks or banking associations in that city made by such board for the years 1901 to 1907, inclusive. It provides that said assessments shall be open to public inspection at a place named, during the period "beginning twenty days after the passage" of the act and ending on the 31st of October, 1909; that an application for reduction or cancellation may be made to the board at its office on or before September 1st, 1909, by any person deeming himself aggrieved, who is to be granted a hearing if he so requests; that on or before October 1st, 1909, every application shall be determined by the board, which is required to declare its determination by cancellation or reduction on the assessment rolls when necessary. Review by certiorari is authorized provided the writ is applied for within a period named. (L. 1909, ch. 74, §1.) * * * The second section provides that all such assessments "as to which no application for relief shall be made shall be and hereby are ratified and confirmed; and every determination by said board as herein provided, upon an application seasonably made for relief under this act, shall be final and conclusive, unless reversed or modified by the court in a certiorari proceeding thereafter brought as herein provided." By the third section the board is required to certify their determination to the comptroller, "who shall thereupon correct or cause to be corrected the assessment and tax in the records or tax books of the city of New York in accordance with the determination of the said board, and if the tax based on such assessment has been paid a refund shall be made by the comptroller in the same manner as provided in the Tax Law where a final order in a certiorari proceeding directs the cancellation or reduction of an assessment for taxation." |