Opinion
May 3, 1911.
Thomas Carmody, Attorney-General [ Irving D. Vann of counsel], for the appellant.
John M. Cantwell, for the respondent.
By section 22 of the Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62) all wild and forest lands owned by the State as therein prescribed are required to be assessed to the State as similar lands of individuals. On or before August first the assessors of the town are required to file in the office of the Comptroller and with the Forest, Fish and Game Commission a copy of the assessment roll of the town, which is required to specify what lands are forest lands, "and which and how much, if any, are lands belonging to the State; such statements and specifications to be verified by the oaths of a majority of the assessors." The statute then reads: "The Comptroller shall thereupon and before the first day of September following, and after hearing the assessors and the Forest, Fish and Game Commission, if they or any of them so desire, correct or reduce any assessment of State lands which may be in his judgment an unfair proportion to the remaining assessment of land within the town, and shall in other respects approve the assessment and communicate such approval to the assessors." By section 20 of the Tax Law the assessors are required to "ascertain by diligent inquiry all the property and the names of all the persons taxable therein;" and by section 21 they are required to prepare an assessment roll "according to the best information in their power."
In 1909 and 1910 the assessors of the town of Brighton, Franklin county, filed in the office of the Comptroller their assessment rolls and asked for his approval under section 22 of the Tax Law. The Comptroller declined to approve of the assessment roll, not upon the ground that the State lands therein mentioned were disproportionately assessed, and no such claim is here made, but upon the ground stated, that four certain lots were assessed to one McArthur which should have been assessed to the State. It seems clear that this was not a sufficient ground for refusing to approve of the assessment rolls. The direction of the statute to the assessors is to ascertain by diligent inquiry as best they may to whom lands shall be assessed, and to the rolls as thus made up they are required to make oath. If upon such inquiry their conclusion should be that certain lands belong to parties other than the State, they could not make oath to their assessment roll, if, under the dictation of the Comptroller, they were required to place those lands upon the rolls as property of the State. The object of section 22 seems to be clear, to wit, to protect the State from overvaluation of the land assessed. It is only an assessment which presents an "unfair proportion to the remaining assessment of land within the town" that can be corrected. No warrant is there given to the Comptroller to require that land assessed to others should be assessed to the State upon the said rolls, and it is going far away from the language of the statute to so contend.
But this order must be reversed we think for the reason that the motion should have been made within the third judicial district. The ownership of the lands in question is not involved in this proceeding. The statute requires the Comptroller to approve all the rolls, but only after a hearing of the assessors and the Forest, Fish and Game Commission, if they should so desire. It is clear that that hearing is to be had not in Franklin county, but in Albany, the official home of the Comptroller. It is clear that his approval is there to be made, and the assessment roll is there to be delivered to the assessors, whether by mail or personally. All the acts which he is required by this writ of mandamus to perform are there to be performed, and if an alternative writ were required to be issued the issue made thereby would be triable in Albany county. Moreover, if the matter be one of doubt, that doubt should be resolved in favor of the State, to the end that public business may be expedited. For reasons well stated in the case of Mason v. Willers (7 Hun, 24), the motion should be required to be made in the third judicial district. The order must, therefore, be reversed, and motion denied, without costs.
All concurred.
Order reversed and motion denied, without costs and without prejudice to a renewal of the motion in the proper district.