Steele, 43 N. Y. 52, 3 Am. Rep. 660; People | it any implied condition or agreement that v. O'Neil, 109 N. Y. 251, 16 N. E. 68; People ex rel. Ryan v. Green, 58 N. Y. 295. The entire statute is valid. There is no arbitrary line which separates the official functions which properly belong to local officers from those which properly belong to state officers. The power to make the distinction is vested, in the first instance, in the legislature, subject to cautious review by the court. If an act is in form in apparent conflict with the letter of the Constitution, but yet in harmony with its intention and purpose, the courts will sustain it. Re New York Dist. R. Co. 42 Hun, 621, Affirmed in 107 N. Y. 42, 14 N. E. 187; People ex rel. Everson v. Lorillard, 135 N. Y. 285, 31 N. E. 1011. The action of the legislature must be deemed a practical construction of the Constitution. the property so granted shall be forever thereafter exempted from taxation. There can be no such exemption unless it is expressly "so nominated in the bond." People ex rel. Manhattan F. Ins. Co. v. Tax & A. Comrs. 76 N. Y. 64; People ex rel. New York Elev. R. Co. v. Tax & A. Comrs. 82 N. Y. 459; People ex rel. Westchester F. Ins. Co. v. Davenport, 91 N. Y. 574; Delaware Railroad Tax, 18 Wall. 206, 21 L. ed. 888; Memphis Gaslight Co. v. Taxing Dist. 109 U. S. 398, 27 L. ed. 976, 3 Sup. Ct. Rep. 205; New Orleans City & Lake R. Co. v. New Orleans, 143 U. S. 192, 36 L. ed. 121, 12 Sup. Ct. Rep. 406; Ford v. Delta & P. Land Co. 164 U. S. 662, 41 L. ed. 590, 17 Sup. Ct. Rep. 230. Mr. Charles F. Brown, for respondent Metropolitan Street Railway Company: The plain intention of § 2, art. 10, of the Constitution was to preserve to localities Rathbone v. Wirth, 150 N. Y. 459, 34 the control of the official functions of which L. R. A. 408, 45 N. E. 15. The courts have sustained many similar statutes. People ex rel. McLean v. Flagg, 46 N. Y. 401; Fire Department v. Atlas S. S. Co. 106 N. Y. 577, 13 N. E. 329; Greaton v. Griffin, 4 Abb. Pr. N. S. 310; Hanlon v. Westchester County, 57 Barb. 383; Syracuse v. Hubbard, 64 App. Div. 587, 72 N. Y. Supp. 802. It is in the power of the legislature to create a new office to be filled by a state officer, and to transfer the power of valuing property to it, even though this power has, since before 1777, been exercised by local assessors. Re Allison, 172 N. Y. 421, 65 N. E. 263; People v. Raymond, 37 N. Y. 431. The subject of assessment and taxation is the “right,” "privilege," or "franchise" to occupy a street. The "tangible" property employed in the exercise of this right is merely incidental to the right. Prior to the enactment of chapter 712 of the Laws of 1899 the property thereby rendered assessable had never been assessed locally, and therefore the local assessors are deprived of no function. they were then possessed. People v. Raymond, 37 N. Y. 428; People ex rel. Williamson v. McKinney, 52 N. Y. 374; People ex rel. Bolton v. Albertson, 55 N. Y. 50; Re Brenner, 170 N. Y. 185, 63 N. E. 133; Re Allison, 172 N. Y. 421, 65 N. E. 263. The legislature must do nothing respecting them which will render them less suitable for the purpose for which they are recognized and employed by the Constitution. People ex rel. Wood v. Draper, 15 N. Y. 532; People v. Raymond, 37 N. Y. 428. The assessment of property has always been the function of a local officer. 1 Dowell, History of Taxation, 70, 74; 1 Stubb, Const. Hist. Eng. 3d ed. chaps. 12, 14, 15; Howard's Local Constitutional History of United States, chap. 4, subdiv. 6; People v. Harding, 53 Mich. 481, 19 N. W. 155; People ex rel. Le Roy v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103; Slaughter-House Cases, 16 Wall. 36, 21 L. ed. 394. Hence officers who exercised that function in New York city were required to be selected as provided by § 2, art. 10, of the Constitution. 740; People ex rel. New York C. & H. R. R. Co. v. Priest, 169 N. Y. 432, 62 N. E. 567. Re New York, W. S. & B. R. Co. 37 Hun, People v. Raymond, 37 N. Y. 428; War317; Ritchmyer v. Morss, 3 Keyes, 349; Rener v. People, 2 Denio, 272, 43 Am. Dec. McPherson, 104 N. Y. 306, 58 Am. Rep. 502, 10 N. E. 685; Re Romaine, 127 N. Y. 80, 12 L. R. A. 401, 27 N. E. 759; People v. Home Ins. Co. 92 N. Y. 328; Home Ins. Co. v. New York, 134 U. S. 594, 33 L. ed. 1025, 10 Sup. Ct. Rep. 593. The special franchise tax law cannot be sustained upon the ground that the amount of property withdrawn from the jurisdiction of local assessors is so inconsiderable that the home-rule principle of the Constitution is not violated. The grant of property by the state, or by a municipal corporation, upon payment therefor of a consideration, payable either M'Culloch v. Maryland, 4 Wheat. 316, 4 in gross or by annual payments, and ex-L. ed. 579; Metropolitan Bd. of Excise v. pressed in the grant, does not carry with Barrie, 34 N. Y. 657. The state is divided into civil divisions for | It is not possible to reach a valuation of the purpose of local government. The state an intangible right to use the streets by has never existed without them, and they ascertaining its earnings or earning caare permanent institutions in our form of government, and, as such, are recognized in the Constitution. Dill. Mun. Corp. 4th ed. § 12; Rathbone v. Wirth, 150 N. Y. 459, 34 L. R. A. 408, 45 N. E. 15. pacity. People ex rel. Delaware, L. & W. R. Co. v. Clapp, 152 N. Y. 490, 39 L. R. A. 237, 46 N. E. 842; People ex rel. Panama R. Co. v. Tax Comrs. 104 N. Y. 240, 10 N. E. 437. A valuation of a special franchise cannot be reached by deducting from the total value of a company's property and franchises the separate values of every asset except the The principle which distinguishes between a local function and a 'state function is plain, and is controlling in the case at bar. People cx rel. Le Roy v. Hurlbut, 24 Mich. | special franchise. 44, 9 Am. Rep. 103; Dill. Mun. Corp. 2d ed. § 9 B; People v. Acton, 48 Barb. 524; Devoy v. New York, 36 N. Y. 449. It makes no difference whether the legislature attempts to appoint local officers to make assessments, or to assume the greater power of investing state officers with the duty and power of performing this function. In either case the act is void. State Railroad Tax Cases, 92 U. S. 575, 606, 23 L. ed. 663, 670; Cleveland, C. C. & St. L. R. Co. v. Backus, 154 U. S. 439, 444, 38 L. ed. 1041, 1045, 4 Inters. Com. Rep. 677, 14 Sup. Ct. Rep. 1122. While it is not disputed that franchises may be taxed or charged arbitrary license fees by the legislature, both the legislature and the courts have recognized the impos People v. Pinckney, 32 N. Y. 377; People | sibility of valuing franchises as tangible ex rel. Park Comrs. v. Detroit, 28 Mich. property is valued. 228, 15 Am. Rep. 202; Atty. Gen. v. Detroit, 58 Mich. 213, 55 Am. Rep. 675, 24 N. W. 887; Evansville v. State, 118 Ind. 427, 4 L. R. A. 93, 21 N. E. 267; State ex rel. Jameson v. Denny, 118 Ind. 382, 4 L. R. A. 79, 21 N. E. 252. Burroughs, Taxn. pp. 166, 169; California v. Central P. R. Co. 127 U. S. 1, 41, 32 L. ed. 150, 157, 2 Inters. Com. Rep. 153, 8 Sup. Ct. Rep. 1073; Society for Savings v. Coite, 6 Wall. 594, 18 L. ed. 897; Maine v. Grand Trunk R. Co. 142 U. S. 217, 35 L. ed. Mr. Frank H. Platt, for respondent Con- | 994, 3 Inters. Com. Rep. 807, 12 Sup. Ct. solidated Gas Company: Rep. 121, 163. There is no method by which the value of a special franchise can be ascertained. A special franchise is to be assessed in the same manner as other real estate. Special franchises have no market value. They cannot be valued on a basis of cost of production. People ex rel. Western U. Teleg. Co. v. Dolan, 126 N. Y. 166, 12 L. R. A. 251, 27 N. E. 269. Where land has been dedicated as a street for the use of adjoining lot owners a subsequent taking of the street for a public use does not increase the burden, or entitle the owner to anything more than nominal dam ages. Re Adams, 141 N. Y. 297, 36 N. E. 318. A street railroad company having several connecting railroads operated as a whole system might pay a large part of the profits of its whole system rather than be deprived of its right to use one small connecting link in its lines, because to take away that small right might destroy its whole business and bring down failure upon the company. But the payment of such a price would not measure the particular right, for, on that basis of value, each of the rights would be equal to the value of all, and, added together, the value of the several franchises would exceed the value of all. Re Boston, H. T. & W. R. Co. 22 Hun, 176. As there is no method of ascertaining the values of special franchises, the franchise tax act is impossible of execution, and the court should so hold. Black, Statutes, p. 99; People ex rel. New York C. & H. R. R. Co. v. Morgan, 168 N. Y. 1, 60 N. E. 1041; Hughes' Case, 1 Bland Ch. 46; Ward v. Ward, 37 Tex. 389; Chaffee's Appeal, 56 Mich. 244, 22 N. W. 871; Drake v. Drake, 15 N. C. (4 Dev. L.) 110. Messrs. Edgar J. Kohler and John C. Tomlinson, for respondent New Amsterdam Gas Company: A constitutional requisite of all ad valorem taxation is that the species of property upon which the tax is imposed must admit of a sufficiently rational or uniform admeasurement of value, so as to make possible a just apportionment of the tax. Marsh v. Clark County, 42 Wis. 502; Judson, Taxn. ed. 1903, § 463; Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289; People ex rel. Manhattan R. Co. v. Barker, 152 N. Y. 417, 46 N. E. 875; People ex rel. Delaware, L. & W. R. Co. v. Clapp, 152 N. Y. 490, 39 L. R. A. 237, 46 N. E. 842; People ex rel. West Shore R. Co. v. Adams, 125 N. Y. 471, 26 N. E. 746; People ex rel. Union Trust Co. v. Coleman, 126 N. Y. 433, 12 L. R. A. 762, 27 N. E. 818. Things or rights may be property in a legal sense and may have value, and yet | property in New York state shows concluthat value not be ascertainable in dollars and cents, or capable of admeasurement for the purpose of ad valorem taxation. Perry v. Big Rapids, 67 Mich. 146, 11 Am. St. Rep. 570, 34 N. W. 530; Dart v. Woodhouse, 40 Mich. 399, 29 Am. Rep. 544; State Tax Comrs. v. Holliday, 150 Ind. 216, 42 L. R. A. 826, 49 N. E. 14. Prior to the enactment of the special franchise tax act there appears to have been a general recognition in legislation and by the courts that franchises are not capable of valuation as distinct pieces of property upon an ad valorem basis. People ex rel. Delaware, L. & W. R. Co. v. Clapp, 152 N. Y. 490, 39 L. R. A. 237, 46 N. E. 842; People ex rel. Brooklyn City R. Co. v. Neff, 19 App. Div. 590, 46 N. Y. Supp. 385. A special franchise considered as a distinct piece of property is in no proper or legal sense capable of valuation. Mr. William H. Page, Jr., for respondents Twenty-Third Street Railroad Company and Central Cross-Town Railroad Company: The principle of "home rule," as embodied in § 2, art. 10, of the present Constitution, has always been a part of the organic law of the state, and guarantees to the people of the various localities the right to continue to select their local officers. The legislature of this state cannot appoint, or authorize central authorities to appoint, any local officer; nor can the legislature create state officers to perform an inherently local function of government. Sheboygan County v. Parker, 3 Wall. 93, 18 L. ed. 33; Re New York, 99 N. Y. 569, 2 N. E. 642; People ex rel. Sherwood v. State Board, 129 N. Y. 360, 14 L. R. A. 646, 29 N. E. 345; Rathbone v. Wirth, 150 N. Y. 459, 34 L. R. A. 408, 45 N. E. 15; People ex rel. Balcom v. Mosher, 163 N. Y. 32, 79 Am. St. Rep. 552, 57 N. E. 88; People ex rel. Fowler v. Bull, 46 N. Y. 57, 7 Am. Rep. 302; People ex rel. Williamson v. McKinney, 52 N. Y. 374; People ex rel. Lord v. Crooks, 53 N. Y. 648; People ex rel. Le Roy v. Foley, 148 N. Y. 677, 43 N. E. 171; Re Brenner, 170 N. Y. 185, 63 N. E. 133. The function of assessing property-of perfecting a valuation of property as a basis of taxation--is to be exercised exclusively by local officers. People v. Raymond, 37 N. Y. 428. The effect of the special franchise tax act is to deprive the local assessor of the function of assessing taxable property. sively that the function of assessment has always been regarded as a purely local one, and it is impossible to suppose that the people intended to confer upon the legislature the power to interfere with this immemorial custom. Although the legislature may interfere with local administration of police powers, it has no such right as to the power to assess property for taxation. Cooley, Const. Lim. 6th ed. 704; Boston Beer Co. v. Massachusetts, 97 U. S. 25, 33, 24 L. ed. 989, 992; Thorpe v. Rutland & B. R. Co. 27 Vt. 140, 62 Am. Dec. 625; People ex rel. Wood v. Draper, 15 N. Y. 532; People v. Pinckney, 32 N. Y. 377; Metropolitan Bd. of Excise v. Barrie, 34 N. Y. 657; People ex rel. McMullen v. Shepard, 36 N. Y. 285. The contention that the so-called "special franchise" constitutes a new species of property, with the characteristic distinguishing features that it is partly intangible and not localized, does not warrant its assessment by a state official. Buffalo v. LeCouteulx, 15 N. Y. 451; Monroe County Sav. Bank v. Rochester, 37 N. Y. 365; Cooley, Const. Lim. 6th ed. p. 220. Messrs. Charles A. Collin, William F. Sheehan, John L. Wells, Thomas L. Hughes, Charles H. Werner, and Charles V. Nellany, for respondent Brooklyn City Railroad Company: Such franchise contracts as form part of the special franchises of these respondent corporations are business contracts, protected by the Federal Constitution from impairment by legislative alteration, amendment, or repeal, without consent of the corporations. Walla Walla v. Walla Walla Water Co. 172 U. S. 1, 43 L. ed. 341, 19 Sup. Ct. Rep. 77; Langdon v. New York, 93 N. Y. 129; People v. O'Brien, 111 N. Y. 1, 2 L. R. A. 255, 7 Am. St. Rep. 684, 18 N. E. 692; Murray v. Charleston, 96 U. S. 432, 24 L. ed. 760; Hartman v. Greenhow, 102 U. S. 672, 26 L. ed. 271. In the absence of provisions in the franchise contract itself, reserving the right of the state or municipality to alter, amend, or repeal the contract, neither the state nor the municipality can, without the consent of the grantee in the franchise contract, either by state or municipal legislation, or by state constitutional amendment, change its terms so as to avoid an express stipulation therein on the part of the municipality. Walla Walla v. Walla Walla Water Co. 172 U. S. 1, 43 L. ed. 341, 19 Sup. Ct. Rep. People ex rel. New York C. & H. R. R. Co. | 77; Vicksburg Waterworks Co. v. Vicksburg, v. Priest, 169 N. Y. 432, 62 N. E. 567; Peo- | 185 U. S. 65, 46 L. ed. 808, 22 Sup. Ct. Rep. ple v. Hastings, 29 Cal. 449. 585; Little Falls Electric & Water Co. v. The history of the assessment of taxable Little Falls, 102 Fed. 663; New Orleans Gaslight Co. v. Louisiana Light & H. P. &tion whether the statute under which the asMfg. Co. 115 U. S. 650, 29 L. ed. 516, 6 Sup. sessments were made violates that part of Ct. Rep. 252; New Orleans Waterworks Co. the Constitution which provides for home v. Rivers, 115 U. S. 674, 29 L. ed. 525, 6 rule in certain political divisions of the Sup. Ct. Rep. 273; St. Tammany Water-state. In order to answer this question, it works Co. v. New Orleans Waterworks Co. 120 U. S. 64, 30 L. ed. 563, 7 Sup. Ct. Rep. 405; American Waterworks & Guarantee Co. v. Home Water Co. 115 Fed. 171; City R. Co. v. Citizens' Street R. Co. 166 U. S. 557, 41 L. ed. 1114, 17 Sup. Ct. Rep. 653; Brooklyn Cent. R. Co. v. Brooklyn City R. Co. 32 Barb. 358. The taxation of the franchise contracts of public-service corporations where the right to impose such tax is not expressly or impliedly reserved in the franchise contracts would be an impairment of the obligation of the contracts, and would, therefore, be unauthorized and void. will be useful to inquire: (1) What does the Constitution prohibit? (2) What does the statute command? And (3) What have the courts held as to the validity of other statutes relating to similar subjects? The principle of home rule, or the right of self-government as to local affairs, existed before we had a constitution. Even prior to Magna Charta, some cities, boroughs, and towns had various customs and liberties which had been granted by the Crown, or had subsisted through long user, and among them was the right to elect certain local officers from their own citizens, and, with some restrictions, to manage their own pure New York v. Second Ave. R. Co. 32 N. Y.ly local affairs. These customs and liberties, 261, 34 Barb. 41; New York v. Third Ave. R. Co. 33 N. Y. 42; Stein v. Mobile, 49 Ala. 362, 20 Am. Rep. 283; Los Angeles v. Los Angeles City Water Co. 61 Cal. 65, 177 U. S. 558, 44 L. ed. 886, 20 Sup. Ct. Rep. 736; Sunset Teleph. & Teleg. Co. v. Medford, 115 Fed. 202; Gordon v. Appeal Tax Court, 3 How. 133, 11 L. ed. 529. Mr. William N. Dykman for Coney Island & Brooklyn Railroad Company. with other rights, had been So often Mr. David B. Hill, for respondents: The function of assessment for the pur-ly be inquired into by twelve knights of the poses of taxation is inherently a local func- same county, upon oath, who shall be elected tion, and adheres to the counties, cities, by good men of the same county," and after towns, and villages of the state with sub-inquisition made "they shall be altogether stantially the like effect as though there was an express provision therefor in the Constitution. People v. Raymond, 37 N. Y. 428; Re Brenner, 170 N. Y. 185, 63 N. E. 133; People ex rel. Bolton v. Albertson, 55 N. Y. 50; Rathbone v. Wirth, 150 N. Y. 459, 34 L. R. A. 408, 45 N. E. 15; People ex rel. Williamson v. McKinney, 52 N. Y. 374; People ex rel. Lord v. Crooks, 53 N. Y. 648; People ex rel. Le Roy v. Foley, 148 N. Y. 677, 43 N. E. 171; People ex rel. Lovett v. Randall, 151 N. Y. 497, 45 N. E. 841; People ex rel. Eldred v. Palmer, 154 N. Y. 133, 47 N. E. 1084. destroyed by them, never to be restored, provided this be notified to us before it is done." Chap. 48. After this marvelous statute, rights, which before had rested largely on custom, rested on law, with a guaranty against violation by the amazing covenant of King John that, if he refused redress for an "excess committed," his subjects should be released from their allegiance, and at liberty to make war upon him, "saving harmless our person and the persons of our Queen and children and when it hath been redressed they shall obey us as they have done before." Chap. 61. The rights thus secured after a long struggle and by great pressure, although at times Vann, J., delivered the opinion of the denied and violated by the ruling monarch, court: These appeals were argued together, and the questions of law presented are common to all the proceedings. The only questions peculiar to any case were questions of fact, which have been finally disposed of by the concurrent action of the courts below, as they united in adopting the facts as found by the referee. The main discussion at our bar, as well as in the four opinions written in the appellate division, related to the ques were never lost, but were brought over by the colonists the same as they brought the right to breathe, and they would have parted with the one as soon as the other. The libertics and customs of localities reappear on a novel and wider basis in the town meetings of New England and the various colonies, including the colony of New York. The right of the inhabitants of townships and manors to meet at stated times in public town meetings, elect town officers, and trans act town business, was well established The third Constitution, drafted in 1846, while we were a colony, and was recognized continued the principle and expanded the by different statutes enacted by the govern- right by the following provision: "All or, council, and general assembly (Van county officers, whose election or appointSchaack's Laws, chaps. 1201, 1224, 1419, ment is not provided for by this Constitu1448, 1454, 1459, 1460, 1499, 1536, 1562; tion, shall be elected by the electors of the Livingston & Smith's Laws, chaps. 43, 654. respective counties or appointed by the boards of supervisors, or other county authorities, as the legislature shall direct. All city, town, and village officers, whose election or appointment is not provided for by this Constitution, shall be elected by the electors of such cities, towns, and villages, or of some division thereof, or appointed by such authorities thereof, as the legislature shall designate for that purpose. All other officers, whose election or appointment is not provided for by this Constitution, and all officers whose offices may hereafter be created by law, shall be elected by the people, or appointed, as the legislature may direct." Article 10, § 2. The same provision was carried forward, ipsissimis verbis, into our present Constitution. Article 10, § 2. The business transacted at the town meeting related to highways, care of the poor, and matters of purely local concern. It was confined to the affairs of a small district, and was clearly separated from public matters of interest to the colony at large. The officers elected, generally by viva voce vote, were supervisors, assessors, collectors, constables, commissioners of highways, and overseers of the poor. The powers and duties of these officers were regulated by statute, but the right to select them resided in the people of the locality, and was stubbornly insisted upon as inviolable. Such was the state of affairs when the first Constitution was adopted. While that instrument organized the state, it granted no rights to the people, but was their own creation, expressing the restraints that they desired to place upon themselves by preserving certain principles and methods of government which they wished to remain unalterable. Thus the Constitution of 1777 recognized local self-government as already existing, and continued and protected it, so that it could not lawfully be departed from without changing the Constitution itself. It provided that "town clerks, supervisors, assessors, constables, and collectors and all other officers heretofore eligible by the people, shall always continue to be so eligible." § 29. Sheriffs, coroners, loan officers, county treasurers, clerks of supervisors, and justices of the peace were to be appointed. §§ 26, 29. Thus our earliest Constitution did not create the right to elect the administrative officers of towns, but continued it as it had existed during the history of the colony while it was under the dominion of the English Crown. The only local officers mentioned by name as "eligible by the people" were town officers, and in fact almost all officers of other local divisions were appointed by central authority. The second Constitution, framed in 1821, continued the right by the general clause, applicable to county, town, city, and village officers, that "all officers heretofore elected by the people shall continue to be elected; and all other officers, whose appointment is not provided for by this Constitution, and all officers whose offices may be hereafter created by law, shall be elected by the people, or appointed, as may by law be directed." Article 4, § 15. Sheriffs, coroners, and some other county officers were for the first time made elective. These and other commands of the different Constitutions, when read in the light of prior and cotemporaneous history, show that the object of the people in enacting them was to prevent centralization of power in the state, and to continue, preserve, and expand local self-government. This was effected through a judicious distribution of the power of selecting public officers, by assigning the choice of local officers to the people of the local divisions, and to the people generally those belonging to the state at large. The management of the local political business of localities, whether as large as a county or as small as a village, is intrusted to local officers selected by the communities where those officers act, and through which their jurisdiction extends. The principle of home rule is preserved by continuing the right of these divisions to select their local officers, with the general functions which have always belonged to the office. Unless the office, by whatever name it is known, is protected, as the court have uniformly held, the right to choose the officer would be lost, for, with his former functions gone, he would not be the officer contemplated by the Constitution, even if the name were retained. Unless the office or officer is mentioned eo nomine in the Constitution, the name may be changed, or the office abolished, provided the functions, if retained at all, remain in some officer chosen by the locality. Local functions, however, cannot be transferred to a state officer. The legislature has the power to regulate, increase, or diminish the duties of the local officer, but it has been steadfastly held that this power is subject to the limitation that no essential or exclusive function belonging to the office |