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can be transferred to an officer appointed by ship, or corporation situated in, upon, uncentral authority. The office may go, but der, or above any street, highway, public the function must be exercised locally if ex- place, or public waters in connection with ercised at all. While no arbitrary line is the special franchise” and taxed as a part drawn to separate the powers of local and thereof. Laws 1899, p. 1590, chap. 712, § 1, state officers, the integrity of the local of-cl. 3. This includes nothing but what is in fice is protected, with its original and inher- the street, directly or indirectly, and exent functions unimpaired. It is interference, cludes power houses, depots, and all strucwhether direct or indirect, with the vital, tures without the lines of the street. The intrinsic, and inseparable functions of the taxes thus imposed are for general purposes, office as thus defined and understood, that and are collected in the same way and used the Constitution prohibits. People ex rel. for the same objects as other taxes upon the Wood v. Draper, 15 N. Y. 532; People v. general assessment roll. Raymond, 37 N. Y. 428; People ex rel. Bol- Prior to the passage of this act general ton v. Albertson, 55 N. Y. 50; Astor v. New franchises had been taxed for the benefit of York, 62 N. Y. 567; Re New York, 99 N. Y. the state, under a valuation made by a state 569, 2 N. E. 642; Gertum v. Kings County, officer, with the sanction of the courts. Laws 109 N. Y. 170, 16 N. E. 328; Koch v. New 1896, chap. 908, $$ 182, 190; People ex rel. York, 152 N. Y. 72, 46 N. E. 170; People ex Wiebusch & H. Co. v. Roberts, 154 N. Y. rel. Burby v. Howland, 155 N. Y. 270, 41 L. 101, 47 N. E. 980. Special franchises, howR. A. 838, 49 N. E. 775; People ex rel. ever, had never been lawfully assessed either Oneida County v. Oneida County, 170 N. Y. by local or state authority, but were made 105, 62 N. E. 1092; Re Brenner, 170 N. Y. taxable property by the act before us for 185, 63 N. E. 133; Re Allison, 172 N. Y. the first time in the history of the state. 421, 65 N. E. 263.
People ex rel. Manhattan R. Co. v. Barker, The statute in question authorizes the as. 146 N. Y. 304, 40 N. E. 996; People ex rel. sessment or valuation, for the purpose of Brooklyn City R. Co. v. Neff, 19 App. Div. general taxation, of all special franchises by 590, 46 N. Y. Supp. 385, Affirmed, on opina state board of tax commissioners appointed ion of Cullen, J., below, in 154 N. Y. 763, 49 by the governor. Laws 1899, chap. 712. N. E. 1102. The right to assess special The general franchise of a corporation is its franchises by central authority is challenged right to live and do business by the exercise as a violation of the principle of home rule of the corporate powers granted by the state. embodied in the Constitution, and especially The general franchise of a street railroad the right to assess the tangible property ancompany, for instance, is the special priv. nexed thereto and included therein by the ilege conferred by the state upon a certain act, because the latter is withdrawn from the number of persons, known as the corpo- jurisdiction of the local assessors by whom rators, to become a street railroad corpora- it had been theretofore assessed. tion, and to construct and operate a street Every presumption is in favor of the conrailroad upon certain conditions. Such a stitutionality of an act of the legislature, franchise, however, gives the corporation no and, if the Constitution and the act can be right to do anything in the public highways reasonably construed, so as to enable the latwithout special authority from the state, or ter to stand, it is the duty of the courts to some municipal officer or body acting under give them that construction. Still it is its authority. When a right of way over a none the less their duty to adjudge the statpublic street is granted to such a corpora ute void if it is in plain conflict with the tion, with leave to construct and operate a real intent of the fundamental law, when street railroad thereon, the privilege is considered in the light of history and in all known as a special franchise, or the right to its aspects. Sweet v. Syracuse, 129 N. Y. do something in the public highway, which, 316, 27 N. E. 1081, 29 N. E. 289; People es except for the grant, would be a trespass. rel. Sinkler v. Terry, 108 N. Y. 1, 14 N. E.
The statute, which is an amendment of 815. What was the situation that conthe general tax law, declares, in substance, fronted the legislature when it passed this that the right, authority, or permission to statute to raise money for the support of construct, maintain, or operate some struc- government? The governor had officially an. ture, intended for public use, "in, under, nounced that “the farmers, the market garabove, on or through streets, highways, or deners, and the mechanics and tradesmen public places,” such as railroads, gas pipes, having small holdings are paying an imwater mains, poles and wires for electric, proper and excessive portion of the general telephone, and telegraph lines, and the like, taxes.” The legislature wished to distribis a special franchise. For the purpose of ute this burden in a just and equitable ma
mantaxation, such a franchise is made real es- ner, to take part of the load from those tate, and is “deemed to include the value of who carried more than their share, and to the tangible property of a person, copartner: relieve the farms from some of the effects of
depreciation in value through competition purposes, and exempted the tangible propwith the cheap and fertile lands of the west. erty situated in public highways, and used It found property scattered all over the in connection with the special franchise, state worth nearly $200,000,000, which was from all other forms of taxation. $$ 2, 42, not taxed at all, and had never been taxed. 43, 44, 45, 46. The new kind of property This property consisted wholly of special was termed "real estate," just as it might franchises or privileges given by the state have been termed “personal property," or mainly to corporations furnishing to the “neutral property,” without changing its public transportation, water, light, and nature, which was such as local assessors other necessities or conveniences of daily had never dealt with. life. It had grown rapidly in extent and The statute should be considered in the value during recent years. Its value rested light of the circumstances existing when it upon the right to use in some manner thc was passed, which were extraordinary and public highways of the state; but it was in- unprecedented. The system thus created tangible, and doubtless for this reason had had never been known before, and, as its never been brought under the taxing power. main subject, the act dealt with special The legislature also found certain tangible franchises, which had never been taxed beproperty, which was subject to taxation, sit- fore. Property unknown as the subject of uated in the public streets, and used only in taxation to the framers of any of our conconnection with and as a part of the intangi. stitutions was brought into the system, ble property not taxed, and of no substan- which required new methods of valuation tial value except when so used. It found and the exercise of functions which had that the valuation of this new kind of prop- never belonged to local assessors. erty, intangible, invisible, and elusive, but of erty was sui generis, and from its nature great value, would be attended with peculiar could not be valued by local officers. Unless difficulties, which would require a degree of it escaped taxation in the future as it had knowledge and skill not possessed by local in the past, it was necessary to commit the assessors, but belonging only to experts, who power to other officers with new functions, had long and carefully studied the subject wider experience, and greater opportunities of taxation in all its varied aspects. The for observation, who would be able to grasp problem was to place a just and adequate the new scheme of taxation as a whole. We value upon a right capable of valuation, but should not be misled by the terms “valuawhich was unseen, without form or sub- tion” or “assessment,” as the simple exerstance, and, as it were, the mere breath of cise of judgment, for no work can be done the legislature. It was a new problem that without that, but should compare the inhad never arisen before during the history trinsic nature of the functions exercised by of the state, and it was to be solved, not to the local assessors for time out of mind meet local needs, but an exigency of state. with those intrusted to the state tax com
How did the legislature deal with this sit-inissioners, which had never been committed uation? It created a new system of taxa- to any board or officer before. The local astion, brought within its range a new char- sessors dealt with tangible property, which acter of property, and assigned the duty of could be seen, and was open to the judgment making the valuation to the State Board of of ordinary men, or with written evidence Tax Commissioners, composed of tax experts of debts or contracts the value of which could already in office, whose sole duty related to be easily computed. It was their habit to the subject of taxation, in all its phases, measure, weigh, and count; to learn the throughout the entire state. It made the market value from current sales; to pass tax commissioners assessors of this new kind upon physical and material property which of property known as special franchises ; | they were accustomed to own, rent, or use, clothed them with power to compel the own- and with which they were familiar in their ers to furnish under oath, in addition to a daily life. They saw it, knew it, and could general report containing many details, such judge as to its value. It was before their information as they called for; authorized eyes, and they could act upon it directly, them to call upon the local assessors for all without resort to complicated computations. facts that they could furnish, and to sum On the other hand, the valuation of special mon aid from all available sources; required franchises had never been attempted before, them to give notice to the owner affected, but presented a new field of action, and and an opportunity to be heard, and pro- called for the exercise of new and different vided a remedy for review by the courts of functions. They could not be seen, handled, every assessment as soon as it was filed. It measured, weighed, or counted. They were commanded that all sums in the nature of a specialties, and had no market value. There tax paid by the owner of a special franchise were no sales to guide, and no experience to a municipality for its exclusive use should from ownership, rental, or use to rely upon. be deducted from the tax imposed for local 'The new property is real estate in name, but not in reality, for it is a mere privilege to railroad? All the mains and pipes, poles do something in public streets and places and wires, rails and ties, of the relators, not permitted to citizens generally. While when separated from their special franlocal in a narrow sense, it is unconfined in chises, have no value except as firewood or its real nature, for it depends largely on the old iron. Their only substantial value is earning capacity of a going concern, fre the right to use them in connection with quently with several special franchises, but the franchise, and hence they are incidental with no means of determining the amount to the franchise. As part of the franchise, earned by each. The value depends upon they are worth something, but, severed from so many conditions, existing, frequently, in it, nothing to speak of. Suppose a street localities widely separated, and upon such a railroad company should forfeit its special complication of facts and figures that the franchise by a violation of the grant, what valuation cannot be safely intrusted to men would its rails and ties be worth? They of common knowledge and experience. What would cease to exist as rails and ties, and greater calamity in the shape of taxation would become simply so much old material, could threaten the vast interests involved and even the title would vest in the owner than to intrust this important subject to of the fee. The expense of grading, placing unskilled and incompetent men, some of them in position, and paving around them, them willing, it may be, not only to protect which is a large part of the original cost, their own localities at the expense of others, would cease to be an investment, and would but to oppress corporations and favor indi-be property no longer. They are worth vir. viduals ? The burden could not be distrib-tually nothing except for railroad purposes, uted equally, for each local board would have and a railroad cannot occupy a street withits own method and theory. Uniform action out a special franchise. Separate them would be impossible, and conflict and con- from the franchise by taking away the street fusion would result. A wider view, a dif- privilege, and they are destroyed. Their ferent kind of judgment, a balancing of lo- only value as rails and ties, as distinguished calities and figures, an adjustment and from so much old wood and iron, is gone. equalization of burdens, and an exercise of Taking the broad and practical view of the functions not local in nature were required subject, which the legislature had the right to meet the situation. As we said in a re- to take in creating the new system, they cent case: "It is no disparagement of the have no assessable value worthy of notice, capacity and intelligence of the average as except through the actual and constant use sessor to say that it would present to him made of them as incidental to the special a problem incapable of accurate solution, franchises. The value of either resides in and a rule of action in the performance of the union of both, and can be practically ashis official duty impossible in practice.” certained only by treating them as a unit. People ex rel. Delaware, L. & W. R. Co. v. Unless assessed together, both cannot be adClapp, 152 N. Y. 490, 495, 39 L. R. A. 237, equately assessed. A man of judgment, in 46 N. E. 842, 844.
valuing a wagon, and especially in estimatThe legislature also brought in as an in- ing its earning capacity, does not pass upon cidental part of the system some tangible the body, wheels, top, and tongue separateproperty which had been previously assessed ly. We regard the tangible property as an by local authority. No tangible property, inseparable part of the special franchises however, was affected, except such as was mentioned in the statute, constituting with situated in the public highways, and was so them a new entity, which, as a going conincidental to and dependent upon the special cern, can neither be assessed nor sold to adfranchises, as to have no substantial value vantage except as one thing, single and enunless used in connection with them. The tire. People v. O'Brien, 111 N. Y. 1, 2 L. R. relation between the intangible right to run A. 255, 7 Am. St. Rep. 684, 18 N. E. 692; cars in the streets and the tangible property Gue v. Tide Water Canal Co. 24 How. 257, in the rails to run the cars on is so intimate 16 L. ed. 635; Hammock v. Farmers' Loan as to be inseparable in any practicable sys. & T. Co. 105 U. S. 77, 26 L. ed. 1111; Buntem of estimating values. Of what value combe County v. Tommey, 115 U. S. 132, 29 are poles, strung with wires, standing in the L. ed. 308, 5 Sup. Ct. Rep. 626, 1186. street, without a special franchise to use The function of assessing a special fran. them to carry electricity or send the mys-chise does not, in its nature, belong to a terious message? What appliances county, city, town, or village, for it has worth, when made for a special purpose, if never been exercised by officers of such lothey cannot be used for that purpose? What calities, but to the state, by which it is now are rails and ties worth, when so fastened to exercised for the first time. It is not excluthe land in a public highway as to be legal- sively local in character, and home rule aply a part of it, without a special franchise plies only to functions peculiar to localities. to place and use them there as part of a 'It was unknown to our forefathers, who
brought over primitive home rule, to the col-, out a precise situs, as one piece of property onists who preserved, or to the founders of producing a gross income, as a single subthe state who developed, it. It is no part of ject of valuation, like all the personal proplocal self-government as known to history, erty of an individual, from one end of the or to learned judges who have written upon line to the other, although the amount, when home rule in the past. It did not coine ascertained, must be apportioned and diswithin the experience of former times, and tributed among the several tax districts afwas not contemplated by the framers of our fected. $ 42. This can make no difference Constitutions. They kept purely local af- to the company, for it has only so much to fairs under local control; but this is not lo- pay in any event, and it shows that the work cal in intrinsic character, for the power to of valuation is not local, but general, in its be exercised is not confined to the limits of character; and that it is a matter of central, one community. While some special fran- rather than municipal, concern. It affects chises are within a single tax district, others the general public, rather than the people of extend through several, and sometimes into a community. The subject is one that local different, towns, cities, and villages. The officers cannot handle, because they cannot legislature could not make a law for each consider it as a whole by going without their case, and in bringing the new system into precincts, but must stop at the boundaries operation it provided by general rule for all of their several districts. They cannot cases of the same general character, whether make the distribution among localities inthen existing or expected in the future. terested in the special franchises. Local asMoreover, a special franchise, now confined sessors still remain local assessors, with · to one tax district, may, by expansion, every accustomed function intact and unimthrough merger, consolidation, leasing, and paired. Local self-government is untouched, the like, extend into other tax districts. and there is no invasion of local functions. Such an enlargement is open to all, has While special franchises were known when been the experience of many, and may be the later constitutions were adopted, they the experience of all. The same corporation were not then known as taxable property. may have many special franchises, continu- The office of assessor of special franchises ous or separate, yet they are all practically was then unknown. It is not local in naone, because they all belong to one system, ture, but is a new office, with new functions, the earning capacity of which may be ascer- adapted to property of a new kind, and diftained, but not that of each special fran- fering in principle from any ever dealt with chise independent of the others. By re- by local assessors. Property created by the moving a central franchise, the line is legislature, and never intrusted by it to the broken, and the value of all seriously im- local assessors, cannot, with propriety, be paired. The combination of all into a sin- said to have been taken away from them. gle enterprise gives the highest, if not the The entire taxing power belongs to the only, value to each. What would a fran- legislature, and not a dollar can be raised chise in a town be worth with no right to for local or general purposes, to carry on enter a city or viliage? While the strength self-government in localities or in the state, of the chain is in the links, the value of or to provide for the public safety, order, the links is in the chain. Hence a franchise or health, except by its authority. This suis not essentially local in character, and may preme power should be considered in conrequire action, observation, and estimate benection with the home-rule provision of the yond the lines of a single tax district or the Constitution, and neither should be so conaccustomed jurisdiction of local assessors. strued as to embarrass or cripple the other. An examination of the books of the corpora- Home rule, as understood and practised in tion may be necessary in making the valua- the past, giving to localities the right to tion, yet they may not be kept in the munici-govern themselves, but not to hamper the pality of the assessor's residence. A high government of the state, should be careway may be local, but the title thereto is fully protected from open attack or indinot; for, whether fee or an easement, it is rect invasion. Shadows, however, should held in trust for the people at large, repre- give way to substance, and the right to sented by the state, which has control of create a new system of taxation, and bring the streets and of the erections therein. in property of a new character hitherto unPeople v. Kerr, 27 N. Y. 188. The franchise taxed, with some other property incidental is the right to put something in the high- thereto and worthless without it, cannot, way and use it there; and, if the right fails, as we think, be denied upon principle, and the title to what was thus placed goes with should not be withheld from the legislature, the general title.
unless required by some controlling decision The special franchises of a railroad in op- of the court. eration from a city into suburban towns may While it is difficult to classify all the be properly treated as an aggregation, with authorities relating to the subject of home rule, the most of them fall into convenient Flagg, 46 N. Y. 401; Astor v. New York, 62 groups. At the head of the first class stands N. Y. 567; People ex rel. Kilmer v. McDonthe celebrated judgment of Chief Judge ald, 69 N. Y. 362; People es rel. Oneida Denio in People ex rel. Wood v. Draper, 15 County v. Oneida County, 170 N. Y. 105, N. Y. 532. In that case the statute com- 62 N. E. 1092. bined four counties into one police district, To the next group may be assigned statinvested five police commissioners appointed utes which, directly or indirectly, authorized by the governor, acting as a board with the the appointment of local officers by state mayors of two cities in the district, with all officials or the legislature, or extended the the powers previously belonging to certain terms of local officers already elected, or local officers of said cities respectively. The limited the power of local authorities in the new board was authorized to appoint and appointment of local officers. Such legislacontrol all the policemen who were to act tion has been condemned as in manifest in any part of the district, regardless of violation of home rule. Warner v. People, residence or county lines. The validity of 2 Denio, 272, 43 Am. Dec. 740; Devoy ®. the act was upheld upon the ground that New York, 36 N. Y. 449; People v. Raythe commissioners thus appointed were not mond, 37 N. Y. 428; People ex rel. Fouler city officers, although it was strongly chal- v. Bull, 46 N. Y. 57, 7 Am. Rep. 302; People lenged at the bar and by a vigorous dis- ex rel. Williamson v. McKinney, 52 N. Y. senting opinion as a violation of the home | 374; People ex rel. Lord v. Crooks, 53 N. Y. rule provision of the Constitution.
648; Rathbone v. Wirth, 150 N. Y. 459, 34 Similar acts creating a new system by L. R. A. 408, 45 N. E. 15; People ex rel. erecting a metropolitan fire district, a Balcom v. Mosher, 163 N. Y. 32, 79 Am. St. metropolitan health district, a metropolitan Rep. 552, 57 N. E. 88; Re Brenner, 170 N. board of excise, and a capital police dis- Y. 185, 63 N. E. 133. In People v. Raymond, trict, each embracing the territory of two which is the chief reliance of the relators, or more municipal divisions of the state, there was an absolute overthrow of the local were also sustained, although functions assessor, and the transfer of all his func. formerly belonging to local officers were tions to a state oflicer, which, as the court transferred to state officials. People held, deprived “the people of the city of a v. Pinckney, 32 N. Y. 377; Metropolitan right secured to them by the Constitution." Bd. of Health v. Heister, 37 N. Y. 661; The remaining cases decided in this Metropolitan Bd. of Excise v. Barrie, 34 N. court are not readily classified, but, as the Y. 657; People ex rel. McMullen v. Shepard, validity of the statutes involved was not 36 N. Y. 285. An act, however, which estab- disturbed, no analysis thereof is necessary. lished a police district consisting of a city, People ex rel. Einsfeld v. Murray, 149 N. with a police force already organized, and Y. 367, 32 L. R. A. 344, 44 N. E. 146; Re “three small patches of sparsely settled Allison, 172 N. Y. 421, 65 N. E. 263; People territory, in all less than a square mile,” ex rel. Taylor v. Dunlap, 66 N. Y. 162; Re was held unconstitutional, as an obvious at. New York, 99 N. Y. 569, 2 N. E. 642; Re tempt to evade the restrictions relating to McPherson, 104 N. Y. 306, 58 Am. Rep. 502, home rule, because it was designed for the 10 N. E. 685; Gertum v. Kings County, 109 city only, and the outside fragments could N. Y. 170, 16 N. E. 328; People ex rel. have been brought into the city if it was Kemmler v. Durston, 119 N. Y. 569, 7 L. R. deemed necessary to extend police protection A. 715, 16 Am. St. Rep. 859, 24 N. E. 6; to them. People ex rel. Bolton v. Albertson, Koch v. New York, 152 N. Y. 72, 46 N. E. 55 N. Y. 50. All these cases, except the
170. last, involved the right to erect two or more separate and independent municipalities the management of the indigent insane, the
When new systems have been created for into a new civil division, to authorize offi- infliction of the death penalty, or the puncials appointed by the state to perform the
ishment of convicts, formerly confined by duties formerly discharged by local officers, and yet leaving the municipalities in full sheriffs in county jails, by imprisonment in existence and untouched in all other re
penitentiaries, no question seems to have spects.
been raised, or claim made, that such legisActs authorizing state officials to con
lation interfered with the principle of home struct public buildings, parks, and highways, rule. The absence of adjudicated cases rethe expense of which was to be paid locally, lating to these and other subjects which have been uniformly sustained, although the might be mentioned is not without signifipower to make such improvements had been cance. It is also significant that the repreviously vested in the local authorities, visers of our present Constitution, acting and it was urged that the transfer of the but a few years ago, made no change in the power was an encroachment upon local self-home-rule provision, as it indicates that government. People ea rel. McLean v. 'they were satisfied with the subject as it