place, or public waters in connection with the special franchise" and taxed as a part thereof. Laws 1899, p. 1590, chap. 712, § 1, cl. 3. This includes nothing but what is in the street, directly or indirectly, and excludes power houses, depots, and all structures without the lines of the street. The taxes thus imposed are for general purposes, and are collected in the same way and used for the same objects as other taxes upon the general assessment roll.

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 exercised at all. While no arbitrary line is drawn to separate the powers of local and state officers, the integrity of the local office is protected, with its original and inherent functions unimpaired. It is interference, whether direct or indirect, with the vital, intrinsic, and inseparable functions of the office as thus defined and understood, that the Constitution prohibits. People ex rel. Wood v. Draper, 15 N. Y. 532; People v. Raymond, 37 N. Y. 428; People ex rel. Bolton v. Albertson, 55 N. Y. 50; Astor v. New York, 62 N. Y. 567; Re New York, 99 N. Y. 569, 2 N. E. 642; Gertum v. Kings County, 109 N. Y. 170, 16 N. E. 328; Koch v. New York, 152 N. Y. 72, 46 N. E. 170; People ex rel. Burby v. Howland, 155 N. Y. 270, 41 L. R. A. 838, 49 N. E. 775; People ex rel. Oneida County v. Oneida County, 170 N. Y. 105, 62 N. E. 1092; Re Brenner, 170 N. Y. 185, 63 N. E. 133; Re Allison, 172 N. Y. 421, 65 N. E. 263.

The statute in question authorizes the assessment or valuation, for the purpose of general taxation, of all special franchises by a state board of tax commissioners appointed by the governor. Laws 1899, chap. 712. The general franchise of a corporation is its right to live and do business by the exercise of the corporate powers granted by the state. The general franchise of a street railroad company, for instance, is the special privilege conferred by the state upon a certain number of persons, known as the corporators, to become a street railroad corporation, and to construct and operate a street railroad upon certain conditions. Such a franchise, however, gives the corporation no right to do anything in the public highways without special authority from the state, or some municipal officer or body acting under its authority. When a right of way over a public street is granted to such a corporation, with leave to construct and operate a street railroad thereon, the privilege is known as a special franchise, or the right to do something in the public highway, which, except for the grant, would be a trespass.

The statute, which is an amendment of the general tax law, declares, in substance, that the right, authority, or permission to construct, maintain, or operate some structure, intended for public use, "in, under, above, on or through streets, highways, or public places," such as railroads, gas pipes, water mains, poles and wires for electric, telephone, and telegraph lines, and the like, is a special franchise. For the purpose of taxation, such a franchise is made real estate, and is "deemed to include the value of the tangible property of a person, copartner

Prior to the passage of this act general franchises had been taxed for the benefit of the state, under a valuation made by a state officer, with the sanction of the courts. Laws 1896, chap. 908, §§ 182, 190; People ex rel. Wiebusch & H. Co. v. Roberts, 154 N. Y. 101, 47 N. E. 980. Special franchises, however, had never been lawfully assessed either by local or state authority, but were made taxable property by the act before us for the first time in the history of the state. People ex rel. Manhattan R. Co. v. Barker, 146 N. Y. 304, 40 N. E. 996; People ex rel. Brooklyn City R. Co. v. Neff, 19 App. Div. 590, 46 N. Y. Supp. 385, Affirmed, on opinion of Cullen, J., below, in 154 N. Y. 763, 49 N. E. 1102. The right to assess special franchises by central authority is challenged as a violation of the principle of home rule embodied in the Constitution, and especially the right to assess the tangible property annexed thereto and included therein by the act, because the latter is withdrawn from the jurisdiction of the local assessors by whom it had been theretofore assessed.

Every presumption is in favor of the constitutionality of an act of the legislature, and, if the Constitution and the act can be reasonably construed, so as to enable the latter to stand, it is the duty of the courts to give them that construction. Still it is none the less their duty to adjudge the statute void if it is in plain conflict with the real intent of the fundamental law, when considered in the light of history and in all its aspects. Sweet v. Syracuse, 129 N. Y. 316, 27 N. E. 1081, 29 N. E. 289; People ex rel. Sinkler v. Terry, 108 N. Y. 1, 14 N. E. 815. What was the situation that confronted the legislature when it passed this statute to raise money for the support of government? The governor had officially announced that "the farmers, the market gardeners, and the mechanics and tradesmen having small holdings are paying an improper and excessive portion of the general taxes." The legislature wished to distribute this burden in a just and equitable manner, to take part of the load from those who carried more than their share, and to relieve the farms from some of the effects of

erty situated in public highways, and used in connection with the special franchise, from all other forms of taxation. §§ 2, 42, 43, 44, 45, 46. The new kind of property was termed "real estate," just as it might have been termed "personal property," or "neutral property," without changing its nature, which was such as local assessors had never dealt with.

depreciation in value through competition | purposes, and exempted the tangible propwith the cheap and fertile lands of the west. It found property scattered all over the state worth nearly $200,000,000, which was not taxed at all, and had never been taxed. This property consisted wholly of special franchises or privileges given by the state mainly to corporations furnishing to the public transportation, water, light, and other necessities or conveniences of daily 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 the 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. The property, 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 comHow did the legislature deal with this sit-missioners, 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 making the valuation to the State Board of Tax Commissioners, composed of tax experts already in office, whose sole duty related to the subject of taxation, in all its phases, throughout the entire state. It made the tax commissioners assessors of this new kind of property known as special franchises; clothed them with power to compel the owners to furnish under oath, in addition to a general report containing many details, such information as they called for; authorized them to call upon the local assessors for all facts that they could furnish, and to summon aid from all available sources; required them to give notice to the owner affected, and an opportunity to be heard, and provided a remedy for review by the courts of every assessment as soon as it was filed. It commanded that all sums in the nature of a tax paid by the owner of a special franchise to a municipality for its exclusive use should be deducted from the tax imposed for local

could be seen, and was open to the judgment of ordinary men, or with written evidence of debts or contracts the value of which could be easily computed. It was their habit to measure, weigh, and count; to learn the market value from current sales; to pass upon physical and material property which they were accustomed to own, rent, or use, and with which they were familiar in their daily life. They saw it, knew it, and could judge as to its value. It was before their eyes, and they could act upon it directly, without resort to complicated computations. On the other hand, the valuation of special franchises had never been attempted before, but presented a new field of action, and called for the exercise of new and different functions. They could not be seen, handled, measured, weighed, or counted. They were specialties, and had no market value. There were no sales to guide, and no experience from ownership, rental, or use to rely upon. 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 local in a narrow sense, it is unconfined in its real nature, for it depends largely on the earning capacity of a going concern, frequently with several special franchises, but with no means of determining the amount earned by each. The value depends upon so many conditions, existing, frequently, in localities widely separated, and upon such a complication of facts and figures that the valuation cannot be safely intrusted to men of common knowledge and experience. What greater calamity in the shape of taxation could threaten the vast interests involved than to intrust this important subject to unskilled and incompetent men, some of them willing, it may be, not only to protect their own localities at the expense of others, but to oppress corporations and favor individuals? The burden could not be distributed equally, for each local board would have its own method and theory. Uniform action would be impossible, and conflict and confusion would result. A wider view, a different kind of judgment, a balancing of localities and figures, an adjustment and equalization of burdens, and an exercise of functions not local in nature were required to meet the situation. As we said in a recent case: "It is no disparagement of the capacity and intelligence of the average assessor to say that it would present to him a problem incapable of accurate solution, and a rule of action in the performance of his official duty impossible in practice." People ex rel. Delaware, L. & W. R. Co. v. Clapp, 152 N. Y. 490, 495, 39 L. R. A. 237, 46 N. E. 842, 844.

The legislature also brought in as an incidental part of the system some tangible property which had been previously assessed by local authority. No tangible property, however, was affected, except such as was situated in the public highways, and was so incidental to and dependent upon the special franchises, as to have no substantial value unless used in connection with them. The relation between the intangible right to run cars in the streets and the tangible property in the rails to run the cars on is so intimate as to be inseparable in any practicable system of estimating values. Of what value are poles, strung with wires, standing in the street, without a special franchise to use them to carry electricity or send the mysterious message? What are appliances worth, when made for a special purpose, if they cannot be used for that purpose? What are rails and ties worth, when so fastened to the land in a public highway as to be legally a part of it, without a special franchise to place and use them there as part of a'

when separated from their special franchises, have no value except as firewood or old iron. Their only substantial value is the right to use them in connection with the franchise, and hence they are incidental to the franchise. As part of the franchise, they are worth something, but, severed from it, nothing to speak of. Suppose a street railroad company should forfeit its special franchise by a violation of the grant, what would its rails and ties be worth? They would cease to exist as rails and ties, and would become simply so much old material, and even the title would vest in the owner of the fee. The expense of grading, placing them in position, and paving around them, which is a large part of the original cost, would cease to be an investment, and would be property no longer. They are worth virtually nothing except for railroad purposes, and a railroad cannot occupy a street without a special franchise. Separate them from the franchise by taking away the street privilege, and they are destroyed. Their only value as rails and ties, as distinguished from so much old wood and iron, is gone. Taking the broad and practical view of the subject, which the legislature had the right to take in creating the new system, they have no assessable value worthy of notice, except through the actual and constant use made of them as incidental to the special franchises. The value of either resides in the union of both, and can be practically ascertained only by treating them as a unit. Unless assessed together, both cannot be adequately assessed. A man of judgment, in valuing a wagon, and especially in estimating its earning capacity, does not pass upon the body, wheels, top, and tongue separately. We regard the tangible property as an inseparable part of the special franchises mentioned in the statute, constituting with them a new entity, which, as a going concern, can neither be assessed nor sold to advantage except as one thing, single and entire. People v. O'Brien, 111 N. Y. 1, 2 L. R. A. 255, 7 Am. St. Rep. 684, 18 N. E. 692; Gue v. Tide Water Canal Co. 24 How. 257, 16 L. ed. 635; Hammock v. Farmers' Loan & T. Co. 105 U. S. 77, 26 L. ed. 1111; Buncombe County v. Tommey, 115 U. S. 132, 29 L. ed. 308, 5 Sup. Ct. Rep. 626, 1186.

The function of assessing a special franchise does not, in its nature, belong to a county, city, town, or village, for it has never been exercised by officers of such localities, but to the state, by which it is now exercised for the first time. It is not exclusively local in character, and home rule applies only to functions peculiar to localities. 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 come 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 impaired. The combination of all into a single enterprise gives the highest, if not the only, value to each. What would a franchise in a town be worth with no right to enter a city or viliage? While the strength of the chain is in the links, the value of the links is in the chain. Hence a franchise is not essentially local in character, and may require action, observation, and estimate beyond the lines of a single tax district or the accustomed jurisdiction of local assessors. An examination of the books of the corporation may be necessary in making the valua tion, yet they may not be kept in the municipality of the assessor's residence. A highway may be local, but the title thereto is not; for, whether a fee or an easement, it is held in trust for the people at large, represented by the state, which has control of the streets and of the erections therein. People v. Kerr, 27 N. Y. 188. The franchise is the right to put something in the highway and use it there; and, if the right fails, the title to what was thus placed goes with the general title.

The special franchises of a railroad in operation from a city into suburban towns may be properly treated as an aggregation, with

local assessors, cannot, with propriety, be said to have been taken away from them.

The entire taxing power belongs to the legislature, and not a dollar can be raised for local or general purposes, to carry on self-government in localities or in the state, or to provide for the public safety, order, or health, except by its authority. This supreme power should be considered in connection with the home-rule provision of the Constitution, and neither should be so construed as to embarrass or cripple the other. Home rule, as understood and practised in the past, giving to localities the right to govern themselves, but not to hamper the government of the state, should be carefully protected from open attack or indirect invasion. Shadows, however, should give way to substance, and the right to create a new system of taxation, and bring in property of a new character hitherto untaxed, with some other property incidental thereto and worthless without it, cannot, as we think, be denied upon principle, and should not be withheld from the legislature, unless required by some controlling decision of the court.

While it is difficult to classify all the 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 ex 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 statuté com- 62 N. E. 1092. bined four counties into one police district, invested five police commissioners appointed by the governor, acting as a board with the mayors of two cities in the district, with all the powers previously belonging to certain local officers of said cities respectively. The new board was authorized to appoint and control all the policemen who were to act in any part of the district, regardless of residence or county lines. The validity of the act was upheld upon the ground that the commissioners thus appointed were not 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 dissenting opinion as a violation of the home rule provision of the Constitution.

Similar acts creating a new system by erecting a metropolitan fire district, a metropolitan health district, a metropolitan board of excise, and a capital police district, each embracing the territory of two or more municipal divisions of the state, were also sustained, although functions formerly belonging to local officers were transferred to state officials. People v. Pinckney, 32 N. Y. 377; Metropolitan Bd. of Health v. Heister, 37 N. Y. 661; Metropolitan Bd. of Excise v. Barrie, 34 N. Y. 657; People ex rel. McMullen v. Shepard, 36 N. Y. 285. An act, however, which established a police district consisting of a city, with a police force already organized, and "three small patches of sparsely settled territory, in all less than a square mile," was held unconstitutional, as an obvious attempt to evade the restrictions relating to home rule, because it was designed for the city only, and the outside fragments could have been brought into the city if it was deemed necessary to extend police protection to them. People ex rel. Bolton v. Albertson, 55 N. Y. 50. All these cases, except the last, involved the right to erect two or more

separate and independent municipalities into a new civil division, to authorize officials appointed by the state to perform the duties formerly discharged by local officers, and yet leaving the municipalities in full

existence and untouched in all other respects.

Acts authorizing state officials to construct public buildings, parks, and highways, the expense of which was to be paid locally, have been uniformly sustained, although the power to make such improvements had been previously vested in the local authorities, and it was urged that the transfer of the power was an encroachment upon local self government. People ex rel. McLean v.

To the next group may be assigned statutes which, directly or indirectly, authorized the appointment of local officers by state officials or the legislature, or extended the terms of local officers already elected, or limited the power of local authorities in the appointment of local officers. Such legisla tion has been condemned as in manifest violation of home rule. Warner v. People, 2 Denio, 272, 43 Am. Dec. 740; Devoy v. New York, 36 N. Y. 449; People v. Raymond, 37 N. Y. 428; People ex rel. Fowler

ex rel. Williamson v. McKinney, 52 N. Y. 374; People ex rel. Lord v. Crooks, 53 N. Y. 648; 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; Re Brenner, 170 N. Y. 185, 63 N. E. 133. In People v. Raymond, which is the chief reliance of the relators, there was an absolute overthrow of the local assessor, and the transfer of all his functions to a state officer, which, as the court held, deprived "the people of the city of a right secured to them by the Constitution."

The remaining cases decided in this court are not readily classified, but, as the validity of the statutes involved was not disturbed, no analysis thereof is necessary. People ex rel. Einsfeld v. Murray, 149 N. Y. 367, 32 L. R. A. 344, 44 N. E. 146; Re Allison, 172 N. Y. 421, 65 N. E. 263; People ex rel. Taylor v. Dunlap, 66 N. Y. 162; Re New York, 99 N. Y. 569, 2 N. E. 642; Re McPherson, 104 N. Y. 306, 58 Am. Rep. 502, 10 N. E. 685; Gertum v. Kings County, 109 N. Y. 170, 16 N. E. 328; People ex rel. Kemmler v. Durston, 119 N. Y. 569, 7 L. R. A. 715, 16 Am. St. Rep. 859, 24 N. E. 6; Koch v. New York, 152 N. Y. 72, 46 N. E.

170.

When new systems have been created for the management of the indigent insane, the infliction of the death penalty, or the punishment of convicts, formerly confined by sheriffs in county jails, by imprisonment in penitentiaries, no question seems to have been raised, or claim made, that such legislation interfered with the principle of home rule. The absence of adjudicated cases relating to these and other subjects which might be mentioned is not without significance. It is also significant that the revisers of our present Constitution, acting but a few years ago, made no change in the home-rule provision, as it indicates that they were satisfied with the subject as it