I concur in the opinion of Judge VANN in so far as he holds that steam railroad companies can be assessed a special franchise tax for crossing public highways, but I dissent from so much of his opinion as limits the assessing of such franchise tax to highways that existed at the time the railroad was constructed.
In this case the opinion proposes to relieve the company from taxation as to thirty-two highway crossings, upon the theory that the railroad being an old road, built many years ago, it cannot be assessed for the new streets and highways that have been constructed across its right of way since the construction of the road. Such a construction of the statute operates most unjustly to railroads that have been constructed into the city of Buffalo in recent years over these identical thirty-two streets, and makes the act discriminate in favor of the old roads *Page 181 and against the new. This I think was never intended by the legislature. I, therefore, favor an affirmance of the determination of the courts below.
CULLEN, Ch. J., GRAY, WERNER, HISCOCK and COLLIN, JJ., concur with VANN, J; HAIGHT, J., reads dissenting memorandum.
Ordered accordingly.