This appeal involves the question as to whether certain property of the city of Rochester, lying in the town of Henrietta, outside the said city, is assessable in the town of Henrietta. The city in 1900 owned eleven and sixteen óne-hundredths miles of pipe line lying in the town, outside of the city. This property was acquired and constructed for the purpose of supplying the city with water, under the *494authority of the several acts of the Legislature referred to in the petition for the writ, and has ever since been used for that purpose. The property was assessed in the town, viz:: five and fiftyreight one-hundredths miles new pipe line at $11,800 per mile, $65,850 ; five and fifty-eight one-hundredths miles old pipe line at $3,200 per mile, $17,850; and the return showed that this assessment was of the real estate of the city lying in.the town and did not include the value of any franchise, right, authority or permission to the city to construct or maintain waterworks, mains and pipe lines for the purpose of supplying the city with water. The respondents claimed this property was assessable in the town under the General Tax Law, while the appellant claimed that the property was tangible property included in and constituting a part of a special franchise of the city and was not subject to taxation in the town under the General Tax Law as amended in 1899. The Special Term held the property was assessable and that the assessment was valid, and made the order appealed from, quashing the writ upon the merits.
The General Tax Law of the State was passed in 1896 as chapter 908 of the laws of that year. By article 9 of that law, taxes upon corporations were provided for, and among them those known as franchise taxes, but the special .franchise tax which we are considering here was added by chapter 712, Laws of 1899. Sections 3 and 4 of article. 1 of the original act were left unchanged by the amendatory act, and it was under these sections that the respondents claimed the right to assess the property in question. So far as material here, these sections read as follows :
“ § 3. Property liable to taxation.— All real property within this state, * * * is taxable unless exempt from taxation by law.
“ § 4. Exemption from taxation.— The following property shall be exempt from taxation ; * * *
“3. Property of a municipal corporation of the state held for a public use, except the portion of such property not within the corporation.”
The property in question was real and not personal, nnd'er the definition given in section 2 of the law, both before and after the amendments of 1899. There can be no doubt that the property in question was assessable in the town, under these sections 3 and 4, *495before the amendatory act was passed (City of Rochester v. Coe, 25 App. Div. 300; affd., 157 N. Y. 678; People ex rel. City of Amsterdam v. Hess, 157 id. 42), and the question is whether the amendments of 1899 so far affected or modified these sections as to deprive the town of the right to assess such property,'which it theretofore had. The amendatory act inserted in subdivision 3, section 2, article 1 of the original act, which defined the terms “ land,” “ real estate ” and “ real property,” two clauses, each of which commenced with the words, “ including the value of all franchises.” The 1st clause related to railroads and is not important here. The 2d clause made that part of the section as amended read as follows: “ All mains, pipes * * * laid or placed in, upon, above or under any public or private street or place for conducting * * * water * * * incl/udmg the value of all franchises, rights, authority or permission to construct, maintain or operate, in, under, above, upon or through any * * * public places, any mains, pipes, * * for conducting water * * At the end of the subdivision the following was added: “ A franchise, right, authority or permission specified in this subdivision shall for the purpose of taxation be known as a ‘ special franchise.’ A special franchise shall be deemed to include the value of the tangible property of a person, copartnership, association or corporation situated in, upon, under or above any street, highway, public place or public waters in connection with the special franchise. The tangible property so included shall be taxed as a part of the special franchise. Ho property of a municipal corporation shall be subject to a special franchise tax.”
The amendatory act made changes in other parts ■ of the original act necessary to provide for the assessment of the special franchise tax, and among other things added á section 47, as follows:
“ § 47. Special franchise tax not to affect other tax.— The imposition or payment of a special franchise tax as provided in this chapter shall not relieve any association, copartnership or corporation from the payment of any organization tax or franchise tax or any other tax otherwise imposed by article nine of this chapter, or by any other provision of law; but tangible property subject to a special franchise tax situated in, upon, under or above any street, highway, public place or public waters, as described in subdivision *496three of section two, shall not be taxable except upon the assessment made 'as herein provided by the state board of tax commissioners.” It will be observed that under subdivision 3 of section 2, article 1, as amended in 1899, a franchise therein specified was made real estate, and for the purposes of taxation was to be known as a special franchise, but inasmuch as this term was to be applied to such franchise for the purposes of taxation only, and inasmuch as the property of á municipal corporation, by the express terms of the amendment, was not subject to a special franchise tax, it cannot be said that its franchise specified in the amendment was a special franchise at all. The provision in the amendment, therefore, that “ A special franchise shall be deemed to include the value of the tangible property,” etc., and that “ the tangible property so included shall be taxed as a part of the special franchise,”- had no application' to the franchise of a municipal corporation. This construction is confirmed by the provision of section 47, added by the amendatory act, that “The imposition Or payment of a special franchise tax * * * shall not relieve * * * from the payment of any * * * franchise tax * * * imposed by article nine * * * but tangible property subject to a special franchise tax * * * as described in subdivision three of section two shall not be taxable except upon the assessment made as herein provided by the state board of tax commissioners.”
In other words, the provisions relating to tangible property of a corporation, and making such property a part of a special franchise, have no application to the tangible property of a municipal corporation, because the term “ special franchise ” was created solely for the purpose of taxation, and the property of a municipal corporation was expressly exempted from such taxation. .
* The purpose of the amendatory act was to provide for an increase of the area of taxation so as to include property not theretofore subject to taxation. Ho purpose is apparent to relieve and exempt from taxation property theretofore taxable. And as to tangible property the provision was that when taxable as a part of a special franchise, it should only be taxed upon the assessment made for the purpose of a special franchise tax. When not assessable as a part of a special franchise, it was to be. assessed as it had been before the amendatory act was passed. There having been in the amendatory act *497no reference to sections 3 and 4 of the orginal law, no express modification or repeal thereof, and the amendatory act not being inconsistent with those sections of the original law, the amendatory act cannot he held to have modified or repealed these sections by implication. (Davis v. Supreme Lodge, Knights of Honor, 165 N. Y. 159, 166, where the rules applicable to repeal of statutes by implication are clearly stated.)
Prior to the enactment of the General Tax Law of 1896 the property of a municipal corporation, situate beyond the limits of the corporation, and held for a public use, was exempt from taxation in the towns where it was located, but by sections 3 and 4 of the General Tax Law such property was, by the Legislature, expressly subjected to taxation in such towns. (City of Rochester v. Coe, supra; People ex rel. City of Amsterdam v. Hess, supra.) The Court of Appeals, in the Hess case, said this was in accordance with natural justice as between the taxpayers of the towns and the municipality receiving the benefits from the property. We see no reason why we should struggle to hold this property again exempted from taxation by a law which does not make the intention of the Legislature clear to provide for such exemption.
Very likely the franchise, right, authority or permission to the city • to construct or maintain waterworks, mains and pipe lines, which was by the amendatory act real estate, was not assessable or taxable in the town. It- could not be said to be, in the language of section 4, subdivision 3, of the Tax Law, “ not within the corporation.” It was a franchise, though not a special franchise, but was within the corporation, and, therefore, not the subject of taxation in the town. The return shows this franchise was not assessed, but that the assessment was only of the tangible property lying in the town. While the act makes the pipe line and the franchise both species of real property, we can see no objection to separating them and assessing the pipe line and leaving the franchise unassessed.
Our conclusion is that the order appealed from should be affirmed, with costs.
All concurred.
Order affirmed, with costs.