People ex rel. Metropolitan Street Railway Co. v. State Board of Tax Commissioners

Kellogg, J. (concurring):

The question of the constitutionality of the so-called special franchise ” amendment of the General Tax Law is approached with no little hesitancy, owing to its importance, also to the fact, that it has been discussed and determined by an able jurist, the learned referee appointed herein, and the further fact that the • question is avowedly on its way to the Court of Appeals where alone the question can be finally answered. Counsel on both sides have very ably and with evident conviction argued this question before us and insist upon the deliberate judgment of this court unbiased by what has gone before or what may come after, and we are, therefore, called upon to .express our independent convictions and briefly state the grounds upon which they are based.

The learned referee has held that assessing property for the purpose of taxation under the General Tax Law of the State is a local function and can be exercised only by local assessors elected by the electors of the locality or appointed by the local authorities. He says: The assessment of property for the purpose of taxation has always in this State been a function of local officers elected or appointed in the locality where they discharged their duties, and this system of assessment is entrenched in the Constitution to secure to the people the home rule to which they had always been accustomed and of which the people of our race have always been tenacious.”

This must mean that the Legislature has not the power to take from the local assessors this function and settle it upon an individual or body appointed by the Legislature. It is not a function which the Legislature has power to change from a local to a State function. This conclusion of the learned referee is supported by the Court of Appeals in People v. Raymond (37 N. Y. 428) and by every case in that court in which' the question of assessment of property for purposes of general taxation has directly or indirectly arisen. The organization tax and franchise tax levied by the Comptroller upon corporations are held not to be taxes¡, but charges by the State upon the right to do business in a corporate capacity, a privilege the State may give or tako away. So with the inheritr anee tax; it is held not to be a tax upon property, but a charge upon the succession, also a right the State may give or take away. *195(Matter of Estate of Swift, 137 N. Y. 77.) It has never been claimed that valuations made by the Comptroller or by his appointees, or by any appointee of the State in such cases, for the purpose of fixing the sum to be charged for the enjoyment of these State privileges, was a local function.' The State has seen fit to base its claim against certain corporations upon a valuation of- capital employed in the State. It might have demanded a share of its earnings instead, and it might, without valuation, have taken a share in kind of the property of a deceased person as the price of transmission of the remainder to the heir, devisee or legatee. I do not, therefore, see how such incidental valuations for special purposes have any bearing upon’ the question before us.

Speaking generally of the home rule which the Constitution essays to protect, the courts in many instances have undertaken to define, distinguish and point out what is not a local function as contemplated by the Constitution ; but as to the matter of assessment of property for general taxation they have uniformly held that to be a local function. The class of cases in which the courts have held the function to be exercised not to be exclusively local are such as relate to the exercise of police powers, and instances of these are People v. Draper (15 N. Y. 532); People v. Pinckney (32 id., 377); Metropolitan Board of Health v. Heister (37 id. 661); Metropolitan Board of Excise v. Barrie (34 id. 657); Astor v. Mayor (62 id. 567); People ex rel. Kilmer v. McDonald (69 id. 362); People ex rel. Kilmer v. Cheritree (6 T. & C. 473); Hanlon v. Supervisors of Westchester (57 Barb. 383); City of Syracuse v. Hubbard (64 App. Div. 587); People ex rel. Commissioners, etc., v. Supervisors Oneida (170 N. Y. 105).

In these cases the court in every instance professed to see that the principle of home rule contemplated by the Constitution was not involved for the reason that the function sought to be exercised was not local in such a sense as to deprive the State of its unlimited exercise. In some cases it is true that the prevailing opinion of the court conveys the impression that local self-government as a principle, so far as recognized by the Constitution, is a sort of nebula with limitations as uncertain, unstable and elusive as the tail of a comet (Matter of Allison, v. Welde, 172 N. Y. 421), but all, nevertheless, declare that the Constitution does recognize the principle and protects it against legislative encroachment.

*196It will be of little worth to here state the process of court reasoning by which conclusions were in those cases arrived at. Wé are only concerned with the uniform finding of the court in each case that the function sought to be exercised by the State was not a local function and that the home rule principle embedded in the Constitution was in no manner or degree invaded. None of these cases excuses the conclusion arrived at on the ground that the invasion of the field protected by the Constitution was slight or not substantial. None of them claims that there is a difference between a small invasion and a great one in determining whether an act of the Legislature is constitutional or otherwise. If the theory of substantial; invasion” is the proper theory in determining whether or not there¡ has been an unlawful violation of the Constitution, the courts might1 well have held in the Brenner case (Matter of Brenner, 170 N. Y. 185) that the act considered was constitutional because there was left to home rule the power of appointment and election of so many other officers that the taking away of a single office was not a substantial infringement.

It seems to me that the question of the constitutionality of the act: we are considering hinges wholly upon the question as to .whether! or not the assessment of property for general' taxation is an exclusively local function. If it is conceded to be, or is determined to be, an exclusively local function and, as said by the referee, is a “ system of assessment * * * entrenched in the Constitution to secure to* the People the home rule to which they had always been accustomed and of which the people of our race have always been tenacious,” then it must be the duty of the courts, until the People shall! change the organic law, to see that these secured rights are not¡ unlawfully invaded. It matters not, it seems to- me, how little or how great may be the invasion proposed. Every little violation of the Constitution is as inexcusable as is a larger violation. Considerations of convenience or better service have no place in the discus-! sion or in the determination of this question, If we were authorized to hew away the Constitution every time it binds and so make it run in accord with the legislative idea of public needs we might then take into account the good and the bad which might result from the change.

The learned referee has found that the tangible property hereto*197fore assessed by local assessors throughout the State amounts to $76,585,225. The assessment of this is, by the legislative amendment to the General Tax Law, taken from the local assessors and the function transferred to a State board. No one can deny that this is a palpable violation of the Constitution, at least in some degree. It may not be a very large invasion, but it is a material invasion, for I assume that every invasion, if plainly an encroachment, however small it may be, is material to those who give heed to a constitutional inhibition. The excuse for transferring this power to assess the tangible property on, under and over the public streets and places is based upon the claim that this property is inseverable from the franchise, the intangible property. That it is not inseverable for the purpose of valuation is plain. That is manifest from the findings of the referee^ who has ascertained from the testimony of the State Board of Tax Commissioners the value of the tangible and intangible separately. It is also plain from tb e approved method of assessment adopted by the State board, viz., appraising first the whole property of the corporation and deducting therefrom the value of all tangible property of every name and kind owned by the corporation, estimated on the cost of reproduction, and taking the result as the net valuation of the intangible or franchise. It is not inseverable either for the purpose of enforcing payment of the tax. The franchise may be sold without the tangible property on, under or over the streets. Its value without the tangible would be the value of both, less the cost of reproduction of the tangible, so the State Board of Tax Commissioners have determined, and both are separately valuable. The tracks of a street railway are no more essential to a profitable use of the franchise than are the power houses which furnish the power and which are not assessed with the intangible property ; both the tracks and the power houses, as well as the rolling stock, may be replaced. The case cited (People v. O’Brien, 111 N. Y. 47) to show that the franchises would be of no value without tangible property to operate them, and so they are inseparable,” was based upon Gue v. Tide Water Canal Co. (24 How. [U. S.] 257). That was a case where the sale of a canal by piecemeal was sought to be enjoined in equity. A levy had been made on the locks of the canal, the tollhouse and land surrounding the outlet locks, all essential to the uses of the canal. The court held that to sell a *198canal lock would destroy all value in the canal itself, and would be of no value to the purchaser, hence the sale was enjoined. It is obvious that a canal so far differs from a street railway as to make the case cited wholly inapplicable. The tracks of a railway may be removed, but the lock of the canal could not be. There could be no replacement of the property sought to be sold appertaining to the canal, hence a sale would destroy the franchise. This cannot be the case as to any of the property contemplated to be assessed by the amendment of the Tax Law under the name of special franchise.

The assessment by a State board of the franchises themselves — the intangible property of a corporation as defined by the amended act —presents perhaps another question. This property is not new property coming to the locality, but has always existed there, though it has never been locally assessed. To assess this property judiciously or by the method adopted by the State board the local assessors in most cases would need to go beyond their precincts. The property can hardly be said to be localized. For instance, a. street surface railway, a telegraph, telephone or pipe line, which runs through several incorporated villages and on the highways of intervening towns, must possess a franchise from each municipality. The value of these franchises separately considered might be very little, but the value combined might be very great. The right to run cars on the highways of a town could only be valuable as connected with the right to run through the other municipalities. These franchises, therefore, are only links in a chain. The chain may have great value, but the links have no value except for their being component parts of the chain itself. It is obvious that to give a proper value to any link the value of the entire chain must be first ascertained, and then an approximate apportionment would not be difficult. But the value of the chain largely depends upon the earning capacity for the time being of the entire property of the corporation used to do the business which the franchises permit to be done, and the value of the chain of franchises, ascertained in the mode adopted by the board of assessors — and no better mode has been suggested — requires a valuation of the entire corporate assets and a separate valuation of all the tangible property in each municipality and elsewhere situated, and then by a process of elimination the value of all the franchises together may be determined. It is possible that-*199this might be done by local assessors, but in doing it they would be exercising something more than the usual local function of their offices. The appraisement by local assessors 'of property in another municipality would, if permissible, be a function never before exercised. They could not be protected in so doing by any principle of home rule. And if this is what would he required of them I do not see how their local functions could be disturbed or diminished by the appointment of a State board to make this assessment. The property to be assessed is not in its nature localized in any one taxing precinct. It is not property over which the local assessor has ever exercised jurisdiction. In some cities and in some other municipalities it may be that the entire corporate property, including its franchises, is located within the municipal limits, hut such cases make the exceptions rather than the rule.

I advise a reversal, and that the assessment be set aside, on the ground that the amendment to the General Tax Law creating a State Board of Tax Commissioners and giving them power to assess the tangible property on, under and over streets and public places is an invasion of the functions of local assessors, and, in this respect, is a violation of the Constitution.