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and 114 New York State Reporter should receive such liberal construction as will protect the people in the rights intended to be reserved, and at the same time render possible the growth and prosperity of the state. The limitation which the majority of the court has here found is at the most an implied limitation, unwarranted, as I think, either by authority or by any reasonable conception of the intent of the framers of the constitution. I am impressed with the conviction that to hold this law invalid is to pervert the will of the people of the state, as written in their fundamental law.
CHESTER, J. (dissenting). The special franchise tax law, so called (chapter 712, Laws 1899), amended the tax law (chapter 908, Laws 1896) so that the terms “land,” “real estate,” and “real property," as used in the tax law, should include not only all surface, underground, or elevated railroads, but "the value of all franchises, rights or permission to construct, maintain or operate the same in, under, above, on or through, streets, highways, or public places;" and also the "value of all franchises, rights, authority or permission to construct, maintain or operate, in, under, above, upon, or through, any streets, highways, or public places, any mains, pipes, tanks, conduits, or wires, with their appurtenances, for conducting water, steam, heat, light, power, gas, oil, or other substance, or electricity, for telegraphic, telephonic or other purposes." The amendment further provided that "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.” It was also provided in the amendatory act that “the state board of tax commissioners shall annually fix and determine the valuation of each special franchise subject to assessment in each city, town, village or tax district." The amendment also required the board to return its valuation to the local authorities, to be included in the local assessment rolls, and required the local authorities to enter the valuation of the special franchises so fixed by the siate board in the proper place in the local assessment rolls. The act did not interfere with the office of assessors, or other local officers charged with the duty of making assessments. The only power taken from such local officers was the power to assess the tangible property in the streets, highways, or public places, which was defined by the law to be, and to be taxed as, a part of the special franchise.
The most important question in the case is whether the legislature had the power, under the constitution of the state, to take this function from the local assessors. That the legislature had the power to commit to the state board of tax commissioners the function of assessing the intangible property constituting a part of the special franchises is not, I think, open to serious question. Such intangible property was made taxable for the first time in this state by the amendment, and the legislature had the undoubted right to commit its valuation for the purposes of taxation to any agency it might choose, without the impairment of any functions of local officers, because no local officer ever had any power or authority over property of that character for the purposes of taxation.
As to whether or not the legislature could commit to the state board of tax commissioners the power to value the tangible property in the streets, highways, or public places forming a part of these special franchises is a more serious matter. My examination of this question has led me to a different conclusion from that reached by some of my associates, and I will, as briefly as I may, state the reasons for my conclusion:
The home rule provision of the state constitution, which is brought in question here, is found in section 2 of article 10, and is as follows:
"All county officers whose election or appointment is not provided for by this constitution, shall be elected by the electors of the respective counties or appointed by the boards of supervisors, or other county authorities, as the legislature shall direct. All city, town and village officers, whose election or appointment is not provided for by this constitution, shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof, as the legislature shall desigDate for that purpose. All other officers, whose election or appointment is not provided for by this constitution, and all officers, whose offices may hereafter be created by law, shall be elected by the people, or appointed, as the legislature may direct."
The office of assessor is not mentioned in this section, nor are the functions of any local officer defined therein. While this section expressly secures to the localities the selection of their local officers, it does not in express terms protect the functions of such officers from legislative or state interference. But the appellant's counsel insist, and, no doubt, rightly, that we may read into the constitution, by implication from the history of the state at or prior to the time of the adoption of the constitution, that the assessment of property for the purpose of taxation is a local function. So far I may agree with them, and find ample authority in the decisions of the courts for so doing. But when they insist that under the implied provisions of the constitution such assessment is exclusively a local function, in the sense that the state cannot interfere with it, or confer upon officers appointed by state authority the function of valuing tangible property in the streets constituting part of a special franchise, notwithstanding such property has heretofore been assessed by local assessors, I find myself unable to yield my assent. While an act of the legislature must stand the test as to whether its provisions are counter to the clearly implied as well as to the express provisions of the constitution, yet I cannot conceive it to be the duty of the court to aid in reading into the fundamental law matters of doubtful or uncertain implication, in order thereby to effect the condemnation of an otherwise valid act.
In considering this question, some elementary principles may first be alluded to. The legislative power is absolute and unlimited, except as restrained by the state or federal constitutions.
Bank v. Brown, 26 N. Y. 467; People v. Flagg, 46 N. Y. 401; Lawton v. Steele, 119 N. Y. 232, 23 N. E. 878, 7 L. R. A. 134, 16 Am. St. Rep. 813; Chicago, B. & Q. R. Co. v. Otoe Co., 16 Wall. 667, 21
and 114 New York State Reporter L. Ed. 375. The power to tax is inherent in government, and is a legislative power, limited only by constitutional provisions. Town of Guilford v. Board of Sup'rs of Chenango Co., 13 N. Y. 143; Clarke v. City of Rochester, 24 Barb. 446. The security for the abuse of this power is to be found in the responsibility of the members of the legislature to their constituents, and not in the courts. People v. Mayor, etc., of City of Brooklyn, 4 N. Y. 426, 55 Am. Dec. 266. Cities, counties, and towns are but the instrumentalities for the convenient administration of local government. Upon them, subject to constitutional limitations, the legislature may confer the power to tax to the extent necessary to good government; and the imposition of a tax by cities, counties, or towns for their support is as much an exercise of the taxing power of the state as a tax imposed directly by the state. 25 Am. & Eng. Enc. Law (1st Ed.) 80. The power to assess is but an incident of the power to tax. The function of assessing for the purpose of taxation is a governmental agency for the proper division of the burdens of taxation, and is but one of the elements in rendering the power of taxation effective.
In Town of Guilford v. Board of Sup'rs of Chenango Co., supra, it was said:
"Our state government is an independent existence, representing the sovereignty of the people. The power of the legislature is the power of that sovereignty, and is supreme in all respects, and unlimited in all matters pertaining to legitimate legislation, except in those instances where the people have, in their fundamental law, limited or restricted it. Taxation is indisputably a legislative power. The constitution of this state will be searched in vain for any clause which contains any restriction or limitation on the taxing power of the legislature."
If the legislature possesses such power with respect to taxation, I can see no reason why, with respect to a function which is but a part of the governmental machinery in carrying into effect the laws relating to taxation, the legislature may not lawfully provide, as has been done by the amendment in question, that the state board of tax commissioners may value the tangible property in the streets as a portion of the special franchises made taxable by the amendment. The state has a direct interest in local assessments, for upon these assessments state as well as local taxes are paid. It has an indirect interest in them, so far as they are made the basis of local taxation, because of its regard for the efficiency of local government, and for the well-being of all the municipalities which go to make up the state. At the time of the adoption of the earlier constitutions, when it is claimed that the princi- . ple of local assessments became a part of our governmental system, there was not a railroad track, a telegraph line, a gas main, or an electrical subway in existence. The right to assess and tax these various kinds of property in the streets has from time to time, and mostly in comparatively recent years, been conferred upon the local authorities by the legislature. If the legislature can increase the powers and functions of the assessors, as it has done repeatedly, why may it not take from these powers and functions, at least to the extent of that which it has given? If this tangible property in the streets had always been taxable, there would be more force in the contention that the local assessors had a constitutional right to value it for taxation; but
the right to assess it at all has been given since the adoption of the earlier constitutions, and this right is all that has been withdrawn by the act in question. The constitution has not stood in the way of the withdrawal by the state of various functions from many local officers other than assessors, and conferring such functions upon officers appointed by central or state authority. This principle has been sanctioned by the court of appeals in many cases. It was done as to police officers in People v. Draper, 15 N. Y. 532, and People v. Shepard, 36 N. Y. 285; as to firemen in People v. Pinckney, 32 N. Y. 377; as to commissioners of excise in Board v. Barrie, 34 N. Y. 657 ; as to health officers in Board v. Heister, 37 N. Y. 661; as to officers having supervision of street improvements in Astor v. Mayor, etc., 62 N. Y. 567; as to commissioners of highways in People v. McDonald, 69 N. Y. 362; and as to boards of supervisors in the erection of public buildings in People w Board of Sup'rs of Oneida Co., 170 N. Y. 105, 62 N. E. 1092. But it is said that the decisions in these cases and in others of analogous character, were justified in the exercise of the police power of the state, and not otherwise. The court, however, failed to put its decision in most of these cases on that ground, nor did it give that question any prominence in any of them. Other sufficient reasons were found for the conclusions reached.
While it is entirely correct to say that the state has a great interest in maintaining good order through an efficient police force, in the protection of property and lives by well-conducted fire departments, in promoting the public health, in the regulation of the liquor traffic, in the maintenance of good roads, and in other public improvements, yet none of these matters are of greater concern to the state than the power to exist, which depends upon the right in the legislature to levy taxes, and, as incidental thereto, to have some power concerning assessments for that purpose. The cases which are cited to support a contrary doctrine are cases where the legislature attempted to abolish local offices in the face of the express terms of the constitution, and confer the functions of such offices upon officers of state selection. The case of People v. Raymond, 37 N. Y. 428, is one of these cases. The appellant relies largely upon that case for its contention that the assessment of property for the purpose of taxation is exclusively a local function. That was an action to determine the title of the defendant to the office of commissioner of taxes and assessments of the city and county of New York, and the only question in the case was as to whether or not an act of the legislature under which the defendant was appointed to that office by the governor and senate violated the home rule provisions of the constitution; and it was held that it did, and that the legislature could not create a new office, and vest the appointment in a central or state authority, when the duties of the office were those of a former county or city officer, made elective by the constitution. While it was said in that case that "there is no question but that the office in question is exclusively a city office,” it was not there decided—nor could it have been, for the question was not before the court—that the function of assessing property for the purpose of taxation was exclusively a local function. The case is therefore not an authority for that proposition, nor do I know of any case that is. I think the question is an and 114 New York State Reporter open one, and must be decided in this case as a new proposition. That the Raymond Case is not conclusive on this question, it seems to me, is clearly indicated by the court of appeals in the later case of Astor v. Mayor, etc., supra, where it was held that a law that took from local officers, and conferred upon the commissioners of Central Park, who were officers appointed by the legislature, the exclusive care, management, and control, for the purpose of regulating, grading, and improving certain streets in the city of New York, was not unconstitutional, and where it was stated in the opinion of the court that:
"It would be carrying the doctrine of noninterference with local officers far beyond any reported case to hold that in no case whatever could any of the powers existing in a local officer at the time of the adoption of the constitution be taken away without violating the provision cited.”
The intangible property constituting a part of these special franchises is made taxable by the amendment in question for the first time. It is of very large value. It is so closely related to, and so inseparably connected with, the tangible property in the streets constituting a part of the special franchises, that it would be very difficult, if not impracticable, to value the intangible separate and distinct from the tangible property. People v. O'Brien, 111 N. Y. 1, 18 N. E. 692, 2 L. R. A. 255, 7 Am. St. Rep. 684. The state board has not so valued it in this case, and this court has held in an unreported case that a provision in a writ of certiorari requiring that board to state the values upon the tangible and intangible property separately was not justified under the law. Nor is it practicable for special franchises, in many instances, to be valued by local assessors, without extending their functions and jurisdiction beyond their tax districts, for the reason that such franchises frequently cover property extending into several tax districts, and the property in one district would have little value when disconnected from the property in the other districts, but would have great value when taken as a part of the whole. It is also a kind of property requiring expert knowledge on the part of those who are to value it, and knowledge which few local assessors possess. To hold that the legislature cannot commit to a state authority the duty of valuing for the purpose of taxation tangible property in the streets, to the extent permitted by the amendment in question, and under the circumstances existing here, requires, in my opinion, altogether too strict and illiberal a construction of the constitution. I think the legislature had the right not only to subject the large amount of intangible property existing as a part of these special franchises to the taxing power of the state, but also to provide, as it did, in view of the changed conditions, arising from the advancement and progress of our people, from those which formerly existed, for the assessment of this intangible and tangible property together by state officers, and that in so doing it has still left to the localities as large a measure of home rule as they enjayed in this respect when the local function of assessing property for taxation became a part of our system.
So far reference has been had to the validity of the amendment under the state constitution. With reference to its validity under the federal constitution, and to all the other questions discussed by the learned referee in the various opinions written by him, I agree with his