provisions a new species of property was added to the property theretofore taxable by law. This new species of property was the franchise, right, or permission granted by municipalities to use the public highways and public places within the state. This franchise, right, or permission was defined by the statute to include the tangible property of the person, copartnership, association, or corporation, the owner of the franchise itself, which was used upon the public way. It was provided that this tangible property should be taxed as part of the special franchise; that the special franchise, as thus defined, should be assessed by the state board of tax commissioners, and their assessment, as certified, should be entered by the assessors or other officers of the various localities in which said franchises existed in the proper column of the assessment roll. One of the grounds of the relator's challenge is that this act violates the home rule provisions of the state constitution, as found in section 2 of article 10 of the constitution of 1894. That provision of the constitution reads as follows:

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 designate for that purpose. All other officers, whose election or appointment is not provided for by this constitution, and all officers whose offices may be hereinafter created by law, shall be elected by the people, or appointed, as the legislature may direct."

The contention of the relator is that this constitutional provision is violated by giving to the state board of tax commissioners the assessment-First, of the franchise; and, second, of the tangible property in the street, which by the act is made a part of the special franchise subject to assessment by the state officers.

That the legislature might properly give to the state board the assessment of the franchise seems to me of undoubted right. The constitution provides that "all officers whose offices may be hereafter created by law, shall be elected by the people, or appointed, as the legislature may direct." This provision is a clear index of the constitutional purpose to protect the localities in the home rule which existed at the time of the adoption of the constitution, and to that extent only. All offices thereafter created are to be filled as the legislature may direct. By this act the legislature has, in effect, created a new office, a franchise tax assessor,-and, to the extent of the assessment of the franchise, with duties not existing at the time of the adoption of the constitution. These duties, too, are distinct from and independent of any then existing duties of local officers. An intangible franchise has never been the subject of assessment by local assessors. This is held by the referee below. See People v. Barker, 152 N. Y. 417, 46 N. E. 875; People v. Commissioners, 104 N. Y. 240, 10 N. E. 437. Most franchises are enjoyed in connection with franchises from adjoining municipalities which have a value in their union, the value of which separately, however, is uncertain and practically undeterminable, except by arbitrary apportionment. To assess these franchises, access must be had to the books of the corporation and to other data, which it would be difficult, if 80 N.Y.S.-7

and 114 New York State Reporter

not impracticable, to give to the assessors of every tax district in which the franchise existed. The duty, therefore, of assessing these intangible franchises, is, as I say, distinct from the duty of assessment of real and personal property. The fact that this franchise is by the statute termed "real estate," and that the local assessors were at the time empowered to assess all real and personal property within their tax district, does not affect the situation. Whether it be called "real estate," "personal property," or neither, is a mere matter of form. The intent of the legislature is plain to make taxable another species of property which had not theretofore been taxable, and to appoint state officers to assess the valuation of the same. But it is immaterial whether a new office has been created, or new functions have been added to an old office. In either case existing home rule is not invaded by the assignment of such functions to legislative appointees. There is preserved to the locality every function possessed by it at the time of the adoption of the constitution. People v. Pinckney, 32 N. Y. 382; City of Syracuse v. Hubbard, 64 App. Div. 589, 72 N. Y. Supp. 802. In my judgment, therefore, the right seems clear, both within the letter and within the spirit of the constitution, to give to the state board of assessors the power to assess the intangible franchise. See People v. Draper, 15 Ñ. Y. 532; Allison v. Welde, 172 N. Y. 421, 65 N. E. 263.

By this statute, however, the tangible property of the corporation within the street, used in connection with the intangible franchise, is made a part of the special franchise which the state officers are empowered to assess. The constitutionality of this provision presents a more serious question. This tangible property amounts to upwards of ninety millions of dollars within the state. It has heretofore since its creation been assessed by the local assessors. It was so assessed at the time of the adoption of the constitution. By this act this local function existing at the time of the adoption of the constitution has been taken away from the local officers and given to the state board. By what rule of construction can this be justified?

Chapter 564 of the Laws of 1865 conferred upon the commissioners of Central Park, appointed by the central power, the exclusive care, management, and control of portions of Sixth avenue and certain other streets in the city of New York, for the purpose of regulating, grading, and otherwise improving the same. In Astor v. Mayor, etc., 62 N. Y. 567, that act was questioned as violating the home rule provision of the constitution, by transferring to officers appointed by the central power functions theretofore always discharged by local officers elected or appointed in the locality. This act was held constitutional, and the rule, as stated in the headnote, is as follows:

"The constitutional provision does not prohibit the legislature from clothing officers appointed by it for the carrying out of a public improvement. with power to perform acts which have an especial relation to and connection with such improvement, simply because the power to perform such acts was at the time of the adoption of the constitution vested in local officers elected by the people."

In discussing that act, Justice Miller, writing for the court, says: "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."

In People v. Draper, 15 N. Y. 543, Denio, J., in writing of this provision of the constitution, says:

"If we were to establish the principle that the legislature can never reduce the administrative authority of counties, cities, and towns; can never resume in favor of the central power any portion of the jurisdiction of those local divisions, or change the partition of it among them, as it existed when the constitution was adopted,-we should, I think. make an impracticable government."

The intimate relation of the tangible property in the street to the intangible property to which it is an incident is seen at a glance. For many purposes they are legally inseparable. In People v. O'Brien, 111 N. Y. 47, 18 N. E. 702, 2 L. R. A. 255, 7 Am. St. Rep. 684, the court, in its opinion, says:

"In the former class it has been held that, at common law, real estate acquired for the use of a canal company could not be sold on execution against the corporation separate from its franchise, so as to destroy or impair the value of such franchise. Gue v. Canal Co., 24 How. 257, 16 L. Ed. €35. And by parity of reasoning it must follow that the tracks of a railroad company, and the franchise of maintaining and operating its road in a public street, are equally inseparable. in the absence of express legislative authority providing for the same."

In Syracuse Water Co. v. City of Syracuse, 116 N. Y. 182, 22 N. E. 385, 5 L. R. A. 546, the opinion reads:

"The corporate rights and the corporeal means of their exercise therefore constitute, as it were, a single body, consisting of property corporeal and incorporeal. Both the power and the means of exercising it are essentially united, and upon such union is dependent the enjoyment as well as the practical value of the franchise." Citing People v. O'Brien and Gue v. Canal Co.

In the case of Gue v. Canal Company, upon which both of these opinions rest, a creditor of a canal company had levied an execution. upon a house and lot, some locks in the canal, and some adjoining building lots, all the property of the canal company, and necessary for the conduct of its business. It was there held that, because a sale of the tangible property without the franchise would result in a sacrifice of the property, equity would enjoin the sale in behalf of creditors and stockholders of the corporation, and leave the creditor to an equitable action for a sale of the whole property, including the franchise, upon which the proceeds could be equitably distributed. This case, and the authorities based thereon, are distinguished by Justice KELLOGG in his opinion, in which he says:

"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 a 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 by the amendment of the tax law under the name of 'special franchise.'"

This distinction of Justice KELLOGG is clearly overborne by the authorities. The principle of the case of Gue v. Canal Co. has been applied by the courts with equal force to the tracks and equipment. of a railroad, which cannot be sold separately from the franchise itself.

and 114 New York State Reporter

See Hammock v. Trust Co., 105 U. S. 77, 26 L. Ed. IIII; Buncombe Co. v. Tommey, 115 U. S. 122, 5 Sup. Ct. 626, 29 L. Ed. 308; Kittel v. Railroad Co. (C. C.) 65 Fed. 861. In that case the opinion, in part, reads:

"It further appears that said sale covers all the construction plant, tools, and construction material belonging to said corporation. In such circumstances, a creditor cannot dissever from the franchise property essential to its useful existence."

In National Foundry & Pipe Works v. Oconto Water Co. (C. C.) 52 Fed. 43, where a specific lien was given to a materialman upon a plant and franchise of a water company, it was held that they "cannot be separated by judicial sale, because of their public use." The judge, in writing the opinion, says:

"The structure here is of the class of which canals, street railways, railroads, telegraph, telephone, electric light and gas plants are examples, and can only be dealt with as an entirety."

But it is urged that the tangible and intangible are not inseparable for the purpose of assessment. Possibly they are not absolutely inseparable. As shown by the evidence, the value of the intangible franchise must be determined by taking the value of the whole property, tangible and intangible, and deducting therefrom the value of the tangible. Thus the determination of the value of the tangible property is a prerequisite to the valuation of the intangible. Their values and use depend upon each other. Those values thus interdependent are given to the state board to determine. They are therefore reasonably connected for the purpose of assessment and taxation. And this is all that is necessary to authorize the legislature to attach the tangible to the intangible property for this purpose. In the Astor Case, above cited, the several avenues, jurisdiction of which was taken from the local assessors and given to the state officers, were outside of Central Park, and not within the jurisdiction of the park commissioners. These avenues might have been left to the local officers to improve. There was no absolute necessity that they be transferred to the park commissioners who were appointed by the central power. Nevertheless, by reason of their intimate relation and connection with the park and with the scheme of park improvement, the legislature was held authorized to take from the local officers functions which had theretofore been local functions, and transfer them to these state officers. If, as part of the park improvement, the legislature had thought best to give to the park commissioners the permanent control of the streets surrounding the park, I apprehend that the right to do so would be recognized by the courts as one reasonably connected with and incidental to the scheme of park improvement which the legislature was authorized to adopt and execute.

Nor do I find any authorities which conflict with the conclusion reached. The learned Presiding Justice deems this case controlled by the case of People against Raymond, in 37 N. Y. 428. That case simply holds that the legislature has no right to abolish the office of commissioner of taxes and assessment of the city and county of New York, and to transfer the duties of that office to one appointed by state authority. It does not hold that his every function is inviolate,

and that no part of his duties may be transferred to state officers if such be reasonably necessary as incidental to some plan which the legislature lawfully seeks to accomplish. The office of commissioner of highways cannot be abolished, and his duties transferred to an officer appointed by the state. That office, equally with the office of commissioner of taxes of the city of New York, is one within the protection of the constitution. Nevertheless it has been frequently held that some of the functions of the office of commissioner of highways may be taken from it and exercised by the state, and in the Astor Case. an act taking from him certain functions was justified because they were incidental to the state plan of park improvement in the city of New York. In the referee's opinion are cited many instances where certain functions are taken from local officers, while the offices themselves are concededly protected under the constitution from destruction by the legislature.

The learned referee before whom this case was originally tried has admonished us of certain rules of construction by which we must be guided in the determination of this question. He says in his opinion:

"There is also a rule, many times announced by judges, that the legislative will is not to be thwarted, as in conflict with the constitution, unless such conflict is clear and undoubted, and that whenever an act of the legislature can be so construed and applied as to avoid conflict with the constitution, and give it the force of law, such construction should be adopted. The legislature has supreme legislative power, except as such power is limited in the federal or state constitutions, and we must be able to point to some unmistakable constitutional limitation before such power can be curtailed. A further rule must, however, be observed, that a thing within the intent of the constitution, if that intent can be gathered from the instrument itself, considered in all its parts, or from the history connected with it, of which a court can take notice, is for all purposes to be regarded as within its words and terms, and that the plain purpose of the constitution will not be thwarted by a too close adherence to its letter."

Guided by these rules of construction, we must not lose sight of the fact that what is protected by the constitution is the local office, and not each separate function thereof. It may be that the legislature would not have power arbitrarily to take from a local officer some of his regular functions, howsoever small. The argument is not without force that a slight arbitrary invasion might be followed by another, until the substance of the office is gradually taken from the locality. Where, however, the functions of a local officer are left substantially unimpaired, to take from him certain of his functions, and give them to the state officers intrusted with the execution of a lawful state purpose, where the transfer is of functions reasonably incidental to the fulfillment of that purpose, in no way offends as against the constitutional prohibition. To hold otherwise, and to rule that no single function may ever be invaded, would materially cripple the power of the state in the institution of public improvements, and would, in my judgment, be a limitation never intended by the framers of the constitution. The legislature has transferred to state authorities the capital execution of criminals. Those functions have been taken from local constitutional officers and given to state officers. To question the constitutional right to accomplish this purpose would be generally recognized as quibbling over the constitutional restriction. The constitution