#### The New York, Lackawanna *&*Western Railway Co., Plaintiff, *v.*John Roll, Frederick W. Zoeller and Daniel L. Webster, Individually, and as Members of the Board of Assessors of the Town of Alden, Defendants.

(Supreme Court, Brie Special Term,

August, 1900.)

Franchise Tax Law — Taxability of highway railroad crossings, as a special franchise.

The right conferred by chapter 140 of the Laws of 1850 upon a railroad corporation incorporated thereunder to cross public highways which its track intersects is taxable, under the Franchise Tax Law (L. 1899, ch. 712, § 1), as a special franchise, although the corporation owns the fee of the highway at the crossing.

The owner of the fee of a highway has no right to construct a railroad across it, can acquire such right only from the State, and the State may tax the grant.

The language of the Franchise Tax Law is sufficient to define and include such a crossing; and neither that act, nor the legislative proceedings had in the Senate before its passage, show any indication upon the part of the Legislature to exempt such crossings from taxation. The constitutionality of the Franchise Tax Law reaffirmed.

Demurrer to a complaint in an action to restrain the assessors of the town of Alden from inserting in the assessment-roll of said town the valuation of plaintiff’s so-called special franchise in said-town, as fixed and determined by the State Board of Tax Commissioners.

James McCormick Mitchell, for plaintiff.

Charles F. Tabor, for defendants.

Kenefick, J.

The plaintiff is a domestic corporation owning and operating a steam railroad which crosses six public highways at grade in the town of Alden, Erie county. The State Board of Tax Commissioners, acting under chapter 712 of the Laws of 1899, *322as amended by chapter 254 of the Laws of 1900, known .as the Franchise Tax Law, have assessed these highway crossings as special franchises, fixed the valuation thereof, and filed a statement of such valuation with the clerk of said town. The assessors of the town having received from the clerk a certified copy of such statement, threatened to insert such valuation in the annual assessment-roll of the town, and to make the same a part of the assessment of the property of the plaintiff in the town. This action is brought to enjoin the assessors from placing such valuation in their assessment-roll, and this relief is demanded upon two grounds, set forth .in the complaint. *First.*That the authority vested in the State Board of Tax Commissioners by the Franchise Tax Law is repugnant to and violative of section 2 of article 10 of the Constitution of this State. *Second.*That these highway crossings do not constitute a special franchise within the meaning of said law, and, therefore, are not taxable as such. The defendants interpose a demurrer upon the ground, among others, that the complaint does not state facts sufficient to constitute a cause of action, and the questions are thus presented for determination.

A ruling upon the constitutional question involved was made by. me in the case of Buffalo Gas Company v. Volz, 31 Misc. Rep. 160, and is adhered to in this case. The correctness of plaintiff’s second contention has been urged with great force and skill by the learned counsel for the plaintiff, and his claims will be briefly reviewed. The General Railroad Law of 1850 (Chap. 140), conferred power upon railroad corporations organized thereunder to cross the highways intersected by their'roads. This law was amended in 1864 (Chap. 582), so as to require the corporation to obtain an order of the Supreme Court upon notice to the highway commissioner of the town to effect such crossing. These provisions of law have continued in force, in substance, ever since. The plaintiff insists that the authority to cross highways sprang into being with the creation of the corporation; that it is a part of the franchise to be a corporation; and that, to constitute a special franchise, 'some particular railroad must be grantee of the right, or. some particular highway or highways must be the subject of the grant. As I view it, this claim argues a misconception of the term “ special franchise.” As applied to railroads this species of property is defined as the “ franchise, right or permission to construct, maintain or operate the same in, under, above, on or through *323streets, highways, or public places.” Laws 1899, chap. 712, § 1. A special franchise thus derives its character from the' nature of the grant, to-wit: the right to occupy the public ways. .This right does not lose its character as a special franchise because it emanates directly from the State, rather than indirectly through its political subdivisions; nor because it comes into being with the creation of a. corporation, rather than by subsequent action of the Legislature or its duly authorized municipal agents. The tax on its franchise to be a corporation is imposed irrespective of whether it crosses any highways, or of the number of highways crossed. Authority to run *“*upon and along ” highways is conferred by the same section of the General Railroad Law which confers the right to “ cross ” highways. If the plaintiff’s argument is sound, then a railroad might, under its general powers, run for some distance along a highway, without possessing a special franchise therein subject to taxation. The case of Burt v. Lima, etc., R. R. Co., 48 N. Y. St. Repr. 553, is not authority for the proposition that a railroad cannot run along a portion of the public highway, even though it obtains an order of the Supreme Court, as required by statute. That case goes only to the extent of holding that a railroad cannot construct its *entire*line along the public highways.

The next argument of the plaintiff is based upon its ownership of the fee of the highway where the railroad crosses. It is claimed that as the People of the State possess only the right of passage in the highways, all other rights therein remain in the owner of the fee; that the right to cross the highway is in the nature of an easement; that the easement is carved out of the fee, and that, as the fee and the easement exist in the corporation, the easement merges in the fee. The argument is plausible, but, as it seems to me, without merit. The owner of the fee of the highway acquires no right by reason of such ownership to construct a railroad across it, and he is 'as powerless in this respect as if the fee were owned by some other person, or by the municipality. The only authority which can confer that right is the legislative power of the State, and this power is not one whit the less because the ownership of the fee of the highway is vested in the abutting owners. A more exact statement of the situation is that the franchise to cross the highway is carved out of the public easement, rather than out of the fee.

*324In further support of the cause of action set forth in plaintiff’s complaint, it is urged that the language used in the Franchise Tax Law, in defining a special franchise, indicates the legislative intent to exclude highway crossings. Upon the argument of this demurrer the original draft of the law as introduced in the Legislature was submitted. It appears therefrom that a special franchise, as applied to railroads, was defined to be “ all franchises, rights, or permission to construct, maintain, or operate the same in, under, above, on, *across,*or through streets, highways or public places.” This was the language of the bill when it was referred to the Senate committee on taxation and retrenchment for consideration. As reported from the committee back to the Senate, the word “ across ” was omitted, and in this form the bill became a law. It is argued that the preposition “ across ” is the only one of those used which aptly and completely describes the physical relation of a railroad to a highway at a highway crossing, and that its elimination indicates the legislative intent to exclude highway crossings from the operation of the statute. There is some authority for referring to legislative journals in the interpretation of statutes (Blake v. National Banks, 23 Wall. 307; Edgar v. County Commissioners, 70. Ind. 331), but the uncertainty surrounding this method of interpretation is apparent when we consider the many motives which influence legislative action. Is it not more reasonable to assume that the Senate committee regarded the word “ across ” as superfluous, and that highway crossings were sufficiently defined by the other words used? If the other prepositions used have been construed by the courts in statutes somewhat similar to this to describe appositely and appropriately a highway crossing, then this court is bound to assume that the Legislature used these words in this act in the sense in which they have been so judicially interpreted. In the case of Barlow v. Teal, L. R. (15 Q. B. Div.), 403, Lord Coleridge lays doAvn the general principle (p. 405), “ That where cases have been decided on particular forms of words, in Courts, and Acts of Parliament use those forms of words which have received judicial construction, in the absence of anything in the Acts showing that the legislature did not mean to use the words in the sense attributed to them by the Courts, the presumption is that Parliament did so use them.” The same rule prevails in the United States. In Whitcomb v. Rood, 20 Vt. 49, the rule is thus expressed (p. 52): “ But when terms or modes of expression are employed in a new *325statute, which had acquired a definite meaning and application in a previous statute on the same subject, or one analogous to it, they are generally supposed to be used in the same sense; and in settling the construction of such new statute, regard should be had to the known and established interpretation of the old.” See, also, Commonwealth v. Hartnett, 3 Gray (Mass.), 450; The Abbottsford, 98 U. S. 440. An application of this rule to the case at bar destroys the force of the argument based upon the omission of the word “ across,” for, the other prepositions used in the act have been held to be synonymous with “ across.” In the case of Osborne v. Jersey City & Albany R. Co., 27 Hun, 589, the question presented was whether an order of the Supreme Court was necessary to authorize the construction of a railroad “ across ” a highway, under the General Railroad Act, above referred to. The original act of 1850 authorized the construction of a railroad “ across, along or upon ” any highway, but the act was amended, in 1864, so that nothing therein contained should be construed to authorize the construction of a railroad “ upon and along ” any highway, without an order of the Supreme Court authorizing the same. It was contended that the omission of the word “ across ” in the amendment of 1864 was significant, as indicating that an order of the court was not required when the railroad ran “ across ” the highway, and not “ upon and along ” it. Judge Cullen in his opinion held that an order of the Supreme Court was necessary to authorize the crossing of the highway, and at page 590 says: “We think that wherever the railroad is constructed upon the surface of the highway, it is *‘*along and upon ’ so much of the highway as is occupied by it.” In the case of People’s R. T. Co. v. Dash, 125 N. Y. 93, the Court of Appeals was called upon to construe an act which prohibited the building of a railroad “ in, upon or along any or either of the streets or avenues of the city of New York,” except under the authority and subject to such regulations as the Legislature might thereafter provide. It was urged that this act only prohibited the building of a railroad “ through ” the length or a portion of the length of a street, and did not apply to the “ crossing ” of a street. The court refused to assent to such a construction of the statute, and Judge Peckham, writing the opinion of the court, says (pages 96, 97): “If the road were built through the length of a street, its location might be fairly described by the use of either one of the three words contained in the statute, *‘*in, upon *326or along ’ such street. But to describe a road which simply crossed a street as being built *‘*along ’ such street, would be using language neither appropriate nor exact. To say of such a road that it would be ‘ in ’ or ‘upon’ that street at the point where the road crossed it would be both appropriate and exact. There is a difference in the meaning of these three words as used in the statute, and some effect should be given to such difference. If their meaning be construed to simply prohibit a railroad along the length of the street, no effect whatever is given to this difference. The words used are certainly apt to describe a railroad which crosses a street. Such a railroad is plainly, for that distance, both *‘*in ’ and ‘ upon ’ the street which it crosses. If not *‘*in or upon ’ it at that point, where is it? No description of its whereabouts at that particular point is better than to say it is *‘*in or upon ’ the street which it crosses. It is sufficient, and it is true. It is not necessary that the railroad should pass along the surface of the street in order to be in or upon it.” Again (p. 98), he says: “It is well known that some times more words are used in a statute than are actually necessary to express the meaning of its framers. The fact that the word ‘ across ’ or *‘*intersect *’*has been frequently used in former statutes where they intended to permit or prohibit the crossing of a street is not of any great importance in the construction of another statute in which such word is absent, provided the language actually used is sufficient and appropriate to express the idea that the crossing is permitted or prohibited. If the language be broad enough, and there be no other ground for narrowing its natural meaning, it should not be narrowed because in some other statutes additional words Lave been used to express the same idea.” It will be observed that the prepositions “ in ” and “ on,” which were construed in the two cases cited as aptly describing a highway crossing, are used in defining a special franchise. In view of this judicial interpretation of these words, it became the duty of the Legislature, if it intended to exempt highway crossings from taxation under this act,’ to use language which would clearly indicate its purpose to do so. The natural meaning of words should not be tortured to force an interpretation in accord, perhaps, with the intent of some or all of the Senate committee which eliminated the word “ across,” but which may have been entirely foreign to the intent and purpose of the Legislature itself in passing the act.

The power of the court to grant the relief prayed for is ques*327tioned by the demurrer interposed and it is, to say the least, doubtful, but in view of the conclusion I have reached upon the other grounds, I deem it unnecessary to examine this question.

The demurrer is sustained, with costs.

Demurrer sustained, with costs.