The New York herald., 1879-03-11

The Mayor. 6s New York. SIS. is directly in point
The Court there said that "a person may have Z
franchise 70 Daiid ana MAINTAIN orIase anu taAe
franchise. He may not be taxed on his franchise.
but he he taxed on the structure AS roa estate
railroad company has franchise to construct and
nlainta railroad Its franchises cannot be taxed.
but its road and other structures can be taxed as
real estate" The relators contention is that as the
easement cannot be enjoy without the foundation
and superstructure, the right TO the former carries
with il the right to the latter also ITO tax the ac-
cessories says the learned counsel. 'is to tax tue
principal which is contrary to the contrast Tie
answer 10 this may be given in the Words OF the
Court of Appeals in the Smith caso-"The bridge
and railroad may not DO of any 10 their owners
without the franchise pertaining or incident 10
nose Of liking their value the uses to which they
may be subjected must be considered citing an
thori.y, The People VS.. Barker As n. u. 76) That
case stronger than the present, for there the
contract not made for the city by the Legsla-
ture. but the direct act of the municipal author
ities The grantee had paid the city the price agreed
upon for the franchise He argued just as the re-
lator does here-that having paid for the use ani
occupancy of the land the tax upon the structure
use But the Court said in substance :---''No. you
are not taxed ut all upon the franchise but upon the
structure. The latter may not be OF any use 10 you
without the franchise and yet you may be taxed
thereon" To the effect is the of the Hudson
River Bridge Company vs. Patterson tubi SUPP.
GOVERNMENTAL PROTECTION.
PAnd this is just, the structure as such should
pay for governmental protection; and that, inde-
pendent Of the bonus for the exceptional privilege
Of erecting such structure on city property and for
the substantial monopoly of Lucrative business
conducted thereon. We're it otherwise. we might
for but small building right compensation soon
have il midst large class OF privileged struc
lures Of enormous value. a. AS to the amount
of the tax il il claimed that there was gross over
valuation. and that the assessors should have con-
fined themselves to the area covered by the founda
ton. But It is not the space In which the founda
tions rest that is taxed, but the foundations them
selves, together with the superstructure The
value Is lett by law, to judgment OF the
(The People Barker. 48 n. Y, 76
subject TO revision where they proceed upon
an erroneous principle. No such erroneous
principle has been pointed out Indeed, even II the
space occupied by the reator were III question: tho
case would be covered by The People vs. Barker Tor
it was there held that tho not required
lated piece Of land but each piece Of property
be estimated in connection with its positions its in
cidents and the business and profits to be derived
tEere!rom" tSee also the quotation above from the
opinion In Smith vs. The Mayor.)
ON PERSONAL PROPERTY.
It follows that the tax upon the realtors personal
propertg was erroneous Indeed it is conceded that
II the structure be taxable real estate the personal
tax cannot be upheld. The reason is obvious. The
in) amounts to S106s.0O0. Even the assessed value
of it's real estate exceeds this sum; consequently
nothing at present remains to tax. It will. there
methods adopted this head regular
and in accordance with tho terms OF the
statute. The remaining question is as to the
procedure. The point which the relator makes is
that the Commissioners should have arranged the
assessment rolls in Ave columns. under Revised
1858 and chapter 456 OF the Laws of 1857 Without
considering the question whether these forms have
modfod by the special statute for the city of
Now York (chapter 302 Laws of lS50 1t ia sufficient
say that there is nothing in the record to show
that the methods Of the Revised Statutes have not
been pursued The assessment roll Is not before the
Court. 1t not returned by the Commissioners,
for the that it not in their hands at the
been delivered by them to the Supervisors, as
required by law. The books may have been kept
under chapter 302 OF the Laws of 1882 and yet the
assessment roll prepared thercfrom may have
The books contained all the necessary information.
Non constat, but such information was properly
utilized But IL the assessment roll not
in precise conformity to the statute it by
follows that the entire proceedings should be set
aside and the relator absolvcd from taxation.
RECORDS IN CASE.
Even in The People vs.. Board of Assess 1rs of
Brooklyn (ubi sup.), where the Court held that the
Assessors had "disregarded the mandate" Of the
statute and had thus put 1t out of the power OF the
Supervisors to proper tax, but not entirely
reversed; and the assessment as thus corrected
directed to stand In other words tho relator must
point out the particulars in which it has been pre-
JUDGED by Noncompliance with statutory methods
done. 1t Is not denied, however, that there may
be such radical defects and Irregularities as
to render correction impossible and
that where such case is presented the entire
the point taken upon the argument that the records
do not give the street, ward and map numbers, is
not reported in the printed brief which has been
submitted. It Will, therefore. be unnecessary to
notice 1t further than to say that the statute Of
costs refers only to property which has street.
ward and map number and not to 'the other
Bile property" which the deputy commissioners are
also required to examine and assess. The proceed
ure must be affirmed Those with respect to the per-
spnalty must be reversed