The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1901-06-11
TAX ON TRACKS
Roadbed Of Trolley Com
pany in Newark As
sessable as Real
Estate.
surREME COURT so RULES
Sweeping Decision in the
Great Certiorari Suit
Million Involved.
CASE WILL 81 APPEALED
CASE WILL 81 APPEALED
Unless the Highest Court Re-
verses, Vast Sums Will Be
Added to the Levy All
Over the State.
[specIal to ..rhe Jergey cIty News. ri

Especial to 1.-THE Jersey City News."l
TRENTON, June IL, 1901.-The most
sweeping decision on trolley taxation ever
handed down by the Supreme Court of
New Jersey was that of yesterday in the
case of the Mayor and Common Council
of the City of Newark against the State
Board of Taxation and the North Jersey
Traction Company.
The case was up on certiorari from an
order of the State Board of Taxation.
Newarks assessors assessed the trolley
eompany's roadbed as real estate, fixing
the assessment at So. 100000 The State
Board Of Taxation reduced the assessment
to about s., 265, 900, on the ground that the
trolley company had no greater right II
the highways than any foot traveller or
any other vehicle.
This raised the issue fatty as to
whether the permanency of the rails of
a trolley road on a highway were of sucn
a character as to give the trolley road ad-
dltional rights over others, under the
statute; or, in other words, whether the
privilege of excluding others from the soil
occupied by the rails and stringers was
not such control or appropriation of the
soil as to make the company's roadbed
liable to taxation as real estate without
comforting upon the company any greater
rights than any other vehicle.
The court decides that the trolley bed
is such a permanent occupation of the
soil of the highway as to make it taxable
as real estate.
The decision means that in future every
municipality and every township and
every separate taxing district in the State
will have the right to tax so much of the
roadbed of any trolley running through
such municipality or separate taxing dis
trict. And this tax to be imposed is in
addition to the tax imposed by the State
Board of Taxation for the States own
purposes.
The decision reviews the case as above
and then goes on to say
.-The assessment of the Newark Board
was imposed under the act of April II.
1866
THE second section provides that all
real estate, whether owned by individuals
or corporations shall be liable to taxation
at its full value.
.sThe third section provides that the
term real estate, as used in the act, shall
be construed to include all lands. all water
power thereon or appurtenances thereto,
and all buildings or erections under wood
etc.
THE company has the grant of part of
the public estate, for it's own permanent,
exclusive use, and that is an interest in
real estate. This part must be of the same
character as the whole.
THE assertion, that the right in the
soil of the highway acquired and used by
the trolley company is no greater than
that enjoyed by the public in general, is
not only in conflict with the evidence of
our senses, but is rejected by the adjudg-
ed cases on the subject.
1T is suggested that the public authori-
ties hold their legal title to the highway
as trustees for all the people. and that
a trustee is without capacity to part with
its legal title to what it holds in trust.
There is no such general legal rule
making trustee incapable of the trans
mitting of the legal title. The power of
the trustees in that respect depends upon
the fact whether it is consistent with and
in due execution of his trust. 1t may be
that in the execution of the trust he must
convey the entire legal estate or a part
of it or a lesser estate.
.In the case of this street railway
company, the Legislature has authorized
the city of Newark to grant to the COM
pany the exclusive use of portion of the
soil of the streets. The grants have been
made and our courts have upheld such
grants as valid and effectuaL
tIf this railway company was without
this legal right and without the justifi-
cation based upon it, it would be indict-
able for maintaining a public nuisance
in the highway
sNo one would doubt that an individual
who without express authority, occupied
the street with like obstruction would
be amenable to the criminal law
sIn New York the city owns the fee
of the streets, but as the public authori-
ties hold it in trust for public uses as
highway they have no greater capacity
to convey a part of their legal estate
than the public authorities in this State
have to convey a part of the lesser estate
vested in them in trust.
"In my judgment, therefore, the street.
railway company has such an interest in
the soil of the highways over which it is
laid as is taxable as real estate.
.sThe action of the State Board of Tax
alton was based upon an erroneous legal
principle and should be set aside.
Justice Garrison. in his dissenting opin-
ion, says in part
ssThe questions upon which unanmity
is lacking are:-What does a trolley COM
pany own in the streets of this State and
how should it be taxed therefor?
.sAIy colleagues think that it owns an