New-York tribune., 1903-01-24
WHOLE LAW NOT VOID.
CTNNEEN'S ARGUMENT.
fiction Taken to Facilitate Fran
chise 7ac Appeal.
Try TELEGRAPH TO THE TRIBUNE-l ]


Af,sn, Ian. 2s-Clearly Attorney General Cum
neen differs with persons who have expressed 'Ie
opiniou that the resent decision OF the AppehsVe
division of the Supreme Court declaring the Fran
chise Tax act unconstitutional affects all or the act
and not simply the sectcn Of it which imposes upon
the State Board Of Tax Commissioners the duty of
appraising franchises. Mr. Cunneen this evening III
a statement about his approaching argument pe1oIe
the Court Of Appeals ia defence Of the Franchlse
TAX law. said:
AK case oeSSle tS ,ie Tsx law dehning these
sscIl9n, ot ne M I,rtH is in no way Affected
bv the decision Of the Appellate DIVISION ana 'tAe
Court Of Appeals viii be to cause the assessment
be made by the local assessors OF each ciIE; LOW
and village instead Of by the State. Tax CoIlils ms
sioners. it has been done since the statute was
enacted
The Appellate Division to-day amended the de-
cision handed down on Tuesday in the Metropoh-
;sn Street Railway ,case in which il decided that
The assessment Of franchises by the State lax
Commissioners was Unconstitutional. In that oe
tision the court passed upon the questions OF Id"
without deciding the questions OF fact Inc alhenu
ment made to-day afiTms the findings OF fact oE
rhe lower court In addition. the court decided
The five other test cases embraced in this huga-
tion They are the appeals OF the Brooklyn CITY
Railroad Company the Coney Island and Brooklyn
Railroad Company, the Consolidated Gas COM
pany and the New Amsterdam Gas Company
In each case the decision OF the court below is
affirmed oH findings Of fact and reversed on nho-
ings Of law. The appeal of the Electrical SUBWAY
Company. OF New-York was not decided because
.here is a dispute as TO the facts involved
These decisions We're made after a hearing al
which Attorney General Cunneen represented the
state and Charles A. Collin of New-Nork city ana
ex-senator David b. Hill the interested corpora
lions The appearance OF Mr.. Hill in the cases eN-
tied considerable interest because his name was
not anon the recent briefs submitted TO the Ap-
,,ellate Division. and there was a suspicion that,
aI-bougb he had been counsel in these cases for
many months for some reason he no longer was
connected with them. Mr.. Hill appeared for the
subway company.
Nr Cunneen said TO the court that 4 was cesira-
bic in view Of the great public question involved,
"A have the Court Of Appeals pass upon the whole
s1,biect On the earliest possible day, and he be-
l;evAd thai this could be done best by grouping
NJ the appeals of all the cases. MIR. Collin said
that the corporations Joined in the request Of the
Attorney General. being anxious also for an early
final decision
In his statement tonight Mr. Cunneen said:
The Appellate Division has jurisdiction TO decide
Questions of fact and questions Of law while the
Questions Of law only. | found that IN the de-
cision OF the Metropolitan case the court had not
...pressly decided both facts and law. The Court
~ Appeals would not hear an appeal under these
the decision heretofore announced IN the Metro
rolitan case corrected. and the decision in five
other cases announced with an explicit statement
affirming the facts.
The attorneys for the corporations will meet in
NeE-York tomorrow and agree on a form OF de-
cision The orders viii then be entered ana ap-
viii be ready for argument in the Court Of Appeals
IL the near future