New-York tribune., 1903-01-21
"TIOL4T'ES HOME RULE. -
Such Is tie Preumling Opinion Of The
Justices

,JUlfCTS.
Albany, Jan. 20.-The Appellate Division OF
the Supreme Court Third Der artment. practical
~ wipes out the State Tax Commission in it's
decision to-day in the of the People of the
State of New-York rel. Metropolitan Street
Railway Company agt. the State Board of
Tax Commissioners. BY IA vote of three to two
the justices decide that the special franchise
tax law Of 1899 is unconstitutional in so far as
it takes the power of taxing franchises from the
local boards of assessors and gives it to q
State board. thus violating the home rule
principle of the State constitution.
The decision does not however vitiate, but
expressly affirms the States power to tax
franchises In of the four opinions ac-
companyng the decision is the principle of
franchise taxation questioned. The sole issue
discussed whether the function of assess
ment is an exclusively local function. or whether
it may be withdrawn from the local boards and
committed to a State commission. Upon this
point and this only. the court rules, setting
aside the assessment upon the Metropolitan COM
paIy made by the State Tax Commission. upon
the ground that such assessment should be
made by the local board of assessors. The
Franchise Tax law. called. is not separate
law. but is in form of amendments to the gen
eral tax law, adding franchises thereto in the
class OF real property, and referring their as
sessment to the State Board of Tax Commls-
sioners. 1t is therefore evident that the present
decision affects the law only to the extent of
removing the assessment of franchises from the
jurisdiction of the State commission. 1t leaves
the franchises still in the list of taxable property
to which, as the four opinions unanimously
agree, the legislature had the power to add
them. and permits the local boards of assessors
to tax them at their full value
The decision is by Justices Parker. Kellogg
and Chase. with Justices Chester and Smith dis
senting- The prevailing opinion is by Justice
Parker with concurring opinion by Justice KEEL
logg Both dissenting justices also file opinions.
In his opinion Justice Parker says:
The legislature. from time to time. new
species of property have come into existence.
has imposed the burden of taxation upon them,
yet it did not need act of the Legislature to
enable the assessors to assess such new prop
erty. That duty devolved upon them soon
the property was declared taxable by virtue of
the long existing and well recognized function
of their office. When the legislature deemed it
wise to add to the taxable list the so-Called
special franchise the duty of assessing IL de-
volved at once upon the local assessors
This act takes away from the local assessors
the function of assessing a certain kind of
property, and transfers it to the State Board of
Tax Commissioners. and to this extent makes
such board perform the function of a local Off
GER and if sustain this act. must sustain
their authority to do that very thing. But this
is the very thing that the constitution says they
may not do.
| am forced to the conclusion that much of
the act in question provides for the assess
ment of a special franchise by the State Board
of Commissioners is unconstitutional and Vold.
Justice Kellogg concurring, also indicates an
other aspect of the question. which is. however,
not passed upon directly. He speaks of tele-
phone, telegraph and street surface railways
for instance as holding a chain of franchises"
Of which he says:
The appraisement by local assessors of prop
erty moving into another municipality would. IL
permissible be A function never before eXer-
cised- They could not be protected IN so 90 dolng
by any principle of home rule. And II this Is
what would be required of them do not see
how their local functions could be disturbed or
diminished by the appointment of State poard
to make this assessment
Justice Chester. in dissenting holds that the
Just taxation of franchises calls for expert
knowledge such as few local assessors possess
He insists that it is within the power of the
legislature to withdraw functions from local off,
GERS and believes that in so doing in this mat
ter it has left 10 localities "as large a measure
of home rule as they enjoyed in this respect
when the local function of assessing property
for taxation became part of our system
The case was appealed by the Metropolitan
Street Railway Company test case of forty
seven similar cases from Justice D. Cady Her
rck's affirmation, pro forma. of the report OF
I,,dse Earl as referee who held the law con-
stitutional in all it's bearings
Twelve million dollars. three millions a
wear since 1899 are affected by this decision, and
If il is sustained this sum need not be paid by
the corporatio But the new assessment oy
the local boards will undoubtedly be much heav-
ier. and subject to great differences between diff
.ferent towns.
Senator Ford the father of the franchise law,
declares that the decision leaves the act stronger
than ever He said to-day:
This leaves intact, as law. the original Ford
bill 1t is no wonder the corporations want the
law repeaIed They found themselves up
against it, and that the only escape is by
root and branch repeal 1t is absurd to say
that the whole law falls with the provision now
declared unconstitutional. All remains which is
not expressly declared unconstitutional l don't
care who assessed the franchises Indeed. 1 all
along contended that this a function of the
local boards of assessors