Edward R. O'Malley, Attorney-General (Edward H. Letchworth, Deputy Attorney-General), for the State Board of Tax Commissioners.
Philip A. Laing, for the State Board of Tax Commissioners, in the cases New York Central and Hudson River Railroad Company and Erie Railroad Company.
Adelbert F. Jenks, for the State Board of Tax Commissioners, in case of Western New York and Pennsylvania Railway Company.
Kenefick, Cooke Mitchell (Lyman M. Bass, of counsel), for Lehigh Valley Railway Company, Buffalo and Susquchanna Railway Company.
Hoyt Spratt (Lester F. Stearns and Alfred L. Becker, of counsel), for the New York Central and Hudson River Railroad Company.
Moote, Sprague, Brownell Marcy, for Erie Railroad Company.
Clark H. Hammond (Philip A. Laing, of counsel), for the city of Buffalo.
S.F. Carr, for Grand Trunk Railway Company, International Bridge Company and Buffalo Creek Railway Company.
H.G. Adams, for the Western New York and Pennsylvania (two proceedings).
These cases, argued together, are proceedings under writs of certiorari to review the action of the defendants, the State Board of Tax Commissioners, in assessing the several relators for special franchises. The cases were referred to a referee to take evidence and report the same, together with his findings of fact and conclusions of law. Upon the coming in of his reports, motions were made and heard before the late Mr. Justice Fitts for their confirmation, but the motions remained undecided at the time of his death. They were then transferred to me by stipulations for reargument and determination. It was conceded on the argument that, under the provisions of the Tax Law, the proceeding before the court in each case was a trial, and that its own determination of the issues involved must be made.
I have given the cases the careful consideration which their importance demands. But the great delay in getting the briefs of counsel to me and the requests to find leaves me no time from my court assignments to formulate my views at any great length without postponing a decision for some time.
I must content myself, therefore, with stating my conclusions, as briefly as I may, with respect to the more important general questions involved and leave my views concerning the less important matters to be expressed by my formal decisions and by my rulings upon the upwards of a thousand requests to find which have been presented.
The learned referee, in a very extended opinion, discussed the question of the jurisdiction of the State Tax Commissioners to make the assessments complained of, and reached the conclusion that they had no such jurisdiction, and reported that the assessments should be annulled. This question is fundamental and is, therefore, the most important one presented for determination. The referee's conclusion is based upon the assertion and argument that the term, "All surface, underground or elevated railroads," inserted in the statute by the amendment of 1881 (chap. 293) and since retained by various amendments and revisions, was not intended by the Legislature to include long distance terminal railroads operated by steam power, and that the words "surface railroads" were intended to apply to street surface railroads only. The argument in support of this conclusion is a very ingenious one, and on its historic side a very interesting one, but is far from convincing from a legal point of view.
There is no ambiguity in the statute and, therefore, no need for construing its meaning. Ordinarily the Legislature may be assumed to mean what it says when plain and unambiguous words are employed.
In Mayor of N.Y. v. Manhattan R. Co., 143 N.Y. 1, 20, Judge Peckham in writing the opinion of the court, said: "It is a waste of time to cite the general canons of construction which obtain in the discharge of the judicial duty to construe an act of the legislature. They are familiar to us all and they result in the question, what is the real meaning of the enacting body? That meaning is to be first sought in the language used, and if that be plain, unambiguous and imperative, there is nothing left for the courts other than to obey the directions of the statute as manifested by its language."
In McCluskey v. Cromwell, 11 N.Y. 593, 601, Judge Allen says: "But in the construction, both of statutes and contracts, the intent of the framers and parties is to be sought first of all, in the words and language employed, and if the words are free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation, and when the words have a definite and precise meaning, to go elsewhere in search of conjecture in order to restrict or extend the meaning. Statutes and contracts should be read and understood according to the natural and most obvious import of the language, without resorting to subtle and forced construction for the purpose of either limiting or extending their operation."
In Newell v. People, 7 N.Y. 1, 97, it is said: "Whether we are considering an agreement between parties, a statute or a constitution, with a view to its interpretation, the thing we are to seek is, the thought which it expresses. To ascertain this, the first resort in all cases is to the natural signification of the words employed, in the order and grammatical arrangement in which the framers of the instrument have placed them. If thus regarded the words embody a definite meaning, which involves no absurdity, and no contradiction between different parts of the same writing, then that meaning apparent upon the face of the instrument is the one which alone we are at liberty to say was intended to be conveyed. In such a case there is no room for construction. That which the words declare, is the meaning of the instrument; and neither courts nor legislatures have the right to add or to take away from that meaning."
When the Legislature, in defining the terms "land," "real estate" and "real property," enacted that these terms should be construed to include, among other things, "all surface, underground or elevated railroads," as it did in the amendment of 1881, language was employed having no doubtful signification and which is broad enough to include all railroads of every description. If the Legislature intended the term "all surface railroads" to include only "street" surface railroads, it would have been appropriate for it, as expressive of such intent, to have inserted that word in the statute and thus to limit the meaning of the term; but it is not the function of the court to amend the statute by construction, to include the word, even though the court should disagree with the Legislature as to the propriety of omitting it from the statute or as to the policy of taxing steam surface railroads upon their special franchises in and across streets.
The construction sought by the relators also necessarily involves the determination, if it is adopted, that the term " all * * * railroads" was intended by the Legislature to mean only a part of them. This is so manifestly out of harmony with all canons of construction as not to be seriously thought of for a moment.
It is a well-known fact that there are a number of lengthwise occupations of streets by steam railroads in various parts of the State, some of them several miles in length, and several miles of such occupations are by some of these relators in the city of Buffalo. Some of these occupations existed when the Special Franchise Tax Law was passed and when it was made to apply to "All * * * railroads."
Certain amendments to the Tax Law (Laws of 1896, chap. 908) have some significance in supporting the view I have expressed. Chapter 712, Laws of 1899, known as the Special Franchise Tax Act, defined special franchises and made them taxable as land or real property. This act added to the words "all surface, underground or elevated railroads" theretofore in the statute the following: "Including the value of all franchises, rights, or permission to construct, maintain or operate the same in, under, above, on, or through streets, highways or public places." Under this it was held at Special Term, in August, 1900, that the amendment included the crossing of a highway, or street by a steam railroad. New York, L. W.R. Co. v. Roll, 32 Misc. 321. The Legislature at its next session, by chapter 490, Laws of 1901, amended subdivision 4 of section 2 of the Tax Law by providing that the term special franchise shall not be deemed to include certain street crossings. Prior to that amendment the State Board of Tax Commissioners had assessed, as appears by their annual reports, several thousand steam railroad crossings in the State and had recommended that the Legislature eliminate the less important crossings from the operation of the law because the expense of making the assessments in rural communities was so great as not to be compensated by the resulting tax. A further amendment was made by chapter 720, Laws of 1907, whereby said subdivision 4 of section 2 was amended to read as follows: "The term special franchise shall not be deemed to include the crossing of a street, highway, or public place outside the limits of a city or incorporated village, where such crossing is less than two hundred and fifty feet long." So far as the subject under discussion is concerned, these amendments are only of negative significance. At the time they were enacted, the State Tax Commissioners were assessing both steam surface railroads and street surface railroads under the law relating to crossings, and many roads of both classes were acquiescing in these assessments and paying without question the taxes based thereon. Yet both amendments were enacted without including a word showing any purpose or intention of excluding steam railroads from the operation of the act. If the State Tax Commissioners had, during all these years, falsely construed the act and had not correctly obeyed the legislative intent as expressed in the law, it is altogether probable that something would have been inserted in the amendments to require them to change their policy in this respect.
Under section 3 of the Tax Law " all real property within this state * * * is taxable unless exempt from taxation by law." A franchise granted by the State to a steam surface railroad corporation to construct, maintain and operate its road, "in, under, above, upon or through any streets, highways or public places" is identical in kind with the franchise of a street surface railroad to do the same thing. Both are property rights and special franchises of equal value under the same circumstances. The conclusion of the learned referee, if sound, results in entirely exempting the special franchises of steam surface railroad companies from taxation. In reaching this conclusion it would appear that the rule of strict construction of statutes assuming to exempt property from taxation has been overlooked. Buffalo City Cemetery v. City of Buffalo, 46 N.Y. 506; People ex rel. Forty-third St. R. Co. v. Comrs. of Taxes, 95 id. 554; People ex rel New York El. R.R. Co. v. Comrs. of Taxes, 82 id. 464.
I think for these reasons that the defendants, the State Tax Commissioners, clearly had jurisdiction, under the law, to make the assessments in question.
It is urged that the act of 1907 (chap. 720) which exempts crossings outside of a city or incorporated village and authorizes assessments upon crossings in cities and villages is unconstitutional under the Federal Constitution as a denial of the equal protection of the law. But there is no such denial. All corporations similarly situated are treated alike. There is no discrimination under the law in favor of one or against another. Every railroad company is assessed in the same way upon the same class of property and the burden falls upon each alike. That is all that is essential to render the act free from successful attack under the constitutional prohibition referred to. Wurts v. Hoagland, 114 U.S. 606; Walston v. Nevin, 128 id. 578, 582; Magoun v. Ill. Inst. Savings Bank, 170 id. 283, 293.
The claim is also made that the act authorizing the assessment of special franchises by a State board instead of by local assessors is an impairment of the right of home rule under the State Constitution. I had supposed, until the question was presented in these cases, that that question had been set at rest by the determination of the Court of Appeals in People ex rel. Metropolitan St. R. Co. v. State Board, 174 N.Y. 417. But it is said that that decision related to a street surface, and not to a steam, railroad; and a distinction is sought to be made because these relators are the owners of the fee of the land in many of the streets in question where the railroads cross and in that case the relator did not own the fee in the streets. The claim is that the local assessors are denied the right by the special franchise tax act of assessing the land in the street, where the fee is in the relators; while, before the act, such land had always been assessed by them. If it ever was so assessed, it was simply as a part of or appurtenant to the abutting land outside the street; for the land in the street, which was subjected to a public use, was exempt from taxation. The Court of Appeals in the Metropolitan case held that a special franchise was the right granted by the State or some municipality to a corporation to construct, maintain or operate in a public highway, some structure intended for public use, which, except for the grant, would be a trespass; and that, in making this intangible franchise subject to taxation, the Legislature had created a new system of taxation and brought within its range a new character of property.
The State Board of Tax Commissioners, however, have no power to assess anything but special franchises, that is, the "new character of property" just mentioned. They have no power under the law to assess any "land," "real estate" or "real property," as those terms were used before the law was amended to provide that they should be construed to include "all surface, underground or elevated railroads, including the value of all franchises, rights or permission to construct, maintain or operate the same, in, under, above, on or through, streets, highways, or public places; all railroad structures, substructures and superstructures, tracks and the iron thereon, branches, switches and other fixtures permitted or authorized to be made, laid or placed in, upon, above or under any public or private road, street or ground." The law provides that the special franchise shall be deemed to include the value of the tangible property in the streets and that the tangible property shall be taxed as part of the special franchise. Tax Law, § 2, subd. 3. Under the construction put upon the law in the Metropolitan case, it appears clear that the tangible property referred to in the statute is the fixtures, rails, ties, and other structures in the streets apart from the land, itself, as that word is generally understood.
I am convinced, therefore, that no constitutional right of the relators has been infringed by giving this power to assess special franchises to the State board. Even if I had doubts concerning the validity of the law, it would be improper for me to declare its invalidity, under the well-settled rule that the Special Term should not declare a law unconstitutional unless it clearly appears to be so.
The claim is also made that none of the occupancies of streets, highways and public places by the relators has any taxable value whatever in excess of the tangible property therein. This is based upon the idea that no revenues can be directly traceable to such occupancies and that the burdens resting upon them because thereof are so great as to destroy the value of the intangible rights. These burdens come from the expense of maintaining gates and flagmen at crossings, from damage claims growing out of accidents at crossings and from other causes. The learned referee has found that the crossings had no net value at the date of the assessment in excess of the value of the tangible property. But the question to be determined is not as to the net value of the crossing, but as to the value of the special franchise, including the tangible property in the street. Many other species of property owned by railroad companies have no net value to them, if the value is to be measured by the cost thereof, the revenues directly traceable therefrom, or by the burdens caused thereby; nevertheless the property is assessable for taxation at the value thereof. This is so with reference to bridges, depots, freight houses and ofttimes of branch lines or feeders. Each of these classes of property, as well as the special franchises in streets and public places, should be viewed as parts of the whole or in its relation to the balance of the line in arriving at its value. People ex rel. Buffalo State Line R.R. Co. v. Barker, 48 N.Y. 70.
It appears that various contracts known as "Grade Crossing Contracts" were made between commissioners on behalf of the city of Buffalo and some of the relators, pursuant to various acts of the Legislature which need not be enumerated. The essential purpose of the contracts was to eliminate crossings at grade. In some instances the railroad was carried over the street by a viaduct, in some the crossing was effected by a subway passing under the street, and in others the contracts provided that the streets should be closed, abandoned, discontinued and obstructed and the travel thereof and thereon diverted to other routes. The claim is made that the effect of these contracts and the changes made under them is to terminate any special franchise which theretofore existed for crossing the streets covered by the contracts at grade; and that no right, authority or permission, within the definition of a special franchise, to cross the streets in any other way, can be spelled out of the contracts; and, therefore, that no assessment for a special franchise as to any of these streets can lawfully be made. The agreements contained provisions that the parts of streets on their present grade which are hereafter to be carried over the railroad by viaduct structure or under the railroad by subway are to be abandoned and discontinued by the city of Buffalo upon the completion of such viaducts or subways and shall not thereafter be used for street purposes on the present surface thereof. Under these provisions there was but the substitution of one method of crossing for another, and the substitution was made to eliminate the crossing at grade, but the old franchise or right to cross the street still remained. The old surface or grade of the streets and the right to use the streets at that grade and surface were abandoned and discontinued.
The assessment under the law was to be made upon the value of all franchises, rights or permission to construct, maintain or operate, surface, underground or elevated railroads in, under, above, on or through streets, highways or public places, all railroad structures, substructures and superstructures, tracks and the iron thereon; branches, switches and other fixtures permitted or authorized to be made, laid or placed in, upon, above or under any public or private road, street or ground. It matters not whether the crossing or occupation is at grade, or under or over the street or public place, to subject the value of the franchise to cross or be upon, over or under the street to assesment under the law.
It seems that, in the notice of tentative assessments given by the State board to some of the relators, crossings and occupations by subways and by viaducts were both included, but on grievance day the assessments on viaducts were omitted. The reason for this omission is not apparent, for both are governed by the same principles. This omission cannot now be corrected, but it in no way affects the validity of the assessments upon the crossings or occupancy by subways.
It would seem at first sight that, where the contracts provide that certain named streets or parts thereof should be closed, abandoned, discontinued and obstructed and the travel thereof and thereon diverted to other routes, the city has put itself in such relation to the streets that they can no longer be regarded as streets, highways or public places within the meaning of the law for the purpose of assessing the relators for special franchises thereon; but, so far as these streets have been assessed by the State board, I am inclined to think that such assessments must be sustained. It is true that under the contracts the public have been excluded from parts of these streets; but there is no change in the title of them, and the municipality still has the right to maintain the sewers and pipes already laid in them and to exercise any rights therein not inconsistent with the enlarged privileges conferred upon the respective relators under the contracts. Their franchises in these streets or public places, instead of being wiped out by the contracts, have been made of much greater value by reason of the exclusion of the traveling public therefrom.
I cannot yield my assent to the contention that, as to streets which have been opened up and extended across the right of way of any of the relators since the construction of their respective roads; they are not assessable for special franchises, at such crossings. Since the early days when the great trunk lines were constructed, the cities and villages through which they pass or which they reach have had a remarkable growth, and many new streets have been opened which these lines cross and which they crossed at the time of the passage of the Special Franchise Tax Law. The Legislature, having that situation before it, enacted the law and employed language in it making assessable the value of "all franchises" "in, upon, above or under any public or private road, street, or ground." Under the law the tangible property of the relators in the streets is not subject to assessment by the local assessors, and will entirely escape taxation if this contention should be upheld.
It has been held with respect to a corporation engaged in supplying gas for public and private use to which the right to use streets has been once granted in general terms that such grant necessarily contemplates that new streets may be opened and old ones extended and that the privilege may be exercised in the new streets as well as the old. People ex rel. Woodhaven Gas Co. v. Deehan, 153 N.Y. 533.
Under the principle enunciated in the case last cited, the provision of subdivision 4 of section 4 of the Railroad Law (Laws of 1890, chap. 565), granting to railroad corporations the right to construct their roads across, along or upon highways, may fairly be construed as a grant to cross streets thereafter opened; and such a grant is a franchise which is in the purview of the act in question.
With respect to the question of the value of the special franchises, it must be borne in mind that the burden rests upon the relators to show that the assessments made upon them are erroneous or unlawful. People ex rel. Jamaica Water Supply Co. v. State Board of Tax Commrs., 196 N.Y. 53. The presumption is that the assessments are legal and proper. If it was shown that a wrong rule, theory or method had been followed in making the assessments, or that they were erroneous or unequal, they could not stand; but none of these things has been made to appear. While it appears that the value placed upon some of the special franchises, over and above the stipulated amount of the value of the tangible property which has been included in them, is large, I am unable to gather from the evidence sufficient to rebut the existing legal presumption or to justify their reduction, except for the purpose of equalization, as hereinafter stated.
I think there should be a reduction in all the assessments in Buffalo of twenty-four per centum of the amount thereof, to equalize them with the assessments of the other real property on the local rolls. It appears by the equalization tables made by the State Board of Equalization that other real estate in the tax district, that is, in the city of Buffalo, is assessed at only seventy-six per centum of its full value. The defendants urge that the local assessors are required by law to assess all real estate at its full value and that they have appended to their rolls their affidavits, as required by law, that they have done so in this instance. But it is well known that, in many localities, if not in most, these affidavits are made by the assessors as a matter of form, because required by law, rather than as a matter of conscience; and, when the State Board of Equalization, after investigation, has in the discharge of its duty made its tables showing that real estate in Buffalo has, notwithstanding the formal oaths of the assessors to the contrary, been assessed at only seventy-six per centum of its value, such tables should not be ignored in a matter of this kind, and the deduction stated should be made for the purpose of equalization. This method of equalization was sanctioned in the Jamaica Water Company case, supra, and should be followed here.
The motion to confirm the report of the referee is denied, the several assessments made by the State Board of Tax Commissioners in each of these cases and inserted in the assessment-rolls in Buffalo should be reduced by deducting therefrom twenty-four per centum of the amount thereof and as so reduced should be confirmed, with costs to the defendants in each case against the relator.