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People ex rel. New York Central & Hudson River Railroad v. Woodbury

140 A.D. 848 Court Third Department, Decision date 1910-11-16 English

Delivered by Sewell, J.:

Contents

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The People of the State of New York ex rel. The New York Central and Hudson River Railroad Company, Respondent, v. Egburt E. Woodbury and Others, Together Constituting the State Board of Tax Commissioners (Town of Minden), Appellants.
Third Department,
November 16, 1910.

Headnote

Tax—special franchise tax on railroad crossing adjoining highways at angle other than right angle — Tax Law construed — municipal corporation cannot grant franchise—equalization of assessment.
A railroad which maintains a bridge which crosses the Brie canal and an abutting highway at an angle other than a right angle for a distance of more than 250 feet is liable for a special franchise tax thereon.
Subdivisions 3 and 4 of section 2 and section 42 of the former Tax Law authorizing the' assessment of a franchise tax on railroads over public highways and places, and defining such special franchise, when read in connection with the General Construction Law, stating that “ Words in the singular number include the plural, and in the plural number include the singular,” must be construed to mean that a special franchise includes the crossing of any number of streets, highways or'public places adjoining each other where the crossing is at other than right angles for a distance not less than 250 feet.
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A municipal corporation has no power to grant a franchise to a railroad company to construct and operate its roads across or above public highways. Such franchise can be granted only by the Legislature, which'may prescribe the conditions to be complied with before the company can construct or operate its road.
The assessment of a special franchise tax made at its full value will be reduced to equalize it with the percentum of the full value assessed upon other real property in the locality.
Appeal by the defendants, Egburt E. Woodbury and others, together constituting the State Board of Tax Commissioners, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 9th day of March, 1910, vacating an assessment of a special franchise’ made by the State Board of Tax Commissioners in the year 1907, under the provisions of the Tax Law. (See Laws of 1896, chap. 908, § 42, added by Laws of 1899, chap. 712, and amd. by Laws of 1900, chap. 254; Laws of 1902; chap. 112, and Laws of 1904, chap. 382.)
A certiorari was issued to review the assessment and a referee was appointed to take and report to the court the evidence with his findings of fact and conclusions of law upon' the several issues made by the return. The referee found that the West Shore railroad, of which the relator is the lessee, crosses the Erie canal lands at other than right angles for a distance of 242.79 feet, and continuing in. the same direction crosses a highway adjoining and parallel to the canal for a distance of 62.64 feet; that the tracks were carried over the canal land by a lattice truss pin-connected bridge, the westerly end of which rests, upon a pier built partly on the canal lands and partly within the bounds of the highway; that the tracks are carried over the highway by a through plate open-floor bridge, the easterly end of which rests upon the pier; that the bridges were constructed in 1882 and rebuilt in 1905; that they do not lap and that there is one continuous line of rails, ties and track superstructure across the bridge. The referee concluded that it was not lawful to assess as one special franchise the crossing of the canal lands and the crossing of the adjoining highway, and that the assessment should be vacated. The referee also found that the assessments, generally, in the town of Minden were eighty percentum of full value, while the assessments by the State Board of
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Tax Commissioners were made at full value. When the matter came on for hearing at Special Term the court adopted the findings of fact and conclusions of .the referee and made the order appealed from.
Harold J. Hinman, for the appellants.
J. D. Wendell and Albert H. Harris, for the respondent.

The only question involved in this appeal is whether the right to cross the canal lands and the highway constitute a special franchise.

Subdivision 3 of section 2 of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1899, chap. 712), and section 42 of said statute (added by Laws of 1899, chap. 712, and amd. by Laws of Í900, chap. 254; Laws of 1902, chap. 112, and Laws of 1904, chap. 382) authorize the assessment for the purpose of taxation of all franchises, rights or permission to construct, maintain or operate a railroad in, under, .above, on or through streets, highways or public places. Subdivision 4 of section 2 of said statute (added by Laws of 1901, chap. 490), which was in force wheii the assessment was made, provides that “ The term special franchise shall not be deemed to include the crossing of a street, highway, or public place, where such crossing is not at the intersection of another street or highway, unless such crossing shall be at other than right angles for a distance of not less than two hundred and fifty- feet in which case the whole of such crossing shall be deemed a special franchise.”

In the endeavor to ascertain the intention of the Legislature,' with respect to whether the term special franchise shall be deemed to' include the right to construct, maintain or operate a railroad on, across or above two or more adjoining highways or public places at other than right angles for a distance of 250 feet, we need to go further than the statute itself.- There was a provision in the Statutory Construction Law (Gen. Laws, chap. 1 [Laws of 1892, chap. 677], § 8) which is now incorporated in the General Construction Law (Consol. Laws, chap. 22 [Laws of 1909, chap. 27], § 35) that has a direct bearing upon this question. It reads as follows: “ Words in the singular number include the plural,

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and in the plural number include the singular.” If this rule is applied to this case and the words “ highways ” and “ public places” are read into and made a part of the statute in question it is plain that the term “ special franchise ” must be deemed to include the crossing of any number of- streets, highways, or public places adjoining each other, where the crossing is at other than right angles for a distance not less than 250 feet. There can be no manner of doubt that this rule of statutory construction applies to the statute under consideration. Section 1 of the Statutory Construction Law provides that such statute “ is applicable to every statute unless its general object, or tiie context of the language construed, or other provisions of law indicate that a different meaning or application was intended from that required to be given by this chapter.” No light is thrown on the question of the intent of the Legislature by the amendment of 1908 (Chap. 295, amdg: Tax Law, § 2, subd. 4). The evident purpose of that amendment was to include for assessment as special franchises all crossings, irrespective of distance and connections, within the boundaries of cities and villages, and to prevent the elimination of a crossing less the 250 •feet which was the continuation of an occupancy of another street, highway or public place.

It may also be observed, in answer to the contention of the respondent that the right of the relator to construct and operate its railroad across or above the highway was received from the “ highway authorities,” that there is no power in a town, village or city to grant such a franchise. “ That proposition was laid down in the case of Milhau v. Sharp ( 27 N. Y. 611 ) and it has ever since been recognized as the law of this State.” (Beekman v. Third Avenue R. R. Co., 13 App. Div. 279 .) It was necessary for the relator to obtain an order of the Supreme Court before it could exercise the right, but that conferred no franchise. That was only a condition prescribed by the Legislature that had to be complied with before the company could proceed to construct or operate its road. This franchise was granted by the People of the State and became perfect and complete the. moment the corporation came into existence. (Matter of Thirty-fourth Street R. R. Co., 102 N. Y. 343 .)

Our conclusion, therefore, is that the order appealed from should

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be reversed and the assessment made by the State Board of Tax Commissioners modified by deducting twenty per cent from the valuation of the special franchise to equalize the assessment with the assessment of the other real property in the town, and as so modified affirmed, with fifty dollars costs and disbursements.

Cochrane, J., concurred in result.

Final order appealed from reversed, on law and facts, and the determination of the Tax Commissioners modified by deducting twenty per cent from the . valuation of the special franchise to equalize the assessment, with the assessment of the other real property in the town, and as so modified unanimously confirmed, with fifty dollars costs aisbursements.

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