stances affecting the value of such property, including the use or right to use such streets and public places which the defendants were able to ascertain.

26

That the annual gross earnings of the relator for the year 1899 were $14,133,572.21. Such earnings are derived in part from the operation of the Metropolitan system of railroads in the borough of Manhattan, in the City of New York (which system of roads includes the special franchises owned by the relator and the special franchises leased by the relator), and also in part from the transfer of passengers between the relator's system of roads and the Central Crosstown Railroad Company and its leased line, the Christopher and Tenth Street Railroad Company.

27

That the relator does not own, lease or control the special franchises of the Central Crosstown Railroad system, that is, the Central Crosstown Railroad Company and the Christopher and Tenth Street Railroad Company.

28

That the actual and true value of the special franchise of the relator as finally determined by the defendants and as I find is $18,377,911, and no evidence was given before me to show that it is less.

29

That other real estate in the City of New York was assessed at only 67 per cent. of its actual and true value, and therefore to equalize this assessment with the assessment of such other real estate there should be deducted from the $18,377,911 the sum of $6,064,710.63, and there remains the sum of $12,313,200.37 as the value of the special franchise of the relator for the purposes of assessment and taxation under the Special Franchise Tax Act.

CONCLUSIONS OF LAW.

1. That Chapter 712 of the Laws of 1899, is a valid and constitutional enactment, practicable and operative, and that it gave authority to the defendants to assess the relator's special franchise for the purposes of assessment and taxation.

2. That the relator had a hearing and due process of law before the defendants upon the review of their assessment on the 10th day of April, 1900, and was not there deprived of any of its legal or constitutional rights.

3. That it was lawful to assess as one franchise, the franchise, right, authority, or permission which the relator had in the streets of New York, and which it operated as one system.

4. That to equalize its assessment with the assessment of other real property in the City of New York, the relator is entitled to a deduction from its assessment of the sum of $6,064,710.63, and that the assessment as thus reduced, to wit, the sum of $12,313,200.37 must be taken as the value of the relator's special franchise for the purposes of assessment and taxation under the act above referred to, and that the necessary corrections should be made to that end in the assessment roll and tax books in the City of New York.

ROBERT EARL,

Referee.

Before Parker, P. J.; Smith, Kellogg, Chase and Chester, Associate Justices.

The relator herein seeks to review and vacate the assessment made against it by the State Board of Tax Commissioners under the provisions of the so-called Special Franchise Tax Act; and the proceedings are taken under the provisions of article II of the Tax Law, as amended by chapter 712 of the Laws of 1899. A certiorari was issued, and the issues made by the return thereto were duly referred. Upon the coming in of the Referee's report the Special Term approved and adopted the same, and made an order modifying the assessment in some particulars, and, as so modified, sustaining the same. From such order this appeal is taken.

HENRY A. ROBINSON,

(WM. H. PAGE, Jr., of Counsel),

For Appellant.

JOHN C. DAVIES, Attorney-General
(J. NEWTON FIERO, of Counsel),

For Respondent.

PARKER, P. J.:

The first question presented by this appeal is whether the provisions of the law which authorize the assessment and tax complained of are violative of section 2 of article 10 of our State Constitution. Such act, being chapter 712 of the Laws of 1899, first amends section 3 of the Tax Law by adding to the subjects of taxation therein specified the right or franchise to construct, maintain or operate upon, over or under the streets or public places