3 W. Va. 319 | W. Va. | 1869
The Baltimore and Ohio railroad company was charged on the personal property books of the assessor for the first or upper district of the county of Marshall for the year 1864 with property of the value of 315,000 dollars, and w7as charged on the said books on account of the said property with a State tax for general purposes of the. sum of 945 dollars, and with a further State tax for the
The petitioner assigns six different causes of error in the decree complained of, all denyiug in substance that the property of the said petitioner is liable for either the State or county taxes charged-on the said property.
The Baltimore and Ohio railroad company was chartered by an act passed by the general assembly of the State of Maryland on the 28th of February, 1827.
The 22d section of said act provides, “That if the said road shall not be commenced in two years from the passage of this act and shall not be finished within this State in ten years from the time of the commencement thereof, then this act shall be null and void.”
This Maryland charter was confirmed by the general assembly of Virginia with certain conditions and restrictions, not material to this case, by an act passed on the 8th day of March, 1827.
In 1836, 1837, 1838 and 1839 other acts were passed by Virginia authorizing conditional subscriptions to the work of the company, the act of 1838 also extending the time for the completion of the work in Virginia until the 4th day of July, 1843, upon the conditions mentioned in said act. The conditions mentioned in these several acts were never complied with, nor the subscriptions therein provided for, made, but the road was nevertheless completed in 1843 as far as
In 1844-45 and in 1845-46 other acts were passed proposing terms and conditions upon which the company might complete its road through Virginia, but neither of these acts was accepted by the company.
On the 6th of March, 1847, another act was passed which was accepted by the company, and under -which the company completed its road through Virginia, subject to such parts of its original charter as. remain unaltered.
It is claimed here in behalf of the appellees that the act of March 8th, 1827, constitutes no part of the charter of the Baltimore and Ohio railroad company, but that the act of March 6th, 1847, and the general railroad law referred to in the last named act constitute the charter of said company for the reason that the road was not completed in the time named in the act of 1827, whereby the act became null and void, and for the further reason that if the said act did not become null and void it was entirely superseded by the act of 1847.
In the case of the Baltimore and Ohio railroad company vs. Gallahues’ adm’r, 12 Grat., 655, it was held that the Baltimore and Ohio railroad company was a Virginia corporation, by virtue of the act of March 8th, 1827, thus recognizing the existence of the wet. But it is claimed by the counsel for the appellees that this case is no .authority, because the effect of the 22d section declaring the charter null and void if the road was not completed in the time specified, was not considered by the court. This question could not have been considered by the court, because the act of 1827 had been accepted and the company ¡had become a corporation under it and had made its road as far as Cumberland before the passage of the act of 1847, so that although the charter was perhaps at the time of the. passage
Although a charter of am incorporated company may be forfeited, yet the government which granted the charter may not choose to enforce the forfeiture, and it seems that if the charter of the Baltimore and Ohio railroad company was in fact forfeited, as claimed by counsel, the State of Virginia did not choose to enforce such forfeiture.
It seems to me quite plain that the charter of 1827 has not become inoperative by reason of the section declaring it void if the road was not completed in the time specified.
Nor do I agree that the act of 1827 is wholly superseded by the act of 1847. The act of 1847 could not have been intended as a substitute for the act of 1827, but was intended to authorize the Baltimore and Ohio railroad company, which is recognized by the act itself as an existing company, to complete its road through the State of Virginia under the act of 1827, subject to the restrictions and upon the conditions imposed on the company by the said act of 184-7. Such must have been the view taken by the court in the case of the Baltimore and Ohio railroad company vs. Gallahue.
The question may be asked why was it that the company accepted the act of 1847 if its charter under the act of 1827 was not forfeited ? That the State had no power to impose on the company without its consent the act of 1847 is clear. But the reason why the company accepted the terms proposed in the act was probably because it was supposed that, if the company went on to complete the road under the ori-. ginal charter proceedings would be taken to vacate its «barter.
It is, however, not necessary to inquire for the reason',
The aet of 1847 having been-'accepted by the company, together with the aet ©f 1887, establishing general regulations for the incorporation of railroad companies, so &r as properly applicable, became parts of the charter of said company along with the aet of 1827, the aet of 1827 giving way to both or either-of the acts of 1847 or 1837 whenever inconsistent- with them or either of them.
The 18th section of the original charter contains this provision : “ The shares of the capital stock of the said company shall be deemed and considered personal estate, and shall be exempt from the imposition of any tax or burthen by the State’s assenting t® this law..”
The 23d seetion of the aet of 1837, prescribing general regulations for the incorporation of railroad companies, provides that, “All machines, wagons, vehicles or carriages belonging to any company incorporated subject to the provisions -of this aet, together with all their works, and all profits which shall aeerne from the same, shall be vested in the respective shareholders forever, in‘proportion to their respective shares, and shall be deemed personal estate.”
The 7th seetion of the aet of March 6th, 1847, provides, That the stock, property and profits of said company, so far as the same may be or aeerne within this commonwealth, shall be subject to general taxation in like manner and on the same footing with other similar companies within this State: Provided, *however, That said taxing power shall not be exercised until and unless the net income of said Baltimore and Ohio railroad shall exceed six per centum per an-num upon their capital invested.”
The controversy in this case depends on the construction to be given to these three sections contained in the three different acts referred to, upon the facts as they appear in the record. The valuation of the property of the company was ascertained and placed upon .the books of the assessor for taxation, under the fifty-third section of the “act to pro
The first cause assigned for error by the petitioner is that: “ The Baltimore and Ohio railroad company having been, by the act of the 6th of March, 1847, which was accepted by said company, declared subject in all respects to the act establishing general regulations for the incorporation of railroad companies, passed March 11th, 1837, and by the 23d section of the last named act, it being- declared that the property and profits of a railroad company should be vested in the several stockholders thereof in proportion to their respective shares, and declared to be personal estate-; it follows that the property and profits of the petitioner could only be assessed'and charged with taxes in the names of the several stockholders in whom the same was vested in proportion to their respective shares, and eould not be so assessed and charged in the name of the company in which said property and profits were not vested.”
If it be true that the property belonging to the company might be assessed and charged with taxes in the names of the several stockholders, by the necessary legislation, it does not follow that if not so. taxed it cannot be assessed and charged with taxes in the name of the company. But what is the meaning- of the 23d section of the act referred to ?
The language is, “ All machines, wagons, vehicles or carriages belonging to any company,” &c., “ shall be vested in the respective shareholders,” &c.; can property belong to a company without being vested in the .company ? But who or what constitutes the company ? The respective shareholders in propertion to their respective interests.
The obvious meaning of the section then must be that the property belonging to the company is vested in the shareholders in their corporate capacity and not as individuals or natural persons, and is consequently taxable in the name of the company.
The second cause of error assigned is that, “ if the prop.- •
The Baltimore and Ohio railroad extends from the city of Baltimore through the territory of the States of Maryland and West Virginia to the city of Wheeling, and is the work of the Baltimore and Ohio railroad company, and there can be no good reason assigned why the section should not be construed as it is written and be held to mean what the words used import. The language used in the proviso referred to and before quoted is: “ That the said taxing power shall not be exercised until and unless the net income of the said Baltimore and Ohio railroad shall exceed six per centum per annum upon their capital invested.”
Capital how invested it may be asked? Invested in and upon the railroad according to the terms of the charter. The language cannot be limited as claimed by the petitioner to that portion of the railroad which is
The third cause of error assigned is that, “it is'clear from the said act last referred to that before the said taxing power was to be exercised, it was the intention of the legislature that it should be first ascertained and declared by act or resolution of that body, or by some other appropriate method, under its authority, that the condition had happened upon which the taxing power might lawfully be exercised, and it was not to be left to the local officer of any one of the counties through which the road passed to take upon himself the duty of determining that question. No such act or resolution was ever passed by the legislature of Virginia or by that of West Virginia, nor was it ever ascertained by any competent authority under either, that the net profits of the road had reached the point at which taxation might commence.”
The proviso in the act declaring when'the taxing power
The fourth cause of error assigned is that, “the condition upon which the taxing powers might lawfully be exercised over their subject not having yet happened, or not having been declared to have happened by legislative act or authority, your petitioner was not bound to make the return required by the 52d section of the act of December 3d, 1863, providing for the assessment of taxes, and the act of the assessor of Marshall county in charging and assessing your petitioner with taxes for want of such return was unauthorized and void, in plain violation of the rights secured to your petitioner by its charter and in contravention of the constitution of the United States/’
The fifth cause of error assigned is that, “before dissolving the injunction the court should have directed a reference to a commissioner, or-an issue to be heard by a jury, for the purpose of ascertaining whether the net income of the road had exceeded the rate of six per cent per annum upon the capital invested in the State of Virginia, or West Virginia, prior to the 1st of February, 1864, or otherwise, and until a report or verdict in the affirmative the said injunction should have been continued.”
This assignment of error is based upon the supposition that the net income of the road must exceed six per centum upon the capital invested on said road in this State, which, as has been before stated, is not the correct construction. There could have been no necessity for a reference or an issue to ascertain the net income of the road, for that sufficiently appeared to the court from the facts in the case.
The sixth and last cause of error assigned is that, “if the property and profits in the hands of your petitioner belonging to the stockholders of the company was liable to taxation at all, it was only liable under the 7th section of the act of March 6th, 1847, to general taxation for State purposes which might be equal and uniform and was not liable to local taxation for county purposes, which might be special and therefore unequal and unjust. And go the said circuit court should at least have restrained the collection of the heavy levies for couiity purposes, made by the supervisors of said county, if it was rightfully dissolved as to the State and school taxes claimed on the.part of the State.”
The point raised in this assignment of error depends upon the meaning of the word general as used in the 7th section of the act of 1847.- It may be assumed that if,the
This section takes tbe place of that part of tbe 18th 'section of the original charter, heretofore quoted, so far as there is any disagreement between them,
That part of the 18th section of the original charter referred to, has been held by the court of appeals of the State of Maryland, to exempt all the property of the company of every description from taxation. The Mayor and City Council of Baltimore vs. The Baltimore and Ohio railroad company, 6 Gill Rep., 288.
It is not necessary now to express my opinion.in relation to this decision as it can have no material bearing here, nor could it have if different from what it is. But assuming that the exemption of the shares of the capital stock of the company from any tax may be construed to exempt the property from taxation under the original charter, what is to be the effect of the act af 1847 ?
The words of the orignal charter are, “the shares of the capital stock of the said company” shall be exempt from any tax, while the words of the act of 1847 are, “tbe stock, property and profits of said company” shall be subject to general taxation. Whatever may be the extent of the exemption from taxation under the original charter it is plain that under the act of 1847, whenever a liability to taxation, exists it extends to the property of the company, so far as the same may be or accrue within this State.
Nor does the word general, or the phrase “general taxation,” as used in the act, qualify the right of taxation or limit it to a particular kind of taxation t The petitioner claims such limitation, and that if it be liable to any taxation it is .only liable to general taxation for State purposes and is not liable for local or county taxes.
The power to tax all property within a State for the support of government is a l'ight existing in all governments, and essential to-their existence.
If the property in this case were owned by a natural person upon the ordinary conditions of ownership there could
■ The Baltimore and Ohio railroad company is an artificial person, invisible, intangible, but existing in contemplation of law. Being the mere creature of the law, it possesses only such powers as its charter confers upon it either expressly or as incidental to its existence.
Among the powers of the company conferred by its-charter is that of purchasing and holding property for its necessary purposes. By virtue of the power conferred by its charter it does hold the property on which the taxes in this controversy are charged, and this-property is just as much liable to taxation when owned by the company, an artificial person, as if owned by a natural person, unless it bo exempted from taxation in whole or in part by the charter of the company.
"Whenever the right to tax the property of the company exists at all, the right exists to tax it for the same purposes and to the same extent that the same property might be taxed if it belonged to a private or natural person,- unless this right is limited by the word general in the amended charter, as it is contended that it is. To give to the word its plain literal signification its meaning is exactly the reverse of that contended for. The definition of the word general found in Burrill’s Law Dictionary is, “ that which comprehends all, the whole, as distinguished from special which signifies something designed for a particular purpose.”
There can be no good reason why the word shall 'not have its usual signification and not be held to be a limitation on the taxing power.
In the case of the Stourbridge Canal vs. Wheely and others, in 2 Barnwell & Adolphus, 793, it was held that, “the canal having been made under an act of parliament the rights of the plaintiffs are derived entirely from that act. This, like many other cases, is a bargain between a company of adventures and the public, the terms of which are expressed in the statute, and the rule of construction in all such cases
In the case of The Philadelphia and Wilmington Railroad vs. The State of Maryland, 10 Howard, 393, Chief Justice Taney delivering the opinion of the court, uses this language: “ This court, on several occasions, has held that the taxing power of a State is never presumed to be relinquished un- • less the intention to relinquish is declared in clear and unambiguous terms.”
In the case of The Ohio Life Insurance and Trust Company vs. Debolt, 16 Howard, 416, Chief Justice Taney uses the following language in delivering the opinion of the court; “The grant of privileges and exeriiptious to a corporation are strictly construed against the corporation and in favor of the public. Nothing passes but what is granted in clear and explicit terms. And neither the right of taxation nor any other power of sovereignty which the community has an interest in preserving undiminished, will be held by the court to be surrendered, unless the intention to surrender is manifested by words too plain to be mistaken.”
In the recent case of The Jefferson Branch Bank vs. Skelly, 1 Black., 436, Judge "Wayne used the following language : “The rule of construction in such case is that, the grant of privileges and exemptions to a corporation is to be strictly construed against the corporators and in favor of the public ; that nothing passes but what has been, granted in clear and explicit terms, and that neither the right of taxation nor any other power of sovereignty will be held by this court to have been surrendered, unless such surrender has been expressed in terms too plain to be mistaken.”
The principles announced in these cases are the well settled rules of construction in the class of cases to which they apply, of which the case tinder consideration is one. And if there remained any doubt as to the extent of the power of taxation when construed according to the literal import of the terms used, when construed in the light of these rules
The court below did not, for any of the causes assigned, or for any other apparent cause, commit any error in rendering the decree complained of, and the same will have to be affirmed with damages and costs to the appellees.
Judgment aestrmed.