Dauphin & LaFayette Streets Railway Co. v. Kennerly

74 Ala. 583 | Ala. | 1883

BBIOKELL, C. J.

— There are several questions to which the argument of counsel has been directed, we do not deem it necessary or proper now to consider. The first is, whether the fourth section of the act of the General Assembly approved February 4th, 1860, entitled “An act to enable the corporate authorities of the city of Mobile to grant the privilege of constructing railroads within' the corporate limits of said city” (Pamph. Acts 1859-60, p. 262), imposing a specific tax upon the gross earnings of such railways, “ in lieu and in full of all taxes and impositions of any nature, in favor of said city, upon such railway, equipments, stock and appendages,” is to be regarded as a contract inviolable by subsequent legislation, or as merely offering a bounty, which can be withdrawn at legislative discretion. The second is, whether the “Port of Mobile,” as incorporated under the act of the General Assembly approved February 11th, 1879 (Pamph. Acts 1878-9, p. 392), is a new and distinct municipal corporation, or but the successor of the former'corporation, known'as the “City of Mobile.” These questions can not arise, and become the legitimate subject of judicial consideration and decision, unless it be shown that from the act referred to authority to construct a railway was derived, or that to the company constructing a railway the benefit or right to the statutory rate of taxation has been extended, and that to other municipal taxation it is proposed to subject it.

Originally, the appellant was incorporated by a special act of the General Assembly, under the name and style of the “Mobile Omnibus Company,” for the purpose of transporting for hire persons to and from points in the corporate limits of the city of Mobile, in carriages, vehicles, and omnibuses drawn by animals. — Pamph. Acts 1857 — 8, p. 115. Subsequently, by an act approved February 24th, 1860, the act of incorporation was amended ; and the second section of the amendatory act reads : “That said omnibus company, in addition to the powers heretofore granted under the act of incorporation, shall have power, upon obtaining the consent of the corporate authorities of the city of Mobile, to construct and use their railway or railways, on street or streets in said city, for the transportation of passengers and merchandise; Provided, however, that all the restrictions, limitations and conditions prescribed in an act passed by the present Gen eral Assembly, to enable the corporate authorities of the city of Mobile to grant the privilege of constructing railroads within the corporate limits of said city, shall apply to said omnibus company, should it obtain from said city authorities the privilege to construct and use such railroad.” Pamph. Acts 1859-60, p. 493.

The argument for the appellant is, that the operation and effect of the proviso above recited is to incorporate, as part of its charter, the fourth section of the act to which the proviso refers, thereby relieving it from all other municipal taxation than one per-centum of its gross earnings. It is an undoubted proposition, that the burden of taxation, whether it be State or municipal, ought to fall equally upon all persons, natural or artificial, who may be subject to it. “ Taxation is the rule; exemption the exception.” — -Cooley on Taxation, 146. When, therefore, it is claimed that by legislation any species of property, whether it be the property of natural persons, or of corporations created for individual profit, is relieved from its just proportion of public burdens, the intention to release it ought to be expressed in clear and unambiguous terms: it ought not to be deduced from language of doubtful import, nor when there is room for just controversy as to the legislative intent. Cooley on Taxation, 146; Burroughs on Taxation, 132; Stein v. Mobile, 17 Ala. 234; Delaware Railroad Tax, 18 Wall. 207; Erie Railway Co. v. Pennsylvania, 13 Wall. 492; Bailey v. Maguire, 22 Wall. 215. And it can not be of importance in the application of this principle, that the exemption claimed is not total and absolute' — that it is partial and qualified, assuming the form of a commutation, or the substitution of a burden less onerous than that' which is imposed on the property of others of like kind. An absolute, unqualified exemption, and a partial exemption, a commutation, differ in degree, not in character. A statute creating an exemption from taxation, or substituting, for the benefit of an individual or a corporation, taxation less onerous than that which others must bear, “belongs to a class of statutes in which the narrowest meaning is to he taken which will fairly carry out the intent of the legislature.” — Christ Church v. Philadelphia, 24 How. 302. There is, also, another principle well settled, “that a .corporation takes nothing by its charter, except what is plainly, expressly, and unequivocally granted, or necessarily implied, and. that in all things else the powers which the State may exercise over its affairs are as full and ample as if it were an individual carrying on the same business.”' — Bank of Pennsylvania v. Commonwealth, 19 Penn. St. 155. When these principles are applied to the case before us, the argument of the appellant can not be supported.

The appellant derives corporate existence, and power and authority to construct a railway upon the streets of the city, from its own charter and the act amendatory thereof. It takes no right, franchise or privilege, from the general statute enabling the corporate authorities of the city to grant the privilege . of constructing railways on the streets, or on any land belonging to the city. The power could not be exercised, until the consent of the corporate authorities was obtained. Obtaining the consent, was a condition precedent to the exercise of the power engrafted upon the grant. The power is, nevertheless, a franchise derived from the charter, and not from the corporate authorities when yielding consent to its exercise. The statutory exemption from municipal taxation, or commutation, is, by its terms, limited and confined to “ each company, person or association,” constructing a railway under the authority of the statute in which it is found. The reason for a distinction between those constructing a railway under the authority of the general statute, and a corporation constructing a like railway under a separate, independent, distinct grant proceeding directly from the legislative power, may not be obvious; nor is it within our province to inquire whether a good reason for it can be assigned. . The words of the statute are clear and unambiguous, leaving no room for a construction by which any other than the class designated can be entitled to the exemption from a just proportion of governmental burdens, which it is supposed they create.

The intent to extend the exemption to the appellant can not be deduced from the proviso to the second section of its amended charter. There are no words in it capable' of being construed as a grant of either privileges or powers. When read in connection with the clause immediately preceding it, so far from adding to, or enlarging the general grant of power to the appellant, it will be seen it performs the office a proviso to a statute is generally intended to perform. “ The proviso,” said C. J. Marshall, “is generally, intended to restrain the enacting clause, and to except something which would otherwise have been within it, or, in some manner, to modify the enacting clause.” It is here a limitation or exception to a grant made, — to authority conferred. — Rawls v. Kennedy, 23 Ala. 240; Wayman v. Southard, 10 Wheat. 1. It subjects the franchise conferred upon the appellant to restrictions, limitations, and conditions/ and for them refers to the general statute enacted at the same session of the General Assembly, enabling the corporate authorities of the city of Mobile to grant the privilege of constructing railroads within the corporate limits of the city. The extent to which the general grant of power and franchise is thereby limited and restrained is apparent upon an examination of the statute to which reference is made. The grant can not endure for a longer period than twenty years, and upon the expiration of that period the corporate authorities are clothed with power to take the railway, its rolling-stock, equipments and appendages, upon paying the reasonable value thereof. The use of any other motive power than that of draught animals is prohibited within certain localities. The manner of constructing the railway, the condition'in which it is to be kept, and the penalty incurred if it is not constructed and kept as required, are prescribed. Power is reserved to the corporate authorities to prescribe the width of the track, the part of the street on which it is to be located', and the form of the rail to be used ; to determine the places at which turn-outs and sidings may be constructed, “ and, generally, to impose such terms and conditions as may be necessary to secure the said tracks conforming to the grade of the streets and the drainage of the city,” &c. These are the restrictions, limitations a/nd conditions, to which the general grant of power to the appellant to construct and use a railway is subjected ; and subjection to them is the purpose of the proviso, qualifying and modifying the general grant. The words of the proviso are not capable of a just construction which will extend them beyond these restrictions, limitations and conditions, converting them, from words qualifying the general words which precede., into an independent grant of privilege. We are, therefore, of opinion that the appellant is not entitled to the exemption claimed, and that its property and rights of property are as subject to municipal taxation, as fully and amply, as may be the property and rights of property of individuals.

The result is, the judgment of the Circuit Court must be affirmed.