Gonzales v. Sullivan

16 Fla. 791 | Fla. | 1878

Me. Justice Westcott

delivered the opinion of the court.

The Constitution, operative in this State in 1855, provided that “ a liberal system of internal improvements being essential to the development of the resources of the country, shall be encouraged by the government of this State, and it shall be the duty of the General Assembly, as soon as practicable, to ascertain by law proper objects of improvement in relation to roads, canals, and navigable streams, and to provide for a suitable application of such funds as may be appropriated for such improvements.” In 1855 the General Assembly, reciting this clause of the Constitution, passed aD act (Chap-. 610, Laws,) “ to provide for and encourage a liberal system of internal improvements in this State.” In the fourth section of this act the Legislature, in discharge of its constitutional duty to ascertain and declare bylaw proper objects of improvements, declared that “a line of railroad from the St. Johns river at Jacksonville and the waters of Pensacola Bay, with an extension from suitable points on said line to St. Marks river or Crooked river, at White Bluff, on Apalachicola bay, in Middle Florida, and to the waters of St. Andrews bay in West Florida, and a line from Amelia island on the Atlantic to the waters of Tampa bay in South Florida, with an extension to Cedar Key in East Florida, also a canal from the waters of St. Johns river on Lake Harney to the .waters of Indian river, are proper improvements to be aided from, the .Internal Improvement Fund.”

The 5th section of the act provided that “ the several railroads now organizd or chartered by the Legislature, or that may hereafter be chartered, any portion oi whose routes as authorized by their different charters and amendments thereto, shall be within the line of routes laid down in section four, shall have the right and privilege of constructing that part of the line embraced by their charter, on giving notice to the Trustees of the Internal Improvement Fund of their lull acceptance of the provisions ol this act, specifying the part of the route they propose to construct, and upon the refusal or neglect of any railroad company now organized to accept, within six .months from the passage of this act, the provisions of the same, any other company duly authorized by law may undertake the construction of such part of the line as they may desire to make, and w7hich may not be in progress of construction under a previous charter.”

The 18th section of the act provided that “the capital stock of any company accepting the provisions of this act shall be forever exempt from taxation, and the roads, their fixtures and appurtenances, inclndings work-shops, ware'houses, vehicles, and property of every description needed for the purpose of transportation of freight and passengers, • or for the repair and maintenance of the roads, shall be exempt from taxation, while the roads are under construction and for the period of thirty-five years from their completion.”

A careful examination of this legislation will show that aid to railroad companies as corporations, with power to construct even the lines of railway indicated, was not its primary purpose. The constitutional provision looked to “ a liberal system ” as “ being essential to the development of the resources of the country,” and its mandate of duty to the Legislature was to ascertain by law proper objects of improvement. In no one of these séctions do we find any company named as the one to receive the benefits of the act. If the charters of any companies then existing covered any portion ,of the lines ascertained a/nd named as a part of the system, then, without reference to any incidental benefit which might accrue to these companies, and only because a line or route embraced within their charters came within the system, such campanies became entitled to the benefits of the act upon complying with whatever, under its terms, were the conditions upon which a right to such benefits, grants, or exemptions enured or vested. They became entitled to these benefits only through the accidental fact that they had legal rights and franchises vested in them as to certain lines and routes of railway which the Legislature had, in conformity to constitutional duty, declared “ proper objects of improvement.” This is no where more manifest than in the section granting exemption from taxation, where the rule of taxation fixed is that there shall be no taxation of the capital stock at any time, and that as to the property, “ the roads, their fixtures and appurtenances, &c., shall be exempt from . taxation while the roads are under construction, and for the period of thirty-five years from their completion.” This is a legislative act offering an exemption from taxation of the improvements which the State desired constructed for the time named,, in consideration of the acceptance of the provisions of the internal improvement act by the company having the legal right to construct them. "Whether this was a correct or wise exercise of legislative discretion, viewed in the light of public policy, is not a judicial question. We will not enter that field. The question here is one of power, not of policy. A simple reading of the internal improvement act, together with the charters of the seve•.raL.companies having the right to construct these roads, or any part thereof, at the time of its enactment, will show that many additional requirements were made of them by the State through this act. Some of these were the provisions in reference to transportation of the mail, (section 23,) the limitation as to price to be paid for transportation for other roads, (section 25,) and the many requirements as to' manner of construction, (section 6).

Our conclusion in reference to this branch of the subject is, that the acceptance of the provisions of the internal improvement act by these companies constituted such act, its requirements and its benefits, a portion of their several charters, that such requirements became the law of their being, and that the grant of exemption by the Stat¡e was a contract between the State and the companies owning the road. (13 Wall., 264; 15 Fla., 637.) We think also that the right and privilege of exemption is annexed by the terms which create it to the property.

In the case of the State of New Jersey vs. Wilson, (7' Cranch, 164,) it appeared that the Legislature of the State of New Jersey had passed an act authorizing a purchase of' lands for the Indians. The act provided that the lands to be purchased “ shall not hereafter be subject to any tax.” A subsequent act repealed this section granting this exemption. The questions before the court were, what was the effect of the first enactment, and the result of the second. Mr. Chief-Justice Marshall, speaking for the court, says : “ The privilege, though for the benefit of the Indians, is annexed by the terms which create it to the land itself, not to their persons. It is tor their advantage that it should be annexed to the land, because, in the event of a sale in which alone the question could become material, the value would be enhanced by it.” So here, the privilege, the exemption,, is annexed to the road itself. We have before said this legislation is throughout as to the roads and their construction. True, the companies are the agents through which their construction is to be accomplished, but benefit to these companies is the incident; the construction of the road, the completion of the system, the principal.

With these views as to the effect and purpose of this legislation, we next inquire, was the road owned and constructed by the Alabama and Florida Eailroad Company extending from “Pensacola bay to the north line of the State leading in the direction of Montgomery, Alabama,” a road to which this exemption attached, either by the act of Jan uary 6, 1855, or the act approved December 14, 1855, and the subsequent acceptance of the provisions of the act of January 6, 1855, by that company? It is very clear that this road is not embraced in the .act of January 6, 1855. The State insists that no road not designated in the fourth section of the act of January 6,1855, could have become entitled to the benefit of this exemption, and in support of that position calls our attention to the language used by this court in .the ease of the Atlantic and Gulf Eailroad Company vs. Allen, (15 Fla., 651.) We there said : “ The term ‘ roads ’ in this section (the 18th) refers strictly to the line •of road for the construction of which the Internal Improvement Fund was created, and this line of road, a branch road from Live Oak to Lawton, was not embraced therein. To extend the exemption to other roads would be clearly inconsistent with the general purpose of the act, which was to encourage the system created by it, in which system the-branch road was not embraced.” This view, as applicable to the case then under consideration, was correct. There was no pretence that any act of the Legislature ever made •or constituted the branch road from Live Oak to Lawton a proper improvement to be aided from the fund. The question in that case was whether that road, because it was at one time owned by a corporation owning the line of road from Tallahassee to Lake City, was exempt from taxation by virtue of the stock clause of the 18th section. We held not; and that the exemption belonged only to the roads designated in the 4th section. We had in mind at the time nothing except the internal improvement act. . With that as the only law on the subject before us, what we said was correct. As the author of that opinion, however, I do not hesitate to say that, the language, unless controlled in reference to the facts then in view and the statutes being construed, was too broad and general. The points in that ease were different from those in this. That cannot determine this. To the extent that what is there said covers the new questions here, viz: the extent of the power of the Legislature in December, A. D. 1855, to designate another improvement and give it exemption, and the construction of the act of December 14, 1855, viewed in connection with the act of January 6,1855, it is mere obiter and cannot control. The same is likewise true of the case of Holland vs. The State, (15 Fla., 529.) We had there before us no other statute except the internal improvement act and the act incorporating the J., P. & M. R. R. Co.

Chapter 934, (laws,) is an act to facilitate the construction of the various lines of railroad provided for by the act entitled “ an act to provide for and encourage a liberal system of internal improvements in this State,” approved 6th January, 1855.

The 4th section of that act provides “ that a line of railway to be constructed from the city of Pensacola, or any other point or points on the waters of Pensacola bay, or the waters of St. Andrews bay, to the north line of the State leading in the direction of Montgomery, Alabama, shall be considered as a proper improvement to be aided from the Internal Improvement Fund in the manner provided for, or may hereafter be provided for, in an act to provide for and encourage a liberal system of internal improvements in this State, approved January 6, 1855.”

Two questions arise here: What is the effect of this seetion, considered with reference to antecedent legislation, and did the Legislature have power to enact it, in view of -the provisions of the antecedent act of 1855 ? It is insisted that the aid which is derived under the exact terms of this act can come only from the Internal Improvement Fund, and this is true ; but it is also true that a road by law entitled to avail itself of the aid extended to other roads for their construction becomes, like them, under the act of 1855, a part of the internal improvement system. The aid here granted was to be “ in the manner provided for ” in the act of January 6, 1855, and this road, when it accepted the aid extended, must necessarily have placed itself, and did place itself, under the conditions upon which that aid was extended in the act, as it accepted it as provided in the act.

The 4th section of the act of 1855 did no more than designate the lines therein named “ as proper improvements to be aided from the Internal Improvement Fund in manner as hereinafter provided.” This made them a part of the system.

Granting the power of the Legislature, (the-view in which we are now considering the matter,) we have here, within less than twelve months after the passage of the act of January 6, 1855, another act designating this road “ as a proper improvement to be aided from the Internal Improvement Fund, in the manner provided by the act of January 6, 1855.” If the one provision made a road a part of the system, how can it be that the other does not? Going back to the Constitution itself, it is clear that what was to constitute a particular work an improvement belonging to the system, was a legislative declaration that it was “ a proper object of improvement.”

It is said also that while this road may be entitled to aid from the Internal Improvement Fund under the act of December, 1855, it is not entitled to exemption from taxation, as that is something different and distinct from such aid, and can result only from a clear grant by the State. This is true, and it is likewise true that the internal improvement act of 1855 did no more than designate certain lines of road as proper improvements to be aided from that fund. The exemption of no road resulted ex vi termini from the internal improvement act. This being done as an inducement to the company or corporation having the right to construct roads belonging to the system, the 18th section of the act provided that the roads,-&e., should be exempt upon the company's accepting the provisions of this act. The exemption resulted from two facts; first, being designated as a proper object of improvement, and, second, the acceptance by the corporation owning the road thus designated of the provisions of the act, and bringing itself under the rules of construction and other regulations of the act.

•So in reference to this line of road. Under the act of December 14, 1855, it became a part of the system. It became a road within the language of the 18th section. That fact existing, upon the acceptance of the provisions of the act by the company having the right to construct the road, the right of exemption, during construction and thereafter for thirty-five years, enured as a right resting in contract, and as attached to the road as a road, and not simply because it was the property of one corporation or another. These two acts are in pari materia. They concern the same subject-matter.

The rule of construction, as announced repeatedly by this court, is that such statutes must be construed as one act. This being the rule, we cannot see how any other conclusion can be reached. The whole question is, did this road become a part of the system ? If it did, then antecedent legislation as to roads embraced in the system, being in reference to the same subject-matter, become as much applicable to the road last made a part of the system as the one first made so* '

The next question is, did the Legislature have power to enact this law ? In this connection our attention has been called to the case of The Internal Improvement Fund vs. Bailey, 10 Fla., 113. That case was decided in 1862, about eight years after the passage of the internal improvement act. The Legislature in January, 1861, passed an act to improve the navigation of a river, and directed the cost to be paid from the Internal Improvement Fund. A holder of bonds, before that time issued under the third section of the act, sought to enjoin such appropriation of the fund, and the court held that he was entitled to such injunction. The ground of its action was that the measure of the right of the holder of the bond was the, act of 1855; that upon a sale of the bonds therein authorized rights became vested, a contract was brought into existence; that the terms of the law measured its obligation, and that the act, appropriating funds for the improvement of a river, was a violation of the contract, in that it diverted a portion of the funds pledged for the payment of the bond contrary to the terms of the law.

If it be admitted that all of this is true, and we think it is, it.does not follow here that the act of December, 1855, was in violation of any right of a bondholder. For while in 1861 it does appear from this case that there was a bondholder, non constat, but that there was none in December, 1855, the.date of the act here in question. That case is authority for the position that an antecedent bondholder can set aside or enjoin an appropriation of the fund for any purpose to which it was not applicable at the time that his right as a bondholder attached. That was the true question in the case. The equity of the bondholder, the cestui que trust, was held effective to restrain and limit the power of the trustee to the terms of the law as it was when his right accrued and when the obligation of his contract- attached. But the present case is here upon a demurrer to a bill. No where in the bill is the existence of a bondholder at any time stated. This, as a matter of course, is a fact of which we cannot take judicial notice, even if it existed at the date named, and if it be any defence by this officer to set it up, he must do so by way of answer. It does not appear from the bill. In what way, however, the equity of a bondholder can be made effective by the State in this matter we cannot see. That, however, is not a question before us at this time.

In the discussion of the case of the Trustees of the Internal Improvement Fund vs. William Bailey, 10 Fla., 125, the court, while admitting the power of the Legislature to designate more objects of improvement than were designated in the 4th section, remarked that “ the General Assembly took a wise view of the Constitution, and, therefore, designated in the beginning only a few grand objects, vital to the whole State for improvement, leaving others to wait for their share of State aid until those first inaugurated should have passed successfully through the fiery ordeal of their difficult and doubtful struggle into existence.” After naming what the objects designated by the act of 1855 were, the court again says : “ After these roads should be built and prove a success, by being able for five consecutive years to pay six per cent, on the capital stock paid in and the interest on the bonded debt, and one per cent, yearly on a sinking fund on said debt, then, as provided by section 27, the Trustees of the Internal Improvement Fund may apply, under the direction of the Legislature, the annual income arising from said fund to other purposes of internal improvement, &c. So it will be seen that it was not the design to absorb the whole fund in aiding the designated improvements to the exclusion of all others, but only to postpone all others until those first designated should have been put into successful operation. This, we clearly think, the General Assembly had a right to do.”

We have inserted this language of the court in full in order that the effect given to the 27th section of this act by it in that decision may be clearly seen. The court here simply say that the Legislature had the right to designate some objects of improvement to be constructed first, and to postpone others. While this may be true of this Legislature, it is also true of a subsequent Legislature that its powers were not limited by the powers of the'first, unless the act of the first was of such character as called into operation a constitutional limitation, and something more than a simple antecedent exercise of legislative power stood in the way of the exercise of the powers of the subsequent one. The internal improvement act is not organic law, and the power of one Legislature is no greater than another. Where the power of the subsequent one is limited, it results from the fact that the act of the first is of such character that the organic law renders it inviolable through constitutional limitations covering the subject. It may be true, as to this 27th section, that such portion of it as provides that the fund shall pay deficiencies in the interest account is a contract, when viewed in reference to a bondholder. This was perhaps a part of' the contract with him, as it was defined'by this court in the case of the Trustees of the Internal Improvement Fund vs. Bailey, but we cannot see that such is the case with the re- ‘ mainder of the section, whether viewed in reference to the State, to the Trustees, to the companies, or the bondholders. This section is nothing more than a legislative declaration as to what the Trustees shall do under the direction of a subsequent Legislature, in the event the railroad companies pay for five years six per cent, on the capital stock, the interest on the bonded debt, and the sinking fund. The provision that the railroad companies indicated by the internal improvement act shall for five years pay six per cent, on their capital stock, before the annual income arising from ■ the fund is to be applied to some other purpose, if a contract, is a contract with the companies or the stockholders.

We are not prepared to say, and cannot say, that it was within the power of that Legislature to agree with the stockholders of every private corporation embraced in this system that nothing further should be done with the Internal Improvement Fund than was provided in that act until the stock of each stockholder in these corporations should yield him simper cent. This Legislature could not make the exercise of the constitutional functions and powers of a subsequent Legislature in reference to the great public trusts attached to these grants conditional upon the fact that the private investment of A., B. or C. should yield him one, two or six per cent. This Legislature, notwithstanding the constitutional limitation as to pledging thefanth cmd credit of the State, might, in consideration of a company agreeing to construct a road a part of the system, pledge to the holders of the bonds of the company a part of the public domain applicable to such purpose, and such legislation may be had as to attach to such a grant a constitutional limitation, but one Legislature cannot agree with a stockholder in a railroad company, that unless his stock yields him six per cent., a subsequent Legislature shall not discharge its constitutional legislative duties as to lands which the State holds by virtue of grants from the Federal Government. It might just as well attempt in the charter of a corporation to contract that’ unless the stock yielded an income of six per cent, a future Legislature should not have power to establish rules of property or to perform the usual functions appertaining to the legislative branch of the government. The legislative power of the State was in this Legislature for the time fixed as the term of office of the persons belonging to that department of the government. The Constitution provided that after that time this legislative power should be in other persons, .and this Legislature could pass no law in derogation of this constitutional grant of power to Legislatures following.

In discussing this, subject we must recollect the distinction between legislation,, which, under the Constitution, amounts to a contract, such as grants of exemption from taxation based upon a consideration. These have been held by the Supreme Court of the United States to be matters lying in grant—things as to which a contract may attach. But the power of the Legislature in reference to an acknowledged continuing public trust and power cannot be limited by accidental circumstances based upon the amount of gain realized from private investments. 17 Geo., 56 ; 7 Conn., 585; 5 Conn., 538 ; Cooley’s Con. Lim., 125-27.

"We conclude from what has been said that upon the face of the bill in this case this road was a part of the internal improvement system. That an exemption from taxation resting in contract is annexed, by the terms of the law which created it, to the road itself, nob to the companies, and that there is nothing on the face of the bill from which the existence of any bond, bondholder, or other thing preventing the power of amendment in the Legislature in December, 1855. In other words, in this bill as demurred to, we can see nothing from which any limitation upon the power of the Legislature of December, 1855, is :to be inferred. No limitation as to antecedent contracts operating at the time, so far as this bill discloses, we think the power was clear. While remarking this, we wish it to be understood that we say nothing as to its legal effect, if the then existence of a bondholder is alleged and proved'by this officer in his answer.

The next point we notice is that the Pensacola & Louisville Eailroad Company is not entitled to this exemption./

The bill alleges that the road was sold under a first mortgage, and that it was purchased by the Pensacola & Louisville Eailroad Company. The charter of the A. & E. Company gave it authority to borrow money to carry into effect the objects of t&e act, and to pledge the property of the Company for the payment of the same. This gives the power to execute a mortgage of the road, its fixtures, and all the property named in the 18th section of the internal improvement act. 11 Ala., 437; 10 Ohio, 372; 28 Ala., 321 : 3 Md., 305 ; 3 Dutcher, 221 ; 1 H. & M., 726 ; 2 Red. on Railways, §235.

A sale under such a mortgage, therefore, passed the property if the purchaser had the right to purchase. The purchaser, the Pensacola & Louisville Railroad Company, under its charter, had the right to purchase this property, as it was the line of road that it was authorized to construct and operate, and with reference to which it was invested with the general power to purchase. This road thus having acquired the property, the Legislature in 1872 recognized that it had become “ the assignee of the Florida & Alabama Railroad, and the franchises of the said corporation,” and that it was in possession of and operating the said line of road. The Legislature also gave it the express power to purchase any Other railroad. This company, under its charter, had the power to borrow money and to pledge the property of the company for its payment. So far as the right of complainant here is concerned, it is based upon the allegation of the fact “ that he is the owner of the equity of redemption of the said Pensacola & Louisville Railroad Company, as well as of all the other property levied upon and advertised for sale by the collector of revenue.” In addition to this he alleges that he is “ the owner and holder of 532 of the 600 bonds of $1,000 each, to secure which said Pensacola & Louisville Railroad, and all the above mentioned property, as well as its rights, privileges and franchises, are now under mortgage.” These facts are admitted by the demurrer.

This bill states enough to show and trace a right to this property in the complainant. It shows, at any rate, such an interest as gives him a standing in a court of equity to enjoin the collection of a void tax. It is not material to enquire here whether in any of these sales the franchise to be a corporation, or the franchise to operate the road and collect tolls, which are usually held to be appurtenant to the shares, passed to the vendee. The property passed and with it as an incident went the exemption.

While we have examined this question of title in this case, yet we do so in the absence of any point being made in reference thereto, and because in any event our conclusion is the same. We are inclined to the view that upon an allegation of title based upon a judicial decree in a proceeding like this in equity, we should not in this collateral way examine the basis of such decree, or review the questions which the court necessarily passed upon in the exercise of its jurisdiction, nor is this any way to try a right to franchises. We are also inclined to the view that the officer here having advertised this property for sale as the property of the P. & L. Co., is estopped from alleging that it is not its property in this contest. The officer advertises it as the property of the P. & L. Co. Such a levy upon property in the possession of A. as the property of A. cannot be defended by alleging that it is the property of B.

The decree is affirmed.

The foregoing opinion was read at the January Term, A. D. 1878, but leave to file a petition for a rehearing having been thereupon granted the appellant, judgment was suspended and the case continued.

On the 15th day of April, 1878, within the time allowed by the order of the court, the appellant filed the following petition for a rehearing

To the Honorable Justices of the Supreme Court:

Your petitioner, the appellant above named, respectfully represents unto your honors that by the opinion rendered in the above stated cause at the January Term, A. D. 1878, of said court, the order appealed from, overruling the appellant’s demurrer to the appellee’s bill of complaint stands affirmed. That by said opinion it is held that the railroad in question was made or became a part of the internal improvement system by the act approved December 14, 1855, (Chapter 734, Laws of Florida,) and as such is entitled, upon the showing made by the bill of complaint, to the benefit of immunity from taxation granted by the 18th section of the “internal improvement law,” (Chapter 610) to the “roads, fixtures, &c.,”. within the line designated by section 4 of Chapter 610.

Tour petitioner respectfully submits that in this position there is error, and that if given an opportunity he believes he can satisfy the court that while it was the intention of the Legislature that the road in question should receive the aid derivable from the Internal Improvement Fund, it should not have the exemption from taxation.

The language used in the 4th section of Chapter 610, as to the lines of railroads named therein, is as stated by the court in its opinion that those lines “ are proper improvements to be aided from the Internal Improvement Fwnd in the manner as hereinafter provided.” This section we submit has no efficacy in granting any immunity from taxation except to explain what roads are referred to by the term “ roads’” in the 18th section. It does not indicate that any grant but such as is derivable from the Internal Improvement Fund will be found in the act, but it does include within its scope improvements not included within the scope of the 18th section, to wit: the Indian River Canal. Without the 18th section there would be no basis upon which any road could base a claim to exemption from taxation, and the fact that this 18th section does not include within its scope the properties necessary to a successful operation of the canal, shows how partial the Legislature was to the lines of railroad indicated by the 4th section. These lines being once constructed under the provisions, and according to the requirements of the act, the exemption from taxation resulted ex vi termini from the terms of section 18, because they were the roads referred to in said section.

The doctrine of in pari materia should not, we respectfully contend, be held to enlarge the apparent meaning of the terms of a subsequent act in a case like the present, if in any at all. Clearly the language of section 4 of Chapter 734, like the language of section 4 of Chapter 610, does not include within its natural meaning any kind of aid not derivable from the Internal Improvement Fund. To the extent of ascertaining what the aid derivable from such fund contemplated by section 4 of Chapter 734 is, tpd how and upon what terms it is obtainable under the provisions of Chapter 610, these two acts are to be construed as one, but that where the later of two acts by its language includes or proposes to extend the benefit of but one'of two kinds of aid derivable from different sources provided by the anterior . act, this doctrine of in pari .materia is to be invoked to stretch the later act beyond the plain meaning of its terms and make it include both kinds of aid, cannot be maintained. This we contend is what has been done by this court in this case, and by it the 4th section of Chapter 734 is made to convey a benefit which its language does not include. If the 4th section of Chapter 734 had simply stated that the road in question was a proper improvement' to be aided to the extent of the bond endorsem,ent, guaranteeing interest in the manner provided by Chapter 610, the two acts would not be construed in pari materia or as one act, except as to the bond endorsement provisions, and on the same principle we contend that Chapter 610 'and section 4 of Chapter 734 are to be construed as one act only to the extent that each relates to the aid which is derivable from the Internal Improvement Fund. It is only to this extent that both relate to the same subject. The language used shows that it was not intended by the Legislature to make this road the recipient of all the benefits offered by Chapter 610, and there is nothing more unreasonable or partial in its thus treating this road than in its treatment of the canal on the subject of taxation. Exemption from taxation is founded in partiality and favoritism. That it was not the understanding of the Legislature that this road was made a part of the so-called “system” is shown by Chapter 776, section 2, where the U. S. land grant of May 17th, 1856, to the State is conferred upon the Alabama and Florida Railroad Company. Section 21 of Chapter 610 secured and pledged these lauds to the roads within the “ system ” designated by section 4 of Chapter 610, and if it had been the understanding of the Legislature that Chapter 734 conferred upon this road all the benefits of the system, the 2d section of Chapter 776 would have been deemed unnecessary, and would not have been passed. The theory of its being a part of the system, and therefore entitled to all benefits and immunities, should not be given much weight in the face of the language of Chapter 734, section 4; and whether the railroads and canal, or the means and manner of dispensing aid, are to be considered the “ system,” there is no reason why the Legislature could not, in enlarging the objects of aid, confine the aid to such only as could be derived from the fund. The Legislature of December, 1855, had the internal improvement act before it. That act in its 4th section declared certain lines of railroad “ to be proper improvements to be aided from the Internal Improvement Fund in the manner as hereinafter provided.” Certain sections in that act prescribe the kind of aid to come from that fund and the manner in which it is to be extended. A certain other and distinct section grants those lines of road a character of aid which cannot come from the fund. Knowing what this act was, the Legislature of December, 1855, says that the line of road in question in this suit shall be considered as proper iinproveme'nts to be aided from the fund in the manner provided by Chapter 610. The language used shows, we respectfully submit, that it was never intended to grant the immunity from taxation or to make this road a beneficiary of all the kinds of aid which Chapter 610 had prescribed for the other lines.

In consideration of the premises your petitioner prays that he may be fully reheard upon the points above stated, and to that end, and that full justice may prevail, your honors will grant a rehearing in this cause.

Me. Justice "Westoott

delivered the following opinion denying a rehearing at the June Term, A. D. 1878.

We have examined the petition for a rehearing in this suit. The first position taken is that the 4th section of Chapter 610, the internal improvement law, has no efficacy in granting any immunity from taxation, except to explain ■what roads are referred to by the term roads in the 18th section of said act. With this view the court does not differ. As a matter of course the Legislature could then only refer to existing legislation, but what were its subsequent powers % The conclusion of the court was that subsequent legislation in terms relating to the same subject-matter gave this road the same rights that other roads had by being embraced in the 4th section. That this legislation made it a part of the system by precisely the same method as the prior legislation made the^roads named in the 4th section a part of the system, and that being a part of the system, and accepting the provisions of the act, the immunities of the 18th section followed. Whether a canal designated by the 4th section, and not mentioned in the 18th section, is or is not exempted is a question, the relation of which to the matter here involved we do not see. If such canal is not exempted, it is simply because the exemption is granted to roads and not canals. This in no way affects the question whether the Legislature has not by subsequent legislation given this road the standing that other roads had under the 4th section ; in other words, made it a part of the system.

The language of the act is restricted, it is contended, to aid from the Internal Improvement Fund. This is true. So is the language of the 4th section of Chapter 610 so restricted. The conclusion of the court is that in view of the language of the Constitution and of the Legislature in the 4th section of Chapter 610, the designation of certain roads to be aided from the Internal Improvement Fund constituted them a part of a system, and that companies constructing such lines of road, or were designated proper improvements to be aided from the fund, could, upon the acceptance of the provisions of the act, become entitled to the exemptions specified as to their road. How it cannot be denied that a road became a part of the system if it was entitled to the benefits of the fund, and became by virtue of its authorized acceptance of the provisions of the act subject to the regulations of the system. This road was designated a proper object of aid from the Internal Improvement Fund in the manner provided for in the act of 1855. Looking to that act, (section 5) one of the conditions upon which the aid was to be granted was a full acceptance of its provisions. This the road has done, and we cannot see how we are to hold that it does not accept and become entitled, to this exemption when the 18th section provides expressly that the capital stock of any company accepting the provisions of this act, and the roads, shall be exempt, unless the general rule of construction which has controlled us, viz: that acts in fwri materia must be construed together, is erroneous, or we have made an erroneous application of it.

We understand this to be the rule as to all statutes whether penal, remedial, or of any other character. True, the degree of strictness to be observed in their construction, looking to the liberty of the citizen on the one hand and the enforcement of his civil rights on the other, is different. It is very evident that two statutes relating to the same subject cannot be construed separately.

We have given this subject all the attention we can. Our views expressed in the opinion in this case are the result of careful examination, and we cannot contemplate a ■change without doing violence to the rules of law which in our judgment control the subject..

A rehearing is denied.