53 Ark. 58 | Ark. | 1890
It is argued that the bridge in question should be assessed for taxation to the appellant railway, because it is used by that railway as a railway bridge; but it is also used by the Little Rock and Fort Smith Railway, and, if the use to which the structure is devoted is to control the ■question of its assessment, it could as well be assessed as a part of the latter railway as the former. That shows the fallacy of the contention. It is not the use that property is put to that determines to whom it is assessable; the ownership, or, under some circumstances, the control of the property, is the statutory test. Only railways are to be assessed by the state board of railway commissioners. Bridge companies and corporations other than railway and insurance companies are to be assessed by the local assessors. The statute so enacts. Secs. 5647 et scq., Mansf. Dig., as amended by the act of March 28, 1887. The requirement as to railways is that every corporation or other person “owning or operating’’ a railway shall return its road to the state board for taxation; and in estimating the value the board is required to take into consideration everything on the right of way and appurtenant to the railroad which adds value to it as an entire thing. Bridges which are on the line of the railway and are railway property are therefore to be assessed as an integral part of the railway. They fall within the exclusive jurisdiction of the state board, and the increased revenue which is derived from the road on account of them is apportioned to the several counties through which the road runs. This comes from the legislative policy of taxing each road as a unit. St. Louis etc. Ry. v. Worthen, 52 Ark., 529. But the policy is equally well defined to tax bridges, which are not railroad property, through the instrumentality of the local assessors. There is no attempt to classify bridges so as to make railroad toll bridges, which are not the property or controlled by railroad, taxable by one agency, and other highway toll bridges by another. If, therefore, the bridge in question belongs ko a company other than a railway and is operated by it as a toll bridge for the convenience of all railways that meet at that point, it does not come within the letter or the reason of the statute for the assessment of railways. It is not contended that the bridge company is either the owner or operator of a railroad. The question is, does the railway own or operate the bridge as a part of its road, or is it owned or operated independently of the railway?
It was built by the Fort Smith and Van Burén Bridge Company which was incorporated under the laws of this State to operate a railway and other highway toll bridge. It is argued that the bridge company is only an agency of the railway company, and that they are practically one. In proof of this we are referred to the fact that the stockholders of the bridge company arc stock-holders of the railway, and that the entire stock of the bridge company was pledged at its inception to the railway company. But the partial identity of stock-holders does not merge two separate legal entities into one, and the pledge of the stock is shown to have been made as security for a loan of credit by the railway — a transaction which the statute sanctions.
The agreement may afford the railway company a ready means of acquiring the control or ownership of the bridge, but it did not in itself confer such rights. There is nothing to show that the railway company is the substantial owner of the bridge by reason of owning the stock, and the case' is therefore unlike that of the State v. St. Paul etc. Co., 43 N. W. Rep., 840, upon which the appellants rely.
But the bridge company has entered into an agreement with the railway for the use of its bridge for the full period of its right to corporate existence; and it is argued that it has thus transferred all its rights and interest to the railway, except the right to a naked and somewhat ambiguous existence, thereby giving the railway the ownership or absolute control of the property. But the contention is too broad. Neither the legal effect of the language of the agreement nor the practice of the parties under it justifies the conclusion.
It will be seen from the terms of the agreement, set forth in the statement of facts by the Reporter, that the bridge company expressly reserves the right to contract with other parties for the use of the bridge. Without this reservation, the granting part of the instrument would have been sufficient to carry the exclusive control of the bridge and so make it practically a part of the railway. But the intention of the parties is to be gathered from the whole instrument, and the comprehensive terms used in the granting part are narrowed and limited by the subsequent reservation. Varner v. Rice, 44 Ark., 236. The railway company stipulates for the right to reject contracts made by the bridge company with others for the use of its bridge, and it is argued that the power thus given it nullifies, or puts in the power of the railway to nullify, the reservation of the bridge company’s right to contract with others, and so leaves the railway with the same power under the contract as though it were written without it. It is not to be presumed that it was the intention of the parties to confer upon the railway the power arbitrarily and without reason to prevent the bridge company from entering into further contracts for the use of its bridge, for that would make the right to do so, which was reserved in the contract, utterly meaningless. But it is a rule of construction that 'none of the terms of a contract shall be rejected as meaningless -or as irreconcilable with others, when from a fair intendment effect can be given to all. Experience has taught that this is more consonant as a rule with the intention of contracting parties. It is not likely that they will deliberately insert terms into their agreement which are intended to be of no effect. The assent of the railway was doubtless thought necessary to put a check upon the regulations of the bridge company about the passage of trains, when a second company should come into the use of the bridge. It is more natural to suppose that it was given as a protection to the railway company against the encroachments of new comers upon the bridge, than as an arbitrary veto upon the company’s right to make new contracts. Moreover, the act of Congress authorizing the construction of the bridge provides that it may be used by any railway company, and we are to presume that the parties contracted with reference to the observance of the condition rather than its violation. But to say that the meaning of the contract is to give the first railway the power to exclude all others, would not be in keeping with that rule. That that was not the construction placed on the agreement by the parties is shown by the subsequent grant to the Fort Smith Railway of the right to use the bridge for thirty years.
In this light the meaning of the contract is that the railway company has acquired only the privilege of passing its trains over the bridge. That, as we have seen, does not make the bridge railroad property; nor does it put the railroad in the attitude of operating the bridge as a part of its road.
This is not a case of an attempt to escape taxation, but it is important to the parties and the counties on the line of the railway to ascertain by which of the two schemes devised by the State for assessment for taxation it is governed. As it falls within the class which the legislature has provided shall go to the local assessors, it is not the province of the courts to put it elsewhere. The decree should therefore be-affirmed.
