81 Miss. 90 | Miss. | 1902
delivered the opinion of the court.
This suit was brought by appellee against the railroad property formerly owned by the Louisville, New Orleans & Texas Railroad Company, including the Natchez, Jackson & Colum
In the scope of the investigation necessary for the proper comprehension and application of the legal principles involved, we are much indebted to counsel for the industry and ability and the thoroughness with which they have presented the various questions to us, leaving the court but little to do, save collate and apply the principles invited by the facts.
The portion of the railroad line upon which the taxes are claimed extends from the Louisiana state line, on the south, to the Tennessee state line, upon the north, passing through portions of the counties of Amite, Franklin, Jefferson, Claiborne, and Warren, south of Vicksburg, a distance of about 101 miles; thence northward, through portions of the counties of Warren, Issaquena, Sharkey, Washington, Bolivar, Coahoma, Tunica, and De Soto, a distance of about 214 miles; aggregating upon the main line a distance of 315 miles in Mississippi; and also upon a part of the Riverside Division, extending from Wilzinski to Coahoma station, on. the north, and from Hampton to Rolling-fork on the south — an aggregate distance of about 86 miles on the Loop, or Riverside Division, and also upon the Tallahatchie Branch, extending from Olarksdale to Minter City, a distance of about 39 miles. In March, 1895, the revenue agent filed notice with the railroad commissioners, who by the. law are railroad assessors, that the property above described had escaped taxation by reason of not having been assessed for the years 1886 to 1901, inclusive, and named1 the Yazoo & Mississippi
The right to remove causes from the state to the federal court only exists where there is contained in the plaintiff’s cause of action, as stated, a case arising under the constitution or laws of the United States. Otherwise the federal court has no jurisdiction. It is of no avail that the statement of a cáse involving a federal question arises out of the pleadings of the defendant, or is stated suggestively by the complainant in Ms bill. There is no difference in the application of this restrictive condition, whether the jurisdiction be invoked originally in the federal
The force and effect of the decision of the railroad commissioners in determining the liability of the property to taxation and assessing it is determinable in this collateral attack by the jurisdiction of the railroad commissioners, acting as railroad
The decree of the lower court recites that certain legal questions (stating them specifically) entitle the appellee to the relief prayed, and as “to all other issues in the case, deeming them unnecessary and immaterial, declines to consider them.” Among the issues presented by the pleadings, and declined to be considered by the court below, are the issues of fact as to who built the road, under what charter it was constructed, and when constructed, and also whether or not the road could have paid a dividend of 8 per cent on its capital stock out of its earnings remaining after payment of its debts and liabilities during the years for which the taxes are claimed. We are asked by the appellee to consider and determine those facts, and the evidence pertaining thereto which appears in the record, but was declined to be considered by the court below, such declination appearing affirmatively in the decree of the lower court. Appellants object to such evidence being considered by this court, insisting that this court, having only appellate jurisdiction, cannot examine or determine matters of fact shown by the record, affirmatively, to have not been acted upon by the lower court; that such action by this court would be an exercise of original, not appellate, jurisdiction; that this court should restrict its revision to the judgment of the lower court, considered in connection with those matters alone shown by the record to have been the basis of the judgment.
The interesting and important question presented by this contention has not heretofore been considered by this court, in the exact aspect as now presented. It appears from the recitals of the decree of the lower court that the cause was heard upon “bills, answer, exhibits, proofs, pleadings, and record.” The whole case was submitted for hearing, and was therefore sub
Section 146, constitution of Mississippi, 1890, confers and defines the jurisdiction of this court, which is “such jurisdiction as properly belongs to a court of appeals.” This language excludes the grant of original jurisdiction. “Unius expressio esi alterius exclusio ” except as the exercise of jurisdiction quasi original may properly be necessary to the effectual exercise of its appellate powers. In recognition of the probable necessity of the exercise of this implied addition to the power expressly given, the legislature enacted § 4350, code 1892, which provides that “the supreme court may try and determine all issues of fact which may arise out of any appeal before it, and be necessary to- the disposition thereof.” This question, in its decision, involves both the power and the practice of this court. 'The power is conferred alone by the constitution. The practice may be regulated by legislative enactment, within the limits of the power. Where the judgment of the lower court rests solely upon the question of jurisdiction,- and there has been no judgment upon the merits, then in such case the only matter presented for revision by this court would be the action of the lower court upon the question of its power to try. There would not have been any trial of the cause upon its merits, either as
It is argued by counsel for appellants that there is no issue in the pleadings to which the evidence as to what company constructed the road would be referable, in determining the claim of exemption. The gravamen of the bill is the construction of the road, its liability to taxation, its having escaped taxation for the years named, by reason of not being assessed, and its assessment by the railroad commissioners. The answer of defendants admits the construction of the road and its assessment by the railroad commissioners, but denies its liability to taxation, and avers that by reason of the road having been constructed by railroad companies having charters containing exemptions, or the right to appropriate the taxes accruing on the property to debts incurred in its construction until the earnings of the road would enable them to-pay a dividend of 8 per centum on the capital stock, after paying its debts and liabilities, the property was not liable to the taxes assessed; that the road had never been able to pay said dividend out of its earnings; and that the commutation or privilege tax authorized by law in lieu of the ad valorem taxes had been paid for the years named by the company, shown by affidavits filed with
It is suggested that an examination of the evidence is unnecsary, unless this court should first decide that the chancellor erred either on the point of estoppel, or on the point of violation of the fourteenth amendment to the constitution of the United States. The fact of the construction of the road by the Louisville, New Orleans & Texas Railroad Company, or its constituent companies or company, having under its or their charters exemption or right of appropriation of taxes, is a fact necessary to be considered, preliminary to an application of the legal principles contended for by appellants. If the fact be that the road was constructed by a company or companies having no exemption or right of appropriation in their charters, then no claim of exemption could arise, nor estoppel be asserted.
The legal principles involved in this case are not res adjudicata by reason of any former adjudication of this court. While the parties are the same, and the subject-matter the same, yet the cause of action is wholly different. In the case at bar the cause of action is the taxes for the years 1886 to 1891, inclusive, and they are entirely separate and distinct from the taxes of other years. Some of the same legal question involved here were presented and decided by this court in cases between the same parties, and invite the application of the principles of stare, decisis, but are not res adjudicata. 77 Miss., 265, 266; 24 So., 200, 317; 28 So., 956. The contention here rests mainly upon sec. 21 of the charter of the Mobile & Northwestern Railroad Company (Laws, 1870, p. 268), incorporated into the charters of the Memphis & Vicksburg Railroad Company
The distinguished counsel for appellant very ably and forcibly argues that even if the alleged exemption or appropriation of taxes made by said sec. 21 was void ah initio by reason of the constitution of Mississippi of 1869 being mandatory, or, if not so void, was repealed by subsequent statutes enacted by the legislature, yet the appellants being a new company, coming into existence in October, 1892, and making large investments in the property of the Louisville, New Orleans & Texas Railroad Oompány, which includes the Natchez, Jackson & Columbus Railroad property, at a time when the alleged exemptions or appropriations of taxes were recognized as valid by the legislative, executive, and judicial departments of the state, there being at the time of the purchase of said property by appellants no claim of taxes upon said property by the state, nor had been such claim or lien upon the property for taxes delinquent for past years, and that appellants were not the owners of the property during the time for which said taxes are said to be delinquent 'and accrued thereon, therefore, as to said claim for taxes, they are innocent purchasers for a valuable consideration, without notice of any claim for taxes thereon by the state; that they purchased said property, incurred liabilities, and acquired rights on the faith of the status then existing by reason of such recognition by the departments of the state, and expressly on the faith that there were no outstanding taxes resting on said property; and that the state was therefore now estopped from collecting taxes upon said property for said years. This contention presents an exceedingly interesting and important question — important to the state and the citizens alike — and it has received our careful consideration. The power of the legislature, within constitutional limits, to levy taxes for the support of the government, and to provide means
We have carefully examined all the decisions of this court in wrhich sec. 21 of the Mobile & Northwestern Railroad Company charter, ubi supra, was involved, and are confirmed in the correctness of the conclusion reached by this court in their examination of them in the case of Railroad Co. v. Adams, 77 Miss., 194; 24 So., 200, 317; 28 So., 956, that in none of them,
The able counsel for appellant in responding to the questions submitted for reargument at this term — viz., “(a) Was the precise point whether the twenty-first section of the Mobile & Northwestern charter violated the constitution of 1869 ever raised by the pleadings, and expressly decided by this court, prior to the decision in Railroad Co. v. Adams, 77 Miss., 194; 24 So., 200, 317; 28 So., 956? (b) If not so expressly presented by the pleadings and expressly decided by this court, was there ever a decision by this court prior to Railroad Co. v. Adams, 77 Miss., 194; 24 So., 200, 317; 28 So., 956, which decision could not have been rendered without this court having held that said twenty-first section did not violate the constitution of 1869, and in which, therefore, the decision that said twenty-first section did not violate 'the, constitution of 1869 was necessarily made V’ — admits there was no decision expressly made, but insists that the question was necessarily involved both in the pleadings and decision of the following named cases, viz.: Mississippi Mills v. Cook, 56 Miss., 40; McCulloch v. Stone, 64 Miss., 378; 8 So., 236; Railroad Co. v. Thomas, 65 Miss., 553; 5 So., 108; Railway Co. v. Taylor, 68 Miss., 361; 8 So., 675. The principle settled by the Mississippi Mills case is not applicable to the case at bar. That case decided nothing save that the general exemption granted bythe act of 1873 was repeal-able, and was repealed by the act of 1877. The constitutionality of the grant of exemption involved therein, which was general, not special, was not argued or considered by the court, but- seems to have been conceded; and the whole contention then hinged upon the repealability of the statute, not its constitutionality. See Railroad Co. v. Adams, 77 Miss., 194; 24 So., 200, 317; 28 So., 956. And in addition to that act of 1873, amendatory of the act of 1872, under the provisions of which the Mississippi Mills claimed exemption, was not an act granting a special exemption to a special corporation, but only sought to
We have quoted this expression of the principle at length, that we might express our concurrence in it, and we have carefully re-examined the previous decision of this court, to ascertain if it could be applied in the case at bar. But, as before stated, in no decision prior to Railroad Co. v. Adams, 77 Miss., 194; 24 So., 200, 317; 28 So., 956, was the constitutionality or the unconstitutionality of said sec. 21, supra, “interpreted or promulgated” by this court, nor in any of them was the construction of said section necessarily involved, until the Taylor case, in 1891; and this case only interpreted the meaning of the section, not its constitutional validity. The decision of the Taylor case occurred in 1891, subsequent to the acquisition of the property by the appellants, and could not, therefore, be the basis of any investment by them, nor in any sense become a rule of property for prior transactions. In such case no room exists for presumptions. Manifestly no rule of property existed which could operate as an estoppel against the state in this suit. Railroad Co. v. Adams, 77 Miss., 282; 24 So., 200, 317; 28
Are the appellants in an attitude authorizing them to invoke the principle of estoppel? Looking to the facts shown by the record, briefly stated, the following conclusions appear: That portion of the railroad designated as the “main line,” extending from the Louisiana line (state), on the south, to the state line of Tennessee, on the north, was constructed by the owners of the charters of the Memphis & Vicksburg Bailroad Company and the New Orleans, Baton Bouge, Vicksburg & Memphis Bailroad Company. The same parties also owned the charter of -the Mississippi Valley & Ship Island Bailroad Company, but as the last-named company did not enter into the consolidation, and as appellants disclaim any right asserted by them in pleadings founded upon its charter, its consideration is thereby eliminated, and only the first two named charters will be considered. The property was acquired by the Yazoo & Mississippi Valley Bailroad Company in October, 1892, by consolidation with the Louisville, New Orleans & Texas Bailroad Company. The Louisville, New Orleans & Texas Bailroad Company was formed on the 12th day of August, 1884, by the consolidation of the Memphis & Vicksburg Bailroad Company and the New Orleans, Baton Bouge, Vicksburg & Memphis Bailroad Company with other companies not connected with this investigation, they not being Mississippi companies. The Memphis & Vicksburg charter authorized the construction of a line of railroad from Vicksburg, in Warren county, Miss., northward to the Tennessee state line, and contained in its charter sec. 21, ubi supra, authorizing appropriation of taxes to debts incurred in its construction. The New Orleans, Baton Bouge, Vicksburg & Memphis charter authorized the construction of a line of railroad from the Louisiana state line, on the south, to the Tennessee state line, on the north, toward the cities of New Orleans, La., and Memphis, Tenn., respectively, but did not contain any authority to appropriate taxes to its debts.
The only basis remaining to be considered, upon which the appellants’ claim for exemption can rest, is the act of March 3, 1882, and the act of 1884, supra, amendatory thereof, authorizing consolidation, and which contained sec. 21, ubi supra, applicable by its terms alone to the consolidated company when organized thereunder. The Louisville, New Orleans & Texas Railroad Company, until and as the result of the consolidation of its constituent companies, did not exist, at which time the constituent companies, as such, ceased to exist, and the new company came into existence. This consolidation occurred when the main line was practically completed, and, as the alleged right of appropriation of taxes was prospective in its proposed effects, clearly it could not act retroactively, by applying to a road previously built. As to the branch lines extended by the Louisville, New Orleans & Texas Railroad Company after its organization, the right of appropriation of taxes claimed must fail for two reasons: (1) For lack of legislative authority under the constitution to make such grant; (2) the evidence does not show clearly the amount expended in their construction, nor that the earnings of the road was not sufficient at the time of their construction to have paid 8 per centum dividend on the capital stock, as provided in the act relied on, on the occurrence of which ability to pay such dividend the right of appropriation ceased. The party pleading exemption from taxation has imposed upon him the burden of clearly showing his right to the immunity claimed — not alone to its having existed, but also as to its continuation to the time for which the taxes are claimed to be due — and if either of such facts may be fairly said to remain'in doubt, from the evidence, the claim must be denied'.
In addition to preceding reasons given why the exemption claimed by reason of charter provisions of the constituent companies cannot avail appellants, an examination of the statutes passed subsequent to their enactment shows that such provisions were repealed prior to' the acquisition of those charters by R. T. Wilson & Co., and prior to any expense being incurred thereunder. In 1875 (laws, 1875, p. 66) the legislature passed an act entitled “An act to regulate railroad taxation,” sec. 1 of which provides “that every railroad company, whose line is in whole or in part in this state, shall pay on the 31st day of December, in each and every year, a privilege tax, as follows.” Section 2 provides for report of length of road by a proper officer, and a penalty for failure to make report. Section 3 provides for damages for failure to pay the tax, and provides means for collecting such delinquent tax. Section 4. provides “that all acts and parts of acts, under which taxes may be collected from railroad companies, otherwise than as provided in this act, are hereby repealed.” In 1878 (laws, 1878, p. 87) the legislature passed an act entitled “An act supplementary and amendatory of” above act of 1875. This act used the same language quoted above in sec. 1 of the act amended, and increased the amount of privilege tax per mile, and provided “that this act shall not apply to the West Feliciana Railroad.” In 1880 the code of 1880 was adopted, and by'§§‘597 to 608, inclusive, therein, each railroad company owning and operating a road in this state is required to pay taxes, with this proviso: “That no railroad company shall be subject to taxation, while the same is in process of construction, but if any part of any road shall be finished, and used for profit, -the part so finished shall be taxed, although the whole road may not be finished.” In neither the act of 1875, 1878, nor 1880, are charters containing exemption from taxation specially mentioned, but the language used in each, by necessary implication, repeals such ex
As to the state, the Illinois Central Railroad Company does not occupy the position of an innocent purchaser for valuable consideration without notice, either in law or equity, because (1) the grant proposing exemption from taxation, . contained, in the charter of the Memphis & Vicksburg Railroad Company, had been repealed before any work was begun thereunder, and a similar grant to the Natchez, Jackson & Columbus Railroad had been repealed long before any interest therein had been acquired by the appellants, and the proposal of exemption contained in the act of 1882 and the act of 1884, amendatory thereof, authorizing the consolidation of the companies therein named, was wholly prospective, and, even if it had been a valid grant, could not be claimed by a company coming into existence after the road was built; (2) the grant of exemption being forbidden by the constitution in such cases, and there not having been any decision of the state supreme court holding the grant valid, no rule of property affecting this property' in controversy existed, out of which alone an equity could arise. Estoppel against the state could not occur under such circumstances. Rights which the legislature, by reason of constitutional inhibition, could not confer, cannot result from or be founded upon the invalid act. That which cannot be done directly cannot thus be accomplished indirectly. At the time the Yazoo & Mississippi Valley Railroad acquired the property in controversy, and at the time the Illinois Central Railroad Company became interested therein, the constitutionality of said sec. 21 was an open question, and the rule of caveat emptor applied in full force. In Louisville & N. R. Co. v. Kentucky, 161 U. S., 691; 16 Sup. Ct., 719; 40 L. Ed., 849, the court says: “In reply to the argument that millions of dollars have been invested in the securities of the company upon the faith of what was supposed to be its admitted power, it is sufficient
The judgment of the lower court is affirmed..
Calhoon, J., having been of counsel in this case before his appointment to thebenchj recused himself, and Newman Cayce, Esq., a member of the supreme court bar, was appointed special judge in his place and presided as such in the cause.