2
THE TAXATION OF RAILROADS
Able Argument of Col. John W. Hinsdale Be
fore the Corporation Commission
Yesterday.
9 In his argument before the Corporation
•Commission yesterday. touching the eel
lection of back taxes on the rolling >toek
of certain railroads in North Carolina.
Col. John \Y. Hinsdale, counsel for the
St ate, said:
Mr. Chairman and Gentlemen of the
Corporation Commission:
1 appear before you. representing the
State of North Carolina, for the purpose
of aiding in the performance of the
duty imposed upon you by the act of-tlie
last Legislature entitled an net to au
thorize the Railroad Commission, the
North Carolina Corporation Commission,
or stub hoard as shall sneered to their
duties to assess property which has
escaped taxation.
If there he any such property, 1 do
"not doubt but that the owners thereof,
upon being satisfied of its existence and
their duty, will cheerfully acquiesce in
your action. My desire is that tin* rail
road companies shall be required to bear
only their just proportion of the burden
*tf taxation under which the people are
struggling. 1 maintain:
1. THE NORTH CAROLINA COR
PORATION COMMISSION HAS THE
POWER TO ASSESS FOR TAXA
TION ROLLIN'!} STOCK WHICH
HAS ESCAPED TAXATION. AS
WEIL AS OTHER RAILROAD
PROPERTIES.
Chapter 078, Laws of 1809, page 874,
expressly authorizes it. It provides that
"it shall be the duty of the Board of
Railroad Commissioners, the North
Carolina Corporation Commission, or
such board as shall succeed to their
duties to value and assess such proper
ty as has escaped taxation for five years
prior to the current year at the time
when they value ami assess other rail
road property for taxation.” This act
was ratified March Bth. 185)0.
The Railroad Commission was abolish
ed by chapter 506, Public Laws of 1800,
page 558, ratified March 6th, 1800.
The Corporation Commission was es
tablished by chapter 104, Public Laws
of 1800, page 201, ratified March 6th,
1800, and by section 2, it was empowered
and directed, among other things, which
had been previously committed to tin*
Railroad Commission, "to perform all
the duties and exercise all the powers
imposed or conferred by chapter 320,
Public Laws of 1801, page 275, ratified
March sth. 1801, and the acts amenda
tory thereto.”
The question arises what are the aets
amendatory thereto? I insist that any
statute extending the duties and powers
of the Railroad Commissioners was such
an act.
On the 9th day of March, 1801, the
General Assembly by chapter 325, Pub
lic Laws of 1891, pages- .405, .‘{2l, known
as the Machinery Act, constituted tln-
Railroad Commission, a board of ap
praisers for railroad and other trans
portation companies, and extended their
duties to embrace everything to be done
in connection with the assessment of all
kinds of railroad properties, including
rolling stock. Substantially the same
provision has been incorporated in each
of the Machinery acts since that date.
On February 14. 1803, an act was
ratified by the Legislature, entitled "An
act to amend the act constituting the
Railroad Commission as a board of ap
praisers for railroads, ratified the ninth
day of March, one thousand, eight hun
dred and ninety-one, in respect to the
manner of assessing property, and giv
ing the Commission authority to assess
steamboat property.”
Section 20 of the Machinery act of
1800, provides that the Railroad Com
mission shall have like powers (as the
Board of County Commissioners) to list
unlisted railroad property. This act con
tains, in section 120, a clause repealing
“All acts and parts of acts inconsistent
with the provisions of this act.”
These acts, relating to the duties of
the Railroad Commissioners, being in
pari materia, must be construed to
gether. It is manifest that the law en
larging the duties of the Ra.lroad Com
missioners was amendatory of the act
which created them and defined their du
ties. It was not necessary that the acts
should he entitled "amendatory” if, in
fact they were so. This proposition is
settled* by State vs. Jordan. 33 S. E. j
Rep. 130, 111, wlu-re it was held that
the act of March 3. 1809, which estab
lished tlie Western District Criminal
court, and which made no reference to* >
the act of 1805, chapter 75. ( stabli.-h’ng
criminal courts in certain counties, was
nevertheless amendatory thereof, being
in pari materia. Therefore, each of the
Machinery acts, in so far as they relat
ed to the duties of such commission,
was amendatory of chapter 320, of the
Ftiblie Laws of 1801. The title of chap
ter 121, Os tile Laws of 1803, which en
larges their duties and extends them to
the assessment of railroad property, is
entitled an act to amend the act consti
tuting the Railroad Commission. Thus
showing that the legislative construction
was. that the act, although amendatory
of the part of the Machinery act of
1891, which relates to the assessment
for taxation of railroad properties by
the Railroad Commissioners, was
amendatory of the act constituting the
Railroad Commission and prescribing
their duties.
Therefore, the act establishing the
Corporation Commission and defining
its duties, laws of 1800, chapter 104, in
conferring upon the Corporation Com
mission all the powers conferred upon
the Railroad Commission by chapter
320, of the Laws of 1801, and the acts
anieqdatory thereto, expressly commits
to the Corporation Commission, the
right and duty to assess railroad prop
erties for taxation. In order to main
tain this proposition it is not necessary
to contend that the Railroad Commis
sion is still iu existence for the purpose
of assessing railroad property. Tilt*
Commission was expressly abolished for
all purpose's by chapter 506, laws of
1800. But if the court shall hold that
the Legislature has simply changed the
name of the Railroad Commission to
that of the Corporation Commission, and
that Dr. Abbott either together with,
or to the exclusion of, Mr. Beddingfield
is a member of the Commission, the
legislative purpose to invest the said
Commission with the duties and powers
of assessing railroad property is not
alTected. The personnel of the Commis
sion is entirely distinct from its duties
and powers.
The intention of the Legislature was
to give to the Corporation Commission
the powers w hich heretofore were vested
in the Railroad Commission to assess
railroad properties, because:
t. U is unreasonable to suppose that
it was its purpose to make no provision
for the assessment of stieh properties.
If the contention of the railroad com
panies is correct, the Legislature ha\o
-omitted to make such provision for die
year 1800.
2. Section (10, of chapter 11. of the
Laws of 185)0, page 58, which is in pari
materia, and enacted on the same day
as the Machinery act of 1899, provides:
"That for the purpose of raising reve
nito, and equalizing taxation, the rail
road commi*‘sion, or any body sue -eed
ing to their powers, are hereby u-quin-d
until directed to revise the assessments
for taxation of '(Iho entire railroad prop
erly in the State.”
'this clearly indicates that the ( or
poration Comnihsion, which nv ex-mess
terms of the act creating it succeeds to
Ibis power, is authorized to ass -ss tin
railroad properties of the State for taxa
tion.
3. The language of chapter 007. • t the
Laws of 1800. page 874, ratified on
March Nth. ISSHI (tile same day), inl'er
enitiaily declares that the C-orop >
Commission haw soceodcd to the duties
of the Railroad Commission. It tak-s
it for graniu-d that the Corporation Com
mission is required to value, assess amt
certify railroad property for -taxes, m
as mmil ns it provides that vvm-n racy
di> this, they must assess the escape’
propeint y.
Kb :Ls contended by the railroad com
patnies, flilat because the Machinery Act
of 185)5) which requires the Railroad
Commissioners d«* assess railroad prop
erty and repeals all laws inconsistent
therewith, necoisa.rly takes from the
Corporation ('onunissien tin- power in
question. Put a reasonable construr
tio'ii must be given so the repealing
clause. Reading all the acts upmr this
subject together. fhN combi not have
been intended, because, -otherwise the
Legislature is conferring important
powers upon a board which It had three
days before utterly abolished. Besides,
the act in regard to c-- aped property,
and the Revenue Act from which I have
quoted, were passed on Pin- name day.
and -t hey la th recognize the transfer of
the assessing power as to railroad prop
erty from the Railroad Com,mission to
the Corporation Commission.
Tile Legislature having provided in ef
fort that the OnrpWatikJn 00-mmissinn
should succeed to the powers of the
Railroad Commission in respect to the
a>- -summit of the railroad property, may
reasonably h* suppro-d to have intended
that the former should perform the
dutiies j I'.vsci ii ed for the hit ter. The
Mai him ry Act of 185)0 prcsorllw-s fin
thing to he dene, and the other acts
prescribe by whom.
There is another view of this question.
The act alk i railing the Railroad Com
mits-doiH, by its terms, did net go into
effect until April 4th. 1800, and the act
creating the C«i oration Cynvni-issnm did
licit go into effect until April s*ii. 1805).
Tile Railroad C; unniiV-ion was therefore
in existence en March Bth Winn the
Machinery Act, with its repealing
elauis’e, was ratified. This statute, not
im pro per ly. directed the Railroad Com
inissicnciv to assess railroad property,
ami gave them the power to assess mi
• listed propel'y. This was entirely con
sistent with the act, which was passed
on the same (k)y, giving to the Railroad
Commissioner and to the < i-rjou at i :i
Commission or any such boa nl as might
succeed to their duties, the same power.
• There was, likewise, no n-jraal by impli
cation the Railroad Goiiwnhi-ion art
by reason of the powers which this
CoMin.issh.tn were to exrmse after April
5. being in the meantime. Intrusted to
•the Railroad Coiiiiiijssioners, who would
not la- succeeded by the CorjKwat ion
Commission until April sth.
"It has been .raid that laws are pre
sumed to lx- iwissed with a full knowl
edge of existing ones cu the same sub
ject, and it is, therefore, but reasonable
to conclude. that ttilic Legislature did
not intend to interfere with or abrogate
any prior law relating 'to tin
same matter unless tie- re
pugnancy between the two is
irreconcilable, and hence a repeal by im
plication is net favored; on the contrary
courts are bound to uphold the [-trior law
Ilf the two nets may well subsist to
gether.” Kedwiek on Stub »V Cons.
Law 106.
"Where, upon the repeal of a statute
emitting the office of city marshal, a law
was pas.-eri changing th- number
of jurors which 'the marshal was requir
ed to summon in certain cases, it was
held that tin's reference to the office as
still existing did not operate to continue
it. (but the marshal was in fart still in
office for the abolition of the office had
not yet taken effect, so tb.it the language
of the law statute had n.Yncbcdy to act
upon.) People vs. Mahoney, 13 Mich.,
481, Sedgwick on Stat. and Cons. Law,
It 12.
If it shall he held that after April 5.
both coin-mis dons continued to exist, that
is, tin- Railroad <’onxriis-loners, repn*-
sei.iled by one member, Dr. Abbott, and
the Corporation Com mission, composed
of three members, there is mo im-o-nsist
enoy in committing the powers to assess
railroad properties to both of firm, as
they .might act together.
If. on the other hand, under tin- au
thority of State vs. Jordan, supra, the
ma chli her J - not of 185)5), recognizing the
existence of the Railroad Commission,
calls it again into being, if does so under
a changed' name, composed of sue 11 of
the Railroad Conmnisioners as still have
a property in their office, together with
the Corporation Conuuf si oners, two or
three as -may be decided by the court.
It may be that the Corporation Commis
sion is now and will he composed of four
members, instead of three, until the term
of Dr. Abbott shall expire. And it nia v
be that this construction will reconcile all
of the difficulties which arc now present
ed to the courts. But however this ques
tion may be decided, reading all the acta
TTTE NEWS AND OBSERVER. FRIDAY MORNING. AUGUST I, 1999.
together, the conclusion is irresistible
that there was no purpose by the re
pealing clause of the machinery art of
ISO!) to repeal other statutes ratified on
the same day with the supposed repeal
ing act.
It is contended by the railroad com
panies that because the machinery act of
1,895), section 2!>, page 74. gives to the
Railroad Commissioners tin- power to
list 'unlisted railroad property, and re
peals "all acts and parts of acts incon
sistent with this act," therefore the act
expressly authorizing the "Railroad
Conmuission or the Corporation Commis
sion or any body soot-ceding to their
powers to assess unlisted property, which
was ratified on tin- same day, is repeal
ed. But the two acts arc of equal force
and dignity. They are upon flit- same
subject and .must b-> considered as one
act. Neither rerx-ais the other. The
construction put upon them by the rail
rod companies would render both acts
nugatory, as there is no Railroad 'Com
mission in existence. 'There is, therefore,
nothing in this contention.
But if the Railroad Commission is in
existence, it is under a changed mum-,
and tin- repealing clause was or could
not have neon intended to abolish the
Corporation CnimniHsio-n, or to take from
it one of its most empo-'tant duties.
in State vs. Jordan, supra. Furches.
,L. in speaking for the court, says:
"All acts of the same session of Hip
Legislature upon tin- sa.mi- subject-mat
ter are considered as -one act, and must
be construed together under the doc
trine of "in pari .materia.” 'State vs.
Bell, 25 N. C.. 506: Black Interp. Laws,
sec. 86; End. Interp. St. -sec. 45: Cain vs
State. 20 Tex.. 355. 'They should be
considered in pari .materia whether pass
ed at the same session or not. Him un
ion vs. Lanier. 71 N. (’., 108: Rhodes vs.
Lewis. St) N. C„ 136. Where a former
act has been repealed or has expired bl
its limitation, when it is ini pari materia,
it must he considered it\ connection with
the last act, and. if necessary, as a part
of it. Hotter. Dwar. St. p. 100. "1(
certainly appears* strange.” says Wil
lianis. J., in a late ease. "that, when an
act of pairli'indent is per so abolished. it
shall virtually have effect through an
other art. But in that case the former
act was substantially re-enacted. It ear.
vs. Mcrionetshire, 6 Adel, and E.. 343.
It does, indeed, seem to ho the prevailing
doctrine, land it is more rational in itself
than consistent with coeval maxims),
that where cine statute refers to y mother,
which is repealed, the words of tin- for
mer act must still be- considered a- if
introduced into the latter staMite. Hot
ter. Dwar. St. p. 102.”
In Rex. vs. Ismlale, 1 Burrows, 447,
it is held. Lord Mansfield delivering the
judgment of the court: That where
there are different statutes in pari ma
teria though made at different times, or
even where they have expired, and not
referring to each ether, they shall •In
taken and considered together as one sys
tem, and as explanatory of each other.”
The same doctrine is held in New York.
Smith vs. Ht-ople, 47 N. Y. 330. which is
very much in point.”
“Several statutes that are in pari ma
teria art- to In- construed as one statute
in explaining their meaning and import.
Patterson vs. Winn, 11 Wheat. 385;
The Harriet. 1 Story, R. 251; 11. S. vs.
Hearves, Crabbe’s R. 307; Dubois vs.
M< Lean, 4 McLean R. 485), 3 Blatchfe i
C. R. R. 325, and contemporaneous, an- !
tocedent and subsequent statutes on ike
same subject matter may be examined
and considered in construing the said 1
act. Rogers vs. Bradshaw, 20 John. ;
744, McCartoe vs. Orphan Asylum, 0
(row. 507, Rpxford vs. Knight. 15 Barb,
642. 1 Kent. Com. 468; Waterford
Western Turnpike Company vs. People,
0 Barb, 161.”
Dwarris on Statutes, page 180, note.
"It is a rule of construction universally
recognized that such interpretation must
be given to a law as will contain, rather
than destroy it. 'lit res magis vnleat
(piam pereat.’ Dwarris on Statutes, 203.
If the contention of th (-railroad company I
shall prevail there is no body existent
by whom the most important duties of!
assessing railroad properties can be per
formed.
"Statutes that are apparently in con
flict should be, construed that both may
stand if possible.Tkey are to be recon
ciled as far as they may be on any fair
hypothesis and validity given to each
of them if it can be.” Johnson vs.
Byrd, Hempstead Rep. 434, Beals vs.
Hale, 4 How. (U. S.) 37.
"In order to arrive at the true legisla
tive intent in construing a doubtful
statute, that construction should bo
adopted which is best conformable to
reason and justice, the Legislature will
not be presumed to have- intended that
which is against reason.”
Commonwealth vs. Kimball, 24 l’ie.
370.
23 A. & E. Enc*. Law, page 358.
There is a strong presumption against
absurdity iu a statutory provision; it be
ing unreasonable to suppose that the
Legistature intended llieir own siuliti
eation. 80, when the language of an
act is. susceptible of two senses, that
sense will be adopted which will not
lead to absurd consequences.”
23 A. & E. Enc. Law, page 362.
"If. by tin* words of a statute, the
intention of the legislature lie improba
ble, the court must give it construction.”
The Hunter, 1 Peters, C. O. R. It).
"That construction is favored which
gives effect to every clause and every
part of the statute, thus producing a
consistent and harmonious whole. A
construction which would leave without
effect any part of the language used,
shoulij In- rejected if an interpretation
can be found which will give it effect.”
23 A. & E. Enc. Law. page 3()5>,
"And it is always to be presumed that
the Legislature has intended the most
reasonable and beneficial construction
of their acts, if the words of (he act
are not precise and clear, Pearce vs. At
wood, 13
tion will be adopted as appears most
reasonable, and best suited to accom
plish the objects of the statute; and
where any particular construction would
lead to an absurd consequence, it will
be presumed that some exception or
qualification was intended by the Legis
lature to avoid such conclusion. Com
monwealth vs. Kimball, 24 Pick, 37.”
Dwarris on statutes, page 202.
"But taking the most unfavorable view
of the question, namely, that by over
sight the Legislature in the machinery
act of 185)5) have used tin- words 'Rail
road Commissioners’ where they intend
ed to use the words ‘Corporation Com
missioners, ’ I submit, that from the
context of the three statutes which were
ratified on March Bth, 1899, to-wtt. the
revenue act, the machinery act and the
escaped taxation act, read in connec
tion with the aof repealing the Railroad
Commission act, and the net establish-
ing the Corporation Commission, enough
appears to justify the* courts in correct
ing the error. The several acts were
ratified on or near the last days of the
session. In the hurry and confusion of
the closing hours, if the intention, which
may be gathered from the several acts
and the surroundings and circumstances
was not well expressed, the* obvious er
ror may be corrected by the courts in
their interpretation of the law.
‘'Wlu-re it is manifest upon the fact
or an net that an error has been made
in tin- use of words, the court may cor
rect the error and read the statute as
corrected in order to give effect to the
obvious intention of the Legislature.
The power to make such correction is
well established, but it is exercised only
where the error is so manifest as to
leave no doubt in the judicial mind as
to the actual intent of the Legislature.”
23 A. & E. Enc. Law. page 421.
Lancashire vs. Fry, 128 Pa. St. 55)3,
Ludslcy vs. Williams. 20 N. J. Eq. 03.
11. THE STATE OF NORTH
CAROLINA lIAS THE POWER TO
TAX ROLLING STOCK OWNED
BY A FOREIGN CORPORATION
AND CSED ON A RAILROAD IN
THE STATE. OWNED, LEASED
OR OPERATED BY IT. NOR IS IT
NECESSARY THAT THE SAME
CARS SHOULD REMAIN IN THE
STATE ALL THE TIME. PRO TID
ED AN EQUIVALENT NUMBER
ARE OPERATED CONTINUOUSLY
IN THE STATE.
The case of Bain vs. It. & D. It. It.
Co., lUS N. C. 303, is cited in opposition
to our proposition, and deserves consid
eration. ’1 liis case was decided at the
February term, 185)0. It holds, that
the rolling stock of a non-resident rail
road corporation, passing through 11n
state for purposes of intcr-Statc com
merce, is not liable to taxation in tins
State.
Il appeared in this case that "on June
1, 1885. there was in use on the North
Carolina Railroad, leased by tin- Rich
mond and Danville Railroad in North
Carolina, rolling stock passing through
the State to the value of $175,000.
Such rolling stock was owned by the
r & I), u. It. Co. and the trains in
which said rolling stock was used wen
made up outside of North Carolina and
went on through to the State of South
Carolina.” It did not appear that this
quantity of rolling stock was thus oper
ated iu North Carolina continuously.
Tin- court said: "it is settled that a
State cannot tax commerce, trade,
travel, transportation or tin* privilege
to carry on and conduct the same, or
the vehicles, means and appliances em
ployed and used in connection therewith,
coming into that State from another
temporarily, however frequently and
returning to such other State, citing
Haves vs. Steamship Co., 17 Howard,
506: Morgan vs. Parham. 16 Wall. 471;
Ferry Co. vs. Pennsylvania, 114 U. S.
Rep. 15)6 and eases cited; Pickard \s.
Pullman Co. 11 ( l . S. Rep. »L Leloup
vs. Port of Mobile, 127 U. S. Itcp. 64').
Strange to say. not one of these cases
support the pr<q>osition.
The court in Bain's case say the
statute was intended to "tax the prop
erty of corporations, foreign and do
mestic. whose property had no situs in
this ,State. That the mere tael that
property of the defendant of the value
mentioned was continuously within the
Stale did not give it a situs here, it was
continuously changing, and in transitu
in the course of inter state commerce.”
The doc trine that taxation of robing
stock .is mi interference with interstate
commerce, was exploded by tne Supreme
Court of the United States in tin* ease
of Pullman Co. v. Pennsylvania. 141 l .
S.. 1.8. decided a year after tin* Bain
yase. If the Pullman ease had been de
cided before the Bain ease was present
ed, it would have been disposed of very
differently. In this ease, the cars of a
foreign <orixnaticn engaged in inter-state
commerce wen* taxed by the State o r
Pennsylvania, their value living assess
ed by taking as a basis of assessment
such proportion of its .capital stock as
the iminihcr of miles of the railroad over
which its cars were run within the State,
bore to the whole number of miles in this
anil other States in which its cars were
run. The court held that this did not
mitigate against tin* inter-state com
merce clause of tin- constitution. The
court said:
"It is equally will settled that there is
nothing in the constitution or laws of the
United States which prevents a State
from taxing personal property employed
in inter-state or foreign counmerce lake
other personal proper, *y wit him its juris
diction. Delaware Railroad Tax, 18
Wall. 206. 2512; Telegra) h Co. v. Texas.
105 U. S.. 460. 464: Gloucester Perry
Co. v. Pennsylvania. 114 11. S.. 196. 211;
Western ranion Telegraph Company v.
Attorney General of Massachusetts, 125
I\ S.. 530, 540; Marye v. Baltimore and
Ohio Railroad, 127 V. S., 117. 124 Lo
loitp v. Mobile, 127 U. S.. 640, 040."
This case has ben affirmed in R. R.
Coniipmiy v. Backus. 154 IT. S., 435). 4 15;
Cable Co. v. Adams, 155 U. S.. 688:
Adams Express Co v. Ohio. 165 U. S..
101. anil the. same case, 166 U. S.. 601.
as well as in many other cases in the
same court. Sec also Pullman Car Co.
v. TwcmHy, 25) Fed. Itep., 058,
Cp m all questions arising under the
constitution of the United Stares the
final decision rests with th 1 * Supreme
(Vivnt of the United States, and its ar
-1 litramenit is conclusive. Cooley Cons.
Limi., 18.
The position of the North Carolina
court iu Bain’s case that the foreign
corporation’s cars had no s'tus in North
Carolina fur the purpose of taxation is
also iint>t by the Supreme Court in Pull
man 'Car Co. v. Pematsylvania, supra.
The court said:
‘"The eoanipany has at all times sub
stantially the same number of ears -with
in tin* State and continuously and con
stantly uses them as a part of its prop
erty and so it is valued at the average
number of ears operated in the State,
although the ears were continuously
changing.”
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taxation by the Sitate is that the rotlbig
stock, capital stock and franhois- are per
sonal property, and that this, wit 1 1 all
other personal -property, has a local situs
at the principal place of business of tie
corporatii-on, and can la- taxed by n<>
other county, city or town, but the one
when* it is so situated. I ni* ; objection
is based, upon the general rule of la"'
that personal ip.-rojy.rty, as to its situ-u
follows tin* domicile of the owner. It
may be* doubted very reasonably whether
such a rule can 'lie applied to a railroad
corporationi as between the different lo
calities embraced by its line of road.
But, after all. this rule is merely tin
law of the State which recognizes it: and
when it is called into operation as to
property located in one State, and owim I
h.v a resident of another, it is a ml- of
comity in the former State rather than
nn absolute principle in-all eases. Green
v. Van Buskirk, 5 Wall., 312. ’
In Marye v. B. A P. R. R. Go . 127. U.
S„ 117. the court held that a State may
tax rolling stock owned by a foreign
corporation which is used witn.n the
State although the specific and individua;
class of tinnier ty so used was .not con
t inuoirs'.y Jhc same, but were rout imi ally
changing according to the exigency of
Hie business.
Sco Denver ail'd R. G. R. f <>. v -
Church, 43 Am. and Eng. It. Cas. 627;
Atlanth* & I*. R. Co. v. Lisenr, 37 A.
A E. R. Oa«. 368; Atbmrtk? R. R. U>. v.
Yavapai CY». 3!) A. A E. R. f as. .»4.>.
Under Illinois Act of April !». 1860,
entitled ‘‘An Art for the ro!lection o-f
railroad) taxes in certain counties. citUM
ar.d towns,” the person* or.company
operating a railroad are liable for the
taxes upon the rolling stock used upon
such road, without reference to the
owner*hip of the road or the rolling
stock mo li-i-d. Kennedy v. S-t. Louis
V. A T. H. R. Co. 02 111. 35)5, 7 Am,
Ry. Rep. 346.
"The actual situs and control of the
jiroiu-rty within this State, and the fact
that it enjoys the protection of tin
laws here are conditions which subject
it to taxation 'here: and the legal fic
tion. which is sometimes for other pur
-1 noses indulged, that it is deemed to fol
low the person of the owner, and to be
inn-sent at the j.C«k e of liis dom-ieil, has
no application. In such oa-o. tin* maxim
“morbilia perseoani sequuntur* givi s
way to the other maxim "juris M-mopor
acquit ns exist at.”
Redmond v. Comm'sioners. 87 N. C.
123.
Bain's case lias never lw-en cited with
approval in Nedih ('arolina. nor, accord
ing to Mr. Rapalt*. in any other State. It
is plainly repugnant to later det-isi ms
of the Supreme- Court of Hue UnJtcd
States which must he f drawni upo-a
Federal (px "lions. The Suprnm-i- Cou.-t
of North Carolina must repudiate it,
when the occasion offers. Otherwise tiie
taxation of oars of the Pullman Cem
j tally must lie a bandit ived as uiieoiiisititu
tioual, and the taxation of the rolling
stock of the Southern Railway mu.-1
cease.”
"Bain’s? cas • has also bn-n expri-ssly
overruled in Unicn Refrigciiiitor Trani-i't
Co. v. Lynch, 55 Pacific Rep. 6+2 decided
in 1800.
111. THE SOUTHERN RAILWAY
COMPANY SHOULD BE ASSESSED
UPON THE AVERAGE AMOUNT
OF ROLLING STOCK USED ON
THE PIEDMONT RAILROAD FOR
THE YEARS 1805 AND 185)0.
This road has Ik-oik since July Ist,
185)4, an integral part of the Southern
Railway and has lmm operated by it.
It has never owned any rolliii'g stock,
hut the same 'lists been suippiicd by the
Southern Railway Company. I his com
pany has listed such rolling stock at
$148,300 for the years 1807, 1808 an.l
1805). Approximately the same amount
was necessary to be used on this n ad
and was usid iai 185)5 atnd 185)6. For
tlw-se years no rutiiru was made. If
the Southern was bound to pay taxes
on this rolling stock in 1807, tin- same
obligati* n restcd uijKin it in 185)5 atwi
185)6. Tin- Basil case, if lit had not
linen overruled by the Supreme Court of
tin- Uuits'il States, would net apjdy,
because the Southern Railway is ojser
ating its own road in Ncrtii t .trodua
w ith its ow n roiling stork, tiring every
day th-i* name average amount. It makes
nu (liff. nenit- k'iiat the same cars an
il' t. always on tlhe road and within the
Stats*, for while they are on other roads,
the u, lling stock of such roads are stqe
[dying their jibn-es. If flu* Pidlmo-nt
road wen- an indepeiuh-iitt organization,
and owncil its ow n cuniplirimcmr of $1 iB.-
300 worth of rolling rtock, it would Is
taxable on the whi thi-reof, althaingih
the greater padt were ronmiig tnitur
changi nhly with cttlicr lines in the coun
try, which in turn supplirti w.'tlh tilreir
own ( ars the l’icdinoat"s necescsitk-s
while its cars were absent.
IV. THE SOUTHERN RAILROAD
SHOULD BE ASSESSED UPON
TIIE DEFICIENCY OF ROLLING
STOCK ON THE NORTH CARO
LINA RAILROAD WHICH HAS
BEEN* SUPPLIED BY IT.
Section 48 of the Machinery Act of
185)3 provides:
"If tills- property of any railroad com
pany be lea sed or opium tod by aay
othvr corpuratiion. foreign or domestic,
and if the li-issik- or ojM-ral iug
company, bring a foreign eerporathni,
be the owner or |K»sscsMor of
any i>ronerty in this State other than
that which it derives from the lessor or
company whose property is operated, it
shall be assessed in respect of such
property in like manner as any domestic
railroad company.”
This road has been leased and operated
b.v the Southern since July 1. 185)4. It
is admitted that it must have $305),292
worth of rolling stock, in addition to
the $114,708 worth which it owns. This
deficiency lias boon supplied by the
Southern since 1894. The Southern, by
listing it for taxation in the years 1807.
1808, 1800, admits its obligation to pay
taxes on this amount. There is no rea
son why it should not pay on the same
amount for the years 1895 and 1896,
when tin* same amount of rolling stock
was used. Besides, even if the Bain
ease had not been overruled, there is no
evidence as to what portion of the roll
ing stock supplied by the Southern is
used in the inter-State business. This
was incumbent upon the company.
V. TIIE SEABOARD AND ROAN
OKE RAILROAD COMPANY
SHOULD PAY TAXES ON THE
ROLLING STOCK WITH WHICH
IT HAS OPERATED THE ROAN
OKE AND TAR RIVER FOR THE
YEARS 1804 TO 1805) INCLUSIVE.
It lias never returned a dollar’s worth
of this stock. The Roanoke and Tar
River Railroad Company has been
leased by the Seaboard and Roanoke
ever since it was built. Tlx- Roanoke
and Tar River Railroad Company lias
never owned a locomotive or a ear.
This road lias never made any return of
its business or of the amount of rolling
stock used upon it.
All of the railroads in the State, ex
cept those operated by the Seaboard Air
Line system in 1807, were assessed
upon $10,613,717 total value of their
track. They returned $2,55)4,140 of
rolling stock. The proportion of stock
to track was 13.2 per cent. Adopting
this as the only feasible basis, the roll
ing stuck used on the R, & T. R. R.
should he assessed at 13.2 jx-r cent. <>l
the value of its track for tin- years 185)1
to 185)5), inclusive.
Its track was valued for each of these
years as follows:
185)4 $138,760, 13.2 jir. et„ $18,316.32
1805 — 142,840, 13.2 j»r. ct„ 18,854.88
j sjtO— 138,680, 13.2 pr. it., 18 305.70
]NS)7 — 138,560, 13.2 pr. ct„ 18.200.02
485)8 — 162,100, 13.2 pr. ct., 21,307.20
485)9 — 258,400, 13.2 pr. ct., 33,108.80
Total $128,273.88
The Bain case has no application
here because:
1. It lias been overruled by the Su
pri-iiK* court of the l tided States.
2. Tin* S. & R. is a domestic corpora
tion for the purposes of tiiis assessment,
living incorporated in North Carolina, us
well as in Virginia.
VI THE .MERCANTILE TRUST
\\ 1 > DEPOSIT COMPANY, TRUS
TEE, OR THE SEABOARD AND
ROANOKE, RALEIGII AND GAS
TON. AND RALEIGH AND AU
GUSTA, TRUSTORS. ARE LIABLE
: FOR TAXES ON THE ROLLING
I STOCK INCLUDED IN THE CAR
i TRUSTS, WHICH THESE RAIL
ROADS HAVE FROM TIME TO
TIME EXECUTED TO THE TRI ST
COMPANY. FOR THE YEARS 1804,
4805, 1806 AND 185)7.
It genus to be immaterial whether the
trustors or the trustee return this prop
erty for taxation, as the railroad com
panies, trustors, pay the taxis.
These railroad companies are tin
owners of certain rolling stock purchased
from the Seaboard Air Line Car J rust
Association in the years IN9O. 1801,
4803 4895 and 1806 ami 1897, tit the
aggregate price of $1,410,000. payable
for the one lot in twenty, and for the
others in ten annual instalments, with
interest a* 5 jh r cent, payable semi-an
nually. To secure the purchase money,
they executed bonds, and deeds of trust
upon the said rolling stock to the Mer
cantile Trust and Deposit Company as
trustees. The deeds of trust would be
inoperative unless the railroad
com Jamies had the title
convey. They are therefore now
the equitable- owners thereof. I'.u-y have
always held and used the robing wioek
as their property, in the same manner as
similar pin ijierty owned by lihem, U'lxm
which fin y rcspetivi’y pay taxes in this
k'.atc. All tin- l-m*.'motives of t.iw- Ral
eigh amid Goviton and Raleigh ami Aiv
gurtta art* u> I td exclusivelly in N'ortlh. ( ai
olinta and’ all of the BVnlmanl ail'd Roa
noke lwonMi'tives an* used exclusively in
North Carolina anil Virginia. The ears
an- sometimes absent, from tlhe State on
other times, as is the case with the ears?
of every North Carolina railroad com
pany which 1 1iK’s a thromigth business, but
which is nevertheless’ taxable in North
Carolina upon all of its ears.
These locomotives and ears were never
listed until 1898, when the Mercantile
Trust and Deposit ConipaJiy and tiie
railroad compani'es wi-ro, upon my nio
tien, called tspon by the RaMroid Oom
nitission to return them far taxation.
They Inive never bet'll listi-hI to return
them for taxati'im. Tiu-y have never
bcs’iii listed for taxation i-n Maryland
( thi-rwi.-i.- the Trusit Company would
(have made i't known, and would have
iy.utiei.-itfiil agairiMt donl Je taxaftinn oa
the in. Tdie Trust Ciompany was not in
law liable to pay taxes in Maryland on
pn party whh'h has its situs in North
Carolina sirnidy hei-ansi* Mi'.- Unjs't Ceiu
pairy lurid a dried of truer upon it to
secure the jHm Itase tutwHey. Besid. s,
fin* Trust Crimpany would not volunta
r:ily have listed and paid taxes there,
when tiresuinably the taxing officers
knew liodung of the existemv of this
[>••'.•[■•(’i ty, wh’uii was located in North
Carolina and never saw Maryland ex
(cpt on its outward trip from the nianu
fai I urers.
They were mot listed in North CnPv
linn, because there is no pretence that
the Trust Company listed it for taxa
tion before it was cnmpe'lled to do so in
1808. or that, the railroad cotivpank-s
ever did mo at all. If they had. the
Trust Oimpany would have sett this tqi
as a valid reason why it should' not lbt
the same property in 1808. Further
more, the recurds of the Corporation
< ’ioniniissioner s office show that this
roWimg stock was never listed or hssk-ss
«’«• for taxation before 1898,
when ['■idperty which wstt $1,410,000. as
show n by i Ik- Railroad Coiinni - sioner's
Reports on file, $750,0(Ki. of Avhic'h was
pitrilia.•■'ed in 1890, 1801 and 185)3. and
$600,000 in 185)5, 1896 and 185>7, was
li.-tcd and assessed at riie ridlculouHly
low value of $331,854.22, not om-fonrth
of actual cost!
VII. THE ROLLING STOCK IN
ALL FAIRNESS SHOULD BAY A
TAX FOR THE YEARS WHICH
IT HAS ESCAPED TAXATION
The fart, that the Seaboard and Roa
noke, and Raleigh ami Augusita. and
the Raleigh and Gaston, wiiic'h for 1808
paid the taxes on this rolling stock, and.
who will of course j ay the baek taxes
and the future taxes on the same, ab
theiugh the Mercantih- Trust and Dipis-
U ( oiniKuty has elceited to list it instead
<*( the comp'anies, have paid in. the ag
niigate more tlian $i8>),866 of the pur
rliasc niom-y so this rolling stock, and
still owe $624,134 thcri-on, dm-s not uf
tc< t tlte questiom. I'mter the circum
stances it is immiaiterial w lirtlhier t!u<*
property shall Is- as<ses<sed against the
railroads or the Trust Company. If any