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 prosition. 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 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.” "Another objection to tin* system o Headache Is often a warning that the liver i 3 torpid or inactive. More serious troubles may follow. For a prompt, efficient cure of Headache and all liver troubles, take Hood's Pills Whiie they rouse iho liver, restore full, regular action of the bowels, K they do not gripe or pain, do not 'Jr Irritate or inflame the internal organs, & i but have a positive tonic effect. 2uc. I I at all druggists ur by mail of C. i. liuod Co., Lowell, Mass. I MUNYONIS Blood Cure ab solutely cures scrofula, eczema, pimples, liver spots, blotches, 'eruption:?, syphilit ic conditions, mer curial taints, etc. Specially effica cious in all blood diseases common to a hot climate. Price, 25c, Free medical f' 1 * vice. Mia Arch Pt., Philo. l * T BLOOD CURE 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