The Atlantic and Gulf Railroad Company, Appellants, vs. George W. Allen, Collector of Revenue for Suwannee County, Respondent, 15 Fla. 637

WESTCOTT, J., delivered the opinion of the court. The 47th

Section of

Chapter 1976 of the Laws of Florida, (acts 7th sess., 1874, page 21,) provides “that the president and secretary or superintendent of every railroad company, whose track or road-bed, or any part thereof, is in this State,, shall annually, on or before the second Monday in June, return to the Comptroller of the State, under their oath, the total length of such railroads, the total length and value of such roads, including rights of way, road-bed, side track and main track in the State, and the total length and value thereof in each -county, city and incorporated town in this State.

They shall also make return of the number and value of all their locomotive engines, passenger, freight, plátform,' construction and other cars, and the value thereof shall be apportioned by the Comptroller, pro rata, to each mile of main track, and the Comptroller shall notify the assessor of each county through which such' railroad runs of the number of miles of track and value thereof and the proportionate value of personal property taxable in their respective counties; and to such values thus apportioned the assessor shall add the value of all other real property, together with all fixtures, machinery, tools and other property within their respective counties; and upon the value thus ascertained, taxes shall be assessed the same as upon the property of individuals, and any agent of such company is authorized to pay such tax to the collector and retain the amount out of any- money in his possession belonging to such road.”

Section 24 of

Article XYI of the Constitution of 1868, (the Constitution operative when the

section of the revenue law above quoted was passed,) provided that “ the property of all corporations, whether heretofore or hereafter incorporated, shall be subject to taxation,-unless such corporation be for religious, educational or charitable purposes.” The Atlantic and Gulf Railroad Company, being in possession of, and operating ak the owner thereof, a line of railway running through the county of Suwannee in this State, George W.

Allen, the collector of revenue of that county, claiming to act rinder the provisions of the act of the Legislature and constitutional provision quoted above, made a seizure of certain property of the said railroad company with the purpose of selling the same to satisfy the tax alleged to be due the State of Florida, and was proceeding to take action looking to the sale thereof.

Under this state of circumstances, the Atlantic and Gulf Railroad Company file a bill in the Circuit Court of the Third Judicial Circuit of Florida for Suwannee county against said collector, setting forth the manner in which it acquired said property, and alleging that by virtue -of the legislation under which it acquired the said property, and the right to own and operate the same as a body politic and corporate in the State the said road and all the property appertaining thereto was exempt from taxation; that the legislation referred to did not confer simply a privilege of temporary exemption of such property from taxation, which might be subsequently recalled by the sovereign; that such legislation constituted a contract, which could not be subsequently impaired by action of the State, either through a constitutional convention or

an act of legislation passed in conformity to a provision of the Constitution. The bill prayed an order enjoining the sale threatened, for a perpetual injunction at the hearing, and for a decree declaring the act authorizing the tax unconstitutional and void. Upon the agreement of parties the sale was postponed. Subsequently the defendant interposed, a demurrer to the bill. The ground of demurrer was want of.equity in the bill. Any question as to the jurisdiction of the court to enjoin the collection of taxes, was waived by the parties.

Upon the hearing of this demurrer, the court sustained the same and dismissed the bill. From this decree this appeal is prosecuted. The general question here involved is, whether, at the time the constitutional provision and the legislation above quoted authorizing this ad valorem tax were passed, this property was exempt from such taxation by virtue of a contract between the State of Florida and the Atlantic and Gulf Railroad Company. If such a contract existed, then it was beyond the power of both the convention and the Legislature thus to destroy it.

The power of the State is limited in this respect by the Constitution of the United States, and this limitation extends as well to a convention of the people of a State as to the general legislative power appertaining to a State government. This brings us to inquire how and in what manner this property was acquired by the Atlantic and Gulf Railroad Company, and whether it is, in its hands, exempt from this ad valorem tax.

The bill alleges that it acquired this property from the Pensacola and Georgia Railroad Company, that by virtue of a contract with said Pensacola and Georgia Railroad Company “ it became seized and possessed, in its own right, of the said road,” and by virtue of the legislation of this State, it beeame entitled to all of the rights appertaining to said property in the hands of the Pensacola and Georgia Railroad Company, one of which, it claims, was exemption from such taxation as is here levied. The act of the Legislature under which this property was acquired provides “ that the P. & G.

Railroad Company be and it is hereby authorized to sell and convey to the Atlantic and Gulf Railroad Company, of Georgia, the branch of their road commencing at Live Oak and running to the Georgia line, connecting with the branch of the road of the said Atlantic and Gulf Railroad Company, beginning at Lawton, on the said Atlantic and Gulf Railroad, in Georgia, and running to the Florida line, and all the rights, franchises and privileges of the said Pensacola and Georgia Railroad Company applicable to and connected with said branch road, in all respects as the same are and have been by law vested in said Pensacola and Georgia.

Railroad Company.” (Chap. 1573,

Section 1, Laws of Fla.) There is no room for doubt as to the effect of this legislation. It is plain and direct. It is as positive and definite as it could be made. The sale of the road to the Atlantic and Gulf Company under this act is to pass all the rights, franchises cmd privileges of the Pensacola a/nd Georgia Compcmy i/n all respects as the same were, by law, vested in the Pensacola and Georgia Company. The object, purpose and effect of the law is upon the' sale to vest the Atlantic and Gulf Company with the same rights as were in the Pensacola and Georgia Company.

A right of exemption from taxation can be passed under the general language of “ all the rights ” as well as any other right. We can see no difference. In all cases the language must be clear to create such an exemption as is here claimed, but it is going too far to hold that each right must be enumerated in order to pass it. The term “ all rights ” embrace eaeh right, and there is no room for the least doubt on the subject. The case of Trask vs. Maguire, 18 Wall., 405, covers the point here suggested, if, indeed, so plain a proposition needs any authority to sustain it.

There was a sale in that case authorized by

an act of the Legislature. “ The act, under which the sale was made, provided that the purchasers should have all the rights, franchises, privileges and immunities, which were enjoyed by the defaulting company under its charter and laws amendatory thereof.” Say the Supreme Court of the United States : “ The new company thus acquired all the immunity from taxation which the original company possessed.” The only difference between the act in the case before the Supreme Court of the United States and the act here, is, that in Trask vs.

Maguire, it gave the purchasing company the rights and privileges which the old company had “ under its charter and laws amendatory thereof,” while here, the act gives the purchasing company all the rights which “ are and have been by law vested ” in the vendor company. The effect of the language is the same ; one is equally as explicit as the other. Rights which vest under a charter and its amendments, and rights vested by law, are terms signifying the same thing. In Humphrey vs.

Peques, 16 Wall., 248, the act of the Legislature, construed by the court, provided “ that all the powers, rights and privileges granted by the charter of the Northeastern Railroad Company are hereby granted to the Oheraw and Darlington Railroad Company, and subject to the conditions therein contained.” Under the orginal act to incorporate the Northeastern Railroad Company, no exemption from taxation was made ; under an amendment it was exempted.

The Supreme Court held that after the passage of the amended act, “ the Northeastern Eailroad Company was, in law, as if it had originally been chartered” with all the rights conferred by the amended act, and that under the ' general language, granting “ all the powers and rights ” vested in the Northeastern Eailroad Company, the right-of exemption conferred by the amended charter passed to the Cheraw and Darlington Eailroad Company.

The next question is, was this line of railway in Suwannee county, and its appurtenances, and all property therewith ©onnected, exempt from the tax here levied in the hands- of the P. & G. Eailroad Company at the time of the sale to the Atlantic & Gulf Company ? If it was, then ' such right passed to the A. & G. Company. This question has been discussed in two aspects. It is claimed that this line of road was exempt from all taxation by virtue of the provisions of the 18th

section of

an act entitled “

An Act to Provide for and Encourage a Liberal System of Internal Improvements in this State,” approved January 6th, 1855, (Chap. 610, Laws of Florida.) It is also claimed that the line of road was exempt from the tax here levied by virtue of the 16th

section of the act incorporating the P. & G. Eailroad Company, approved January 8th, 1853,

Chapter 484, and the amendment thereof, approved January 15, 1859, Chap. 948. The P. & G. Eailroad Company was one of the companies accepting the provisions of the Act of January 6th, 1855 ; and the 18th

section of that act provided, “ That 'the capital stock of any railroad company accepting the provisions of this act shall be forever exempt from taxation, and the roads, their fixtures, and appurtenances * * * * * shall be exempt from taxation while the roads are under construction, and for the period of thirty-five years from their com. pletion.” It is contended that an exemption of the capital stock of the P. & G. Company from taxation was an ex-eruption of all of the property in connection with which the stock existed.

As a general proposition it is true that the exemption of the capital stock of a company from taxation exempts the property in reference to which that stock exists, for the plain and simple reason that the stock, when considered independent of that property, is nothing more than a valueless piece of paper. The property is the representative of the stock, the stock the representative of the property, and as things of value and interest they are the same. Hence, it must be true that an exemption of one is the exemption of the other, for they are for the purposes of taxation the same thing.

When, therefore,' there is a plain and simple declaration by the Legislature that the capital stock of a company shall be exempt, and nothing-more is said, that is an end of the cpiestion. Here, however, the general rule cannot operate, because the Legislature has plainly declared otherwise. It has said that while the capital stock shall be forever ‘exempt, yet, that all the property of the road shall be exempt for thirty-five years after completion. The necessary inference from this isj that after thirty-five years have expired this property may be taxed. The exemption, then, ceases under the letter of the law.

This

section must be given a consistent construction. It is contrary to the elementary rules controlling statutory construction to give one clause of a

section a construction not consistent with the clearly expressed meaning of another, when the first can be construed in harmony with the last. The Legislature here was prescribing a rule of taxation and not its rate. The effect of the

section is to prohibit taxation of the stock as stock of the company; to forever prohibit the application of such a rule; but after the expiration of thirty-five years the property might be taxed by some other rule than by taxing its stock as stock. Besides it is far from clear that because this property of the P. & G-. Railroad Company is exempt on account of a stock exemption of that company, that an exemption incident to the stock of the P. & G. Company would enure to the benefit of the A. & G. Company, because the property it acquired was exempt, not as property of the P. & G.

Company strictly, but because its stock was not taxed. This exemption was incident to this property only, because the stock of the P. & G. Company was not taxed. It was a special privilege attached to the stock of that corporation. The exemption was an incident of the stock interest of that particular company in that precise property, and because, in point of fact and law, this property appertained to stock in that particular company. It would seem, therefore, that wherever you- could tax this property without taxing the stock of the P. & G. Company, it might be done.

But however this may be, it is apparent that it was not the purpose to exempt the property owned by this company forever, when it declared its stock exempt for that time, but that the purpose was to require the Legislature to adopt some other rule of taxation. The term “ roads ” in this

section refers strictly to the lines of road for the construction of which the internal improvement fund was created, and this line of road, a branch road from Live Oak to Lawton, was not embraced therein. To extend the exemption to other roads would be clearly inconsistent with the general purpose of the act, which was to encourage the system created by it, in which system the branch road was not embraced. This disposes of the first aspect in which this question has been (discussed, and we now reach the second view presented of it. It is claimed that this line of road was exempt from the tax here levied by virtue of the 16th

section of the act incorporating the P. & G. Eailroad Company; that under this

section this road was exempt from such taxation when sold by the P. & G. Company to the A. & G. Company. If such was the case, then it is still exempt, if the original exemption was a contract beyond the control of subsequent aetion by the Convention and Legislature. The 16th

section of the act incorporating the P. & G. Railroad Company provided “ that the said railroad and its appurtenances and all property therewith connected, shall not be taxed higher than one-half of one per cent, upon its annual net income.” Whether the original charter authorized the construction of this branch road, we deem it entirely immaterial to inquire, as the act approved January 15, 1859, amending the charter of the Pensacola and Georgia Company, gave this express authority, and it is sufficient for the purposes of this case to say that this amendment did authorize the construction of this road.

Upon the adoption of this amendment, the road thereby authorized to be constructed became subject to the provisions of the original charter as to its management, control, operation and everything else. The. original charter, as amended by this act, became the measure and source of the legal rights of this corporation, and this new road thus authorized to be constructed became its property, equally exempt from taxation as any other property acquired and owned before the amendment became operative.

The highest tax, therefore, which can be levied, as to this road, in the hands of the Atlantic and Gulf Company, is a tax of one-half of one per cent, upon the annual net income derived therefrom. The tax here levied and proposed to be collected is an ad valorem tax upon the entire property, and, if it is higher than one-half of one .per cent, upon the anhual net income derived from the property, it is unauthorized, unless this original exemption in the charter was a privilege granted, which could be withdrawn, instead of a contract of effective obligation upon the State. In Wilmington Railroad vs.

Reed, 13 Wall., 264, it is held by the Supreme Court of the United States that a charter to a railroad company, containing such an exemption as is here expressed, is a contract, and a law subsequently passed, laying a tax inconsistent with the exemption, violates the obligation of the contract, and is void. The same rule applies' to the act of a constitutional convention impairing the obligation of a contract. Such.action is void.

Whatever doubt may have once existed on this question, it is now settled by the repeated decision of the Supreme Court of the United States to the effect stated, and it would be a useless expenditure of words to discuss the matter here. "We think this case comes clearly within the decision in 13 Wall., 264. I will, however, say for myself, that as an original' proposition, I would not hesitate to decide that the right to tax any particular piece of property eannot be made the subject of a perpetual exemption, binding as a contract, by one Legislature as against the power of a subsequent one.

There are, in my judgment, many entirely satisfactory reasons why it cannot be. The essential elements of sovereignty necessary to the perpetuation of government cannot be made the subject of a permanent grant by the Legislature. If there is power to. exempt one piece of property from taxation forever, there is power to exempt all, and the existence of this power to this extent involves the destruction of the State. If there is any limitation upon the power, it must be an entire limitation resulting from the nature of the subject.

This matter is, however, no longer an open question.- Judicial officers of a State must follow the repeated expression of opinion by the Supreme Court of the United States as to what is the obligation of a contract and what constitutes a contract within the meaning of the Constitution of the United States. The position was taken in argument, that the grant of the franchises and rights to the Pensacola and Georgia Eailroad Company, made by the Legislature, was in conflict with the Constitution operative at that time, (1853,) and hence that no right passed to the Atlantic and Gulf Eailroad Company.

That Constitution provided that no act of incorporation granting exclusive privileges should be granted for a longer period than twenty years. Even’ admitting that the act incorporating the Pensacola and Georgia Eailroad Company was an- act granting exclusive privileges within the meatiing of -this clause, (a question which we do not decide,) we can-pot see how this clause of that Constittution is a limitation upon the power of the Legislature of 1866, which granted these rights to the Atlantic and Gulf Eailroad Company. In 1866, another and different Constitution limited the power of the Legislature..

At that date, (1866,) the twenty years during which the Pensacola and Georgia Eailroad Company were to possess these rights had not expired. The right of exemption was then existing in the Pensacola and Georgia Eailroad Company. In that year, the Legislature authorized the sale of this property to the Atlantic and Gulf Company, with the then existing rights of the Pensacola and Georgia Eailroad Company ; and, for the purpose of operating this road, the act made that company a body politic and corporate in this State.

The existence of the right of exemption in this, company is co-existent with its right to exercise corporate powers, and it cannot be claimed that this right has expired by virtue of any. limitation in the Constitution operative in 1866; as the limitation therein contained was twenty years. The Atlantic and Gulf Company did not derive its right to exercise corporate powers as to this road through the Pensacola and Georgia Eailroad Company. That right is the result of an express grant by the sovereign to it.

The nature and kind of rights other than the right to be a corporation, which it acquired by the purchase, were to be ascertained by reference to the rights then existing in the Pensacola and Georgia Eailroad Company, but the limit in time, as to their exercise, must be found in the charter of the Atlantic and Gulf Company, or in the Constitution then operative. We havethus disposed of the questions in this case, so far as they involve the essential merits of this controversy.

Our conclusion is,'.that any tax higher than one-hálf of one per cent, upon the annual net income derived from this property cannot be sanctioned. This conclusion, however, does not authorize an entire reversal of the judgment of the Circuit Court upon this demurrer. The plaintiff nowhere alleges in its bill that the tax here levied is more than one-half of one per cent, upon the annual net income derived as stated. If the tax here levied is not higher than this sum, then it is authorized, and neither the Circuit Court nor this court can presume the existence of a fact not alleged in the bill.

No-perpetual injunction should be awarded except upon full proof that the tax levied is in excess of the limitation fixed by law, and the burden of proof, as to this fact, is upon the-company, it being a fact peculiarly within its knowledge. In addition to this, if the proofs disclose any tax as due, it. will be a question whether the court should award a perpetual injunction as to the whole, or only as to the excess, or whether it will require the road to do equity before the equity which it asks will be granted.' This question, however, is not involved upon this demurrer, and upon it we express no opinion.

The judgment upon the demurrer is affirmed, in so far as the demurrer is sustained, and it-is reversed, in so far as it directs the bill to be dismissed. The case will be remanded, with directions to enter judgment sustaining the demurrer, with leave to amend upon the payment of all costs in the Circuit Court up to the date of the motion to amend; and there .will be judgment in this court against the appellant ior all costs of this court.