Manuel Palmes, as Collector of Revenue for Escambia County, Appellant, vs. The Louisville and Nashville Railroad Company, Appellee, 19 Fla. 231

Mr. Justice Westcott delivered the opinion of the court. The material question involved in this case, the one which the State and the Louisville and Nashville Railroad-Company ask consideration of here, is whether the line of railway extending from Pensacola bay to the north line of the State of Florida, leading in the direction of Montgom-' ery, Ala., its fixtures and appurtenances and property of every description, is exempt from taxation for the period of thirty-five years from its completion. This question was involved in the case of Gonzalez vs.

Sullivan, 16 Fla., 791, and with the lights then before us we held that it was. After careful investigation we there held that the exemption allowed under the 18th

Section of the Internal Improvement Act was not a privilege or immunity granted to the corporation originally owning the road, but a privilege annexed by the terms which created it, and the circumstances under which it was made, to the road and property appurtenant thereto, as distinct from a franchise privilege or right restricted in its beneficial operation to the corporation which claimed to own the road.

We held that it was not a privilege or immunity appurtenant only to the then ownership of the road, but that the immunity attached to the road, at the time it was made a part of the “ system ” of internal improvements of this State, and that in order to complete the system, and encourage any corporation owning the road to construct it, an exemption of the property for thirty-five years after completion was intended by the Legislature.

We held that the exemption attached to the rem ; that such exemption vested in contract followed the property ; that a subsequent levy and collection of taxes would impair the obligation of the contract; and that in obedience to the limitation of the “Constitution of the United States, upon the power of the State in that behalf, the collection of a tax upon the road and its appurtenances should be enjoined. As the matter was then presented this was our conclusion.

We cannot state .more clearly the reasons given for that conclusion then than they are stated in the case referred to, and we refer to that case for the basis of our then views to the effect stated. The question, as we conceived it to be, was whether it was an immunity from taxation attached to the property, believing, as we did, that it would make no difference as to the character of the party in whose favor it was to operate. This case is now presented to us under circumstances in some respects unlike those brought to our attention in the case of Gonzalez vs. Sullivan. It is insisted : First. That the 18th

Section of the Internal Improvement Act, which grants the immunity from taxation, was in conflict with the constitutional limitations upon legislative power then existing under the Constitution of this State in the matters of taxation and the amendment of charters of corporations. Second.

That since the decision of this court in the ease stated, the Supreme Court of the United States has expressed views in conflict with our conclusion in that case, and that in deference to that court, the admitted final jurisdiction to determine questions connected with the matter of the obligation of contracts, this court should follow that decision. In addition to this, it is insisted that' this case is here at the instance of the legislative and executive departments of the State government, and that, by their action, they have affirmed that this rtíad and its appurtenances are subject to taxation.

To the first question : The provisions of the Constitution of 1839 of this State in reference to this subject were as follows:

Section 2,

Article XI. — “A liberal system of internal Improvements being essential to the development of the resources of the country shall be encouraged by the government of this State, and it shall be the duty of the G-eneral Assembly, as soon as practicable, to ascertain by law proper objects of improvement in relation to roads, canals and navigable streams and to provide for a suitable application of such funds as may be appropriated for such improvements.” .Section 2,

Article XIII. — “ The General Assembly shall pass no act of incorporation or make any alteration therein unless with the assent of at least two-thirds of each House, and unless public notice in one or more newspapers in the State shall have been given for at least thi'ee months immediately preceding the session at which the same may be applied for.”

Section 13,

Article XIII. — “ The General Assembly shall not pledge the faith and credit of the State in aid of any corporation whatsoever.”

Section 1,

Article YIII. — “ The General Assembly shall devise and adopt a system of revenue having regard to an equal and uniform mode of taxation to be general throughout the State.” By reference to the charter of the corporation owning this road at the time it accepted the provisions of the Internal Improvement Act of January 6, 1855,

Chapter 610, Laws of Florida, and to the Internal Improvement Law, it will be seen that the latter act operated to amend the charter in many material respects. We think it, therefore, by no means clear, looking alone to the restrictions contained in

Section 2 of

Article XIII. of the Constitution, that the Internal Improvement Act was constitutional so far as it proposed to amend the charters of the several corporations accepting its provisions. When, however, this clause,

Section 2,

Article XIII., is construed with

Section 2,

Article XI., we think there can be no doubt of the constitutionality of the Internal Improvement Act so far as this matter is concerned. By that clause (Section 2,

Article XI.,) it is made the “ duty of the General Assembly, as soon as practicable, to ascertain by law proper objects of improvement in relation to roads, canals and navigable streams,” and the government of the State is directed to encourage a liberal system of such improvements. Such improvements are equally accomplished through the instrumentality of corporations having the franchises to operate such roads, to collect tolls and the other franchises usually granted by the State to corporations of this character.

At the time when the General Assembly proposed to inaugurate this system and obey the command of the Constitution, the right to construct the roads which it was proposed to embrace within the system had been given to several corporations. A very proper, perhaps the best, method of discharging the duty was to aid these corporations in constructing these roads, and if the Legislature was prohibited from using this method on account of the provisions of

Section 2,

Article XII., of the Constitution, it is clear that the discharge of its duty so far as the use of this method was concerned would have been controlled by the discretion of the corporations owning them. In other words, the Legislature could not have carried out its plain duty under the Constitution unless and until these corporations gave this notice.

And as the notice required must, as a matter of course, indicate the nature of the amendments desired, it would result that the Legislature could have devised only such a system, and extended only such aid, as the corporations themselves “ applied for.” Xo such limitation or condition was attached by the Constitution to the carrying out of this great public duty and trust by the State. It was not intended that the State was to be thus limited in its powers by the discretion of corporations. The one clause here,

Section 2,

Article XI., contemplated legislation as general in its operation and character as to the corporations embraced within it as the system devised, measured by its comprehensiveness and necessities, required. As to such legislation no notice was required. The other clause,

Section 2,

Article XIII., contemplated amendments desired by a particular corporation in matters concerning its relations to its stockholders and the people, disconnected from such legislation as was materially connected with and concerned the general system which it was the duty of the State to inaugurate and encourage.

Again, if the Internal Improvement Act in the matter of exemption from taxation is in conflict with the limitation contained in this clause of the Constitution, then that act, so far as it is the source of power to the railroad companies to issue what are known as Internal Improvement Bonds, is likewise within such limitation. Every department of the State government for over twenty years has recognized the constitutionality of these bonds. The highest courts of the State and Eederal governments have passed judgments based upon a like view, and millions of money have changed hands in the same manner.

All this is at least very suggestive of the conclusions that no one has seriously entertained the view that these bonds were ultra vi-res the corporations issuing them. In no adjudicated case do we find the question even raised. Of

section 13,

Article XIII., which is not insisted upon here by the State as such limitation upon the power of the Legislature as prevented it from granting the exemption from taxation, here questioned, we say nothing by way of argument, as it is very evident that it has nothing to do with the question. This brings us to the consideration of

Section 1,

Article VIII., of the Constitution. It is: “That the General Assembly shall devise and adopt a system of revenue, having regard to an equal and uniform mode of taxation, to be general throughout the State.” A statement of the constitutional provisions of the several States in reference to the subject of taxation, and the decisions of their courts as to the matter of exemptions thereunder, will aid us in stating the rule upon the subject under our own: Wisconsin — “ The rule of taxation shall be uniform and taxes shall be levied upon such property as the Legislature shall prescribe.”

Section 1,

Article VIII., Constitution of 1848, admitted in Knowlton vs. Supervisors of Rock County, 9 Wisconsin, 424, that there might be an absolute exemption, and held that property cannot be classified and taxed as classed by different rules. Held also in The Attorney-General vs. The Winnebago Lake and Fox River Plank Road Company, 11 Wisconsin, 35, that

an act of the Legislature commuting all taxes upon plank and railroad companies for one per cent, upon earnings was unconstitutional, but admitted the right to exempt absolutely. See Gilman vs. The City of Sheboygan, 1 Black, U. S., 514, where the Wisconsin cases are collected. Missouri — “All property subject to taxation in this State shall be taxed in proportion to its value.” Held, in Hamilton and Treat vs. St.

Louis County Court, 15 Mo., 1, that the Constitution is mandatory upon the Legislature when exercising the taxing power; that “ what property shall be subject to taxation is left to their discretion, but when they have selected the subjects, the rule for assessing the tax is in proportion to the value of the property.” Illinois — The early Constitution of this State provided that “ the mode of levying a tax shall be by valuation, so that every person shall pay a tax in proportion to the value of the property he or she has in his or her possession.” Held, in State Bank of Illinois vs.

The People, 4 Scammon, 303, that the lands and other property of the State Bank of Illinois might be exempted from all taxes. The statute sustained, authorized commutation of all taxes for one-half per cent, on the amount of all capital stock annually paid in.

Kansas — “ The Legislature shall provide for a uniform and equal rate of assessment and taxation; but all property used exclusively for State, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, and personal property to the amouut of at least two hundred dollars for each family, shall be exempt from taxation.” Considering the question whether the Legislature could legally exempt any property from taxation other than that expressly named in the Constitution, the Supreme Court of that State, in Frances, Treas., vs. A. T. and S. F.

Railroad Co., 19 Kan., 310, says: “ There is, in terms, no prohibition in such exemption, and as to personal property, the language of the Constitution seems to imply the existence of a power to exempt.” It says: “ All property used, * * * and personal property to the amount of, at least, two hundred dollars for each family, shall be exempted from taxation.” The court, after calling attention to the provisions of the Constitutions of Arkansas, 1868 ; Illinois, 1870; Louisiana, 1868 ; Minnesota, 1857; Mississippi, 1868 ; Missouri, 1865 ; Korth Carolina, 1868 ; Tennessee, 1870; Virginia, 1870; says: “In all these provisions will be noticed either an express direction to tax all property, or an express prohibition on exempting any other than certain specified property.

Our Constitution contains neither. Does it mean the same without, as those do with ? The positive language of these several sections, sustains, if it does not compel, the positive assertions of the various decisions cited by counsel.” These decisions held that the Constitution prohibited exemptions. Mississippi —

Section 13,

Article XII., Constitution — “ The property of all corporations, for pecuniary profits, shall be subject to taxation the same as that of individuals.”

Section 20,

Article XII., Constitution — “ Taxation shall be equal and uniform throughout the State. All property shall be taxed in proportion to its value, to be ascertained as directed by law.” In the case of the Mississippi Mills Company vs. W. W. Cook, Tax Collector, 56 Miss., 41, the Supreme Court of .that State held that the requirement is not that the property of all corporations, for pecuniary profits, shall he subjected to taxation, but that it shall be subject, that is, liable to taxation.

That the Legislature may exempt property of a particular class, whether the owners be corporations or natural persons; but such property could not be placed beyond the taxing power. That the words “ all property shall be taxed in proportion to its value,” do not require that all property shall be taxed and deny to the Legislature the right to exempt any. That the Legislature may exempt property of a certain class, or property used for a certain purpose. Alabama —

Section 1,

Article XIII. — “ Corporations may be formed under general laws, but shall not be created by special act except for municipal purposes. All general laws and special acts passed pursuant to this

section may be altered, amended or repealed.”

Section 4,

Article XIII. — “ The property of corporations now existing, or hereafter created, shall forever be subject to taxation the same as property of individuals, except corporations for educational and charitable purposes.” In the case of The Mayor of Mobile vs.

Stonewall Insurance Company, 53 Ala., 580, it was held that it was not competent for the General Assembly, in the imposition of taxes, to distinguish or discriminate in favor of corporate property subject to taxation, and that if property of a particular kind is subject to taxation and owned by a corporation, it must bear the rate of taxation imposed on. individuals. This decision, and the case of The City of Davenport vs. The C. R. I. & P. R. R. Co., 38 Iowa 643, seem to conflict to some extent with the case cited from Mississippi.

Illinois — “ The General Assembly shall provide for levying a tax by valuation so that every person and corporation shall pay a tax in proportion to the value of his or her property. * * * But the General Assembly shall have power to tax peddlers, auctioneers, * * * . and persons using or exercising franchises and privileges in such manner as they shall from time to time direct.” “ The specifications of the objects and subjects of taxation shall not deprive the General Assembly of the power to require other objects or subjects to be taxed in such manner as may be consistent with the principles of taxation fixed in this Constitution.” Held, in the Illinois Central Railroad Company vs.

The County of McLean, 17 Ill., 291, that “ it was within the constitutional power of the Legislature to commute the general rate of taxation for a fixed sum,”'and that “ the provisions in the charter of the Illinois Central Railroad Company, exempting its property from taxation upon the payment of a certain proportion of its earnings, are constitutional.” To the same effect see Hunsacker, Sheriff, vs. Wright, 30 Ill., 146. See also Chicago vs. Sheldon, 9 Wall., 55.

Arkansas — “All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. Ho one species of pi’operty from which a tax may be collected shall be taxed higher than another species of equal value.” In Pike vs.

The State, 5 Ark., 205, it was held that “property of every character and description upon which a State tax may be levied must be taxed in proportion to its real and true value; and no portion of any distinct genus or species of property on which such tax is imposed can ever be exempt from it.” The doctrine of the last clause was overruled in The State of Arkansas vs. County Court of Crittenden county, 19 Ark., 368.

The court say, “We declai’e the true rule of construction to be that the Legislature has the power, under the Constitution, to select the objects of taxation, and upon the exercise of this power there is no constitutional restriction.

"When the Legislature has selected the objects, then restrictions attach as to the imposition of taxes upon them, and the end intended to be accomplished is equality and uniformity in the taxation of all property taxed throughout the State, and not equality and uniformity throughout the State as to the whole of each or any particular species of property from which objects of taxation may have been selected. The restrictions relate to the valuation of the property taxed, and to the rate of taxation imposed.

They require all the property selected for taxation to be taxed according to its value, and that the rate of taxation shall not be higher upon the property, of one tax-payer than upon that of another, no matter whether the property be of the same or different species.” The court then allude to the fact that a number of named exemptions have existed under statutes ever since the adoption of the Constitution.

In the late Constitutions of Arkansas, in the Constitution of California in force in 1868, and in the Constitution of Ohio in force in 1856, the provisions upon the subject of taxation require, in terms; the taxation of all property and the power of the Legislature to exempt is denied. Fletcher vs. Oliver, Sheriff, 25 Ark., 293 ; People vs. McCreery, 34 Cal., 435 ; Exchange Bank of Columbus vs. Hines, 3 Ohio State, 16. Louisiana — “ Taxation shall be equal and uniform throughout the State. All property shall be taxed in proportion to its value to be ascertained as directed by law.

The General Assembly shall have power to exempt from taxation property actually used for church, school or charitable purposes,” etc. In Mr. and Mrs. Lefranc vs. City of New Orleans, 27 La. An., 189, held that this excludes the power to exempt beyond the named exemptions. In City of New Orleans vs. Fourchy, 30 La. An., 913, an exemption from taxation of $500 worth of household furniture and an exemption of $1,000 of income were sustained. It cannot be a matter of surprise that two members of the court dissented.

With these decisions before us there is little difficulty in giving the rule of exemptions as existing under our Constitution. The Legislature has full power here over the subject of taxation. It is directed to devise and adopt a system of revenue, and in doing so nothing is required of it except that regard shall be had to an equal and uniform mode of taxation to be general throughout the State. There is no provision directing all property to be taxed or limiting the power of the Legislature in the matter of exemptions.

As to the property made the subject of taxation, the requirement of uniformity prevents the adoption of different and irreconcilable methods as applicable to the same class or kind of property, and the requirement of equality prohibits taxing property of equal value at different rates. This we conceive to be the rule deduced from the Constitution. We think the language quoted from the case of The State of Arkansas vs. County Court of Crittenden County, 19 Ark., 368, gives the rule in this State. We cannot better express what is there said and quoted in this opinion, and we adopt it.

We must confess that we'cannot appreciate what may be called the classification exemption cases.. As an elementary proposition, a house owned by a corporation is as much the subject of taxation as a house owned by an individual. It is the same kind and species of property, no matter who owns it, and we cannot see how the Legislature, when the rule it is to prescribe is to be equal and uniform, can exempt it for the reason that it is used for one purpose or by one owner rather than another.

If exempted it must result from the admitted power to exempt the property as property not because of the character of ownership. It may be true that ownership and use may prompt the legislative action and may be made the method of identification of the subject-matter of the exemption, but the power is not controlled or modified by the nature of the subject upon which it acts or its ownership. Viewed as a question of power in the Legislature, whether a saw or a hammer is in the hands of a merchant or a mechanic is immaterial; so also is it immaterial whether it is used to construct a church or a penitentiary.

It was the practice of the Legislature to allow exemptions under the Constitution of 1839, from the time of its adoption to the time when it ceased to be operative, and the power to make such exemptions has never been questioned. The rule we state is the general rule following a fair construction of the Constitution. In this case, however, we are dealing with a species of property which had an especial standing and status under the Constitution of 1839.

The legality of the exemption allowed here is to be determined not alone by a reference to the clause of the Constitution regulating the power of the Legislature in the matter of taxation, but also in view of the provisions of

Section 1,

Article XI., of the Constitution, which made it the duty of the State government not only to encourage the system of internal improvements to which this road belonged, but also to provide for a suitable application of such funds as may be appropriated for such improvements. Under these circumstances the roads belonging to this system constituted a distinct class of railroads, so far public in their nature as under the Constitution to be the beneficial object of an appropriation of public funds. An exemption from taxation was a very proper method of encouragement.

It was but an indirect method of appropriating, for the benefit of this road, an amount of public moneys equal to the amount of its taxes, and this power no one can, with reason, deny. As to the remaining question, as stated, we are not prepared to say with absolute certainty that the case of Wilson vs. Gaines, 103 U. S., 417, decided since the case of Gonzalez vs. Sullivan, 16 Fla., 791, does not control this case. While the cases are not precisely similar, yet looking to the opinion rendered in that case (the case of Wilson vs.

Gaines), and the manifest tendency of the court, we cannot affirm that the Supreme Court of the United States would not in this case hold that the exemption here was an immunity which, upon the acceptance of the provisions of the Internal Improvement Act by the Alabama and Florida Railroad Company, attached to it as a “personal privilege,” and that it did not follow the road through the several transfers by which it became the property of the Louisville and Nashville Railroad Company.

The law of the obligation of contracts as affected by State legislation is under the Constitution of the United States a matter of Federal rather than State jurisdiction, and it is our wish, as it is our duty, to do all we can consistently to give the people of this State the benefit of the action of that jurisdiction, which is the properforum to settle this important question.

Under the peculiar legislation of Congress calling into action the jurisdiction of the Supreme Court of the United States, the decision here must be in favor of the validity of the statute imposing this tax, in order to its review by the Supreme Court of the United States. It was insisted upon the hearing of this cause that, in view of the antecedent decision of the case of Gonzalez vs. Sullivan, the action of the Circuit Court was proper.

We think the Judge of the Circuit Court very properly left it to this tribunal to modify or change its own decision, but the case when it reaches us must be disposed of according to our judgment now. Contrary to our usual practice, but in conformity to our admitted power, the judgment of this court will dispose of the case without a remittitur. The order of the Circuit Court awarding an injunction is reversed, the injunction is dissolved and the bill is dismissed.