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LOUISVILLE & N. R. Co. v. PALMES

November 19, 1883

LOUISVILLE & N. R. CO.
v.
PALMES, COLLECTOR, ETC.



This is a writ of error bringing into review a decree of the supreme court of Florida, dismissing a bill in equity filed by the plaintiff in error, which sought to enjoin the defendant, a collector of revenue under the laws of Florida for the county of Escambia, from collecting, by a sale of property levied on for that purpose, certain taxes claimed by him to be due from the complainant The ground of our jurisdiction is, as stated and shown in the record, that in the cause wherein the decree complained of was rendered there was drawn in question the validity of a statute of the state of Florida, to-wit, 'An act entitled an act for the assessment and collection of revenue,' approved March 5, 1881, wherein and whereby certain taxes for state and county purposes were imposed upon the line of railroad extending from the city of Pensacoia, in the state of Florida, to the northern boundary of the state of Florida, in the direction of Montgomery, Alabama, of which railroad the plaintiff in error is in possession and is owner; the validity of this statute being questioned on the ground that it was repugnant to the constitution of the United States, in that it impaired the obligation of a contract, and the decision of the supreme court of Florida being in favor of its validity. The contract, the obligation of which it is alleged has been thus impaired, and of which the plaintiff in error claims the benefit, is asserted to arise as follows: The general assembly of the state of Florida passed an act, which took effect January 6, 1855, entitled 'An act to provide for and encourage a liberal system of internal improvements in this state,' the preamble to which recites that–– 'The constitution of the state declares 'that 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 general assembly, as soon as practicable, to ascertain by law proper objects of improvements 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." The act then proceeds to create an internal improvement fund to aid in the construction of certain described railroads, and other works of internal improvement, by means of corporations organized or to be chartered for that purpose; and the eighteenth section provides as follows: '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, including workshops, warehouses, vehicles, and property of every description, needed for the purpose of transportation of freight and passengers, or for the repair and maintenance of the roads, shall be exempt from taxation while the roads are under construction, and for the period of thirty-five years from their completion, and that all the officers of the companies, and servants and persons in the actual employment of the companies, be and are hereby exempt from performing ordinary patrol or militia duty, working on public roads, and serving as jurors.' By an act of the general assembly of Florida, approved December 14, 1855, it was enacted–– 'That a line of railroad to be constructed from the city of Pensacola, or any other point or points on the waters of Pensacola bay or the waters of St Andrew's bay, to the north line of the state, leading in the direction of Montgomery, Alabama, shall be considered proper improvements to be aided from the internal improvement fund in the manner provided for, or may hereafter be provided for, in 'An act to provide for and encourage a liberal system of internal improvements in the state,' approved January 6, 1855.' The Alabama & Florida Railroad Company, by an act approved January 8, 1853, had been incorporated to build a railroad falling within that description, to extend from some point on the bay of Pensacola to some point on the boundary line between the states of Florida and Alabama, to meet and connect with a railroad leading thence to the city of Montgomery. This company, it is alleged in the bill, built and for a time operated the line of railroad contemplated by its charter, and became entitled to the benefits and privileges of the internal improvement act of 1855, by accepting its provisions and complying with its conditions. Its line of railroad was completed about January 1, 1860. By virtue of a decree of foreclosure and sale at the suit of trustees of a first mortgage, to satisfy the bonds secured thereby, the railroad of the Alabama & Florida Railroad Company, and all the rights, privileges, and franchises of the said company, were sold and conveyed on August 7, 1872, to one A. E. Maxwell, his heirs and assigns, in trust, and by him were sold and conveyed on December 10, 1872, to the Pensacola & Louisville Railroad Company, a corporation created by the laws of Florida. The original act incorporating the last-named company was passed July 16, 1868, but it appears to have been reorganized by an amendatory act which took effect February 4, 1872, the eighteenth section of which is as follows: 'That the Pensacola & Louisville Railroad Company, having become the assignee of the Alabama & Florida Railroad, of Florida, and the franchises of the said corporation, and being in possession of and operating the said line of road, which corporation was exempt from taxation for a limited period, the said Pensacola & Louisville Railroad Company and its property, now owned or hereafter to be acquired, shall also be exempt from taxation during the remainder of said period.' On May 6, 1878, in pursuance of a decree of the circuit court of the state of Florida, sitting in Leon county, a sale and conveyance was made transferring the title of the Pensacola & Louisville Railroad Company in and to its road and other property, 'together with all the franchises, rights, privileges, easements, and immunities' of that company, to the Pensacola Railroad Company. This company was a corporation of the state of Florida, created by an act of the general assembly which took effect February 27, 1877. The second section of that act is as follows: 'Sec. 2. Be it further enacted, that the said Pensacola Railroad Company be, and it is hereby, authorized and empowered to acquire by purchase and assignment all the property, rights, franchises, privileges, and immunities of the Pensacola & Louisville Railroad Company, a corporation created by an act of the general assembly of the state, approved July 16, A. D. 1868, whether the same were acquired under the laws of the states of Florida or Alabama, or the laws of the United States, or as the assignee and successor of the Alabama & Florida Railroad Company; and upon completion of the said purchase and assignment, the said Pensacola Railroad Company shall be deemed in law and equity to be fully invested with and entitled to all the said property, rights, franchises, privileges, and immunities of said Pensacola & Louisville Railroad Company, as though the same were originally granted to or acquired by the said Pensacola Railroad Company.' By the thirteenth section of the act of 1872, amending the charter of the Pensacola & Louisville Railroad Company, it was provided that 'it shall be lawful for said company to purchase, lease, acquire an interest in, to unite or consolidate with, lease or sell to, any other railroad company in or out of the state, and to make the same one company, with a consolidated stock and property, and with one board of directors,' etc. The right under this section to sell and transfer its property and franchises to a corporation of another state, it is claimed, passed from the Pensacola & Louisville Railroad Company to the Pensacola Railroad Company; and accordingly, on October 20, 1880, the Pensacola Railroad Company conveyed to the Louisville & Nashville Railroad Company, the plaintiff in error, its railroad from its junction with the Mobile & Montgomery Railway, to its terminus in Pensacola bay, its property, real and personal with certain exceptions, all its franchises, except the franchise to be and exist as a corporation, rights, privileges, easements, and immunities, by virtue of which conveyance the plaintiff in error claims in the bill that it became entitled to all the rights, property, privileges, franchises, and immunities of the Alabama & Florida Railroad Company, the Pensacola & Louisville Railroad Company, and the Pensacola Railroad Company, under the various acts incorporating these companies, and acts amendatory of the same. The plaintiff in error, the Louisville & Nashville Railroad Company, is a corporation of Kentucky, and by an amendment to its charter, which took effect March 6, 1878, reciting that its stockholders had become largely interested in the commerce and railroad business between the states of Kentucky and Tennessee and the southeast, and the several railroad connections in that part of the country, by an extension of its system, was enabled 'to operate, lease, or purchase, upon such terms or in such manner as they deem best, any railroad in any other state or states deemed necessary for the protection of the interest of the stockholders.'

The opinion of the court was delivered by: Matthews, J.

John L. Cadwalader, for plaintiff in error.

[Argument of Counsel from pages 249-250 intentionally omitted]

E. A. Perry, for defendant in error.

The exemption from taxation, created by the eighteenth section of the internal improvement act of 1855, is in every respect similar to that which was declared in Morgan v. Louisiana, 93 U. S. 217, to be not assignable. No words of assignability are used by the legislature of the state in the language creating it, and from its nature and context it is to be inferred that the exemption of the property of the company was intended to be of the same character as that declared in reference to its capital stock and to its officers, servants, and employes, and that all alike were privileges personal to the corporation, or to individuals connected with it, entitled to them by the terms of the law. This exemption, therefore, did not pass from the Alabama & Florida Railroad Company to the Pensacola & Louisville Railroad Company by the conveyances which passed the title to the railroad itself, and to the franchises connected with and necessary in its construction and operation.

This conclusion is confirmed by the eighteenth section of the act of February 4, 1872, amending the charter of the Pensacola & Louisville Railroad Company. That section recites that the last-named company having become assignee of the Alabama & Florida Railroad Company, and of its franchises and property, 'which corporation was exempt from taxation for a limited period, the said Pensacola & Louisville Railroad Company and its property, now owned or hereafter to be acquired, shall also be exempted from taxation during the remainder of said period.' Here the original exemption is declared to be the privilege of the Florida & Alabama Railroad Company, the particular corporation to which it was granted, and the necessity for conferring it by a new legislative grant upon the assignee of the property and franchises of the original corporation, rests upon the implication that the exemption did not pass to it by the assignment between the parties. And the further inference is equally necessary, that the exemption transferred or created in the new company by the terms of the legislative grant is identical in its character as a personal and unassignable privilege to the new grantee, with that it had when it belonged to the first company.

But the second section of the act of February 27, 1877, incorporating the Pensacola Railroad Company, authorized and empowered it to acquire by purchase and assignment all the property, rights, franchises, privileges, and immunities of the Pensacola & Louisville Railroad Company, and, upon completion of such purchase and assignment, declared that the former should be deemed, in law and in equity, to be fully invested with and entitled to all the said property, rights, franchises, privileges, and immunities as though the same were originally granted to or acquired by the said Pensacola Railroad Company.

It is claimed that this language is broad enough to cover the assignment and transfer of the immunity from taxation granted to the Pensacola & Louisville Railroad Company by the eighteenth section of its charter. And we are of this opinion. The language is comprehensive and unequivocal, and the word 'immunity' is apt to describe the exemption claimed. It admits of no doubt, we think, if the Pensacola & Louisville Railroad Company were entitled to this exemption, and if the legislative grant of authority to make and accept this assignment of it was valid and effective, that the right to be exempt from taxation according to its terms passed to the Pensacola Railroad Company. But it must be borne in mind that it must be taken to have vested in the latter, if at all, precisely as it had in the former; that is, as a personal privilege. The assignment in the particular instance, based upon the express authority of a new enactment, did not impart to the immunity the quality of general assignability to other successors in the title to the property and franchises, claiming only under a conveyance between the parties.

The title of the plaintiff in error, therefore, to the exemption claimed, must be supported by some other authority. This is claimed to be found in the general power given by the thirteenth section of its charter to the Pensacola & Louisville Railroad Company to lease or sell to or consolidate with any other railroad company in or out of the state, which power passed with others to the Pensacola Railroad Company by the second section of its charter. But as we have already seen, and as was decided in Morgan v. Louisiana, 93 U. S. 217, and Wilson v. Gaines, 103 U. S. 417, the exemption from taxation does not pass by virtue of a conveyance of the railroad and its franchises, which was all the Pensacola Railroad Company could pass under that authority, but requires for its transfer some particular and express description, indicating unequivocally the intention of the legislature that it might pass by an assignment. That does not exist in this case, and the exemption claimed by the plaintiff in error fails because it was not and could not be transferred to it, under the law, by the Pensacola Railroad Company.

It is sought to avoid this conclusion by converting the question into one of pleading. It is said that the bill alleges, as a matter of fact, that the exemption passed to and vested in the complaintant below, and that the truth of the allegation is admitted by the demurrer. But this is matter of law; the documents of title are exhibited with the bill and constitute part of the record; and we take judicial notice of their legal effect. A fact impossible in law cannot be admitted by a demurrer. In Wilson v. Gaines, 103 U. S. 417, it was inferred, in the face of a demurrer, claimed to be an admission of a contrary allegation, that the sale did not pass any rights of property, not described, as within the lien of the mortgage.

We have thus shown that the claim of the plaintiff in error to the exemption alleged fails, because the Pensacola Railroad Company, if it possessed it, had no power to convey it. It will appear, on further examination, that it fails for a distinct and deeper reason, namely, because the Pensacola Railroad Company was itself not entitled to any such exemption. That company was incorporated by the act of February 27, 1877, which undoubtedly did purport to grant to it, as assignee of the Pensacola & Louisville Railroad Company, in terms sufficiently broad, the immunity from taxation which, by the eighteenth section of the act of February 4, 1872, was expressly declared to be granted to the latter. Both the statutes, however, were passed by the general assembly of Florida, acting under the constitution of that state, which went into effect in 1868. Article 12, § 1, of that constitution is as follows:

'The legislature shall provide for a uniform and equal rate of taxation, and shall prescribe such regulations as shall secure a just valuation of all property, both real and personal, excepting such property as may be exempted by law for municipal, educational, literary, scientific, religious, or charitable purposes.'

And article 13, § 24, is as follows:

'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.' In ...


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