13 So. 33 (Miss. 1893), Natchez, J. & C.R. Co. v. Lambert

Citation:13 So. 33, 70 Miss. 779
Opinion Judge:CAMPBELL, C. J.
Party Name:NATCHEZ, JACKSON & COLUMBUS RAILROAD CO. v. JAMES W. LAMBERT, TAX-COLLECTOR
Attorney:Mayes & Harris, for appellant. Frank Johnston, attorney-general, for appellee. K. Palmer Lanneau, on the same side, Argued orally by E. Mayes, for appellant, and K. Palmer Lanneau and Frank Johnston, attorney-general, for appellee.
Case Date:May 08, 1893
Court:Supreme Court of Mississippi
 
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Page 33

13 So. 33 (Miss. 1893)

70 Miss. 779

NATCHEZ, JACKSON & COLUMBUS RAILROAD CO.

v.

JAMES W. LAMBERT, TAX-COLLECTOR

Supreme Court of Mississippi

May 8, 1893

          FROM the chancery court of Adams county, HON. CLAUDE PINTARD, Chancellor.

         Appellant, the Natchez, Jackson & Columbus Railroad Company, filed this bill against James W. Lambert, sheriff and tax-collector of Adams county, to enjoin the collection of ad valorem taxes, assessed against it for the years 1891 and 1892. Said company claims exemption from all taxation by virtue of its charter and under certain acts of the legislature, the material parts of which are stated in the opinion. A similar bill was filed at the same time by appellant to enjoin the collection of privilege taxes, and, as the points of law involved in both suits are the same, the two were heard together.

         Prior to the institution of these suits, the Louisville, New Orleans & Texas Railway Company had filed its bill, in the same county, to enjoin the collection of taxes claimed for the year 1891, against that part of its lines which, before its purchase of the Natchez, Jackson & Columbus Railroad, comprised that road. To evidence its right to said exemption, it filed, as an exhibit to its bill, the affidavit of its cashier that the amount of taxes demanded had been applied to the payment of debts incurred in the construction of said road. The affidavit referred to the fact that the Louisville, New Orleans & Texas Railway Company was formed by the consolidation of the Memphis & Vicksburg Railway Company with several other railway companies, under authority of acts of the legislature, but the affidavit makes no mention of the Natchez, Jackson & Columbus Railroad. The plea of res judicata recites, and by its exhibits shows, that the demurrer to this bill was sustained, and that an appeal, taken from the decree sustaining the demurrer, was pending in the supreme court.

         The court below held that the plea of res judicata was good as to the taxes of 1891. It also sustained defendant's demurrers to the bills as to the taxes of 1892, and from these decrees complainant appeals.

          Reversed and remanded.

         Mayes & Harris, for appellant.

         It was competent, under the constitution of 1869, for the legislature to confer upon the appellant exemption from taxation, but acts granting such exemptions were always subject to repeal. Mississippi Mills v. Cook, 56 Miss. 40. This condition of the law was recognized also in McCulloch v. Stone, 64 Miss. 378; Railroad Co. v. Thomas, 65 Ib., 553; Bank v. Worrell, 67 Ib., 47; Attala County v. Kelly, 68 Ib., 40; Railway Co. v. Taylor, 68 Ib., 361.

         It cannot be said that § 181 of the constitution of 1890 operates as a repeal of this exemption. It expressly saves rights then existing. Although the legislature, in granting exemptions, did not part with its right to repeal them, it has never done so in this case.

         The immunity was not lost by the sale to the Louisville, New Orleans & Texas Railway Company. By this sale the latter company acquired all the privileges and rights granted by § 21 of the charter of the Mobile & North-western Railroad Company. Railway v. Taylor, supra. Besides, the Louisville, New Orleans & Texas Railway Company possessed all the rights and franchises of the several companies out of which it had been formed, and among these was the right to purchase any connecting road, and, in so doing, to acquire all the benefits, rights and franchises of said road or company. Laws 1882, p. 932. This power also came to said railroad company by its organization. The matter is set at rest by § 1 of the act of February 19, 1890, which expressly authorized the Natchez, Jackson & Columbus Railroad Company to sell all or any part of its railroad, together with its franchises, rights, powers and immunities. And by § 2 of said act it was expressly authorized to consolidate with the Louisville, New Orleans & Texas Railway Company. We may concede that a privilege or exemption does not, in the absence of legislative sanction, pass to a purchaser, but when such sanction is given, as we contend was done in this case, the immunity in question passes to the purchaser. The words used are more than sufficient to pass the exemption claimed. 16 Wall., 344; 3 F. 266; 24 Ib., 614; 109 U.S. 244; 146 Ib., 279. It is true that in the federal cases there is a controversy over the force of the word privileges, dissociated from any text bearing out the claim of continued exemption, but in a case like this the immunity from taxation passes to the purchaser, as is settled by the case of Tennessee v. Whitworth, 117 U.S. 139, and on this case we mainly rely. If the terms used are not sufficient to embrace exemption from taxation, then the Natchez, Jackson & Columbus Railroad Company itself never had it, for by these words the right claimed, and subsequently recognized by the legislature, was conferred upon that company. This is not a case where railroad property is alienated from a favored company into the hands of one not so favored. Both companies possessed the privilege or exemption.

         This immunity was not lost by the consolidation of the Louisville, New Orleans & Texas Railway Company with the Yazoo & Mississippi Valley Railway Company. The latter company had authority by its charter to consolidate with any other railroad company, and, by the contract of consolidation, it was expressly provided that all the rights, powers, privileges, immunities and franchises belonging to either company should be vested in the consolidated company.

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