Chicago, M. & St. P. Ry. Co. v. Swindlehurst

• Decision Date: 08 March 1913
• Citation: 130 P. 966,47 Mont. 119
• Parties: CHICAGO, M. & ST. P. RY. CO. v. SWINDLEHURST, SECRETARY OF STATE.
• Court: Montana Supreme Court

130 P. 966

47 Mont. 119

CHICAGO, M. & ST. P. RY. CO. v. SWINDLEHURST, SECRETARY OF STATE.

Supreme Court of Montana

March 8, 1913

Appeal from District Court, Lewis and Clark County; J. Miller Smith Judge.

Action by the Chicago, Milwaukee & St. Paul Railway Company against T. M. Swindlehurst, Secretary of State of the State of Montana. From a judgment for plaintiff, defendant appeals. Affirmed.

D. M Kelly, Atty. Gen., for appellant.

Gunn Rasch & Hall, of Helena, for respondent.

BRANTLY C.J.

The Chicago, Milwaukee & St. Paul Railway Compony is a railroad corporation, organized and existing under the laws of the state of Wisconsin, having a capital stock of $232,623,100. It is engaged in the operation of its railroad, as a common carrier of passengers and freight, in and through the states of Wisconsin, Minnesota, Iowa, South Dakota, and other states. The Chicago, Milwaukee & Puget Sound Railway Company a railroad corporation organized and existing under the laws of the state of Washington, is likewise a common carrier of passengers and freight in and through the states of Washington, Idaho, Montana, and to the Missouri river in the state of North Dakota, where the lines of the two companies connect. The St. Paul Company, desiring and being about to purchase the railroad property of the Puget Sound Company, for the purpose of availing itself of the benefits of section 4299 of the Revised Codes of Montana, which requires the filing of its charter or articles of incorporation with the secretary of state, tendered to him for filing a true copy of its articles of incorporation, and also the sum of $1 in payment of the filing fee. The secretary of state refused to receive and file the articles upon the tender so made, but demanded payment of a fee amounting to $23,447.31, basing his demand upon the requirements of the provisions of section 165 of the Revised Codes. Upon his refusal to receive and file the articles without such payment, the amount so demanded was paid, under protest, however, with notice that an action would be brought to recover it back, on the grounds that said section 165, to the extent that it authorizes and requires the secretary of state to charge and collect a fee for the filing of articles of incorporation on the basis of a percentage of the entire capital stock of the St. Paul Company, is in conflict with and repugnant to the commerce clause of the Constitution of the United States, in that it imposes a tax upon the interstate business of the company, and that the exaction and collection of the fee in question amounted to a taking of property without due process of law, in violation of the fourteenth amendment to the Constitution. The cause was submitted to the district court upon an agreed statement of facts sufficient in detail to present the questions raised by the position assumed by the plaintiff. The district court held the statute void, and rendered judgment for the plaintiff. The defendant has appealed.

Section 4299, supra, provides, among other things, that "any railroad company may sell or lease the whole or any part of its railroad or branches within this state constructed or to be constructed, together with all property and rights privileges and franchises pertaining thereto, to any railroad company organized or existing pursuant to the laws of the United States or of any state or territory of the United States; * * * and the railroad company of any other state or territory of the United States which shall so purchase or lease a railroad, or any part thereof in this state, or shall extend or construct its road or any portion or branch thereof in this state, shall possess and may exercise and enjoy, as to the control, management and operation of the said road, and as to the location, construction and operation of any extension or branch thereof, all the rights, powers, privileges and franchises possessed by railroad corporations organized under the laws of this state, including the exercise of the power of eminent domain: * * * Provided further, that before any railroad corporation organized under the laws of any other state or territory or of the United States shall be permitted to avail itself of the benefits of this act, such corporation shall file with the secretary of state a true copy of its charter or articles of incorporation." The part of section 165, the validity of which is brought in question, is the following: "The secretary of state, for services performed in his office, must charge and collect the following fees: * * * IV. For recording and filing each certificate of...