Chicago & N.W. Ry. Co. v. Hall

• Decision Date: 29 November 1933
• Docket Number: 1826
• Citation: 26 P.2d 1071,46 Wyo. 380
• Parties: CHICAGO & N.W. RY. CO. v. HALL. COUNTY TREASURER, etc
• Court: Wyoming Supreme Court

26 P.2d 1071

46 Wyo. 380

CHICAGO & N.W. RY. CO. v. HALL. COUNTY TREASURER, etc

No. 1826

Supreme Court of Wyoming

November 29, 1933

RESERVED Constitutional Question from District Court, Fremont County; C. D. MURANE, Judge.

Action by the Chicago & Northwestern Railway Company against Charles M. Hall, as County Treasurer and Ex Officio Collector of Taxes of Fremont County, Wyoming. The case is reserved on a constitutional question certified by the District Court.

For the plaintiff there was a brief by R. R. Rose and Vincent Mulvaney, both of Casper, Wyoming, and oral argument by Mr Rose.

The question reserved is whether the State Board of Equalization or the County Assessor has power to value tie preserving plants for tax purposes. The duties of the State Board of Equalization are defined by the Constitution, Article XV Section 10, and the statute on the subject is Section 115-1801 R. S. 1931, which repealed a former statute, Chapter 99, Laws 1890-91. Tie preserving plants were not recognized prior to the Act of 1923. If tie preserving plants are held to be within the general description of railroad property appearing in the Constitution, and are not within any of the exceptions enumerated in the Constitution, the State Board alone has the power to assess them and County Assessors are without power to do so. Machine shops, rolling mills, etc are excepted from the authority of the State Board as to tax assessments by the Constitution; tie preserving plants are not excepted. The plant here in controversy is used in the operation of the plaintiff's railroad, and it seems clear that the County Assessor is without power to assess it. Hertert v. C. M. & St. P. Co., (Iowa) 86 N.W. 266; Chicago, St. P. M. & O. Ry. Co. v. Douglas County, (Wisc.) 99 N.W. 1030; Minn., St. Paul & Sault St. Marie Ry. Co. v. Douglas Co., 150 N.W. 422; U. N. J. R. R. & Canal Co. et al v. Mayor of New Jersey (N. J.) 26 A. 135; Phila. & R. Ry. Co. v. Woodbridge Township, (N. J.) 102 A. 392; Terminal Warehouse Co. v. Milwaukee (Wisc.) 238 N.W. 513; 80 A. L. R. 247; Milwaukee & St. P. R. Co. v. Milwaukee, 34 Wis. 271. Property need not be devoted exclusively to railroad purposes but it is sufficient if it is principally devoted to such use to bring it within the assessment authority of the State Board. Osborn v. H. & N.H. R. Co., 40 Conn. 498; People v. A. T. & S. F. R. Co., (Ill.) 80 N.E. 272; Board v. L. & N. R. Co., (Ky.) 109 S.W. 303; State v. G. N. R. Co., 171 N.W. 317; Re U. N. J. R. & C. Co. (N. J.) 68 A. 167. Under statutes containing language similar to that already quoted, it is generally held that depots, stations, warehouses and hotels are under the jurisdiction of the State Boards. C. B. & Q. R. Co. v. Paddock, 75 Ill. 616; B. & M. R. Co. v. Lancaster County (Nebr.) 18 N.W. 171; C. M. & S. P. R. Co. v. Cass County (N D.) 76 N.W. 239; C. M. & S. P. R. Co. v. Crawford County (Wisc.) 5 N.W. 3; C. S. P. M. & O. R. Co. v. Douglas County (Wis.) 99 N.W. 1030. The above are only a few of the many cases dealing with the jurisdiction of local and state authorities over taxation of certain kinds of railroad properties. The cases reviewed herein and a number of additional cases annotated in 80 A. L. R. to which reference has already been made, seem to indicate clearly that the tie preserving plant in question is subject to taxation by the State Board of Equalization rather than by the County Assessor. It is submitted that under the reasoning of all the authorities, Section 115-1801 R. S. 1931 is unconstitutional so far as it relates to tie preserving plants and that the question should be answered in the affirmative.

For the defendant there was a brief and the cause was argued by H. S. Harnsberger, of Lander, Wyoming.

The exact question is whether the tie preserving plant referred to is within the meaning of the phrase, "other property used in the operation of all railroads and other common carriers," appearing in Section 115-1801 R. S. 1931. We doubt whether controversies of this character present "important and difficult constitutional questions" warranting their reservation to the Supreme Court. Under the provisions of the statute in the present case the constitutionality of Section 2 of Chapter 57 of the Session Laws of 1923 should alone be considered. In the absence of constitutional restriction the power of the Legislature in regard to taxation is practically absolute and unlimited. 37 Cyc. 717 Section 3, Note 83; 61 C. J. 81-82; State v. Irvine, 14 Wyoming 389; Power Co. v. Steele, 80 P. 1093. Tie preserving plants were not in use at the time the constitution was adopted, but it is clear that the framers, with foresight, following the particular enumeration of certain items of property, specially given unto the State Board of Equalization, placed the phrase of general description so as to include, in accordance with the rule of ejusdem generis, all things of the same kind or class, which might in the future become used in all railroad and other common carrier operation. The Act of 1923 was merely declarative, and was enacted to clarify beyond doubt the extent of the ambiguous limitation placed by the constitutional provision. State Constitutions while representing the supreme written will of the people, are nevertheless the framework around which legislative policies are formed and in the absence of express prohibition, legislative action is free. State v. Railroad Company, 77 Ann. Cas. 1915D 436; 12 C. J. 702. Article XV, Section 10, does not contain all of the constitutional law on the subject of taxation of railroad property, i. e., Article XV, Section 10, confers general taxation authority upon the Legislature, except where otherwise provided. Section 11 announces the general rule while Section 10 points out the exception. State v. Board (Mont.) 185 P. 708. The maxim, "expressio unius est exclusio alterius," does not apply in this controversy. Rasmussen v. Baker, 7 Wyo. 137. We are unable to observe any sharp distinction between a tie preserving plant and a forest used to produce trees, from which the ties are produced as a source of supply in the course of railroad operation. Todd County v. St. Paul M. & N. R. Co., 36 N.W. 109, 142 U.S. 282. State Constitutions are limitations and not grants of power. Whenever it is reasonably possible, a statute must be construed in a manner to uphold its validity. State v. Irvine, 14 Wyo. 392. Courts may differ in their findings as to what is, and what is not, property used in railroad operation, but in this case, we maintain that the Legislature was acting within its general power to tax and prescribe the method for tax assessment in the matter of the separate business of the Railroad Company in the conduct of its tie preserving plant.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

This case is before us on a certified constitutional question which reads as follows:

"Is Section 2 (Section 1 is meant) of Chapter 57, Session Laws of 1923 (Wyoming Revised Statutes 1931, 115-1801) unconstitutional in so far as it relates to a tie preserving plant located in the State of Wyoming and contiguous to the railroad company's main line right of way and outside the corporate limits of any city or town, and owned by a railroad company and devoted exclusively to the purpose of treating and conditioning railroad ties, which said ties, when so treated, are used exclusively in the construction, maintaining and repair of the tracks of the railroad company owning the tie preserving plant?"

The question before us is as to whether or not Section 1 of Chapter 57 supra, is in conflict with section 10 of Article 15 of the Constitution of this state, which, so far as pertinent here, and so far as argued, provides as follows:

"The duties of the state board shall be as follows: * * * * to assess at their actual value the franchises, roadway, roadbed, rails and rolling stock and all other property, used in the operation of all railroads and other common carriers, except machine shops, rolling mills and hotels in this state * * * *."

Prior to 1923 it was provided by section 2813, Wyo. C. S. 1920, that the State Board of Equalization should assess all railroad property in the state except such as was not used for railroad purposes and except machine shops, rolling mills or hotels, and that the property not assessed by that board should be assessed locally by the county assessors. That had been the law since 1890. Session Laws 1890-91, Ch. 99. But in 1923 the legislature amended the law, and provided by section 1 of chapter 57 of the session laws of that year, now appearing as Section 115-1801, Wyo. Rev. St. 1931, as follows:

"The state board of equalization is hereby empowered, and it is made its duty, to assess all property of the railroads and railroad corporations in the state of Wyoming; provided, however, that all machine shops, rolling mills and hotels, tie preserving plants and any property which is not used in connection with the operation of such railroads and railroad corporations, shall be assessed by the county assessor of the county in which such property is situated, in the manner now provided by law for the listing and valuation of real and personal property."

The following section provides in greater detail the railroad property that should be assessed by the State Board of Equalization, but also excepts machine shops, rolling mills hotels and tie preserving plants in the same manner as the preceding section, and both this and the preceding section are in fact involved in the consideration of the question before us, and that question is, in brief, as to whether or not tie preserving plants should be assessed by the State Board of Equalization, or locally by the county...