Elizabethtown & P. R. R. Co. v. Trustees of Elizabethtown
| Decision Date | 06 September 1876 |
| Citation | 75 Ky. 233 |
| Parties | Elizabethtown & Paducah R. R. Co. v. Trustees of Elizabethtown |
| Court | Kentucky Court of Appeals |
APPEAL FROM HARDIN CIRCUIT COURT.
H. C PINDELL, BROWN & MURRAY, For Appellant,
That section 28 of appellant's charter relates to local taxes:
2 Harrison, 80, State v. Berry.
1 Zab 558, Gardner v. State.
1 Stockt. Ch. 434, P. & H. R. R. Co. v. Jersey City.
3 Harrison, 12, C. & A. R. R. v. Hallagas.
3 Harrison, 71, C. & A. R. R. v. Commissioners.
38 Miss. 334, Southern R. R. Co. v. Mayor of Jackson.
31 Ill 484, Neustadt v. Ill. C. R. R. Co.
That the amendment of appellees' charter did not authorize the taxes levied by appellees:
Angell & Ames on Corporations, section 767.
7 Dana, 342,Johnson v. Commonwealth.
16 How. 386, State Bank v. Knoop.
16 How. 416, Ohio Life and Trust Co. v. De Bolt.
18 How. 380, M. and T. Bank v. De Bolt.
18 How. 331, Dodge v. Woolsey.
10 Bush, 604, C. & O. R. R. Co. v. Barren Co. Ct.
That implied repeals never prevail:
Smith on Construction, sections 757, 794.
Revised Statutes, chapter 21, section 23.
5 Littell, Taylor v. Shields.
| 1 Ohio St. 437. | 3 Ohio St. 687 |
5 Mass. 380, Pease v. Whitney.
9 Pick. 87, Vinton v. Welsch.
42 Barb. 632, King v. City of Brooklyn.
If the amendment to appellees' charter amends appellant's, the law relates to two subjects, of which one is not mentioned in the title:
9 Bush, 521, Tyler's ex'r v. E. & P. R. R. Co.
9 Pick, 344, Nichols v. Bertram.
15 Wend. 241, Mitchell v. Halsey.
That the town marshal had no authority to distrain the cars:
Revised Statutes, 2 Stanton, 262.
3 Bush, 650,Applegate v. Ernst.
25 Barb. 484, F. L. & T. Co. v. Hendrickson.
23 Hill, 300, Palmer v. Forbes
23 Hill, 320, Hunt v. Bullock.
23 How. 117, Pennock v. Coe.
18 B. Mon. 448,Phillips v. Winslow.
J. P. HOBSON, For Appellees,
CITED
Act of Feb. 14, 1856, 2 Stanton, 121.
Angell & Ames on Corporations, page 768.
Hilliard on Injunctions, page 26.
2 Session Acts 1867-68, page 57.
2 Session Acts 1871, page 116.
1 Session Acts 1871, page 257.
1 Session Acts 1867-68, page 629.
1 Kent's Commentaries, page 493.
5 Bush, 243, L. & N. R. R. Co. v. Warren Co. Ct.
1 Blackstone's Commentaries, side-page 428.
1 Kelly, 31, Young v. McKenzie.
2 Met. 73, Maddox v. Graham.
5 English, 588, Pulaski v. Downer.
8 Blackford, 581, McQuigley v. Doe.
7 Blackford, 314, Ham v. State.
7 Bush, 403, Hahn, & c. v. Thornberry.
19 Ohio 110, Cincinnati College v. Ohio.
24 How. 300, Christ Church v. Philadelphia.
19 Mich. 259, Saginaw Mf. Co. v. City of East Saginaw.
36 Conn. 41, Lord v. Town of Litchfield.
14 B. Mon. 192, Dougherty v. Commonwealth.
10 Bush, 604, Cumberland & Ohio R. R. Co. v. Barren Co. Ct.
The act to amend the charter of the town of Elizabethtown, approved February 17, 1871, authorizes the board of trustees to levy and collect " a tax on railroad companies for all property owned by said companies in the limits of Elizabethtown, except rolling stock, such as freight and passenger cars, to be levied at the same rate on the value as may be assessed upon the property of private individuals."
The trustees, under this act, assessed certain property owned by the Elizabethtown & Paducah Railroad Company, and to enforce the collection of the tax levied, the marshal seized and was about to sell two freight cars, the property of that company.
The corporation filed its petition in equity, and sought to enjoin the threatened sale upon grounds which we will hereafter notice in their proper order.
When the cause was heard the petition was dismissed, and the railroad company prosecutes this appeal from the judgment of dismission.
The 28th section of an act to amend the appellant's charter (1 Session Acts 1867-68, page 629) provides " that said Elizabethtown & Paducah Railroad Company shall be exempt from taxation till completed, and that it shall never be taxed at a valuation beyond the rate at which said (other) roads are now taxed by law."
It is averred in the petition, and established by the proof, that the appellant's road was not completed until September, 1872, and the question arises, whether in any event its property can be taxed for the years 1871 and 1872.
The municipal officers of the town insist that the exemption relied on applies only to taxation by the state for the purpose of raising general revenue.
The language quoted implies no exception. To " exempt from taxation" means to exempt from all taxation imposed by the authority of the state government, whether for general or local purposes, and municipal taxation comes clearly within the spirit and import of the act under which the exemption is claimed. (Johnson v. The Commonwealth, 7 Dana, 342.)
It is further contended that because the charter of the railroad company was enacted subsequent to the passage of the act of 1856 it is subject to amendment or repeal, and that the amendment to the charter of Elizabethtown operates as an amendment to, or a partial repeal of the railroad company's charter. The last act is clearly not an amendment to the first, and if it was intended as such, it would be unconstitutional and void on account of the subject-matter of the law not being expressed in its title.
It is not an express repeal of the exemption, and this is demonstrable from the fact that the latter act does not refer to the former, or to any part of it, either directly or remotely.
Nor does it amount to a virtual repeal. If by fair and legitimate interpretation two acts of the legislature that are seemingly incompatible or contradictory may be enforced, they will both be upheld, and the one will not be regarded as repealing the other by construction unless there is reason to conclude that the legislature intended that the subsequent act should control the former. In this case the fair inference is that in amending the charter of Elizabethtown, the legislature did not have the special express exemption from taxation for a limited period of time enjoyed by the appellant, in view at all; and it is impossible to suppose that the intention was to override that exemption for the benefit of the municipal government. The two acts are not necessarily incompatible. They may both be enforced. The railroad company may receive the benefit of the exemption up to the time of the completion of its road, and from that time forward the town may tax its property just as it taxes the property of other railroad companies. This is the construction which the two acts must receive.
But as the appellant seeks to enjoin the collection of the taxes levied subsequent to the completion of its road, it is necessary that the other grounds relied on shall be considered.
Whilst we appreciate the difficulties and the possible evils that may attend the fragmentary taxation of railroads in consequence of the peculiar character of such property, we perceive no constitutional objection to the authority conferred by the legislature upon the municipality of Elizabethtown. The cases of Applegate v. Ernst (3 Bush, 650) and the Louisville & Nashville Railroad Co. v. The Warren County Court (5 Bush, 243) do not support the conclusion that such legislation is unconstitutional.
These decisions are based on the general laws...
To continue reading
Request your trial