Northern P. Ry. Co. v. Brogan
| Decision Date | 30 June 1916 |
| Docket Number | 3886. |
| Citation | 158 P. 820,52 Mont. 461 |
| Parties | NORTHERN PAC. RY. CO. v. BROGAN, COUNTY TREASURER. |
| Court | Montana Supreme Court |
Appeal from District Court, Granite County; Geo. B. Winston, Judge.
Action by the Northern Pacific Railway Company against T. N. Brogan as treasurer. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.
J. B Poindexter, of Helena, and D. M. Durfee, of Philipsburg, for appellant.
Gunn Rasch & Hall, of Helena, for respondent.
At 12 o'clock noon of the first Monday of March, 1915, the Northern Pacific Railway Company, owned and operated a telegraph line situated on and along its right of way across this state and extending through Granite county. Such telegraph line was an entity; was used exclusively for railroad purposes, and was a necessary adjunct to the secure and successful operation of the railroad. The county assessor of Granite county listed for assessment and taxation so much of the telegraph line as is within his county; the taxes were levied and extended, were paid under protest, and this action brought to recover back the amount. To the complaint, which sets forth the facts fully, a demurrer was interposed and overruled, and the defendant, refusing to answer further, suffered judgment to be entered against him, and appealed.
The case presents for determination the single question: Should so much of the telegraph line as is within Granite county be assessed by the local assessor, or should the entire line be assessed by the state board of equalization as a part of the roadway of the railway company? The answer is to be found in the proper construction of the language of section 16, article 12 of our state Constitution, to wit:
At the time the Constitution was adopted, our revenue laws were found in chapter 100, fifth division, Compiled Statutes of 1887 (sections 1665-1795). For the purpose of taxation all railroad property was then divided into two classes. It was made the duty of the territorial board of equalization--
"to assess all the property in this territory belonging to railway corporations, except lots or parcels of real estate owned by the road in each county and improvements thereon, and except depots, machine shops, and other improved property connected with such road and located in any county, which shall be taxed in the county where situate." Section 1675.
The same section provided further that in making its assessment the board "shall include the right of way, roadbed, bridges, culverts, rolling stock, and all other property exclusively used in the operation of such railway." Under these provisions it was the general rule that "railroad property" should be assessed by the territorial board of equalization, and it was the exception to that rule that certain enumerated property of a railroad company should be assessed by the county assessor. For reasons best known to themselves, the framers of our Constitution reversed this order and established the general rule that property shall be assessed locally, and the exception thereto that certain enumerated property shall be assessed by the state board of equalization. If it had been intended that all property of a railroad company operating in more than one county and necessary to the successful operation of its railroad should be assessed by the state board, and only its property which had a peculiarly local value should be assessed by the county assessor, no purpose could have been subserved in facing about upon the general plan which had been in force many years when the constitutional convention assembled. The very fact that the plan was completely reversed is most persuasive evidence of an intention to confine the state board to the assessment of only such property as was specifically enumerated without enlarging the meaning of the terms employed in the designation of such property.
The terms of section 16 above are mandatory and prohibitory. They are not to be contracted on the one hand nor expanded on the other. To express the intention of the framers of our Constitution would be to solve the difficulty before us. The debates of our constitutional convention are not available, and the meaning intended to be conveyed by the term "roadway," as employed in the section above, must be sought elsewhere. While a legislative construction of a constitutional provision is not conclusive, it is entitled to the most respectful consideration, particularly when it has been uniform and has extended over a considerable period of time, unchallenged in the courts. Northern P. Ry. Co. v. Mjelde, 48 Mont. 287, 137 P. 386.
It is a part of the history of this commonwealth that the first state legislative assembly failed to organize or to enact any statutes; but the first opportunity which presented itself after the Constitution was adopted was seized upon to declare a legislative policy respecting the assessment of railroad property, and to that extent to interpret the language of section 16, article 12. The second legislative assembly enacted an entirely new revenue measure (Laws 1891, p. 73). Section 11 of that act provided:
"The franchise, roadway, roadbed, rails and rolling stock of all railroads operating in more than one county in this state must be assessed by the state board of equalization, as hereinafter provided for."
Section 43 enumerated the items of information which a railroad company, operating in more than one county, was required to furnish to the state board of equalization. Section 44 provided for the annual meeting of the board, and then proceeded:
If the Legislature correctly interpreted the language of section 16 above, the term "roadway" as used therein is synonymous with "right of way" when used to designate the bare strip of ground upon which the roadbed, rails, and other necessary appliances of the road are laid or erected, and not as including any of the improvements upon or annexed to that strip. And that construction given in 1891, substantially contemporaneous with the initial application of the provisions of the Constitution to existing conditions, has never been abandoned or departed from. The terms of the act of 1891, to which reference has been made, continued in force; were carried into the Codes of 1895 (chapter 3, tit. 12, pt. 3, Pol. Code), and are now found in the Revised...
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