Wilmington & W.R. Co. v. Alsbrook

• Decision Date: 01 March 1892
• Citation: 14 S.E. 652,110 N.C. 137
• Parties: WILMINGTON & W. R. Co. v. ALSBROOK, Sheriff.
• Court: North Carolina Supreme Court

14 S.E. 652

110 N.C. 137

WILMINGTON & W. R. Co. v. ALSBROOK, Sheriff.

Supreme Court of North Carolina

March 1, 1892

Appeal from superior court, Halifax county; H. G. CONNOR, Judge.

Action by the Wilmington & Weldon Railroad Company against B. I Alsbrook, sheriff, to restrain the collection of taxes on certain branch roads through Halifax county. Plaintiff had judgment as to its Halifax & Weldon road, and defendant appeals. Reversed. Defendant had judgment as to the Halifax & Kinston road, and plaintiff appeals. Affirmed.

Thos N. Hill and W. H. Day, for appellant.

R. O Burton and Daniel & Travis, for appellee.

PLAINTIFF'S APPEAL.

CLARK J.

The question presented by this appeal is the right of the state to tax the branch railroad from Halifax to Kinston, which was constructed by the plaintiff corporation in 1882 and in the succeeding years. In the case of Railroad Co. v Reid, 13 Wall. 264, it was held that the charter of the plaintiff, which was granted in 1833, exempted all its property from taxation. The correctness of that decision, and its finality at least in the aspect in which it was then presented to the court, are not called in question by this litigation. The defendant, for the purposes of this case, concedes that it protects from taxation, under state authority, all the property of the main line of said road, and such property as may be necessary for its successful operation; but it contends that this branch railroad, extending from Halifax to Kinston, 85 miles, is no part of the property necessary for the operation of the plaintiff company, that it was not contemplated by the charter of 1833, nor within the exemption conferred thereby, nor within the purview of the decision of the United States supreme court in the case of Railroad Co. v Reid, supra. The legislature and the railroad commissioners being of that opinion, the latter, under legislative authority, have assessed said branch railroad for taxation. Under proper proceedings the sum assessed on so much of said branch railroad as lies within the county of Halifax has been placed on the tax-list for said county. The plaintiff obtained a restraining order against the collection of the tax which the court below dissolved, and from the latter order the plaintiff appeals to this court.

The right of taxation is the highest prerogative of sovereignty. Its exercise is necessary to the very life and existence of the state. Its possession marks, regardless of the nominal form of government, the real nature of the government, whether republican, monarchical, or autocratic. It is the power of the purse, to which the power of the sword is a mere sequence. It seems anomalous, therefore, that such a power should be capable of alienation in perpetuity by the legislature in a free state, and that any portion of it could be irrevocably bargained away for any consideration to a corporation or any one else. More especially in a case like the present, where the contract is claimed to have been made by a legislature elected for a term of one year, and the alienation of the taxing power is asserted to be perpetual, and that for countless ages--indeed, till the final catastrophe of all things--succeeding generations are to guard and protect at their own expense the property of the corporation, without receiving from it any of the contributions which all others are called upon to make for the maintenance and support of a civil government. A contract of such a nature, if it were possible between private individuals, would be relieved against in any court of equity. The grant of a perpetual exemption from taxation has, indeed, been held invalid by courts of the highest respectability. Brewster v. Hough, 10 N.H. 138; Mott v. Railroad Co., 30 Pa. St. 9; Bank v. Debolt, 1 Ohio St. 591, Knoup v. Bank, Id. 603; Parker v. Redfield, 10 Conn. 490; and there are others. In Mott v. Railroad Co., supra, the learned chief justice says that a sale "to one class of citizens of an exemption from all taxes forever, thus throwing all the public burdens upon others for all time to come, is such a plain, palpable, and open violation of the rights and liberties of the people, and such a clear case of transcending the just limits of legislative power, that the judiciary is bound to pronounce such an act null and void." In Brewster v. Hough, supra, PARKER, C.J., holds the same views, and points out the material difference between the right of the legislature to grant land or corporate powers or money, and the right to grant away the essential attributes of sovereignty. The latter, he adds, cannot be subject-matter of a contract. To the same effect are the dissenting opinions of CATRON, J., in Bank v. Knoop, 16 How. 369, and other judges of the United States supreme court in that and in other cases; and especially the notable dissenting opinions of CHASE, C.J., and MILLER and FIELD, JJ., in Washington University v. Rouse, 8 Wall. 441. In that case the three judges named (by common consent, the ablest men then on that bench) say, through the distinguished judge who has so lately passed from among us, full of years and of honors: "We do not believe that any legislative body, sitting under a state constitution of the usual character, has a right to sell, to give, or to bargain away forever the taxing power of the state. *** If the legislature can exempt, in perpetuity, one piece of land, it can exempt all land. It can as well exempt persons as corporations." They go on to say that rich men and rich corporations, with the appliances they are known to use, may obtain perpetual exemption "from taxation, and case the burden of government and the payment of debts on those who are too poor or too honest to buy such immunity;" and they further say: "With as full respect for the authority of former decisions as belongs, from teaching and habit, to judges trained in the common-law system of jurisprudence, we think that there may be questions touching the powers of legislative bodies which can never be finally closed by the decisions of a court, and that the one we have here considered is of this character. We are strengthened in this view of the subject by the fact that a series of dissents from this doctrine by some of our predecessors shows that it has never received the full assent of this court; and, referring to those dissents for more elaborate defense of our views, we content ourselves with thus renewing the protest against a doctrine which we think must be finally abandoned."

This court, with equal deference to the same authority, is constrained to say, in construing the constitution of this state in force when the plaintiff's charter was granted that it did not confer upon the legislature the power to enact any law which was beyond repeal by its successors, nor, as agents of the state, was the power confided to them to alienate the sovereign right of taxation irrevocably by bargain or grant. The construction of a state constitution by its highest court is admitted, by TANEY, C.J., in Trust Co. v. Debolt, 16 How. 431, to be binding on the federal judiciary; and he places the decision of that case, which sustains the exemption from taxation, on the ground that the decisions of the supreme court of Ohio on that subject had been conflicting, and choice had to be made between them. But there have been no conflicting decisions on this point in this state. It may be noted that the Dartmouth College Case merely affirmed that a contract by a charter was binding on the state, but did not hold that alienation of the taxing power was subject to contract. But the question is not now necessarily before us. The taxation does not concern the "main line;" and the defendant concedes, as he must, that the supreme court of the United States has decided that such grants of exemption from taxation, though perpetual, are valid if made for an equivalent, and if the contract of exemption is clear, beyond a reasonable doubt. The views of the court are significantly expressed by Mr. Justice FIELD in Delaware Railroad Tax Case, 18 Wall. 206: "If the point were not already adjudged, it would admit of grave consideration whether the legislature of a state can surrender this power, and make its action in this respect binding upon its successors, any more than it can surrender its police power or its right of eminent domain. But, the point being adjudged, the surrender, when claimed, must be shown by clear, unambiguous language, which will admit of no reasonable construction consistent with the reservation of the power. If a doubt arise as to the intent of the legislature, that doubt must be resolved in favor of the state." The same high court has delivered repeated utterances of the same purport. Says Mr. Justice SWAYNE, in Farrington v. Tennesee, 95 U.S. 679: "The exercise of the taxing power is vital to the functions of government. Except where specially restrained, the states possess it to the fullest extent. Prima facie, it extends to all property, corporeal and incorporeal, and to every business by which livelihood or profit is sought to be made within their jurisdiction. When exemption is claimed, it must be shown indubitably to exist. At the outset, every presumption is against it. A well-founded doubt is fatal to the claim. It is only when the terms of the concession are too explicit to admit fairly of any other construction that the proposition can be supported." Says TANEY, C.J., in Trust Co. v. Debolt, 16 How. 435: "Neither the right of taxation nor any other power of sovereignty which the communities have an interest in preserving undiminished will be held by the court to be surrendered unless the intention to surrender is manifested by words too plain to be mistaken." Exemptions from taxation are regarded as in...