State v. Baltimore & Ohio Railroad

Robinson, J.,

delivered the opinion of the Court.

Section 18 of the Act of 1826, incorporating the Baltimore and Ohio Bailroad Company provides :

“That the said road or roads, with all their works, improvements and profits, and all the machinery of transportation used on said road, are hereby vested in the said company, incorporated by this Act and their successors forever; and the shares of the capital stock of the said company shall be deemed and considered personal estate, and shall he exempt from the imposition of any tax or burthen.”

There is no provision either in the Act of incorporation or in the Constitution then in force in this State, reserving the right to repeal or amend the charter of the appellee, and the exemption from taxation therein granted, is a con *71 tract between the State and the corporators, within the protection of the Constitution of the United States, and therefore beyond the power of a subsequent Legislature to repeal or in any manner impair. State vs. Northern Central Railway Co., 44 Md., 162; Miller vs. State, 15 Wallace, 488.

This suit is brought to recover of the appellee a tax imposed by the Act of 1872, ch. 234, on the gross receipts of all railroads incorporated by, and doing business in, this State ; and it is claimed that, under the above section, the property and franchises of the company are exempt from the imposition of any tax or burthen. •

This section has been the subject of judicial construction, and it is necessary therefore in the first place, to understand precisely what has been decided. In the Mayor and City Council of Baltimore vs. The Balt, and Ohio R. R. Co., 6 Gill, 292, the power to tax the real and,personal property, and the capital stock of the company, and its shares of stock in the hands of shareholders, was the question and the sole question, before the Court, and after full argument, all the Judges were of opinion that no such power existed, and that the 18th sec. of the appellee’s charter exempted the property and capital stock, and shares of stock, from taxation.

This decision was made in a case in which the Baltimore and Ohio Railroad Company was a party, and upon the very section of its charter, now under consideration. From that time to the present, a period of thirty years, it has been the accepted law of this State; and upon the faith of it millions of dollars, have been invested in the property of this company. Every consideration therefore of public policy, and of private right, demands that the decision of the Court upon the question thus submitted to its adjudication, shall be deemed final and conclusive.

In delivering the opinion of the Court in that case, Judge Dorsey, however, said, that the exemption of the *72 shares of stock of the company, exempted also its franchises, because the franchises constituted and formed part of the market value of such shares.

The right to construct a railroad and to charge tolls for the transportation of freight and passengers is a franchise granted by the State, and a tax upon the tolls thus received is therefore a tax on the franchise itself. It would follow therefore, that if the franchises of the appellee are exempt from taxation, the gross receipts derived from the exercise of such franchises are also exempt. It is insisted, however, that the question in regard to the exemption of the appellee’s franchises, was not before the Court in 6 Gill; and that whatever deference is due to the opinion of so distinguished a Judge, it ought not to control our judgment in a subsequent suit, where the very point is presented for decision.

Conceding this, the question then is, whether the franchises of the appellee are by the 18th sec. of its charter exempted from taxation? This section, it is true, does not in so many words exempt the franchises of the company, but provides. that its shares of stock shall he exempt from the imposition of any tax or burden. And it is contended that the shares of stock, and the property and franchises' of a railroad company are separate and distinct properties, with separate and distinct ownerships, and that the exemption of the one, does not therefore exempt the other. The question, however, is not.whether shares of stock abstractly considered, embrace and represent the property and franchises of the appellee. Strictly speaking it may he true, that a shareholder is not the legal owner of any portion of the property of the company, and his shares of stock are evidences only of his right to participate in the business and government of the corporation, and to a proportional share of the profits earned by the company. We are not dealing, however, with abstract definitions, hut with an Act incorporating a railroad com *73 pany, and endeavoring to ascertain how far, and to what extent, the Legislature meant to exempt the corporation from taxation. We are not hound therefore by the literal meaning of the words of the statute, but must look to the connection in which they are used, the subject-matter to which they are applied, and the motives and objects which actuated the Legislature in conferring this privilege on the appellee.

It is a sound rule of construction we admit, that the power of taxation is never presumed to be relinquished, unless the intent to relinquish is clearly expressed. In view however of the fact that the construction of this road “ was considered by the people of the State and by the Legislature as a great State object, tending to develop the wealth and to promote the prosperity of the whole State and particularly of the City of Baltimore,” this Court has said, “that liberal rules of interpretation ought to govern in the construction of the privileges and exemptions conferred on the company, and not such rules of restriction and limitation as are applicable to the charters of companies incorporated for the peculiar benefit of shareholders.” We must bear in mind that the appellee was incorporated in 1826, and was in fact, the first railroad ever chartered in this country for the transportation of freight and passengers. It was to extend from Baltimore to the Ohio River, a distance of 379 miles, involving necessarily in its construction an enormous sum of money, and was therefore justly considered not only as a gigantic, but in a pecuniary sense a hazardous enterprise. Under these circumstances, the Legislature was willing to confer on it “every privilege and immunity which could reasonably be required and which would tend to the completion of the road.” Such then being the motives of the Legislature, let us. look to the clause in the appellee’s charter under which this exemption is claimed. And here we find it provides that “ the said road or roads with all their works, *74 improvements and profits, and all the machinery of transportation shall be vested in the said company incorporated by this Act,” “and the shares of the capital stock of the said company * * * * shall be exempt from the imposition of any tax or burthen.” The section thus declares in the first place that all the property and profits of the company shall be vested in the corporation, and secondly, that the shares of stock shall be exempted from taxation. As used in this connection, we understand the Legislature to mean that the shares of stock, representing the property and profits of the company, shall be exempt from the imposition of any tax .or burthen. The Legislature beyond all question, intended to confer a substantial benefit on the company, and thereby to induce capitalists and others, to invest their means in the construction of a road, which every one deemed of so much importance to the State. Amd to say they meant to exempt the shares only, and to reserve the right to tax the property and franchises, is a construction that would render the privilege thus granted of no practical benefit to the appellee. So considering the question as one of first impression, we are of opinion that the 18th section exempts the property and franchises of the company from taxation. If the franchises are exempt, it would necessarily follow, that the gross receipts derived from the exercise of its franchises, are also exempt.

But conceding this construction, we are pressed with the argument that inasmuch as the appellee was required to complete its road to the Ohio river in the year 1859, and having completed one track by that time, the entire rood is to be considered as completed and equipped at that time, within the meaning of its charter, and that the immunity from taxation thus granted to the appellee is to be limited to the exercise of its franchises necessary to operate this one track, and to the property owned by the company at that time. Now the object of this provision *75 was to enable the State to institute proceedings for the forfeiture of the charter, provided the road was not constructed within the time thus prescribed. But it was a provision the State could waive at pleasure, and until forfeiture, the franchises remained unimpaired. >

There is nothing either in the spirit or letter of the charter to justify the narrow construction contended for by the State, namely that by the completion of one track this road is to be considered fully completed and equipped within the meaning of the Act of 1826. On the contrary the appellee was authorized to construct a road not exceeding sixty-six feet in width, with as many tracks as might be deemed necessary; to build lateral roads in any direction, and to erect warehouses and other works necessary and expedient for the completion and operation of the road. To this end, full power was conferred on the President and Directors to increase the capital stock to any amount they might deem necessary ; to issue certificates of indebtedness, and to pledge the property of the road for the payment of the same, and also to use the undistributed profits of the Company.

Now it may be true that neither the Legislature nor the most sanguine promoters of this enterprise realized the great success which this road has achieved. But it is clear they did look forward to it as one of the great routes to and from the West to the seaboard, not merely with one track and with the machinery necessary to operate it, but with as many tracks as could be constructed within the sixty-six feet bed of the road, fully equipped in every respect with machinery and works of every kind necessary to meet the demands not only of the then existing, but what was deemed of much greater importance, the ever increasing trade of that section.

The construction then of such additional tracks and the purchase of machinery, and the erection of buildings and work's incident to and necessary to the business of the *76 road, required the continual exercise of the franchises thus granted to the company.

We are of opinion therefore, that the gross receipts of the appellee’s entire road from Baltimore to the Ohio River, and the gross receipts derived from the lateral roads built by the appellee, and from all buildings and works necessary and expedient to the operation of its road are exempt from the imposition of any tax or burthen. And this too, whether said road or roads, and buildings, and works were constructed with money derived from the subscription to its capital stock, or from sales of its shares of stock, or from money borrowed, and secured by mortgage, or from the undistributed profits of the company, or from all these sources combined.

And this brings us to the question, what are the buildings and works necessary and expedient to the operation of the road within the meaning of the appellee’s charter? And here we are met with the argument that “necessary” means buildings and works indispensable to the road. This, however, is not a mere dictionary question, but one involving the construction of a power granted to a railroad company to enable it to accomplish the objects for which it was chartered. And as used in this connection, it is clear the Legislature meant such buildings and works as were reasonably convenient and appropriate to the maintenance and operation of the road. Construed in this sense, the question is whether “necessary” buildings embraces the elevatora, wharves, piers and docks owned by the appellee? Now one of the main objects in chartering this company was to bring the Western trade to the port of Baltimore, not merely to supply a local demand, but for the purposes of transhipment as ocean commerce. These buildings and structures are therefore necessary for the business of the appellee as a common carrier, for the purposes of receiving and storing grain and freight shipped over its road after the same have reached the *77 place of destination, and previous to delivery to the consignee or owner. But the rights of the appellee in this respect are such as pertain to its functions as a common carrier; and as such, it has no right to own and use these structures for the storage of grain and freight after the owner or consignee has had a reasonable time to remove the same. The Act of 1826 does not certainly authorize the appellee to carry on the general and ordinary business of a warehouseman, and however closely such business may be connected with that of a carrier, it is in no sense necessary to the exercise of the rights and privileges granted to the appellee as a railroad company. If the Act of 1880, ch. 117, or any subsequent Act, does authorize the appellee to carry on such business, that is to receive and charge for the storage of grain and other freight generally, then it is clear that the gross receipts derived from the exercise of this special privilege or franchise are liable to the tax imposed by the Act of 1872. On the other hand if no such power has been conferred, and these structures are owned and used by the appellee for the purpose of carrying on a business separate and distinct from its business and obligations as a carrier, then such structures are taxable according to valuation as other real property.

It is hardly necessary to say that the original charter does not authorize the appellee to build and conduct hotels in the usual and ordinary manner in which hotels are kept, that is for the accommodation of the public generally. But we are not dealing with the charter of a mere local railroad, but one authorizing the construction of a road from Baltimore to the Ohio River, designed and now used as one of the great through routes to the West. Hotels then, or buildings for the accommodation of passengers over the road, are, we think, necessary to its business and therefore within its charter. The record shows that the Cumberland and Viaduct Hotels were mainly designed *78 and are now used for this purpose ; and in addition thereto for ticket and telegraph offices, and waiting rooms for passengers. The gross receipts derived from these hotels are therefore exempt from taxation. The Oakland and Deer Park Hotels however, appear to have been built and are now used primarily as places of summer resort, and although as such they may attract travel over the road, they'are not in any sense necessary to its operation. But the receipts from these hotels are not liable to the tax imposed by the Act of 1872, because they are not derived from the exercise of any franchise granted by the State, and they must be taxed according to valuation as other real property.

We come now to the receipts derived by the appellee from properties held and owned, not in pursuance of any power conferred by its original charter, but under subsequent grants from the Legislature, and upon which no exemption was engrafted. The Act of 1836, ch. 276, authorized the appellee to subscribe towards the construction of any lateral or connecting road, and to acquire an interest therein not exceeding two-fifths of the estimated cost of constructing such road. This is a distinct privilege or franchise granted to the company, and the gross receipts derived from the interest thus acquired in such lateral or connecting road, are iiable to the tax levied by the Act of 1872.

The gross receipts of the Metropolitan Road are also, we think, liable to this tax. The original charter it is true, authorized the appellee to build lateral roads, and this power is not limited to the construction of roads leading to lime-kilns, factories and distilleries, as was urged in argument by the Attorney General, but authorizes the appellee to build such roads for the transportation of freight and passengers. The Metropolitan Road was not built, however, under this provision in the original charter, but under the Act of 1865, ch. 70, which authorized the appellee to con *79 struct a road between Knoxville and the Monocacy Junction to the boundary of the District of Columbia; and for the purpose as the Act expressly declares, for providing a more direct communication from the West and North-West with the City of Washington. At this latter place it forms a junction with the Washington Branch, thus making a route distinct from, and independent of, the main line of the appellee. In no just sense can this road be considered as a lateral road within the meaning of the original charter. The Act of 1865, does not exempt the projected road or its franchises from taxation. No separate account however has been kept of the receipts derived from this road, but it appears they were commingled with the receipts of the Main stem. Under such circumstances the only rule by which we can approximate to such receipts, is to say that they shall bear the same proportion to the entire gross receipts derived from the Main stem in the State, as the number of miles of the Metropolitan Road bears to the entire length of the appellee’s road.

It is equally clear, the Act of 1826 confers no power on the appellee, to acquire or hold any interest in Steamship or Steamboat lines. This power is granted by the Act of 1868, ch. 471, sec. 218, and being a separate and distinct franchise, the receipts or dividends derived from the interest acquired in such Steamship or Steamboat lines, by virtue of the special franchise thus conferred, are liable to the-gross receipt, tax.

It does not satisfactorily appear from the record, how, or in what manner the appellee acquired the bonds of the South Carolina and the Ohio and Mississippi Railroad Companies. The charter certainly confers no such power, and if they were acquired under any subsequent grant from the Legislature, then the interest received on such bonds would be liable to tbe tax imposed by the Act of 18Y2. On the other hand if they were held outside of the appellee’s franchises, then such bonds would be liable to *80 taxation as other bonds, that is, according to their market' value.

Without extending this opinion by a review of the several properties owned hy the appellee, it is sufficient to say that the gross receipts derived from all: properties and investments held and owned under franchises granted, subsequent to the Act of 1826, incorporating the Baltimore and Ohio Railroad Company, and upon which no exemption from taxation was engrafted, are liable to the tax levied by the Act of 1872.

And this brings us to the question, whether this Act imposes a tax on the entire gross receipts of the appellee, or only on such as are earned by the road within the State. And in determining this question, we must bear in mind that this tax is levied on railroad companies in consideration of special rights and privileges granted to such companies ; these privileges, however, confer no power to maintain and operate a road beyond the limits of the State, and in the absence of language showing a contrary intention, it would he hut fair to presume the Legislature meant to tax such receipts only, as are earned by the franchises thus granted. Now the Act of 1872, merely imposes a tax on all railroads incorporated and doing business in the State, and if the question rested solely upon the construction of this Act, it would be questionable, to say the least, whether the Legislature intended to tax receipts earned by the exercise of franchises granted by other States. But when this Act is construed in connection with the Act of 1874, ch. 408, it is clear, we think, that the tax is imposed only on such gross receipts as are earned in the State.

Such are the conclusions we have reached in this case. Upon an examination of the several prayers offered by the State, we find that none of them present propositions of law in accordance with the views we have expressed, and there was no error therefore in rejecting them. It is plain, however, that the State was entitled to recover in this suit, and *81 even were we obliged to affirm the judgment below, we should have remanded the case for a new trial under sec. 16, Art. 5, of the Code.

(Decided 21st February, 1878.)

The Court erred, however, in sustaining the defendant’s exceptions to the plaintiff’s third and fourth interrogatories. The Act of 1872 imposes a tax not only on the gross receipts derived from freight and passengers, but on the receipts derived from all other sources, provided such receipts were derived from properties and investments owned by the appellee under franchises granted by the State, and upon which no exemption from taxation was granted.

Judgment reversed, and new trial aioarded.