State v. Chicago Great Western Railway Co.

119 N.W. 211, 106 Minn. 290, 1908 Minn. LEXIS 757

• Court: Supreme Court of Minnesota
• Decided: December 24, 1908
• Docket: Nos. 15,991—(46)
• Status: Published

Opinion

BROWN, J.

This action, like that of State v. Great Northern Ry. Co., infra, page 303, 119 N. W. 202, involves the validity of chapter 253, p. 375, Laws 1903, increasing the rate of the gross earnings tax upon railroad companies in this state to four per cent. As in the Great Northern case, •defendant asserts an irrepealable contract, under which it claims the right forever to discharge its tax liability by the payment of a two per cent. rate. The fixed rate claimed by the Great Northern Company was three per cent. The determination of the case involves, as in the other case, the construction of an old territorial railroad charter, the facts with reference to which are as follows:

By chapter 47, p. 121, Territorial Laws 1854, the Minnesota & Northwestern Railroad Company was duly incorporated, and authorized to construct a railroad within the limits of the territory, the line of which road in a general way was therein designated. The act was accepted by the persons named as incorporators, but no effort was made by them to construct the road. By chapter 58, p. 148, Laws 1855, the act incorporating the company was amended by adding ^thereto, among other things, a provision requiring the company to construct and equip fifty miles of its road within three years after the passage of the amendment, and the entire line within six years, in default of which, the act provided, the charter of the company and all grants and rights thereby conferred “shall cease and be void.” This act also contained a clause reserving to the legislature the right of amendment after the expiration of twenty years. In the original charter, and also in the amendment just mentioned, the company was required to pay into the treasury of the territory or future state seven per cent, of its net earnings. Whether this was intended as a substitute for taxes to be levied and collected in the usual way was not expressly stated. But in 1856, by chapter 47 of the laws of that year (page 76), the charter was again amended by imposing a two per cent, gross earnings tax in lieu of all other taxes. It is upon this act and the rate of taxation therein imposed that defendant relies in support of its defense. Defendant claims to have succeeded to all the rights of this old company, including the right to an irrepealable two per cent, tax contract.

The facts leading up to this asserted succession are as follows: The old company, though fully organized, wholly failed to construct its railroad within the time prescribed by its charter, and did nothing in that direction until sometime in 1884, thirty years after its organization and twenty four years after the time limited for the completion of the road. By this failure the company forfeited all its rights under the charter, and all grants thereby conferred “ceased and were void.” But by chapter 83, p. 221, Sp. Laws 1883, the legislature of the state recognized the existence of the corporation, and in effect waived the default in the construction of the road by authorizing the consolidation of “its stock, franchises, rights and property with that of any other railroad company which will undertake the construction and operation of the railroad which the said Minnesota and Northwestern Railroad Company is authorized to construct and operate.” Section 2 of that act amended section 7 of the original charter by authorizing the construction of a line of road differing somewhat from that authorized by the old charter. The company was thus revived from its extended slumbers and proceeded to construct its road, and completed it some time in the year 1885. It thereafter operated the same until December of 1887, when it conveyed all its property, “contracts, rights, privileges and immunities” to the Chicago, St. Paul & Kansas City Railroad Company, a corporation created, organized, and existing under the laws of the state of Iowa. Counsel for defendant treat this transfer as a consolidation of the two companies, authorized by the act of 1883. But, as we read the documents by which the transfer was effected, the transaction took the form of an absolute and unconditional sale by the Northwestern Company. The Kansas City Company took possession of the road, and thereafter continued its operation until June, 1892, when it leased the line and all property connected therewith to the Chicago Great Western Railway Company, defendant herein, a corporation organized and existing under the laws of the state of Illinois. Subsequently, in September, 1893, the Kansas City Company conveyed the property so leased, and all contracts, franchises, and immunities to its lessee, the Great Western Company, since which time the latter has continued in the operation of the road. Again counsel claim that the conveyance by the Kansas City Company to defendant was a consolidation and authorized by law. This, however, is not important. The fact remains that the transaction resulted in an absolute transfer of the railroad property to defendant, and, inasmuch as both those companies were foreign corporations, the laws of this state would not control their dealings, and this state could neither authorize nor prohibit their consolidation. But that question in no way controls the result in this case. The old Northwestern Company, after the completion of its road in 1885, commuted its taxes by the payment of the two per cent, rate imposed by the amendment of its charter in 1856, and the succeeding roads, including defendant, have paid the same rate.

Defendant having refused to pay the rate prescribed- by the statute under consideration, this action was brought to recover the amount of the increased rate. It is the contention of defendant that the terms of the old Northwestern charter fixing a two per cent, rate constituted a contract between the company and the territory or future state, irrevocable and irrepealable, to which defendant has succeeded, and that to enforce the new rate would impair the terms of the contract in violation of both the state and the federal constitutions. Defendant does not contend that the new rate is unreasonable or unfair, or at all disproportionate to the rate paid by other taxpayers, but stands squarely upon its asserted legal right to a perpetual two per cent. rate. The trial court sustained this view, ordered judgment for defendant, and the state appealed.

The charter of this road has never heretofore been before the court for construction. No question has ever been raised relative to the rights of defendant or its predecessors upon the subject of taxation; and the construction of the old charter and amendatory acts, and the right of the state to change the rate of taxation thereby imposed, are before us for the first time. Most of the questions involved were presented in the Great Northern case, where they were fully considered and disposed of adversely to the contentions of defendant. We there held, among other things, that the charter provisions of the old Minnesota & Pacific Company, upon which the Great Northern Company relied, did not constitute an irrepealable contract which passed unimpaired to the successors of that company; and, further, that the gross earnings tax system first came into legal existence in this state by force of the constitutional amendment of 1871 (Laws 1871, p. 41, c. 18), and that it then became subject to the reserved right of the state to amend or repeal the same as public interests might justify or require. The language of the charter under consideration, in so far as it imposes this form of taxation, is for all practical purposes the same as that construed in the Great Northern case, and the conclusions there reached fully apply at bar, and we adopt and follow them.

The conclusion is in no way affected, nor defendant’s rights in any way enlarged or extended, by chapter 83, p. 221, Sp. Laws 1883. The original company, the Minnesota & Northwestern, failed to construct the road within the time limited by its charter, and remained inactive for thirty years. Under the language of the charter, all its rights therefore “ceased and were void,” and the charter could have been forfeited by appropriate action of the state. But no proceedings were taken for that purpose, and it may be conceded that the act of 1883 was a recognition of the legal existence of that company at that time and a waiver of the right to declare a forfeiture. But such waiver and recognition were clearly subject to the then existing constitutional mandate prohibiting the granting of special privileges on the subject of taxation. It was also subject to the constitutional amendment of 1871, which provided, in effect, that all gross earnings statutes might be changed or amended by a vote of the people, under the authority of which the statute in question is valid as to defendant. In so far as the legislature may be said by the act of 1883 to have intended or attempted to confer upon the Minnesota & Northwestern Company a perpetual two per cent, rate, when all other roads were taxed three per cent., it violated the constitutional mandate of equality in taxation and its action was void. The legislature could no more grant this special privilege by the revival of an old corporation than it could confer a one per cent, privilege upon an entirely new company.

Neither are the rights of the parties, as urged by defendant, to be construed as of the date the original charter was granted, but, on the contrary, as of the date of the revival of the practically defunct company and the waiver of the right of the state to declare a forfeiture of the charter, namely, at the time of the passage of the act of 1883. At that time the legislature could do one of two things, declare a forfeiture, or waive the right, as it did, and continue the authority of the company to proceed and construct its road; but this was necessarily subject to the then existing constitutional restrictions pertinent to the subject of taxation. Trask v. Maguire, 18 Wall. 391, 21 L. Ed. 938; Louisville & N. R. Co. v. Palmes, 109 U. S. 244, 3 Sup. Ct. 193, 27 L. Ed. 922; Keokuk & W. Ry. Co. v. Missouri, 152 U. S. 301, 14 Sup. Ct. 592, 38 L. Ed. 450; Yazoo & M. R. Co. v. Adams, 180 U. S. 41, 45, 21 Sup. Ct. 256, 45 L. Ed. 415. At that time the right of the state to change the rate was clear. Stearns v. Minnesota, 179 U. S. 223, 21 Sup. Ct. 73, 45 L. Ed. 162.

Again, the act of 1883 is wholly silent upon the subject of taxation, and, though a consolidation with other lines was authorized, the right to assign or transfer the commuted system of taxation at an irrepealable rate was not expressly or impliedly granted, and did not pass to the successors of the original company. As stated in a note to Adams v. Yazoo & M. V. R. Co., 60 L. R. A. 33, 99, the general rule deducible from all the authorities is that an exemption from taxation, belonging to a corporation, is a privilege altogether personal to the grantee, “incapable of transference to another save by a specific enabling law couched in explicit language apt to the purpose.” No such language, nor any language indicative of an intention to confer the right of alienation, is found either in the original charter or in the revival act of 1883. An unchangeable rate of taxation did not therefore pass to the successors of the Northwestern Company. Morgan v. Louisiana, 93 U. S. 217, 23 L. Ed. 860; Wilson v. Gaines, 103 U. S. 417, 26 L. Ed. 401; Gulf & S. I. R. Co. v. Hewes, 183 U. S. 66, 22 Sup. Ct. 26, 46 L. Ed. 86; Chesapeake & O. Ry. Co. v. Miller, 114 U. S. 176, 5 Sup. Ct. 813, 29 L. Ed. 121; Phœnix F. & M. Ins. Co. v. Tennessee, 161 U. S. 174, 16 Sup. Ct. 471, 40 L. Ed. 660; City v. Rochester, 182 N. Y. 99, 74 N. E. 953, 70 L. R. A. 773. The language of the act of 1883 authorizing the Northwestern Company to “consolidate its stock, franchises, rights and property” with any other road, conceding that the transaction by which the defendant succeeded to the rights of the old road amounted to a consolidation, did not, within the authorities cited, include the right to transfer an irrepealable right to a two per cent. tax.

Counsel for the state advance several other reasons in support of the contention that the state possesses the right to increase the rate, one of which is found in the reserved right of amendment incorporated in the Northwestern charter by the act of 1855. That act, which amended the original charter, expressly provided [section 9] that the “legislature of the territory or future state of Minnesota may repeal, amend or modify this act and the act to which this is amendatory from and after the expiration of twenty years from the date of the passage of this act. Provided, that compensation be made to said company for all damages sustained thereby.” It is insisted that this reservation conferred upon the state the power to increase the tax rate of this road, independently of other grounds urged, while counsel for defendant contend to the contrary. We find it unnecessary to consider this or any other of the points urged by the state, not already passed upon. What has' been said disposes of the case and sustains the right of the. state to increase- the tax, and further consideration of the other questions would unnecessarily prolong the opinion.

Our conclusions are that chapter 253, p. 375, Laws 1903, is valid as to defendant, and that the state is entitled to judgment against it for the increased tax.

The judgment appealed from is therefore reversed, and final judgment ordered in this court for the amount due the state, as shown by the complaint.