The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1868-12-18
0he0ttelLiqettcea.
opinion OF the Attorney GcncraI and
Iho States Counsel in the MARSHALL
County Suit.

'hSHihteS counsel In the Marshall
County Suit.
To The Committee on TaEaHom and HI.
nance Of the House Of Delegates of N,
State Of WeSt TfyyNid.
GENTLEMEN
Your favor of tho 2Sth inst, enclosing
\ copy of resolution OF the Committee
on Taxation and Finance, requesting
| our written opinion as to the propri.
ETY. OF making any change" in the law
| providing for the assessment and col
| lection oil taxes from Railroad Compa.
| MES prior TO the decision OF the Court
oi Appeals in the case of the Baltimore
nud ONO Railroad Company as. the
Supervisors of Marshall County and
Jackson Reed, Sheriff of said county,
was received this morning.
1t will be seen from the argument of
counsel for the aPpellees Ga copy OF
which we herewith enclose) that the
Baltimore and Ohio Railroad Compa-
ny resist the payment of taxes on Two
grounds.
/. That by the Act of the Legislature
OF Virginia, passed March q, 1877, the
stock, property and profits of said Conn
Prny should not be subject to taxation
until the net income OF the Baltimore
ana ONO katlroad shall exceed six par
ceututn per Hnnum upon their capital
invested. and that their net income did
not amount TO six per centum per an
mum upon their capital invested, at
the time the taxes sought to be collect.
sd were assessed.
.. That by that law the Railroad
Company was surely subject To gen
eral taxation" which it was claimed
exempted IL from taxation for local
purposes.
The first of these questions, it will
be seen, is purely a question OF fact,
depending upon the proofs i'll the
cause rs 10 the amount of capital in
vested in the Baltimore and Ohio Rail
road, and the amount of nett profits
the Company have derived from il.
The second question is question of
law as the true construction of the term
general taxatiou," used in that law.
We do not very we'll see how the
Legislature can act intelligently in
providing for the assessment OF taxes
until this question is settled by the
Court. II the Company Is right in SUP.
posing that this law exempts them
from local taxation, then the Legisla.
tuTe can only assess them for taxation
for State purposes. II the ap-
pellces are right ln supposing that
the provision w2S only Intend
ed TO exempt them from special
taxation TO which other prop
erty was not subject, then they must
be assessed for all purposes in the same
manner that other property is Taxed.
Unless the some special mode OF taxa
Iion Is prescribed by the charter OF the |
company, It is certain that 1t must be |
put upon the same footing with other |
taxpayers, and its property must be |
taxed in the same way. Because Sec. |
l. of AT. s. of the Constitution of West
Virginia, expressly prohibits any one
species OF property from being taxed |
higher than any other species OF prop.
erty.
Ii, therefore, the Legislature should |
attempt to exempt railroad property,
either wholly or partially from taxa.
ton for local purposes, and the Court
should hold that they were subject to
such taxation, the counties interested
would certainly contest the validity OF
the exemption.
We felt the importance OF having the
decision OF the Court before the LegiS-
lAture when 1t was acting upon the
subject of railroad taxation. when it was
argued AT the July term OF the Court.
and urged upon tue Court the Import
ance OF deciding il during thai term of
he Court.
But the Court considering the case
lnp OF very great Importance. and de-
string time and opportunity to give ita
thorough investigation, determined TO
hold II over for consideration until the
January term of the Court, when it will
be decided,
1.-THE Court should decide that the
the company was exempt
rom taxation, 1t is hardly likely that
hey would pay upon any rule which
he Legislature might prescribe.
II the Court should hold that they
we're liable TO taxation in one mode,
md the Legislature should tax them
IL IL different mode, the company would
Tot be likely to pay IN the mode pre- 1
1NgT Fh GIn1 Fl1p II | /
more favorable to them than the
node prescribed by the Court. So that
[ seems TO us that the State may lose,
Iut cannot possibly gain anything by
egislating in advance OF the decision {
# the Court.
But II the Legislature should act upon '
he subject, they should ba especially
areful not to pass any law that could /
,e held to be n contract with the railroad
which would tie up the I
lands of future Legislatures, and pre- t
ent them from altering or amenuinR
/ as the decision OF the Court might I
Justify or require.
'tate concluded by any law that may I.
,e passed. It would perhaps be wise to
insert in It a provision that any future
shall have power TO repeal
r amend.
It has been suggested that the case c
ending in the Court OF Appears Will
go TO the Supreme Court of
he United United States. 6
II tha case should be decided in favor !
{ the Baltimore aud Ohio Railroad
company, there is certainly nothing III =
he case that could give the Supreme
'ourt of the United States Jurisdiction. =
II it should be decided against the }
ompany upon any ground maintained '
y the counsel for the appellees. there
!; nothing in the case that can give !
lrisdfction TO the Supreme Court of the |,
-nited States. so that we think there
an scarcely be ii dOu bt but the decision !
+ our Court of Appeals will settle the
uestion finally and conclusively. We
ave thus briefly given you the opin-
IN Won nsk with the reasons upon
,bich it is founded. which we hope I
ill be found Ineligible II they are not
atisfaclory. We are advised by the L
.ttGrney General after brief inter-
lew with him, that be concurs with us
i opinion.
Very respectfully, your obedient ser
ants, - STANTON IL AL.LIsoN.s
NorernGer 80, 1868. G
WHEELING, Dec. l, 1865. |
o fhe Committee OF TdruLiOn and HI q