Tama County Republican. (Toledo, Tama County, Iowa) 1867-1872, 1871-11-23

sldered IS this has the Legislature
bestowed upon the city OF Dubuque
the power to tax the property of
railroads? BY its charter it is an-
thorized to levy and collect taxes
upon "all taxable property" within
its limits. The depots, tracks, real
estate, etc, OF railroads are property.
Section I'll OF the Revision pre-
scrlbes what property shall be ex-
empt from taxation. The property
of railroads is not included therein.
Section 712 declares that all other
property, real and personal, within
the State, not exempt, by Section
I'll is subject to taxation. 1t thus
clearly appears that the property OF
railroads is taxable property" But
Section 712 also explicitly declares
that the property Of all incorporat-
ed companies is subject to taxation;
and the Constitution, article s, Sec
ton l, declares that property of all
corporations for pecuniary profit
shall be subject to taxation the same
as that of individuals" With the
additional statutory and constitution
al declaration, there can be no doubt
upon the question. The property Of
railroads being taxable, .he city of
Dubuque, under the express power
to assess all taxable property, ~ law
fully empowered to levy taxes there
on.
Chapter 1876, of the Acts of the
18th General Assembly. as to the
provision above quoted, limiting the
tax to he levied upon railroads to
one per centum of their gross earn.
ings, and, in truth, in all It's parts
where on the questions here consid-
cred, rest, is identical with section
Is, chapter 173. of the acts of the
sth General Assembly, which was
discussed in the City of Davenport
VS. the NJ. & NJ. r. r. Co., 16 Iowa,
34S. The views above stated accord
with those of Dillon and Wright, J.
j., expressed IN that case. Upon
careful consideration OF the case,
we are satisfied that their conclusions
are based upon sound reason.
Sill another thought, in our opin-
ion, strongly supports our conclu-
sions. The cities of the State,
throughout which railroads pass, or
in which they terminate, have i'm
posed upon them the burden of pro.
viding for the protection of railroad
property. Expenditures OF money
are necessary, in the exercise of their
political jurisdiction, to insure the
protection thus imposed as a duty
npon the municipalities. 1t is not
at all reasonable that the Legislature
intended to take from the cities all
power to raise revenue from this very
property. the protection OF which is
duty charged upon them, and to re-
quire that the expenses incident to
the discharge Of this duty shall be
paid in the way of taxes by holders
of other property. Such unjust leg.
islation. discriminating in favor of
one class to the oppression of anoth-
er, could never have been intended
by the Legislature.
The constitutional question as to
the power of the Legislature to pre-.
scribe special rate and manner of
taxation for the property Of railroad
corporations, as is done by chapter
1856 of the Acts OF the Twelfth Gen.
eral Assembly, is not presented for
our determination IN this case. 1t
has not. therefore, been considered
by us.
In our opinion, the decision of the
District Court upon the question pre-.
sented in this case is correct. Its
judgment is, therefore, affirmed.
COLE, J. DISSENTING.
The result reached by the forego-
ing opinion is by no means objee-
tionable to me, if it could be attained
consistently with any recognized or
known rnle for the construction OF
statue, or if this Court was possessed
of the power Of making instead of de-
claring the law.
The single question is as to tho
proper construction of this provision:
''The tax herein provided shall be in
lieu of all taxes for any and all pur-
poses, on the road bed. track, rolling
stock and necessary buildings for op-
Grating the road" The Legislature
has twice enacted this same provi-
sion, and once since this court refus-
ed to change its meaning as it is now
sought to be changed, and has said
that the tax Of one per cent, as pre-.
scribed by the act, shall be in lieu OF
call taxes for any and all purposes
The foregoing opinion says, not so !!
but it shall only be in lieu OF all tax
es tor State and county pnposes. II
the Legislature had so intended, it
could easily and directly have so said.
But it has not, and know of no rule
OF construction, nor does the forego-
ing opinion claim that there is, or re-
ter to any which will authorize such
a change Of the language from its
plain meaning. The act was not for
the purpose, nor is it SO entitled, to
raise revenue "for State and county
purposes" but it prescribes tax in
lien of all taxation for any and all
purposes. The bare fact that the tax
when collected and paid into the
State treasury is apportioned, one
halt to the counties where the roads
are situated, does not, in my opinion,
authorize any such cf ange OF the lam
guage of the statute as Is made by
the foregoing opinion. See in full.
The City Of Davenport VS. The NJ. s
NJ. r.. Co., 16 Iowa. 34S.
Ii the tax is to be as the Lcgisla-
ture has said it shall be, in lieu Of all
taxes tor any and all purposes, then,
of course, it becomes unnecessary to
discuss the other question. ! think
the Judgment should be reversed;
but the majority say it shall be at