The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1875-04-01
THE RAILROAD TAX.
Hearing ON the Petition for An Injunc-
ton in the U. .. Circuit Court.

Hearing on the Petition for An Tnjunc.
ton in the U. 3. Circuit Court
Yesterday morning in the U. S. Circuit
Court, Judge Fox presiding, the case of George
l., Ward OF Boston, in equity against State
Treasurer Hatch was heard on the motion for
temporary injunction to restrain the State
Treasurer from enforcing the collection of the
tax laid upon the franchise of the Maine Cen
trail Railroad Co., of which Mr.. Ward is a
stakeholder, and also to restrain the company
from paying the tax. Messrs. j. H. Drum
mond and John Rand appeared for the COM
plainaut, and Judge Tapley for the State
Treasurer and Judge Goddard for the Maine
| Central Railroad Co.
The bill in equity sets forth that the Maine
CENTRAL Railroad Go. is railroad corporation
formed by the consolidation of several compau-
les whose charter provides that the franchise,
track and rolling stock thereof shall not be tax
ed-that the Legislature authorized the con-
solidaton and conferred upon the Maine Cen
trail Railroad Co. all the powers and rights of
the several companies which it succeeded
that by authority of a law of the Legislature
of 1874, the Governor and Council assessed
tax upon the corporate franchise of the Maine
Central Railroad Co,l which the complain
ant holds. is in violation of the vested rights of
said company-that under an act of the Legs-
lature of 1875, the State Treasurer threatens to
| enforce the tax thus illegally assessed-that
the said Railroad Co. has no adequate remedy
to lawfully restrain the State Treasurer in his
purpose; therefore as the citizen of another
state and stakeholder, he prays the United
States Court to grant an injunction as above
stated.
The case was opened by Hon. J. II. Drum
mond for the complainant, and the following is
a brief of his argument:
/. The Maine CentralsRailroad Co. is cor
poraton formed by the consolidation of the
and Kennebec Railroad Co.'S, having "all
| the powers, privileges and immunities possess
| ed by each OF the corporations SO entering into
the consolidation Act of 1856, sec. 4.
IL These charters provide that mo other
| tax than herein is provided shall ever lie levied
| or assessed on said corporation or any of their
privileges or franchises [Sec. II ofEthe char
| ter
| Ill. The act of 1874 imposes tax "upon the
| corporate franchise" other than the one pro-
vlded in the charter;' therefore, the act is in
violation of the charter.
| W. 1t has already been decided by the Su
preme Court of Maine that 'this charter is a
private contract between the govern ment, act
| ing in its sovereign capacity, and the corpora
| tion, binding on both and cannot be impaired
by the Legislature" Estate VS. Noyes, AZ
! Maine 1S9
| The federal courts will follow the decision of
| the State Court ordinarily, though they have
the power to determine whether the instrument
| or provision is a contract within the constitu-
ton of the United States. Jefferson Bank Vs.
| Shelley, Black, 436
/ Nha nipla haf a nbqrtnr contract
which, under the federal constitution, the Leg
| isature cannot impair has been SO often deter
mined by the Supreme Court OF the United
States from the case of Fletcher vs.. Peck and
| the Dartmouth College case down to the latest
decision of that court, that it would be waste
| of time even to enumerate them.
| 1t follows. therefore, that the state of Maine
| has entered into contract with the corpora
| ton, that it will never impose any other tax
| than the one provided in this charter; and that
| the Legislature can pass no law 10 impair this
contract, unless this particular provision of the
contract was one which the Legislature had no
power to make.
V. But the Legislature may by contract ex-
empt person or corporation from taxation,
and no subsequent Legislature can lawfully re-
peal the exemption. New Jersey VS.. Wilson,
Cranch 164 Gordon VS.. Tax Appeal Court, 3
How. 1873. Piqua Bank, SC, VS.. Knoop is
How. 1863. Ohio Life ms. Co. vs. Debolt is
How. 416. Dodge tvs. Woolsey, IS How. 3d.
Mechanics Bank VS.. Thomas, IS How 1884,
Van Hoffman vs. Quincy, Wallace 535. JEFF
ferson Bank VS.. Skellen. 1 Black, 436. Home
of the Friendless VS.. Rouse, Wallace $50.
Washington University vs. Rouse, Wallace
439. Wilmington r. r. Cases, 10 Wallace, 2O4,
269. Tomlinson vs. Jessup, 10 Wallace 454.
Tomlinson VS.. Branch, Is Wallace, 460. Hum
phrey VS.. Pegues. 16 Wallace, 244. Delaware
r. r. Tax Case, IS Wallace, 206, decided as
late assDecember 1881
vi The only modification of the last pro-
position is that such exemption cannot legally
ha do If hn
prohibits it. There is no such provision in our
constitution.
Our courts have held that railroads are of
such public nature. that towns may be au-
thOrized to aid in their construction.
TAugusta Bank VS.. Augusta, 40 Maine 81. B.
and Nj. HI. L. Co. vs.. Brooks, go Maine 1851.
So the Legislature may exempt from taxa
ton. Brewer Brick Co. VS.. Brewer, 62 Maine
VII. The citizenship of the parties give this
court jurisdiction, if any court can give the re-
lief Sought dodge vs.. Woolsey. Is How, 33l:
Railway Co. VS.. Written Is Wallace go and
the other cases above cited.
VIII. This court has the power to issue an
injunction against the State Treasurer. los
borne VS.. United States Bank Wheaton 1873.
This was case against the State Auditor and
State Treasurer, and the Injunction was grant
ed. Dodge VS.. Woolsey, Is How. 331. Tomlin-
son vs.. Branch, was against State Auditor;
and in Delaware Railroad Tax cases, above
cited, the injunction was against the State
Treasurer
TX. A stakeholder may in such case as this
MAINTAIN bill in equity and obtain an injunc-
ton against the treasurer and the corporation.
( dodge vs. Woolsey, Is How. 331. Zabriske
| VS.. c. G. aud G. R. r. Co., % How. 3S1. Tom
| linson VS.. Branch, Is Wallace AGO, Is precisely
| Ike this case, and the bill in this case was
| copied from the bill in that case.
In Delaware r. r. Tax case, IS WalP2O6,
Minot, citizen of Massachusetts, brought in
! the United States Circuit Court in Delaware, a
in itv rail-
| the State Treasurer, for an Injunction against
| the com pany from levying aud the treasurer
| from collecting tax imposed by recent law,
| other than the one provided in the charter, and
| the injunction was granted and was confirmed
| by the Supreme Court of the United States.
Judge Tapley, the counsel for the respondent
State Treasurer, followed Mr.. Drummond The
following is his brief:'
| 1. The respondent, Hatch, claims this pro-
ceeding seeks to suspend the operation of
state law.
IL 1t seeks to do this by restraining a state
officer in the performance of duties required OF
him by a law of the state. In this particular it
is-different from a case which seeks to restrain
priv ate individual from proceeding in his
private capacity to invoke the aid of given
statute. This is applicable to public officer
of the state in the execution OF duties required
| of him.
| III. The petition calls for the exercise OF
federal authority against state authority. 1t is
not reviewing and setting aside judicial de-
| cree because against federal law Legislative or
| constitutonal but 1T is command to an ex-
ecutive officer of the state to disobey an exist
| ing unreversed decree of the state. 1t is the
| Federal Judicial Department. restraining the
| State Executive Department in the execution
| of state law. Without discussing the power
| so to do respondent submits the matter involves
| the exercise of such grave powers, that it will
| be exercised only upon the most absolute ne
cessity. Here it not only involves these grave
| questions but is based upon the alleged uncon-
| stltutionality of the act imposing the duties
upon this public officer. In the State Courts 1t
| is said that an act of the Legislature ought
| not to be decided to be unconstitutional upon
| preliminary hearing of this nature, before an
examination of the general merits of the BILL"
| (Deering VS.. York and Cumberland II. II. Co.,
| 81 of Maine, PIP. 172. Moor VS.. Veazie, 81, 16l.
Smith vs.. Titcomby, 81 Maine, 272
~. The allegation that the Name Central
| Railroad Company is without adequate remedy
under the laws of the state of Maine, is not
| true. [Pub Laws of Name Public Law of
| 1875, set out in the pill
" 1t is immateral here, the Maine Central
| Railroad not being complainants.
vi. 1t is immaterial, SO far as the respond
ent Hatch is concerned, that the Maine Central
Railroad Company decline to adopt any meas
| ures for obtain remedy and propose to pay