Burlington weekly free press. [volume] (Burlington, Vt.) 1866-1928, 1878-04-05
THE RAILROAD TAX CASE.

CIRCUIT CoURT OF THE U. s., I
DISTRICT OF VERMONT.


DIsTRIcT or VERMONT
Samuel Wells rs Central Railroad Com
pany and Others.-in Equity. february
Term, 1878.
The motion Of the defendants for disso-
luton of the injunction heretofore granted
in this cause has been heard on bill, answ er
and argument OF counsel.
The injunction restrains the collection of
municipal taxes assessed under the law Of
Vermont providing for the taxation of the
property OF railroads. upon the property of
the Vermont and Canada Railroad Com
pany, liz possession Of the Central YER
mont Railroad Company. Laws Of YER
mont, 1874 l6. Some of these taxes were
assessed in 1875, and the time limited by
law within which they may be collected
will soon expire
Ii was suggested in argument fer the
orator, that il tho injunction should be dis
solved be would be without remedy, and
that on that account it should be continued
to the hearing, even If its maintenance then
| should be doubtful. There would be some
force to this suggestion beyond what it now
| has, II the case was likely to or could stand
any differently at the hearing from what it
does now; but 1t is not likely to and cannot
stand much differently. The only ground
on which it is claimed that the taxes should
not BE- collected is that the law itself is un-
constitutional and invalid that questions
arise upon tie lace OF the law so that there
are no issues Of Tact to be tried by proofs
that might be presented differently upon the
evidence than from what there can be now,
and 1t Is not apparent but that all ques-
| tions OF law involved, have beon as well
presented now as they can ever De. And,
besides. 1t it doubtful whether, If the in
junction should be continued 20 as to pre-
vent collection within the time limited they
could be collected afterwards, although, or
dlnarily, a statute of limitation will not run
upon an act restrained bv Injunction. For
in respect to taxes the rate bill and warrant
are in the nature of an execution, differing,
however, in so far that they cannot be re.
newe1, and that they do not issue from and
are not returnable TO any court where any
answer to the fact that the time within
which they were operative had elapsed
could be shown. The question involved does
not seem 20 be very intricate o. difficult,
and IN view OF all these various considera-
tions it seems most just that ir be disposed
OF on its merits according to the usual
course with such notions
In behalf OF the orator it is not claimed |
but tina: the real estate of railroads is tax
ablo nor bct that it is taxable in the mode |
by which that of the railroads reached Is
claimed that on the face OF the law all are |
not taxed and that the Legislature has not the |
power thus to discriminate. II this claim |
was well founded it is not easy to see how |
any OF the laws Of the State by which taxes |
are laid are valid. For the only founda- |
tion of the claim is, that the taxes of the |
orator and his associates are made greater
than they should be BY leaving others who
should pay to 90 clear of paying any; and
the same is true as to all other tax payers
as well as to them That the property on
which none are paid is Of the same kind q.
that upon which the taxes complained of |
are assessed, can make no difference II
these tax payers have the right to say that
they will not pay their taxes because all
other owners of the same kind of property
are not required to pay like taxes, then all
other tax payers would have the same right,
and all lawful taxation would fail until the
system should be made so perfect as to
reach all property and all persons in the
same prOpOrtion-a result not soon to be
even hoped for.
By the constitution of the State the mode
OF laying taxes is left wholly to the Legis-
lature. 1t is merely said that "eyery mem
ber Of the society hath right to be pro-
tected in the enjoyment of lite, liberty and
property, and therefore is bound to con-
|
Of that protection :" and that, previous to
any law being made to raise tax, the
purpose for which it is to he raised ought
to appear evident to the Legislature to be of
more service to the community than the
money would he if not collected" Part
First, art. IN. Under the constitution
exemptions sIInIar to that complained of
in this law have always been in force. Up
TO the year 1890, none but improved lands
Tor paSturage, tillage or moving, or which
were stocked with grass and within enclos-
ure were taxed, leaving ali unimprOv-
ed and unenclUSed lands without tax
alton, aud not only this, but improved
lands were not taxed until they had been
improved two years This exemption was
very much like that comp laiped of. By
the law in question lands improved by
having u railroad built on them are taxed
but not until they have been 20 improved
ten years. The improvement is greater and
the exemption longer but far less extensive
than those mentioned. So persons have
always been exempt from poll taxes until
they arrive at certain age. and almost
always after thty have passed certain ages.
And while horses, cattle, sheep and swine
have been always taxed, the yOung OF each
up 10 certain ages have been left without
being taxed, and the Legislature has fre-
putHliJ III us ul-CTtllOn ioT lDc sake OF en- |
to andabie enterprises made
particular exemptions important In clisrac-
ter when considered in connection with the
tax paying property left, like the exemp-
ton of the whole township of Wheelock,
from all public taxes Morgan vs. Cree,
i6th. 713 the exemption of the Vermont
Central Railroad from taxation, Vermont
and Canada Railroad Company vs. Bur-
lington, 2sth Vt. 1893 the exemption of
certain persons. Wheeler VS. Lane. Is Vt.
% and many Others Of ike character.
The right to make these exemptions has
stood unchallerged until the present case,
and the want OF 1t is not consistent with
the idea Of the sovereignty that belongs to
A State. So firmly settled il the power of
the Legislature OF II State to make exemp-
lions from taxation, that when franchise
Is granted by a Legislature free from taxa
tion it is not within the power of it to alter
wards withdraw the ex mption by repeal
ing the law that created it or by any other
legislation. Gordon VS.. Appeal Tag Court.
How. State Bank of Ohio vs.. knoop, l6
Howard, 369 Vermont Central Railroad
Company VS.. Burlington, % Vermont 1893
The power to make such exemptions. un-
ess restrained by constitutional provisions, !
must rest with the Leg gislature of every State
10 be exercised in it, own discretion. As is
aid, in the opinion of the court in State
Bank of Ohio vs. knoop. by Mclean, JUS
ice, The taxing power may select its OBJ
ects of taxation. Now the exemption OF
from taxation Is question Of
policy and not of power"
Then further, strictly speaking, this is
rot an absolute exemption oi any property ,
{ in fact it can be said to be any eIemp- /.
ion. In tue form rt tie enactment it is
tyled an exemption of the real estate of
ailroads until ten years from the time " hen
rafhc commences throughout their lines, $
,ut the form does not affect the substance. 7
IN effect the Legislature IN selecting objec:s i
IT taxation took railroads having ten years a
If growth, and OF that class it exempted
zone. But il the effect be stated that they
ook railroads and exempted new ones dur
ny the first ten years of their existence, :
hen it is only qualified exemption that c
will pass away with the prescribed time as /
o all of them. And, still further, what
yer it is called, it does not operate to create I
nv discrimination in favor of or against
nv railroads, old or new. All those that ..
Iad been in iull operation ten years, and so |.
we're taxable under the law when it was ,
'assed. had realized their exemption of at
east ten years in extent already. and those
hat had not could not by the law be taxed Il
i'll they had; 80 that altogether the eIemp- d
ion, if not uniform. has existed SO as to a
make discrimination IN favor OF instead OF a
gainst the one OF which the orator is :,
tock tolder and those of its time
From whatever point OF view the subject
: looked at, it seems clear that no constitu- \
lonal right of the orator has bcen intringed d
pon by the legislation and the proceed Il
Dgs under it. t,
There is another ground urged by the de- I,
sndants why this injunction should not be "
and that is. as ~ claimed. be
ause such proceeding is prohibited by the
Avs of the United States. The Revised u
tatutes of the United States. See. 2 1924. o
royide that "No suit for tbs pur- A
ose OF restraining the assessment or collec Ii
ion of any tux shall 10 maintained in any {
'uurt." Taken literally, this would pro- \
ibit such Il proceeding IA the one under
from boing had in any Of the a.