Savannah morning news. [volume] (Savannah) 1868-1887, 1881-09-26

of-way of the Western and Atlantic gives tn,
authority on condition that thew pet the con
sent of the lessees of the Western snd Atlanti,
Railroad. So that the Legislature has owe
/ and over again recognized the contract as valit
and binding upon the State. and the State il
| estopped now from denying its validity. S,
much for the endorsement by the General AS
| sembly
Since that time the Executive Department
| of the State government has recognized it {
know one hundred and thirty timesl; and
| think l could say it has recognized it mani
/ more times. We have paid them rental, ant
| they have received it from us as lessees in ont
/ hundred and thirty instruments. They recog
| niZe the contract every month as we go along
| and receive the rental and make no point abou
/ It, Thus the Legislative Department. has re
| cognizsd it; and the Executive Department
has perpetually recognized it for nearly clever
years.
Now. want to show you that the judicial
Department has also reco ynized it.
| have before me a copy of the bill of excep
| tionS in the cese of the State VS.. the Western
| and Atlantic Railroad Company in one of the
| tax cases before the Supreme Court In $780, L
| says: "The plaintiff opened the case by intro
| ducing the Il ia. with entry of levy and alsC
| the affidavit of illegality, to which were at
| tached also the return made by the defendant
| to the Comptroller General of its property fol
the year 1874, and the receipt of the Comp
| troller General for taxes paid by said defend
ant for said year. Plaintiff then demurred anC
moved to dismiss said affidavit of inegality OF
the following grounds, to-wit:
l Because there was no such return as the
| law requires to entitle said company to the
remedy of affidavit of illegality.
? Because defendant has not paid the taxsS
| required by the act Of February IS 1874, and
the tax act OF 1873, as a condition precedent &c
give the court jurisdiction by affidavit of lille
| gality.
Which demurrer and motion to dismiss we're
overruled by the court, and the plaintiff ex-
cepted.
The plaintiff then introduced an agreed state
| ment of facts containing g copy Of the lease
set OF II h of October, 1870 the notice of Gov
ernor Bulocks advertising for a lease under
| said act the proposals Of certain parties there
in named to lease the Western and Atlantic
| Railroad, with the affidavits required by law
| the dead or lease and act of Incorporation by
Governor Bullock; also the order of the Cover
nor appointing committee of valuation of the
| property leased the bond given by the de
PENDANT and letter written BY Superintendent
AacRae, etc The plaintiff egain
| moved to dismiss the affidavit Of illegally on
the ground, among others, that the defen
| dant's company had no exemptions from taxa.
| ton, either total or partial. and If they had
any suGn, the same was repealed By the tax
| act OF the 2Sth of February. 1874 that de-
| fen ants company never had a valid lease to
said railroad and appurtenauces, never gave
| any bond and security according to law, and
| were therefore liable to pay taxes on said road
| and sppurtenances, on the same basis as
| Datural citizens Of the State, which motion was
ovsrruled by the court
Mr. Hunt would suggest that that last
| seems to be very important provided the Su.
| preme Court passed upon it.
Mr. Brown-They make it point distinctly;
and il the court did not expressly adjudicate
| it, it was because the court considered there
was no merit in it, 1t lay at the very founda-
| ton of the action. They could not entertain
| this case and determine how much this cor
| pOratiOn should paw, whether it should pay on
| the road, whether it should pay on the corpus,
IA vuaC no IN
| existence. That is put at the very foundation
| Of the action. And whenever the Supreme
Court ruled that we were liable to paw a tax, it
| sustained the corporation, because there was
nothing to tax unless there was a legal com
pany; and that point is distinctly raised in the
recOri, and IS as distinctly ruled bv the court.
Chief Justice JACKSON, being relative of one
| OF the parties, was disqualified, and Judge
| Harris, Of the COweta Circuit presided in his
| place and delivered the opinion in this case
He says; ION the 28th of July 1874 the
legislature passed an act requiring the Presi-
dents OF all the railroad companies in the State
to return, on oath, to the Comptroller General
the value OF the property Of their respective
companies, to be taxed as other property of
the people of the State. Urder this act a re-
turn was made by the President of the West
ern and Atlantic Railroad Company, the de-
PENDANT in error. The tax was sustained by
the Comptroller General and fl ia issued for
its collection. The affidavit Of illegality was
| filed by said company to this f. ia. denying
it, liability for the tax sought to be collected.
1t was agreed by counsel representing both
the plaintiff and the defendant that the cause be
heard before the presiding Judge, upon an
agreed statement Of facts without the inter
vention Of jury. he to decide upon the law
and the facts, subject to revision by this court
as in ordinary cases.
The presiding Judge Of the court, hearing the
evidence and argument, sustained the affidavit
OF lllegality, dismissed the levy, and rendered
Judgment against the plaintiff for cost.
To this Judgment the plaintiff in error ex-
cepted, and brings she cause by bill Of excep-
ton to this court for review
Here, on see, gentlemen, that the tax ~as
assessed against railroad cOmpdnies aud the
execution was issued against the Western and
Atlantic Railroad Company. The plaintiff in
error denied the existence of the company or
that there was any lease contract, or any LEGAL
bond given. will not read the whole decision,
but only single paragraph relating to the lat
ter point The court says: That the Legisla-
ture had the right to lease the Western and
Atlantic Railroad cannot be questioned, and
having done il, whether wisely or unwisely is
not now to be inquired into; nor can it be
changed, even if il were at an annual rental
far below its annual value The State like an
individual must abide its bargain. 10 Ga.,
'9l-6; 4 Wheaton, AIS; Wallace, p -; l6 How
ard, 1863; Ga, 13); 10 Ga, 3S5."
Here the point that there is no lease contract
is distinctly made, and the court says distinctly
that the Legislature had the fight to lease the
road, and having done it. whether wisely or
unwisely, the State is bound by the contract
and it cannot be changed.
The other part Of the decision goes on and
holds that we are liable to pay tax, one-half of
one per cent. upon our net incomes, such being
in accordance with the lease act. The lease
act provides that We shall be subject to the
same public burdens that the Georgia and the
Central are subject to. And the first time the
case went up they held that tax was public
burden, and we were taxable under that clause
for the same tax paid by said companies
Judge Warner delivered a dissenting opinion
and held that we were liable for the value of
our lease, but not for a tax on the CORPUS of the
property of the road.
This case was then taken back after there
was new bench, and the new bench unani-
mously confirmed the decision made by the
majority Of the court in the former case
Why are We liable for the tax? Our charter
provides that we shall have the same public
burdens as the Central and the Georgia. but
says the counsel OF the state, you are not
corporation at all; you have given no bond;
you are no legal company" The Supreme
Court says: You are The Legislature having
the right to lease The road, and having leased
it, the State is bound by it," And they decided
how much we are bound to pay.
So think have shown, beyond question,
that this lease contract has been recognized
and affirmed by three different Legislatures
since Governor Bullock made the lease. and bv
the Governor of the Sta te again and again and
by the Supreme Court also
II is going long way, gentlemen. to go back,
now eleven years nearly after the lease was
made, when more than half the time has run,
to find that there has never been any lease
The State is eStopped from denying the validi-
Y. when
it has been affirmed over aud over again by all
the departments of the State government.
But suppose Mr.. Wadley were right about it.
that the Central Railroad did not legally 90 on
this bond. though do not admit any such
thing, for have no doubt that company would
be held liable in any court in eorgia; then Won
still have property bound here worth more
than twenty millions of dollars. Nobody cues
tiOns in this case. as well as in all others
that the State is senitled to be preferred
creditor if there should be any difficulty about
the bond. In other words. If the sureties should
have to be sued, the fact that certain roads
have gone into bankruptcy and fallen into
other hands does not release them at all From
the date they became surety to the State they
became bound they could not get rid of the
suretyship by selling out TO somebody else
What other sureties are on the bond? The
Georgia Railroad and Banking Company
l suppose that is worth six millions Of
dollars. 1 b. lieVe it is upon that basis
that they have rented it for nisety nine years
at ten per cent. per Rnnum. The Macon and
Western. There l showed you the charter ex-
presSly gives the power to make contracts to
the President and directors. That is bound
The Southwestern is bound l have not heard
that question seriously by any one 1t is said
however, that you have lost part of the security
by the Macon and Brunswick going into bank.
ruptcy. Well, it is the States fault if she has
At the time this Endorsement was made she
had that company bound as a surety. Since
that she has had other liens, and if she has
sold IL out IL is not our fault. The Brunswick
and Albany has been sold, it is true, but that
does not release it from its obligations to
the State as a surety. SO you have
here in Georgia the road from here to
Macon, the Georgia Railroad, the Southwest-
ern Railroad. and the Macon and Brunswick,
unless the State has destroyed the security;
and the Brunswick and Albany, and the At
lanta and West Point Road. Those roads are
worth at least fifteen millions Of dollars. Then