Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1882-04-24
SUPREME COURT DECISION.
and Ohio Railway Go. vs..
Joseph q. Miller, Auditor, Etc.


sessed the property of the plaintiff to
the amount of near $4,000. In accord
anee with his legal duty, Auditor Miller
notified the President of the company
that if the amount was paid into the
Treasury of the State within the time
allowed by law, that there should be a
deduction of 2! per cent. on the amount.
II not paid within that time, he would,
as the law required him, add 10 per
cent. to the amount, and certify the
same down to the proper officer for COL
lection. Thereupon the Chesapeake
and Ohio Railway Co. filed its bill OF
Injunction in the Circuit Court OF Ohio
to enj0iR the Auditor from add
ina the 10 per cent, and from certifying
the said takes down for collection, on
the ground that, by the 9Th section OF
the act of the Legislature Of 1866, the
property of the Covington and Ohio
Railroad Company was exempted from
all taxation, until the profits of said
company should amount to 10 per cent.
on its capital. That by subsequent acts
of the Legislature, said exemption from
torotion, was transferred with the char.
ter of said Covington and Ohio Railroad
Company, to the Chesapeake and
Ohio Railroad Company. That by
the sale under the foreclosure OF the
mortgages, and the conveyance there
under, the same immunity from taxa
ton was transferred to the plaintiff, the
Chesapeake and Ohio Railroad Compa-
nv, The Auditor answered and defend
ed himself, insisting that the said act OF
1866 was prohibited by section l Of Artt-
Gle VIII. of the Constitution, which de-
clares that 'all property, both real and
personal, shall be taxed according TO ITS
value, TO be ascertained as directed by
law" The Circuit Court perpetuated
the Injunction and the Auditor appealed.
During the present term the case was
argued with learningand ability by Col.
Robert White and Attorney General
Watts for the Auditor, and Judge Rob
ertson, of Virginia, and Col. Hogeman
for the railroad company.
Judge johnson, President, Saturday,
delivered the unanimous opinion of the
Court, holding that said act, so far as it
exempted the railroad company from
taxation, was unconstitutional and
void. After an elaborate review of the
rules which should govern the Court in
passing upon constitutional question,
and the decisions which had been relied
upon by the counsel, Judge Johnson de-
duced his conclusion as follows: Can
there, then, be any doubt that the act of
March |, 1865, so far as it exempted the
property of railroad company from
taxation, is unconstitutional?
The section of the Constitution we
have been considering declares: First.
that taxation shall be equal and uni
form throughout the State" This is
very strong language, and to say the
least of it would prevent inequality and
want of uniformity in taxation in tax
ing the subjects that the Legislature
might declare should be taxed. But the
second clause, "and all property, both
real and personal, shall be taxed" GER
tainly shows that it was the intent of
the trainers of the Constitution to de-
clare in most explicit terms, that an
property in the State should bear its
equal share of the burdens of the govern
ment, and that there should be no prop
erty exempted from taxation, unless it
was specifically excepted in the Consti-
tuition Itself. The third clause declares
that taxation shall be on the al Catorcm
principle; Improperly, rc0tand personal,
shall be taxed. Upon what principle?
Shall be taxed "in proportion to its
value How shall this value be ascer-
tanned? The fourth clause gives the an
swer in clear language, ito be ascer-
tanned as directed by law" The fifth
clause prevents any discrimination in
taxing different species of property, and
makes it more clear that taxation
should be equal and uniform,
and on the al rdlOrCm principle,
by declaring that "nO one species
of property from which a tax may be
collected, shall be taxed higher than
any other species OF property OF equal
value" The words in this clause,
"from which tax may be collected"
clearly refer to the fact that certain
may be exempted, rs provided
for in the Sirth and last clause of the sec
ton, which provides, "but property
used for educational, literary, scientific,
religious, or charitable purposes, and
public property may, by law, be ex-
empted from taNatlOn.'
This last clause is plainly an eXcep-
ton to a general rule. The primary
meaning of the word ''bIH" is "CrcCpt,"
and that is manifeStly the sense in which
it is here used. As it appears in the sec
ton, to give it nyOther meaning would
not make sense. The rule laid down, is
that sal property, both real and person.
al shall be taxed" and the exception
(which proves therule, i that the Leg
islatnr2 might exempt from taxation
certain property therein enumerated,
but certainly would not have the au-
thOrity to exempt any other
property even for considera-
ton. 1.-THE last clause of the section is
not an exception to the gcRerM rue
idid dO1CR," that all property both
real and personal property shall be
taxed, then it has 10 force whatever,
and is, as contended, mere surplusage.
1t mot in any WY be considered sur
plusage; it is not supposed that the fra
mers of the Constitution would use, and
the people adopt, language hat had no
meaning.
This is full of meaning. 1t permits
the Legislature to exempt certain prop
erty from taxation, which it would, by
the general rule, have been beyond their
power to exempt but for this important
exception thereto. 1t occurs in the
same section with the rule, and there
cannot be the slightest doubt that it
was intended as an exception to it. By
the construction we put upon this Sec
ton We give effect to every clause, every
sentence and every word contained
therein. By the Interpretation sought
to be put upon it by the learned counsel
for the appellee much of the section
would be entirely meaningless. The
language ofthe Constitution, being clear
and free from ambiguity, and the words
used having regard to their grammatic-
al construction, embOdying as they do a
definite meaning which involves
no abSurdity and no contradiction
between different parts of the same in
Strument, that meaning apparent, on
the face of the instrument is the one
which We are at liberty to say was ill.,
tended to be conveyed, and we are not
at liberty to look outside of the inStru-