The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1890-07-04
TAXES OF RAILROADS.
The State Has Right to Assess
Right-of- Way.
ATTORNEY GENERALS OPINION.
New States Have Same Authority as Old
Ones to Make Railroads Contrib
ute to Government Expenses.


taxable by the state of Washington.
In his opinion the encouragement says:
The right-of-way of the Northern Pacific
Railroad Company would undoubtedly
have been the subject of legitimate taxation
during the whole of territorial existence,
had il not been for the exemption contained
in the grant to the Northern Pacific Rail-
road Company. Thirteenth United States
statutes, SGT, reads as fellows: "Right-of
way shall be exempt from taxation within
the territories OF the United States" | do
not think that any fair construction of the
exemption contained in the charter of
the Northern Pacific Railroad Company
would exemptits right-of-way from taxation
IN anything but territories. | do not think
any other legitimate interference can be
gathered from the words used that con-
gress only intended to exempt this right
Of-way from taxation in the territories of
the United States so long as
they should remain territories. The
reason for this exemption is OBJ
vious when considered in the light
of the facts which existed at the time the
grant was made. The right-of-way for the
construction of the Northern Pacific ex-
tension from Lake Superior to Puget
sound passed for hundreds of miles over a
region which at that time was popularity
supposed to be desert. 1t may
be presumed that 1t was supposed
by congress that very large part OF this
road would lie in a country in which no
government in fact existed and ought not
therefore be required to bear the burdens
of maintaining government in those
regions unaided and alone nor
can it be contended that the exemption con-
tanned in the charter of the Northern Pacific
Railroad Company was made by congress
on the ground that railroad was public
agency, and for that reason it would be
against public policy to permit states or
territories to impose on its right-of-Yay
burdens of taxation. Exemption did not
purport TO apply to the state of Minnesota,
through which part of this right
of-way lay. If it would be against
public policy to permit the territory
Or state OF Washington to tax this right-of-
way, it would be equally against public
policy to permit its right-of-way to be
taxed in the state of Minnesota. The
states of Washington, Dakotas and Mon
tana were admitted into the Union upon
an equal footing with other states. They
could manifestly not stand upon an equal
footing with the other states if they were
prohibited by federal law from taxing the
same property which other states were per-
mitted to tax without limit. Power in
state to tax all property within its juris-
diction is one of the inherent attributes OF
sovereignty which cannot be impaired by
congress. Ii congress could legit-
imately exempt the right-of-way of the
Northern Pacific Railroad Company from
taxation on any other ground than that it
is a public agency. it would have equal
power to exempt any and all other prop
erty within the state from taxation and
could bring state into the Union abso-
lutely deprived OF the power of maintain
ing its existence. Says the superior court
of the United States, in the case of the
Union Pacific Railroad Company VS.. Penis
ton, Is Will, 5 to so: The taxing
power of the state is one of its
attributes of sovereignty; it exists indie
pendently of the constitution OF the United
States; underived from that instrument it
may be exercised TO an unlimited ex-
tent on all property, trades or business, and
avocations existing or carried on within
the territorial boundary of the state, ex-
cept so far as it has been surrendered to
the federal government" For the foregoing
reasons / do not think it was within the
power Of congress to exempt the
right-of-way of the Northern Pacific
Railroad Company in this state, except
upon the ground that it was an agency of
the federal government. and for that rea.
son it would be against public policy to tax
it. But the exemption clearly shows that
it was not made upon any such ground
Ii made on such ground it would operate
unequally, and the state of Wash
lngton would not stand on an
equal footing with Minnesota, where
it has always been the subject OF taxation.
/ therefore think it can not be doubted that
Washington has full power TO tax the road
bed and right-of-way of the Northern Pc
cific Railroad Co., unless, by its compact
with the United States, or by its ccnstitu-
ton, it has surrendered the right 10 do So
Any other conclusion would. TO my mind,
lead 10 the above result, for if congress
could legitimately exempt the right-of-way
of the Northern Pacific Railroad Com
pany from taxation in the state of Wash
ington, exemption itself would constitute
valuable franchise, which franchise
would be legitimate subject of state taxa
ton. There is nothing in subdivision sec
ond. section 4, of the enabling act nor in
subdivision second of the COM
| pact with the United States, which can
be construed as surrender BY a
| state of its right to tax the right
! of-way of this railroad company IL re-
mains TO be seen whether the people by
the constitution have made any such ex-
emption. Section 1, article of the consti-
tuition provides as follows: .'All property
in the state not exempted under the laws
| OF the United States or under
the constitution shall be taxed in pro-
| portion 10 its value, to be ascertained as
| provided by law" 1t is contended By some
| that the right-of-way of the Northern Pa
| citic Railroad Company Is exem pied from
| tax under the laws OF the United States
| Therefore the above language of our con-
stitution has exempted il in this state.
do not think that section will warrant any
such construction. As before shown
exemption contained in the charter OF the
Northern Pacific Railroad Company could
not and was not intended to extend to tho
state of Washington, and the ris ht-of-way
OF that company is not exempted from tax
in the state of Washington by any
law OF the United States The foregoing
provision OF the constitution did not go into
effect until We became state But that
moment the exemption in its charter ceased
TO be operative. There was, therefore. no
law of the United States exempting the
right-of-way from taxation by the state:
but further than this. if the
! language of our constitution will
! bear the construction commended for AZ
above, them it amounts 10 public grant OF
valuable franchise made by the people TO
a private corporation. Such grants are al