, 1890-07-10


filed yesterday by Attorney Genera
Jones:
sPoKAsE FALLS, July 8, isoO.
Hon. II. J. sniyely, Yakima, Wash.
Dear Sir: Your favor OF recent date. m
quiring whether the right of way OF tho
Northern Pacific Railway Company can
be taxed under the old law, or any law, al
hand and contents noted.
Section 1, page 6O6. laws lss0-v pr,
vides generally that all real and person !
property of the state, except such as eS'
pressly exempted, shall be subject u
taxation.
Section OF the same act contains, SC
far hs ! am able to find, all exemptions
mentioned In that act ana property
such as the right of way oil the Northerl
Pacific Railroad Company, Is not inciud-
ed within the exceptions.
Section $50 of the code specifics the
Kinds OF property subject 10 taxation
under the old law, and expresses the eh-
emptions and such property as the righ
of way OF the Northern Pacific Railroad
Company is not exempted by that sec
ton.
section $3.50, code and section %, act
March -, 1870. specifically provide for
the assessment for tho purpose OF tax
alton of the right Of way of all railroads
within tho state.
Under the foregoing provisions, the
| right of way OF the Northern Pacific
Railroad Company would undoubtedly
have been the subject OF legitimate tax
alton, during the whole of our terri
torini existence, were II not for the ex-
emption contained in the grant to the
Northern Pacific Railroad Company, IL
i United States Statutes 3bT, as follows:
THE right OF way shall ba exempted
from taxation within the territories OF
the United States" | do not think that
any fair construction OF the exemption
| con tanned in the charter OF the Northern
Pacific Railroad Company would ex-
enpt its right OF way from taxation in
any thing but territories, and / do not
think any other Legitimate inference
can be gathered from the words used
than that congress only intended to ex-
empt this right of way from taxation
] 40 long MS they should remain terri
| tories. The reason for that exemption
| Is obvious 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 railroad, extending from Lake
| Superior to Puget sound. passed for
| hundreds OF miles over q region which
was at that time popuiarly supposed
| to be q desert, and II Is said TO be a fact
| that when the road was first operated
| from Fargo to Bismarck, there was y
| stretch OF country over 100 miles IN
extent, along the line OF the road,
/ in which there was not single sta
! tion, except such as was absolutely
necessary In the operation of the road,
| such as sidings, ETC.; that there was
practically no property whatever he
| tween jamestown and the Missouri
| river which could he made the subject
OF taxation, excepting the right of way
| OF the railroad company, including, oil
Al. an 81. NNea.a
! situated on the right OF way rs were es
| sentiAl to the operation OF the road.
! IL may be presumed that II was sup
posed by congress that very large part
| OF THIS road would lie In country in
which no government In tact existed
| and ought not therefore be required 10
bear the burdens OF maintaining a
/ government In those regions, unaided
| and alone. Nor can II be oontended
that the emption contained in the
! charter of the Northern Pacific Railroad
| Company was made by congress ON the
ground that the railroad was u public
| agency, and for that reason II would be-
| against public policy to permit OF states
or territories TO impose upon its right of
| way the burdens of taxation. The ex-
emption did not purport to apply to the
state OF Minnesota through which part
OF this right Of way lay, and II 1t would
| be against public policy to permit
| the territory or stare OF Washing
ton TO tax this right OF way,
| II would be equally against public
| policy to permit its right Of way to be
| taxed IN the state OF Minnesota.
| SEQ Cooley on Taxation, second edi-
| tion, pages and 4.
The states OF Washington. DAKOTA.
and Montana were admitted into tho
Union on all equal footing with the
other states, and they could manifcstly
D. Ia..r
states in the Union II they were pro-
hihited by federal law from taxing the
same property which other states were
permitted to tax without limitation.
Mayor v. Eslava---O Porter Ala, 602.
| New orleans v. u. S,-l0 Pet, 738.
Illinois v. H. RS Fed. Rep, 753.
| Hughes v. Glover, li9 U. r., 546.
| Drudge Go. v. u. S.-lO5 U. g., 49O.
| Withsrs " Buckley-D How, 81.
Pollard y. Howard-2 How, go.
| Munford v. Wardsll--6 Wall, 435.
County of st. Clair v. Livingston-23
Wall, 6s,
The power In q state to tax all prop
erty within its jurisdiction Is one Of its
inherent attributes of sovereignty,
gress. II congress could legltimately
exempt the right Of way Of the Northern
Pacific Railway Company nom taxation,
on any other ground than that IL is q
public agency, Il would have equal
power TO exempt any and all other prop
erty within the state from taxation. aud
IL could bring u state into the Union,
absolutely deprived of the power oI
main tanning its existence. Says the
supreme court of the United States, In
the case OF the Union Pacific Railroad
Company v. Peniston-lS Wall. 8 &C
80; ''rhe taxing power OF a state is one
OF It's attributes Of sovereignty ii exist,