Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1895-03-01

RAILROAD TAXATION.
Senator LaMoure's bill, being Senate
Bill No. 81, providing for the taxation of
railroads, provides in substance that all
railroads in the state shall pay a tax on
their gross earnings in case they elect to
pay under that system of not less than
800 per mile.
The bill was referred by the committee
on railroads to the attorney general for
his opinion on the constitutionality of
the measure. The attorney general has
rendered an opinion in his usual clear
and concise language, which will carry
conviction to ali who read it. It is as
follows: ...
judiciary Committee, Bismarck, N. d.:
DEAR SIR: Yours of Feb. 49,, 1895, re
ceived. YOU referred to me Senate Bill No.
81, being a bill for can act entitled an act
to amend sections l and 6 of chapter 1874, of
the Session Laws of 1902 entitled AN act
to amend an act OF the Legislative Assem-
bly, of the Territory OF Dakota approved
March Z, 1889, entitled AN act providing
for the levy and collection of taxes upon
o hSfSA VI 1 SOllllAlIlCSl LII GlllS
territory"
You further requested that my opinion
thereon might be given not later than Feb.
Il, as to its constitutionality. In reply l
Will say, that in my opinion the said bill is
unconstitutional for the following reasons:
1t violates section 176 of the constitution
OF this state, under which it purports to be
drawn. which provides for the payment of
OPr cnntum 0p1v IF urOcc 90 rpiorc o,6 f),;o
bill seeks to exceed the power conferred by
fixing the minimum sum to be paid there
under. 1t can be readily seen that the fix
ing of the minimum sum to be paid by all
companies, as contemplated by this bill,
would in all probability render taxation
unde it inequitable, to say the least. Fol
instance, a company earning $1,000 per
mile per annum, with 2 per cent tax on It's
earnings, would be compelled to pay 800
tax per mile, while another company earn
ing $4,000 per mile under the sam e law
would be obliged to pay no more. That
portion of section 6 of said act providing
Tor the assessment and taxation of prop
erty OF railroads in the manner provided
Tor the assessment and taxation of prop
erty OF individuals of the state, is Gle arly
IN violation of the provisions of section 179
OF the constitution relating to the assess
ment of railroads.
The provisions OF said Section 179 pro-
vide that the franchise, roadway, roadbed,
etc. of all railroads operated in this state
shall be assessed by the state board of
equalization, but | am of the opinion that
no law under the provision referred to in
Section 179, can have any effect while we
have a gross earnings law. In other words,
it seems to me that the constitution of this
state provides two methods, or systems for
the levy of taxes upon railroads, but limit
the legislative assembly to a choice of one:
that is to say, in my opinion all rail-
roads of this state must, under our cOnsti-
tuition, pay taxes under a gross earnings
law, or they must all pay taxes under as
sessment law prepared under said Section
179.
| am further of the opinion that the con-
stitutiOn does not permit the use of parts
of both OF these systems in the same law,
and as said bill purports to embody the
material principles of the wv systems Of
taxation prescribed by the constitution, in
the same law, | therefore believe said bill
to be unconstitutional in this respect.
Yours truly,
JOHN F. CowAN,
Attorney General.
Now that all doubts have been cleared
away as to what the legislature must do
if it desires to tax railroads, it is hoped
they will pass laws looking to the in