Evening journal. [volume] (Wilmington, Del.) 1888-1932, 1900-01-06
CITY HAS A RIGHT
To IMPOSE TAX
SO Former City Solicitor Robert
G. Harman Advises City
Officials.
REGARDING CITY RoADBEDs
RCADBED OF a RAILROAD IS REAL
ESTATE AND SUBJECT. THERE
FORE, TO TAXATION. SAYS MR.
HARMAN IN HIS OPINION.

FORE, TO TAXATION, SAYS Mr..
HARMAN IN HIS OPINION.
The city tax department having main
tanned that the railroads in this city are
legally subject to taxation; the rail-
ways insisting that they are exempt;
the tax department asked for an opin-
ion from the law department. City
Solicitor II. c. Conrad being too busy
to make the requisite exhaustive
search for authorities, Robert G. Har-
man was engaged for the work. His
opinion is appended:
To Eugene NJ. Sayers and Thomas 3.
Lewis, Assessors and Collectors TOT
the City Of Wilmington.
Gentlemen. Your letter or recent
date. asking whether or not the road
beds OF the railroads lying within the
limits of the city OF Wilmington, are
real estate, and, as such. subject TO
Taxation in the same manner as other
lreal estate within said city, has been
lreceived. That the roadbed Of a rail-
lroad. even where it consiI.s only OF the
ties and rails. and even when the rail-
road has but a mere right or way ana
does not own the fee In the land, is real
lestate is an elementary principle OF
law, and has expressly been so decided
IN our own state in the case Of Neary
vs p. W. & B. Railroad Company VII
Houst. d. 4l9. IL follows, therefore, as
matter of course that such real os-
tate Is subject to taxation in the same
manner as other real estate, such as
lands and houses, unless the same is
lclearly and expressly exempted from
Taxation by a constitutional provision
or a legislative enactment OF our own
Estate. for the Federal Constitution has
ino bearing upon the matter at all, ana
the Interstate Commerce Acc does not
lapply to case Of this kind The Della
ware Constitution that was in force ur
Ito June 4. 1897. did not contain any ref
erence whatever to taxes or taxation
thus leaving the matter entirely TO the
lsound discretion of the Legislature
And the Legislature in the year 1881
exempted such real estate from taxa.
! ton, the legislative act being as fol
lows
THAT all the real estate OF 'rhl
Philadelphia, Wilmington and Balu
more Railroad Company and Of al
; other railroad corporations within thi
3 state. excepting, nevertheless, sucl
!. real estate Of each Of the said corpora
tions as shall be included within tn
+. limits of rights OF way or roadbeds O
their respective lines Of railroad, shal
be subject to taxation and assessmen
for county and municipal purposes il
, the same manner as other like propert,
of individuals is subject thereto for lik
purposes, any provisions of any exist
ling law or laws to the contrary not
withstanding; provided, however, tha
! any building erected In whole or II
part within the limits of any sucl
! right OF way or roadbed shall not b,
reason Of the exception herein mad
lbe exempted from assessment and tax
elation. although the land upon whicl
! the building shall be wholly or in par
= located is by this act expressly exempt
= ed therefrOm."
On June 4, 1897, the new Constitu
ton went into effect and in that in
lstrument is found the following cOnsti
It tutional provision:
e Section ]. Article S.-All taxes shal
n be uniform upon the same class OF sui
II iects within the territorial limits 4
o The authority levylng the tax, and sha
J. be levied and collected under generf
D. law. but the General Assembly may, b
Ie general law exempt from taxation sue
= property es in the opinion OF the Ger
eral Assembly will best promote III
lr public welfare
J. This section expressly says that "A
e. taxes shall be uniform" that is th'
le the same kind of property, in the san
le territorial or taxing district, shall
le taxed, and be taxed equally. II this
so. then il follows that the law Of ISL
I'd exempting certain real estate from ta
+. alton is repugnant TO the above const
G." tutiOnal provision, and is, therefor
null and void. And that such was d
true intent OF the Constitutional Co
vention by which said Constitution W
drafted and adopted, would seem to
manifestly apparent from the languaI
N in the latter part OF said section, whi
is reserves to the Legislature the pows
by future legislation, Of exempting al
property whatsoever from taxatio
ne There are two other sections Of I
vi Constitution that touch upon the mi
on ter, but neither in our judgment ;
n- fects the above conclusion. Those a
r section Is Of the schedule and secti
ed 4 of article Q. Section rs CT the sche
ulc says that all laws in force VIII
.of the Constitution took effect "and y
il- Inconsistent with it, should remain
fcrce. u the above contention be tr
ats that the law of 1887 is inconsistg
las with section 1, article s Of the Cons
lie tuition, then of course in tho very Il
lss guage of the section itself. 10 does ]
1e longer remain in force, The otl
OF section, viz: Section 3, article 2. ref
my to corporate bodies, and we're IL
py that it. also, like section is Of
IN schedule. contains a saving cla
within itself. it would. perhaps, thr
ms serious doubt upon the matter. 7
VIII section, with the saving clause in Il
ase les. is as follows; The rights. pr
leges. immunities and estates OF re
ious societies and corporate bodies,
KS lcept as herein otherwise prOviC
Of shall remain as if the Constitution
lia, this state had not been altered.
CHI diff. al Eundantheqre is a a.
mil ha