The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-03-12
RAILROAD TAXES
IN SUPREME COURT
Sheriff Jackson Against the
Corporation Commission
He WANTS A MANDAMUS
To Compel Commission to Assess Rail
road Franchises.
AFFECTS ONE HUNDRED, EIGHT MILLION
Attorney General GiImer and Mr.. P. D. Walker
For Commission. Mr.. H. S. Ward
For the Plaintiff, Sheriff
W. ]. Jackson.

VIII the case OF w. j. JACKSON. SheIIn
of the county of Washington, against the
Corporation Commission asking that a
mandamus be issued compelling them to
assess for taxation the value of the in
tangible property of the railroads in
this State, again have day in court?
That is what the Supreme court of
= the State is now considering. as the
case on appeal is before it, and yester-
day Mr.. p d. Walker, of Charlotte.
associated with Attorney General Gill
mor, who appears for the State on the
part of the Corporation Commission, was
heard in the matter.
The case is one of much interest. 1t
began with the suit of Sheriff Jackson,
started in the Superior court of Wake
county, on September 3rd, 1901, against
the Corporation Commission, his allega-
tions being that the commission, with
authority to assess for taxation all rail-
road and similar property of companies
exercising the right of eminent domain
had failed and refused to assess for
taxation and determine the value of the
intangible property of the railroad COM
panies of the State this being the fran
chises separately from the tangible
property as the plaintiffs claimed they
should do under sections 43 and so of
Chapter Z, Laws of 1901, despite the fact
that the plaintiff believes the commits
sion knows that the market value of
such intangible property to amount to
one hundred and eight millions of dol
lars.
Upon the statement the plaintiff asked
that mandamus be issued compelling
the Corporation Commission to assess
the franchises and to perform all acts
necessary for the collection of such taxes
were due.
The defendants denied that they had
determined thes-value of the intangible
property or that it was their duty to do
this by the law quoted or by any other
law. They also denied the right of the
plaintiff to make such demand, declaring
they had discharged all duties required
of them, and that they were advised and
believed that the laws of North Carolina
did not require an assessment of rail-
road property in 1901, as it had been
assessed in 1899 and 1900. and that they
took this value for 1901 as they under
stood the law to direct.
Furthermore the defendants averred
that they were obeying the law made by
the Legislature of 1901 which changed
the annual assessment of railroad prop
eTty to such date as real estate is re-
CURED to be assessed for taxation" and
that this time is fixed for 1903 and every
fourth year thereafter, the reason for
this change being those communicated
to the Legislature by Governor Aycock
in 1901.
The case was heard before Judge w.
S. OBJ Robinson On September oath. Mr..
II. S. Ward appealing for the plaintiff,
and the court refused to issue the man.
damus asked. The plaintiff appealed and
the case is now befor the Suprme court.
To aid Attorney General Gilmer in
the case, Governor Aycock retained for
the State the services of Messrs. Bur-
well. Walker & Cansler, of Charlotte.
who. in the proceedings yesterday were
represented by Mr.. P. D. Walker. To-
day Attorney General Gilmer will ad-
dress the court after Mr.. Walker con-
cludes his argument and Mr.. H. S.
Ward will be heard for the plaintiff.
Mr.. Walker had hardly gotten beyond
the ground work of his contention yes
tCrday when the court adjourned for the
day. The points he sets forth as the
reasons that the Supreme court should
sustain the lower court are as follows:
The plaintiff has no cause of action or
right to sue for the relief demanded
Ii was stated that though in some States
a private citizen may maintain an action
to compel the performance of public du-
ties. that in this State, under the Con-
stitution and laws quoted the Governor
is the person clothed with power to see
that the laws be faithfully executed. and
that to compel a public officer to attend
to public duty is his right, as he is to
supervise the official conduct of all exc
cutiye and ministerial offices.
The second point made was that the
duty sought to be enforced must be man.
datory and not discretionary. The con-
tention here was that the Corporation
Commission had discretionary powers in
the matter at issue, and that for this
reason a mandamus would not lie
Mr. Walker also said that the duty
must be capable of being performed al
the time and in the manner prescribed
by law. This he said was now impossi
bic as the assessments for 1901 had beer
made. the lists issued and taxes col
lected.
Again the argument was that the RICH
20 the relief demanded must be clear anc
beyond doubt. The answer to this it wa
argued must come from the Machiner,
Act of 1901. The construction given t.
the sections of this act affecting thu
case was that it was the expressed pur
pose of the act to postpone any furthe
assessment of railroad property unit
1903, this being clearly set forth, as tn
time indicated for such taxation was a
the same time that real estate is re
guired TO be assessed, and that the mex
date for this is in 1903. The claim wa
made that this is so clear that there i
no room for construction, but that il
1903 and every four years thereafte
there must be an assessment of rail
road, real estate and personal property
Under this construction the pleadin
is that until the value of the physica