The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-06-20
THE COURT STOOD 3 TO 2
And the Railroad Franchises Need Not
be Assessed Separately.
JUDGES DOUGLAS AND CLARK DISSENT
Judge Montgomery Wrote the Opinion of the
Court, and Chief Justice FurcheS Filed
Concurrirg Opinion to Which
Judge Cook Agreed,
Judge Cook Agreed.

The way to spell the name of Judge
Montgomery, of the Supreme Court is
S-h-i-r-a-s. 1t will be remembered that
Justice Shiras one day favored the in
come tax and the next day opposed it,
and SO decided the opinion of the United
States Supreme court. Judge Mont
gomery at first stood for constituting the
law passed by the last Legislature to
mean taxing the franchises of railroad
companies separately from their tangible
property, and then he Topped over to the
other side at the last minute.
The court stood to on the question.
Judges Montgomery, Douglas and Clark
for imposing the tax and Judges
Furches and Cook on the other side
Judge Douglas thereupon wrote what he
believed would be the opinion of the
court, and Judge Furches prepared what
he thought would be a dissenting opn-
ion. But then came the change of base,
and Judge Montgomery wrote the court s
opinion, and Judge Douglas became the
dissenting opinion, while Judge Furches'
took its place as a concurring opinion.
And so things sometimes happen
The case in question was that of Jack
son against the Corporation Commits
sion, from this county, which was dis
missed in Superior Court. When the
appeal was heard before the Supreme
Court, H. S. Ward. ESD, of Plymouth,
appeared for the plaintiff, and Attorney
General Gilmer and Messrs Burwell,
Walker and Cansler, of Charlotte, ap-
| peared for the Corporation Commission.
| The opinion or the court, as written
by Judge Montgomery, is in substance
as follows:
The question for decision in this case
| is this: Was it the duty of the defend
| ants to assess for taxation in the year
! 1901 the franchises of the railroad COM
panies in this State separately from the
assessment of their tangible property?
| The failure of the defendants to make
| such separate assessments is the matter
complained of by plaintiff, and as a sup
port for the correctness of the view ex-
| pressed above as to what the question
for decision is, allegation of the com
/ plant is inserted Ito the effect that de-
| PENDANTS have failed to assess for taxa
| tion and determine the value of the in
| tangible property of the railroads in the
| State, etc.)
/ Defendants do not admit that the per-
tlnent sections of the Machinery Act of
1901 require them TO make such assess
ments separately, in any year before or
| after 1903. The rules by which
| they are to be guided in making these
assessments are clearly prescribed-their
| discretion being allowed only in consid-
ering the actual cost to replace the prop
erty, allowing for depreciation on rolling
| stock, and also other conditions to be
| considered as in the case of private prop
| crty, when they come to value the physi-
cal properties of the companies
| The discretion of the defendants. under
| the act of 1899 was done away with by
the act of 1901 which laid down particu-
| lar rules by which real property shall be
| valued, and the franchise estimated.
| There can be no doubt about the power
of the State to have levied franchise
tax on corporations, and that the fran
| chise tax may be assessed separately
| from tangible property and the State has
done these things in the Machinery Act
of 1901. and the question is, when do
| these assessments go into effect, and the
| answer depends upon whether section so
| of the Machinery Act was in force in
June, 1901 or whether it's operation was
postponed by clear implication deduced
from the language of section 4S of that
| act.
| Assessment on tangible property and on
| franchise is to be made at the same time
/ Quoting the statute.)
BY section IL of chapter Z, Machinery
Act of 1901. the next assessment of real
estate is to take place in June 1908, and
by section 4S of the same chapter the
real estate, rolling stock and such per-
sonal property of railroad companies, ne
| cessary for the construction, repairs or
| successful operation of such railroad
| lines, is to be listed and returned for
taxation and assessment at the same time
that other real estate is to be returned
for assessment and taxation. Section 80
of the Machinery Act furnishes the man
ner and method of determining the value
of the tangible property of railroad COM
panies and also of the franchises The
aggregate value of both determined ac-
cording to the prescribed method and
manner, constitutes the true value of the
entire property for the PURPOSE OF AN
AID VALOREM TAXATION. Now. can
an ad valorem taxation basis be fixed
upon the entire property of a railroad
company, under section so except at the
time fixed by law for the return of the
real and personal property of the com
pany for taxation and it's assessment by
the defendant commissioners? The answer
seems to be found in the opening SEN
tence of section AZ of the same act:
Upon the meeting of the Corporation
Commission for the purpose of assessing
railroads and other property, they shall
thereupon value and assess the property
of each association, company, copartner-
ship and corporation in the manner here
in set forth after examining such state
ments statements made under section
40 of the same act),~ and after ascertain
ing the value of such properties there
upon, and unon such other information.
as they may have or obtain AS we have