The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-06-22

al valorem taxation, and shall be appor-
toned in the same proportion that the
length of such road in each county bears
to the entire length of such division or
branch road in each county bears to the
entire length of such division or branch
thereof; and the commissioners shall
certify to the chairman of the county
commissioners and the mayor of each
city and Incorporated town, the amount
apportioned to his county, city or town,
and the commissioners shall make and
forward like certificate to the Auditor
Of the State. All taxes due the State
from any railroad company, except the
tax imposed for school purposes, shall
be paid by the treasurer of each COM
pany directly to the State Treasurer
within thirty days after the first day of
July of each year, and upon failure to
pay the State Treasurer as aforesaid he
! shall institute an action to enforce the
same in the county of Wake or any other
county in which such railroad is located
adding thereto twenty-five per centum
Of the tax. The board of county commits
sioners of each county through which
said railroad passes shall assess against
the same only the tax imposed by the
State for school purposes and those i'm
posed for county purposes.
Section 81. Railroads.-When any
railroad has part of it's road in this
! State and part thereof in any other
! State, the commissioners shall ascertain
the value of railroad track, rolling
stock, and all other property liable to
assessment by the corporation commits
sion of such company, as provided in the
next preceding section, and divide it in
the proportion to the length of such
main line of road in this State, bears to
the whole length of such main line or
road, and determine the value in this
State accordingly"
The above is the statement of facts
on which the following opinion is based
The vital question involved in this
action is whether the railroad corpora
tons in this State shall pay any tax
upon their intangible property before the
year 1908 The form of the question is
whether, considering the legal relation
between sections As, 40 and so of the
Machinery Act of 1901, the assessment
of the intangible property contemplated
in section so can be made before the
next assessment of real estate belonging
to private individuals. OF course if the
intangible property cannot be assessed,
the taxes thereupon imposed by law can
neither be collected nor ascertained. We
are aware of the great Importance of
this case to the railroads on the one
hand, and on the other to the State and
its citizens; and we would have pre-
ferred that the parties whose real in
tercsts are at stake should have been
Il 1xy 1Nt--
would have been heard, had they seen
fit to become parties hereto. However,
we must decide the case as it is brought
before us, and, as the questions have
been clearly presented, we find no sub
stantial difficulty in their determina-
ton.
There seems to be no question as to
the power of the Legislature to impose
the taxes in form and substance as con-
templated in section so of the Machinery
Act of 1901. Section 3 of Article V, of
the Constitution of this State, is as fol-
lows Laws shall be passed taxing. by
a uniform rule, all monies, credits, in
vestments in bonds, stocks, joint stock
companies or otherwise; and also, also,
ell real and personal property, accord
ing to its true value in money. The
General Assembly may also tax trades.
professions, franchises and incomes pros
vided that no income shall be taxed
when the property from which the in
come is derived is taxed" The power
to tax franchises, including the intangible
property of a corporation, seems to be
optional; but it is fully given, and does
not seem to be in conflict with the Fed
eral Constitution. This principle is ably
and deliberately discussed in State Rail-
read Tax Cases, 90 U. S., SIS The court
therein says on page COZ: 'It is obvious
however, that while a fair assessment
under these two descriptions Of property
will include all the visible and tangible
property of the corporation, it may or
may not include all its wealth. There
may be other property of a class not
visible or tangible which ought to respond
to taxation, and which the State has a
right TO subject to taxation Again
the court says on page sos: ut is there
fore obvious that, when you have ascer-
tanned the current cash value of the
whole funded debt and the current cash
value of the entire number of shares,
you have, by the action of those who
above all others can best estimate it,
ascertained the true value of the road all
it's property, it's capital stock, and its
franchises; for these are represented by
the value of it's bonded debt and of the
shares of it's capital stock" Later cases
are to the same effect, generally citing
this case. Kentucky r. K. Tax Cases,
115 U. c., 321, $3.50; W. U. Tel. Co. VS..
Mass, 125 u. S.. $50; ms Co. VS.. ~ Y,
1874 U. c., 594; Car Co. VS.. Penn, al U.
s., IS; Mass. vs. Tel. Co., 141 U. S., 40;
Col Sc. Ry. VS.. Wright. Isl u. S., 40;
Ry. Co. VS.. Backus, ISL U. S.. 421; r. Co.
vs. Cal. 1872 U. s., 81; P. r. Co. VS.. Cal,
162 U. s., 167. These cases sustain, not
only the fairness and legality of the
method of assessment prescribed by our
statute and approved in State Railroad
Tax Cases, SUPRA but also the further
principle that Quoting head-note in Ry
VS. Backus) when a railroad runs into
or through two or more States, it's value
for taxation purposes. in each, is fairly
estimated by taxing that part of the
value of the entire road which is meas
ured by the proportion of the length Of
the particular part in that State to that
oF the whole road"
The capacity of the plaintiff to sue
and the power of the Legislature to i'm