Richmond & Danville R. R. v. Brogden

Settle J. It is decided in the Wilmington, Columbia & Augusta Railroad Company v. The Board of Commissioners of Brunswick country, 74 N. C. Rep. 10, and in the Richmond & Danville Railroad Company v. The Board of Commissioners of Orange county, at this term, that the General Assembly has no right to confer on the Governor, Treasurer and Auditor the power to value the tangible real and personal property of a Kailroad Company, for that such power is by the Constitution vested in the township trustees alone, and cannot be taken from them. In view of the decisions, the learned counsel of the defendants, admits that the question intended to be presented when this action was brought cannot now arise. Nor can it be seriously contended that a dividend of fifteen or twenty per cent., paid in Confederate money in 1863-64, was such a dividend as is contemplated by the provision exempting the real estate of the Company from taxation until the dividends of profits of said Company shall exceed six per centum per annum. Nor can it be maintained, because the Eichmond & Danville Eailroad Company pays to the North Carolina Eailroad Company as rent, six and a half per cent, per annum upon their capital stock, that that is a dividend exceeding six per cent, in contemplation of the charter, for it is admitted that the North Carolina Eailroad Company uses one half per cent, and more, in payment of interest, in creating a sinking fund and for other necessary expenses. Now as to the power of taxing the franchise. Mr. Justice Davis in delivering the opinion of the court in *712 Wilmington Railroad v. Reid, 13 Wall. 264, says : “ Nothing is better settled than that the franchise of a private corporation, which in its apj^lication to a railroad is the privilege of running it and taking fare and freight, is property, and of the most valuable kind, as it cannot be taken for public use even, without compensation. It is true it is not the same sort of property as the rolling stock, road bed, and depot grounds, but it is equally with them, covered by the general term “ the property of the Company,” aiid therefore, equally within the protection of the charter.” The exemption in the charter of the Wilmington Nailroad is larger than in the charter now under consideration, the one extends to all the property of the Company, whereas the other only exempts the real estate held by said Company for “ right of way for station places of whatever kind, and for workshop location;” but leaves the franchise and personal property of the corporation subject to taxation. Something was said upon the argument as to the manner in which the franchise should be valued. Of course the franchise of running a railroad between large cities and through a rich country would be more valuable than than that of a short road between unimportant points. The franchise of running ferry boats between New York and Jersey City is more valuable than that of running them over the Yadkin river. The value of a franchise depends upon divers considerations. And while the charter of the North Carolina Nailroad Company protects from taxation the real estate of the Company until a certain event shall come to pass, yet all the privileges conferred by the charter, such as holding valuable real estate free from taxation, &c., may be taken into consideration in estimating the value of the franchise. But in 1874, the Legislature passed an act amending the charter of the North Carolina Nailroad Company, and the Company accepted the amendment. And now Mr. Smith contends that this amendment makes, in substance, a new incorporation, and places the char *713 ter under the control of the General Assembly, by virtue of the Constitution adopted in 1868. “ Corporations may be formed under general laws, but shall not be created by special act, except for municipal purposes, and in cases where, in the judgment of the Legislature, the object of the corporations cannot be obtained under general laws. All general laws and special acts passed pursuant to this section, may be altered from time to time, or repealed.” Const., Art. 8, Sec. 1. The words of the Constitution coniines the power of the General Assembly to alter or repeal laws, in the nature of contracts, to such laws as shall be passed after the adoption of the Constitution, and we see no reason for construing them differently from the plain import. The amendment which is said to have effected this great change does not profess to repeal the clause of the charter which exempts the real estate of the Company from taxation, and indeed, has no allusion whatever to the subject of taxation. So the defendants must maintain that the slightest amend' ment to an old charter, not professing to alter or in any manner interfere with its most important provisions, works an entire change and puts the whole charter at the will of the Legislature. This cannot be so. In accepting the amendment the Company did not waive any of its privileges under its charter, save such as are embraced by the amendment. The judgment of i:he Superior Court is affirmed. Pee. Curiam. Judgment affirmed.