Bloxham v. Consumers' Electric Light & Street Railroad

Liddon, J.: The appellee, who was complainant in the court below, brought its bill of complaint to enjoin the appellant (defendant below) from selling a certain line of street railroad for the payment of certain State and county taxes. The property in question is an electric street railroad located upon certain streets of the city of Tampa, and wholly situated within the county of Hillsborough. The taxes sought to be collected are for the year 1893, and have not been paid. The property was levied upon and a sale thereof advertised. A demurrer to the bill of complaint, for general want of equity, and upon other grounds, was overruled, and a temporary injunction granted, restraining the sale of the property. The appeal is taken from these orders. Without attempting to give, even in a digested form, the allegations of the bill of complaint, it is sufficient to say that two principal grounds are set forth why the proceedings to sell the property should be enjoined. Inverting the order in which they are stated in the bill of complaint, these reasons, briefly stated, are as follows: 1. That the assessment of the property by the Comptroller, under the statute regulating the assessment of railroads, was null and void, and that the same should have been assessed by the county tax assessor under the general statutes for the assessment of real and personal property. 2. That the property, after assessment, passed out of the hands of the parties owning it at the time of such assessment, and was — 537 — sold at a judicial sale, iu proceedings to which, the State was not a party; that the order under which such sale was made directed “that the same be sold free from any mortgages, judgments, mechanics’, laborers’, material men and other liens or incumbrances of any kind whatsoever, and that all parties consented thereto.” That the property sold for a large sum of money, which was paid into the registry of the court, where it still remained. That such sale was confirmed and a deed made to the purchaser, conveying the property to him in fee simple, free from all liens and incumbrances. That the complainant is now the owner of the property. That the property was sold pendente lite, and that it was the intention of said sale that the money for which said property should be sold should be brought into court and should represent the property, and that any liens and incumbrances whatever existing against the same should be paid out of said fund, and that said property should be sold free from any and all liens and incumbrances whatever. Wherefore it is claimed that the property should not be held liable for the taxes, but that the same should be paid out of the funds in the registry of the court. Under the first objection, that the assessment of the property by the Comptroller, under the statute regulating the assessment of railroads was illegal and void, it is urged that a street railway extending over the streets of a single city, and wholly located within the limits of a single county, is not a railroad within the meaning of the word as used in the statute. If a street railroad is not a railroad in contemplation of the statute, the assessment is illegal, but if it is such a railroad, the assessment is legal and proper. The question presented requires an examination of the — 538 — statute. Secs. 48 and 49, Chap. 4115, laws of Florida, acts 1893. The forty-eighth section of the act provides, among other things, in substance, that certain officers of a railroad company, or the ‘ ‘receiver of any railroad, whose track or road-bed, or any part thereof, is in this State,” shall annually make a return to the Comptroller of the State under oath, showing the total length and value of such road, including branches, side-tracks, lots, parts of lots, terminal facilities, etc., in this State; the total length and value thereof in each county, city or incorporated town, and the number and value of all locomotives, engines, cars, etc. If such return is not made, or the same when made is not satisfactory to the Comptroller, then he, with the assistance and advice of the Attorney-General and Treasurer of the State, have the power to assess the property from the best information obtainable, specifying the values in each county. The value of the rolling stock is apportioned to each county pro rata, the length of the track, branches and side-tracks in the same, and the respective county assessors and the authorities of cities and towns notified accordingly; and upon the valuation thus apportioned the taxes shall be assessed as upon the property of individuals. The forty-ninth section, among other things, provides that the Comptroller, upon certificates showing default of payment in any county, shall have the power to issue a warrant directed to the sheriff of any county where such defaulting railroad, or any part thereof, is located, by which such sheriff is authorized to sell the entire road, or such part thereof as may be necessary, to pay such taxes and the costs and expenses of sale. The proceeds of such sale are to be divided among the counties where such taxes are due. The Legislature, especially in the forty-eighth section, — 539 — seems to assume that every railroad in this State extends into and is situated in more than one county thereof. The forth-ninth section, however, implies that a railroad may be wholly located in one county. It is plain that the purpose and intention of the act is, that railroads, and the rolling stock and appurtenances used in the operation of the same, should be taxed as an entirety; that where it extends into different counties, there should be uniformity in the valuation and assessment thereof in such counties, and that the value of the rolling stock, which is almost constantly in motion, going from one county to another* should be properly taxed without double taxation or any dispute as to the situs of such property for taxation. The word railroad, in its broadest signification, would undoubtedly include a street railroad; all railroads being more or less alike in their physical construction. It is said that when the word railroad is used in a statute, there is no definite rule of construction as to whether it includes street railways. It may or may not include them. The meaning of the word must depend upon the context, and the general intent of the statute in which it is used. 19 Am. & Eng. Ency. of Law, 788; Chicago vs. Evans, 24 Ill. 52. The word railroad, as generally used, applies to commercial railways engaged in the transportation of freight and passengers for long distances, and, as a general-rule, having steam engines for motive power, and making stops at regular stations for the receipt and discharge of freight and passengers. The term “street railroad” applies only to such roads, the rails of which are laid to conform to the grade and surface of the street, and which is otherwise constructed so that-the public are not excluded from the street as a public highway, which runs at a moderate rate of speed com — 540 — pared with, commercial railroads, which carries no freight, but only passengers from one part of a thickly populated district to another in a town or city and its ••suburbs, and for that purpose runs its cars at short intervals, stopping at street crossings or other places irregularly, as the convenience of its patrons may require, for the receipt and discharge of its passengers. The cars upon such roads may be propelled by animal or mechanical power. Williams vs. City Electric Street Ry. Co., 41 Fed. Rep. 556. No case has been pointed out to us by counsel, and after much investigation we have been unable to find a judicial definition of the word railroad, occurring in any taxing statute similar to ours, as to whether or not it would include a street railroad. Besides the judicial construction of statutes, there is known to the law another kind of construction. This kind of construction has especial application to statutes made for the regulation of the different departments of the government, and is the interpretation put upon them by the actual administration of them by such departments. As distinguished from judicial construction, it is called the practical construction of statures. While not of such high authority as a judicial interpretation of the act, such practical construction of the class of statutes referred to, when not in conflict with the Constitution or the plain intent of the act, is of great persuasive force and efficacy. The system of taxation of railroads by the State Comptroller, in the manner prescribed by the sections of the act hereinbefore referred to, has existed in this State •ever since the enactment of Chapter 1713, laws of Florida, acts of 1869. Slight modifications have at various times been made by different Legislatures, but the general system has remained unchanged. It is — 541 — well-known to all who are familiar with the history of. the State, and with the method of taxation prevailing therein, that for at least twelve years past the Comptroller of the State, under and by authority of the statute under which the action sought to be enjoined is taken, or statutes of similar import, has assessed all railroads, including street railroads, as being included within the general term railroads, as-the same is used in the law. Street railroads located in a single city have been no exception to the general rule. The taxes for many years have been paid to the State under such assessments without objection; thousands of dollars have been so collected, and no attack whatever has been made upon the validity of such assessment. This long prevailing construction is a matter of which the court can take judicial notice. Westbrook vs. Miller, 56 Mich. 148, 22 N. W. Rep. 256. It is notorious that acts for the general collection of revenue are generally formulated by, or under the advice-of the Comptroller of the State. Since this method of assessing taxes upon street railroads have been in force, the Legislature has several times, repealing former acts, re-enacted the same provisions, thus giving legislative sanction to the practical construction of the act by the department of the State government which liascharge of the assessment and collection of taxes from railroads. ‘ ‘Where there are different statutes in pari materia made at different ti mes, or even expired and not referring to each other, they shall be taken and construed as one system and as explanatory of each other.” Lord Mansfield, in Rex vs. Loxdale, 1 Buyrow, 445, cited in Doggett vs. Walter, 15 Fla. text 367. The question of the force and authority of a practical construction of a statute has often been -passed upon, by the courts. In Westbrook vs. Miller, supra, an — 542 — opinion delivered by Judge Cooley, it is said: “The construction placed by an executive department upon a statute affecting the performance of its duties is not lightly to be questioned, especially when it has become established by long usage and relates to matters of form only. But practical construction must not be allowed to defeat the manifest purpose of the statute.” Further it is said in the same case: “When, in the performance of executive duties, it becomes necessary for the executive department to construe a statute, great deference is always due to its judgment; and the obligation is increased by the lapse of considerable time before its acts are called in question.” Many authorities from the Supreme Court of the United States and from subordinate courts of the Federal system are cited to sustain the propositions announced. The question involved is the method of taxation of the property in dispute. No question is raised of the liability of the property to taxation. No showing is made of any double assessment, or unequal, unjust or oppressive taxation. The taxes on the property for the year for which the assessment was made have not been paid. The property has not discharged the burden of taxation which rests upon it as upon all other property in the State not specially exempted by law. In such a case we think the greatest deference and respect should be paid by this court to the long prevailing construction of the statute made by the executive department of the State government, and we will not interfere with the same. We do not rest our conclusion upon the case of Westbrook vs. Miller, supra, but have examined many other authorities upon the subject which practically unanimously agree with that case. Among other cases of similar import are Johnson vs. Ballou, 28 Mich. 379; Malonny vs. Mahar, 1 — 543 — Mich. 26; Solomon vs. Commissioners of Cartersville, 41 Ga. 157; Scanlan vs. Childs, 33 Wis. 663; Union Insurance Company vs. Hoge, 21 How. 35; Chesnut vs. Shane’s Lessee, 16 Ohio, 599; S. C. 47 Am. Dec. 387; Wetmore vs. State, 55 Ala. 198; Edwards’ Lessee vs. Darby, 12 Wheat. 206; United States vs. Gilmore, 8 Wall, 330; Kiersted vs. State, 1 Gill & Johnson, 231; Brown vs. United States, 113 U. S. 568, 5 Sup. Ct. Rep. 648, and various authorities cited therein; United States vs. Lytle, 5 McLean, 9; People ex rel. vs. Dayton, 55 N. Y. 367; Wright vs. Forrestal, 65 Wis. 341, 27 N. W. Rep. 52; Sutherland on Statutory Construction, sec. 309 et seq. In the case cited from 41 Ga. the court said, adopting the practical construction of a statute made by the executive department of the government, that if the matter were before them as an original, independent proposition, they would be inclined to hold differently, but yielded their own views to such practical construction. This brings us to the consideration of the second ground upon which it was claimed that the injunction should issue. The allegations of the bill of complaint as to the manner of complainant’s acquiring a title to the property is very vague and indefinite, there being no direct statement whatever that it acquired title through the judicial sale mentioned. We will consider the case, however, as if the bill contained such an averment. The property had been assessed for its taxes, and a lien for the same thereby acquired by the State before the judicial sale. The contention, however, is that although the State was not a party to the proceedings in which the sale was made, yet by virtue of the direction of the court that the property be sold free from any mortgages, judgments, mechanics’, laborers’ , material men, or other liens and incumbrances — 544 — whatever, such sale divested the State’s lien, so that it can not subject the property itself to the payment of the taxes assessed against it, but must intervene by petition in the suit, and obtain payment of the taxes from the funds in the registry of the court. It is contended that it would be inequitable for the State to now subject the property in the hands of complainant to the payment of taxes, when there is a fund in court from which such payment can be secured. Disposing of this minor contention first, we will quote the language of the Supreme Court of Rhode Island in the-case of People’s Savings Bank vs. Tripp, 13 R. I. 621, text 622: “The complainant contends that the collector ought to be enjoined because the levy and sale are inequitable and unfair. But in our opinion we can not enjoin him merely because we think he might adopt a mode which would be fairer and more equitable, if the mode he is pursuing is authorized by the statute. The collector is an official of the government, and has as much right as the court to use his own judgment in the execution of his office. It is only when the tax is illegal, or is being illegally collected, that the courts, which go furthest, grant an injunction.” Other remarks applicable to this point will be used in disposing of other questions in the further course of this opinion. The State’s lien for taxes having attached by the assessment of the property, could not be divested by a subsequent judicial sale, even though the degree under which the sale was made should have directed that the property should be sold free from all incumbrances. The case of Mesker vs. Koch, 76 Ind. 68, is very much like the present one. The complainants, in the case-cited, alleged that they had purchased the property at a judicial sale. The firm against whom the property — 545 — was assessed had gone into bankruptcy; that the taxes claimed were set forth in the bankruptcy schedule of indebtedness; that the same was a preferred claim, and that funds to pay the same had been in the hands of the assignee in bankruptcy, which fact was known to the treasurer. A demurrer to the bill was sustained. The court, affirming the decision, quoting Stokes vs. State, 46 Ga. 412, S. C. 12 Am. Rep. 588, held “that the State can enforce the payment of its taxes by a sale of the property upon which they are a lien, though the owner has been adjudged a bankrupt, and the assignee has sold the property to a third party. * * The State has the right to follow the property into whosesoever hands found. * The bankrupt law does not attempt to deprive a State of this power. True, it makes provision for the payment of the State taxes, if the State chooses to come into-the bankrupt court and claim them, but she can not be compelled to come in. Hence, the assignee, by sale of a bankrupt’s property can not divest the right of the State to enforce the payment of her taxes on the property, wherever it may be found.” In the case of Stokes vs. State, supra, the property had been sold under an order directing that the same be sold free from incumbrances. The trial court instructed the jury as follows: “That if it appears that the-tax was assessed upon this land for the year 1868, as the property of Hunt' and Bryan, then the bankrupt court had no power to divest the lien of the taxes on the land in favor of the State, and that no sale or order of said court could interfere with the right of the State to collect said tax, and that said land, in whosoever’s hands it might be, was still liable for tire tax.” This charge was affirmed as a correct statement of the law by the appellate court. The prin — 546 — ciple stated in the cases quoted from are upheld by various authorities, among which are Black on Tax Titles, sec. 187; Freeman vs. Mayor, etc., of Atlanta, 66 Ga. 617; Atlanta and Richmond Air-Line R. R. Co. vs. State, 63 Ga. 483; Osterberg vs. Union Trust Company, 93 U. S. 424; Isaacs vs. Decker, 41 Ind. 410; Bodertha vs. Spencer, 40 Ind. 353. The sale under the decree of the court in the present case did not divest the State’s lien for taxes. A proper interpretation of the decree of the court does not show that it intended to divest the State of its tax lien, even if it had the power so to do. Several classes of liens and incumbrances are expressly mentioned in the decree. The lien for taxes is not so mentioned. We need not invoke the doctrine of expressio unius exclusio ulterius ast, to show that a tax lien was not included in the decree, for it is well-settled that such a lien does not stand upon the footing of an ordinary lien, and is not displaced by a sale under a pre-existing judgment or decree unless so directed by statute. The lien continues until the taxes are paid, and the bill is demurrable unless it allege a payment or a tender of the taxes. Besides authorities above cited, see Rinard vs. Nordyke, 76 Ind. 130; Iler vs. Colson, 8 Neb. 331. In reference to the contention that the State ought to intervene by petition in the suit pending in the court below, and collect its taxes from the money the proceeds of the property in the registry of the court, .the undoubted weight of authority is, that while the State might so intervene if it chose, it can not be compelled to do so. Private parties have no right, in proceedings in which the State is not a party by consent, to have a decree entered which will divest it of its statutory tax lien upon the property involved in the suit and force it to collect its taxes in some other man — 547 — ner than that prescribed by the statute. No court has jurisdiction or authority to enter a decree having such effect. The State by its Legislature has ample power to choose its own method of collecting its taxes. When the method chosen violates no constitutional provision, no court can require it to adopt any other method. To compel it to intervene in litigation to become a party to suits between private individuals or corporations, would impair the functions of the State government, would involve expense of court costs and counsel fees, delay and inconvenience in the collection of the public revenues. In this way taxes might be lost, the collection of them endangered, and the costs of collection would certainly be swelled by the fees •and expenses of litigation. Annely vs. DeSaussure, 12 S. C. 488, text 511; Smith vs. Gatewood, 3 S. C. 333. The counsel for appellee relies with much confidence upon the case of In re Tyler, 149 U. S. 164, 13 Sup. Ct. Rep. 785, and upon cases cited by the court in said opinion. What we have said disposes of the case before us, but in view of the earnestness with which the cases mentioned have been pressed upon our attention, we deem it not inappropriate to refer briefly to them. We qan not enter into any critical analysis of each case because such a course would extend this opinion to undue length. The case of In re Tyler was a habeas corpus proceeding to relieve from punishment for contempt a South Carolina sheriff who had levied a tax execution or warrant upon property in the hands of a receiver appointed by a United States Court. An injunction had been previously'issued against the levy, and the taxes sought to be enforced had been held illegal by the court. The Supreme Court denied the writ of habeas corpus upon the ground that the prop — 548 — erty in question was in custodia legis, and that the duty of the court to protect it from all interference extended to the levy of a tax warrant. Without expressing any assent to or dissent from the doctrine announced, it is sufficient to say that the facts of this-case are entirely different from the Tyler case. The-property here levied upon is not in the custody of the court. It has been sold under order of court to private parties, and is in their exclusive ownership and possession. There is no, ground for the contention in the present proceeding of an interference with the property in the possession of a receiver, an officer of the court. The money (the proceeds of the sale of the property^) may be considered as in custodia legis, but-the property itself is free and discharged from the care and custody of the court-. In the case of Central Trust Company vs. New York City & Northern R. R. Co., 110 N. Y. 250, 18 N. E. Rep. 92, the converse of the proposition contended for by appellee was asserted. There the State intervened and sought to enforce the payment of taxes of a railroad that had gone into the hands of a receiver from funds in his hands arising from the operation of the-road. The statute pointed out a different remedy, and it was claimed that the statutory remedy should have-been pursued. The court held that the State was not confined to the statutory remedy, but that the court might order the taxes paid upon the petition of intervention. Several other cases cited by appellee show that where-the proceeds of property subject to payment of taxes has come into the custody of a court, such court might upon the intervention of the State direct the taxes-paid by the receiver or officer holding such funds. But none of them hold that the State in a case where the — 549 — property has been sold and discharged from the custody of the court is compelled to seek payment of its taxes from the proceeds of the property in the custody of the court. On the contrary, one of the cases cited by appellee (Savannah vs. Jesup, 106 U. S. 563, 1 Sup. Ct. Rep. 512) shows that the course pursued by the State in the present instance is a correct one. In that case the court said: “If the city had a valid claim for taxes, * * two courses were open to it — to postpone action under its executions until the proceedings in the Circuit Court of the United States were concluded, and its possession of the property, by receivers, had ended; or, with leave of court, to file a petition pro interesse suo, submitting its claim for judicial determination. It adopted the latter course.” It is useless to further cite or analyze the cases in appellee’s brief. The most that can be claimed for any of them is that they forbid an interference by virtue of á tax warrant with property actually in the custody of the court. None of them are authority for the proposition that a tax warrant can not be levied upon property which has been discharged from such custody. The doctrine is laid down in High on Receivers, sec. 602, that real estate which has been held by a receiver, where the title did not vest in him, after the termination of the possession of the receiver is subject to the lien of a judgment and execution against it the same as if there had never been any receivership. If this is true of' the lien of an ordinary judgment, the reason is much stronger for applying it to the lien of the State for taxes, which is the highest of all liens. The decrees appealed from are reversed, with directions to the court below to enter an order dissolving the temporary injunction granted in the cause, sus — 550 — taining the demurrer, aud dismissing the bill of complaint. The order dismissing the bill of complaint not to be entered if complainant desired to make a-further case by amendment. In such event the usual course will be taken.