Grand Canyon Railway Co. v. Treat

DOAN, J. This appeal is prosecuted upon the theory that section 1 of Act of March 16,1899, page 79, No. 68, which provides “that for the purpose of inducing and encouraging the construction of railroads, other than street and electric railroads, within this territory, the capital stock, franchise, right of way, superstructures, betterments, telegraph lines, and all other real, personal and mixed property used or necessary in the construction and operation of railroads to be conducted as common carriers of freight and passenger, other than street and electric railroads, hereafter constructed in accordance with the provisions of this act, and whether owned or operated by a person or persons, association or railway corporation, his, their or its successors or assigns, be and the same is hereby declared to be exempt from any and all manner of taxation for and during the period of ten years from and after the date of the passage of this act,” established a valid exemption from taxation for the stock, franchises, right of way, superstructures, and all other real, personal and mixed property used or necessary in' the construction and operation of railroads constructed in accordance with the provisions of that act, whether owned and operated by the original associations or corporations that constructed said roads and created or established such other property in compliance with the provisions of said act, or owned and operated by the successors of such associations or corporations. It is contended by the appellees that appellant, having acquired the property by virtue of the provisions of Act No. 3, page 5, of the Nineteenth Legislative Assembly, is subject — 75 — to the limitations of the said act, and that section 8, page 6, thereof, which provides, “nothing in this act contained shall be deemed or construed to give to any corporation created under it any exemption from taxation created by any existing or future exemption laws of the territory of Arizona,” prevents the appellant from claiming for the property thus acquired any exemption from taxation. In determining the question whether upon the facts alleged in the amended complaint, and by the general demurrer thereto conceded, the property upon which the tax was levied was and is exempt from taxation in the hands of the appellant, as the successor of the original owner, we first consider whether such exemption is the grant of Act No. 68, page 79, of the Twentieth Legislature, or of Act No. 3, page 5, of the Nineteenth Legislature; second, if the exemption is conferred by the grant of Act No. 68, page 79, Laws 1899, independent of Act No. 3, page 5, Laws 1897, is there, nevertheless, such a limitation placed upon the appellant corporation by the terms of either its certificate of incorporation or the law which authorizes its incorporation and its acquisition of this property (being Act No. 3, page 5, supra) as will prevent that corporation from enjoying the exemption or prevent the property from being exempted from taxation by reason of said corporation being authorized by the enabling legislation contained in said Act No. 3, page 5, Laws 1897, to succeed to such property and to hold and operate it? The language of Act No. 68, page 79, Laws 1899, clearly establishes that the exemption claimed is granted by that act, and it necessarily follows that, unless there is such limitation placed upon the appellant corporation, either by its articles of incorporation, or by Act No. 3, page 5, Laws 1897, as to prevent its availing itself of such exemption, the same is still in force. Exemptions from taxation, so far as we have examined the cases cited, are found to be divided into two classes: Exemptions of one class, by their terms, are personal, being such as have been by legislative enactment granted either directly to persons or corporations that are named in the acts thus granting them, or granted to such persons or corporations as may comply with the requirements of such legislative enactment, -and thus bring themselves within the granting clause thereof, and by so doing malee themselves the beneficiaries of such granting — 76 — clause. Exemptions of the. other class might be called “impersonal,” and the grants thereof might he termed “legislation in rem,” and are those cases in which the exemption is granted directly to the property in question, and in which the granting clause generally provides that the property of the classes designated, when -acquired or created, in compliance with the provisions of such enabling legislation, should be exempt from taxation. This latter class of legislation can directly exempt from taxation such property while owned or controlled by the persons or corporations thus acquiring it or bringing it into existence, in which eases the exemption will cease when the property passes out of the ownership or control of those thus acquiring or creating it, or the legislative act may either provide that such exemption shall attach to the property after passing from the ownership and control of those who created it, in compliance with the terms of such beneficial legislation, into that of their successors or assigns, or may simply declare that such property shall be exempt from taxation, without restricting the ownership or control, and leave it to the law to continue the exemption after transfer of title as an appurtenant to the property. In regard to the acquisition by a successor of an exemption granted to a corporation personally (being the first class mentioned) the United States supreme court has said in a recent ease: “The state, by virtue of the same power which created the original contract of exemption, may, either by the same law or by subsequent laws, authorize or direct the transfer of the exemption to a successor in title. In that ease the exemption is taken, not by reason of the inherent right of the original holder to assign it, but by the action of the state, authorizing or directing its transfer. As in determining whether a contract of exemption from a governmental power was granted, so in determining whether its transfer to another was authorized or directed, every doubt is resolved in favor of the continuance of the governmental power, and clear and unmistakable evidence of the intent to part with it is required.” Rochester Ry. Co. v. Rochester, 205 U. S. 236, 27 Sup. Ct. 469, 51 L. Ed. 784. The case at bar presents an instance in which the grant is not personal, but is made direct to the property. The Territory, in Act No. 68, page 79, Laws 1899, to induce the early building and construction of rail — 77 — roads, presumably for its benefit and advantage, provided that the property, roadbed, franchises, right of way, superstructures, improvements, telegraph lines and all other property used in the construction and operation of railroads as common carriers of freight and passengers thereafter constructed in compliance with the provisions of that act, should he exempt from taxation for the period of ten years, whether owned or operated by a person, association, or railway corporation or its successors or assigns. It then required a certain statement to be filed with the secretary within.six months from that date; construction to be commenced within six months thereafter, and pursued under certain restrictions to completion. The compliance with these requirements by the predecessor of the appellant, and the construction of the road, and the creation by it of this property in accordance with the terms and conditions of that act, constituted a contract, by the terms of which this property was exempt from taxation for that term of years, and the United States supreme court, in a ease very similar to this, has held, not only that such an exemption, when granted without words of limitation, attaches to the property as an appurtenant and goes to the purchaser, but that the sovereign power itself could not abrogate such a contract after its acceptance by a grantee by complying with the terms of the act. This was a case where the Delaware Indians prior to 1758 had claims upon large tracts of land in New Jersey. On the 9th of August, 1758, the representatives of the Indians proposed to the commissioner of the government -that the government should purchase a tract of land on which they might reside, in consideration of which they would release their claim to all other lands in New Jersey. In acceptance of this proposition the legislature' of New Jersey, on the 12th of August, 1758, passed an act that, among other provisions, authorized the purchase of lands for the Indians, restrained them from granting leases or making sales thereof, and enacted “that the lands to be purchased for the Indians aforesaid shall not hereafter be subject to any tax.” Under this act lands were purchased and conveyed to the trusteees of the Indians for their use. The Indians continued in possession of the lands thus conveyed to them until 1801, when the legislature of New Jersey authorized a sale of their lands in that state. This act contains no expression in — 78 — any manner respecting the privilege of exemption from taxation which was annexed to those lands by the act under which they were purchased and settled on by the Indians, nor does the deed conveying the said land to the purchaser thereof. In 1803 the land was sold under the last-recited act to George Painter and others. In October, 1804, the legislature passed an act repealing that section of the act of August, 1758, which exempted the lands therein mentioned from taxes. The lands were then assessed and taxes demanded. The grantees of the land proceeded in the courts of New Jersey to test the validity of the repealing act, and from an adverse decision of the highest courts of the state the case was carried to the supreme court of the United States, which court, speaking through Chief Justice Marshall, said: “The question, then, is narrowed to the inquiry whether in the ease stated a contract existed, and whether that contract is violated by the act of 1804. Every requisite to the formation of a- contract is found in the proceedings between the then colony of New Jersey and the Indians. The subject was a purchase on the part of the government of extensive claims ‘of the Indians, the ex-tinguishment of which would quiet the title to a large portion of the province. . . . The consideration agreed upon ... is ■a tract of land with the privileges of exemption from taxation. . . . The privilege, though for the benefit of the Indians, is annexed by the terms which create it to the land itself, not to their persons. It is for their advantage that it should be annexed to the land, because, in the event of. a sale, on which alone the question could be material, the value would be enhanced by it. The land has been sold with the assent of the state, with all its privileges and immunities. The purchaser succeeds, with the assent of the state, to all the rights of the Indians. He stands, with respect to this land, in their place, and claims the benefit of their contract. This contract is certainly impaired by a law which would annul this essential part of it. It is therefore considered by .the court that the said judgment be reversed and- annulled, and that the ease be remanded to the said court of errors that judgment may be rendered therein annulling the assessment in the proceedings mentioned, so far as the same may respect the land in the said proceedings also mentioned.” State of New Jersey v. Wilson, 7 Granch, 164, 3 L. Ed. 303. This — 79 — case is approved in Given v. Wright, 117 U. S. 648, 655, 6 Sup. Ct. 907, 910, 29 L. Ed. 1021, wherein the supreme court said: “We do not feel disposed to question the decision in New Jersey v. Wilson. It has been referred to and relied on in so many cases from the day of its rendition down to the present time that it would cause a shock to our constitutional jurisprudence to disturb it now.” Both of these cases are again cited by the United States supreme court in Jetton et al. v. University, 208 U. S. 489, 28 Sup. Ct. 375, 52 L. Ed. 584. In New Jersey v. Wilson and Given v. Wright, neither the law authorizing the sale nor the deeds conveying the land said anything about exemption from taxes, while in the ease at bar such exemption is specially named in the decree of the court ordering the sale and in the deed of conveyance, and the law under which the sale was made authorizes the acquisition under such sale of “the property sold, together with . . . any franchises, rights, privileges, and immunities of said corporation ’ ’ whose property is thus sold. ‘ ‘ The words ‘ rights, privileges, and immunities’ when used in a statute of the kind under consideration, are certainly full and ample for the purpose of granting an exemption from taxation.” Phoenix F. & M. Ins. Co. v. Tennessee, 161 U. S. 174, 16 Sup. Ct. 471, 40 L. Ed. 660. It will be noticed that the language of section 1, Act No. 68, page 79, which created the original contract of exemption in this case, has authorized and directed, not the transfer, but the continuation of exemption to the property while in the ownership and possession of a successor in title in plain and direct language, by saying that such property, “whether owned or operated by a person or persons, association or railway corporation, his, their or its successors or assigns, is hereby declared to be exempt from any and all manner of taxation,” and has thereby fully met the qualifying expression contained in the latter part of the rule cited above for the transfer of exemptions personal to the grantee corporation, which states that “such transfer requires clear and unmistakable evidence of the intent to grant it.” This leaves for consideration only the question whether there is such limitation placed upon the appellant by its certificate of incorporation, or by the terms of Act No. 3, page 5, Laws 1897, under which it was incorporated, as would deprive it of the power of claiming or enjoying this exemption. — 80 — It is claime ¡by the appellees that “no corporation can receive by transfer /rom another an exemption which is inconsistent with its own charter or the laws of the state then applicable, even- though nnder legislative anthority the exemption is transferred by words which clearly include it.” We omit citations, as this is conceded to be the settled rule. The certificate of incorporation of the appellant, which constitutes its charter, provides for the formation of the corporation for these, among other, purposes: “To acquire, own, and operate the aforesaid railroad; to acquire, own, use, and enjoy the railroad and appurtenances, franchises, rights, privileges, immunities, and exemptions, and all other properties acquired by such purchasers at said sale as heretofore recited.” We find nothing elsewhere in the charter inconsistent with these provisions. We find nothing in the general laws of the territory inconsistent with the enjoyment by the appellant of this exemption, and nothing is cited by counsel, except Act No. 3, page 5, Laws 1897, aforesaid. Upon examining Act No. 3, page 5, of the Nineteenth Legislature, under the provisions of which the appellant was incorporated, we find that section 6 provides: “Such new corporation shall thereupon be vested with, and shall be entitled to exercise and enjoy all the rights, privileges, franchises, immunities and powers which belong to or could be exercised by the corporation whose property, or part of whose property was acquired by such purchasers, as aforesaid, and may acquire, own, operate and enjoy all or any part of the property and works of.such corporation in the Territory of Arizona, or elsewhere, and may conduct its business generally under and in the manner provided in the charter of such last-mentioned corporation, or under the laws relating thereto, with such variations in manner or form of organization as such purchasers and their associates may deem necessary and set forth in such certificate.” This language expressly vests such corporation with, and entitles it to exercise and enjoy, all the rights, privileges, franchises, immunities and powers which belonged to or could be exercised by the corporation whose property was acquired by the purchasers who afterward formed such corporation, and as the corporation, whose property was, in this instance, thus acquired, enjoyed among its privileges and immunities an exemption from taxation for the property in question, it — 81 — would logically follow that by this section of the act the appellant corporation was vested with and entitled to enjoy the same immunities, which would include the exemption of this property from taxation, if the exemption had been granted as a personal immunity to the corporation, but, as in this instance, the exemption was granted directly to the property instead of the corporation, and by the terms of the granting clause the property was directly exempted from taxation, whether in the ownership and control of the former corporation, or of its successors or assigns, the language above quoted a fortiori expressly empowers the present corporation to hold the property in question exempt from taxation. It appears that, if the language vesting in a new corporation contemplated by Act No. 3, page 5, Laws 1897, the rights, powers, privileges, franchises, and immunities considered necessary and appropriate for its existence and operation had stopped here, section 8 would have had no place in the act, and would not have appeared. But after thus vesting the new corporation with the rights, privileges, franchises, immunities, and powers belonging to and exercised by the former corporation the act proceeded, in section 7, to further endow such corporation, in the following language: ‘ ‘ Sec. 7. That such corporation shall be entitled to possess any and all rights, privileges, franchises, immunities and powers which are now given, or which may be hereafter given to any railroad company organized under the general laws of this territory. ’ ’ It will be seen that the language of section 7 thus goes beyond the investiture of the new corporation with the rights, powers, privileges, and immunities of the old corporation to which it was the successor, and declares that such new corporation shall, in addition thereto, be entitled to possess and enjoy “any and all rights, privileges, franchises, immunities and powers which are now given, or may be hereafter given to any railroad company organized under the general laws of this territory.” The very broad and comprehensive grant thus expressed necessitates the limitation contained in section 8, without which it would have been possible for a corporation organized under the provisions of this act, not only to claim, assume, and exercise all the rights, privileges, powers, and immunities of its predecessor, but a corporation organized under this act that might acquire the property of a former corporation that would — 82 — otherwise he subject to taxation in their hands, could, under the broader grant in section 7, claim an exemption from taxation, if any other railroad corporation organized under the general, laws of the territory might have and be enjoying exemption from taxation under any of the exemption laws then in existence, or that might thereafter be enacted. The logical interpretation of the limitation contained in section 8 would read it as saying practically that “such new corporation shaR, under the provisions of section 6, be vested with all the rights, privileges, powers, and immunities enjoyed by its predecessor without any limit to the same, except that they shaU have been enjoyed by such predecessor, and shall likewise be vested with all additional rights, privileges, franchises, immunities, and powers that are now given or may be hereafter given to any railroad company organized under the general laws of this territory, and which may not have been possessed and enjoyed by the predecessor of such new corporation, save and except that such new corporation, having purchased property the exemption of which from taxation after change of ownership was not otherwise provided for, cannot, by virtue of such grant of powers, privileges, and immunities, claim any immunity from taxation for the sole reason that some other railroad company organized under the laws of this territory may have and be enjoying such exemption, because in the latter instance such exemption from taxation, if enjoyed by such new corporation, must necessarily be thus enjoyed solely by reason of its having been given by the provisions of section 7 of this act. ’ ’ Counsel have referred at length to the grants and limitations of Act No. 2, page 4, and Act No. 28, page 65, of the Nineteenth Legislature, hut have at last agreed that these acts are not applicable in this ease. Act No. 2, page 4, as amended by Act No. 28, page 65, Laws 1897, empowers territorial or federal corporations to acquire railroads sold under decree of court by direct purchase at foreclosure sale, and Act No. 3, page 5, Laws 1897, authorizes such purchase by private persons, and the subsequent incorporation of such persons and their associates as a domestic corporation under the laws of this territory, which was the mode of procedure by the appellant. It is not necessary to notice the very interesting discussion that has been presented in the briefs as to the power — 83 — of the corporation to assign or transfer the exemption to its successor, because that theory is applicable in the case of the other class of exemptions, termed above “personal exemptions.” This being a direct grant of exemption to the property, and designated in plain and concise terms to run with the property when owned and controlled by the successors and assigns of the creator thereof, as well as when owned and controlled by such original owner, gives that question no place in this discussion. The language of Act No. 68, page 79, Laws 1899, clearly granting the exemption from taxation to the property when owned by the successor of the original corporation, and there appearing nothing in the charter of the appellant, or the law under which it was incorporated and authorized to acquire this property, to deprive it of the benefit of such exemption, but both such charter and law empowering in express terms the appellant to receive and enjoy the benefit of such exemption, the district court erred in sustaining the demurrer to the complaint, and in rendering judgment upon such order against the plaintiff. / The judgment of the lower court is reversed, and the case remanded, with instructions to the district court to overrule the demurrer to the complaint, and take such further proceedings as are not inconsistent with this opinion.