Neary v. Philadelphia, Wilmington & Baltimore R. R. Co.

Houston, J., delivered the following opinion: Notwithstanding the elaborate effort of the learned counsel for the appellant to raise a doubt as to the meaning and intention of the Legislature in passing the Act of April 11, 1873, entitled “An Act Relating to the Taxes of the Philadelphia, Wilmington & Baltimore Railroad Company ” (Rev. Code, 44), and the long array of authorities cited in support of their contention that it could not have been intended by the Legislature to have any relation to a county tax levied, assessed and imposed by the Levy Court of New Castle County, upon the roadbed or right of way of the Company located within the northern or second collection district of Wilmington Hundred, in that county, or to any other tax than a State tax, or State taxes specifically imposed as such upon the Company by some existing law on the subject, I must confess that I have been utterly unable to discover any reasonable ground whatever for such a doubt on a perusal of the plain and simple words of the Act itself. All written contracts, as well as legislative Acts, are to be read, understood and interpreted according to the plain meaning and ordinary import of the language employed in them. One leading principle of construction is to carry out the intention of the authors of or parties to the instrument or agreement, so far as it can be done without infringing upon any law of superior binding force. In regard to cases where this intention is clearly expressed there is little room for variety of construction; and it is mainly in cases where the intention is indistinctly disclosed, although fairly presumed to exist in the minds of the parties, that any liberty of construction exists. Words, if of common use, are to be taken in their natural, plain, obvious and ordinary signification; but if technical words are used, they are to be taken in a technical sense, unless a contrary intention clearly appears in either case from the context. All instruments and agreements are to be so construed as to give effect to the whole or as large a portion as possible of the instrument or agreement. 1 Bouv. Law Dict., 337, 338. With these rules of construction before us, turning to the Act in question, and assuming as the counsel for the appellant have, that the real estate of the corporation respondent is liable to assess — 434 — ment and taxation, under the general laws regulating county taxation, in the absence of any specific statute or statutes exempting the same therefrom, is there any difficulty in promptly answering in the affirmative the question formally propounded by them in the first paragraph of their printed brief ? I must say, with all due respect to them, there is none whatever in my opinion. The first Act of the Legislature, that of Chapter 11, Rev. Code, 84, subjecting the real and personal estate of the Corporation to taxation and assessment for. public purposes, was the general statute for that purpose, and was in force when the Company was incorporated and its railroad was constructed and put in operation under its charter in and across this State. The other three Acts referred to passed prior to the particular Act now in question, that of April 11, 1873, entitled “An Act Relating to the Taxes of the Philadelphia, Wilmington & Baltimore Railroad Company ” (Rev. Code, 44), were passed long after the general statute first before referred to, and were as follows: the Act of August 11,1864, entitled “ An Act to Raise Revenue for this State ” (Rev. Code, 29, 30), imposing a passenger tax of ten cents for each passenger carried by the Company; the Act of April 8, 1869, entitled “ An Act Taxing Railroad and Canal Companies in this State,” which required them to pay to the State, in addition to the taxes already imposed on such companies by the laws of the State, an annual tax upon the net earnings "or income received by them from all sources during the preceding year, and a tax upon their rolling stock, and also a tax upon the actual cash value of the capital stock of such companies (Rev. Code, 41); and chapter 7 of the Revised Code, which imposed an annual tax of one quarter of 1 per cent upon the capital of the Company. Such were the statutes and such were the various taxes, all told, to which the corporation respondent was subject when the Act of April 11, 1873, relating to the taxes of that corporation, was passed on that day. It is as follows: “Sec. 1. That the Treasurer of the State be and he is hereby authorized and directed to accept and receive from the Philadelphia, Wilmington & Baltimore Railroad Company in the year of our Lord 1873, and in each and every year thereafter, until otherwise directed by the Legislature, the annual sum of $27,000, to be — 435 — paid in equal quarterly payments, on the first day of July, October, January and April, of each year, the first payment to be made on the first day of July following, in lieu of all taxes which may hereafter become due from said Company in each year, as aforesaid, under any and all laws of this State, except such taxes as may become due under provisions of an Act entitled ' An Act to Raise Revenue for this State/ passed August 11, 1864.” "Sec. 2. That upon the payment by the said Philadelphia, Wilmington & Baltimore ■ Railroad Company to the Treasurer of the State of the said sum of $27,000 in equal quarterly payments as aforesaid, in any year, it shall be the duty of the said state treasurer, and he is hereby authorized to execute and deliver to said Company a proper acquittance and discharge from the payment of all taxes due or to become due in the year for which such payment shall have been made, except the tax due or to become due under the provisions of the aforesaid Act entitled ' An Act to Raise Revenue for this State/ passed August 11, 1884.” " Sec. 3. That nothing in this Act shall be construed to repeal, modify or in any manner affect any existing law imposing taxes upon the said Company, otherwise than to suspend a collection of said taxes in any year in which the said Company shall pay to the state treasurer the amount specified in this Act; nor shall the provisions of this Act, or anything herein contained, be construed into a contract exempting the said Company from the payment of such taxes as the Legislature of this State may hereafter impose upon said Company.” “ Sec. 4. That if the said Philadelphia, Wilmington & Baltimore Railroad Company, or any other railroad company in this State shall either as the operator of its own railroad or railroads, or as lines of other railroads within this State, charge and receive a greater rate per mile for the carriage of passengers (except so far as the same may be increased to the amount of the tax annually paid under the provisions of chapter 458, Vol. 12 of the Laws of Delaware) or for the carriage or transportation of goods, wares or merchandise or other property whatsoever from place ■ to place ■ within this State, or from a place within the State to a place without the State, than is charged by such company for the carriage of passengers and the transportation of property or freight for like — 436 — distances or per mile from places without the State to places within the State, or from places without the State through the State to other places without the State, the person or persons paying such charges, either as fare or freight, shall be entitled to recover from such company so charging and receiving the same a sum tenfold the amount of the money so paid, to be recovered in an action of debt or assumpsit, as like amounts are now recovered by law.” “ Sec. 5. That if the said Philadelphia, Wilmington & Baltimore Railroad Company may desire to pay to this State a gross sum of $13,000 in lieu of the said tax provided for in the said chapter 458, Volume 12, Laws of Delaware, in semi-annual installments, on the first day of October and the first day of April, in each and every year, it shall be the duty of the State treasurer to receive the said amount from the said Company in lieu of said tax until otherwise directed by the Legislature of this State j but nothing in this section shall be construed to repeal, modify, or in any manner affect the provisions of said chapter 458, Volume 12, Laws of Delaware, otherwise than to suspend the collection of said tax for any year in which the said Company shall pay the gross amount aforesaid in the manner aforesaid in lieu of said tax; and nothing herein shall be construed as a contract exempting the said Company from such taxation as may hereafter be imposed by law.” Applying the leading principle of construction before stated (which is, to carry out the intention of the authors of or parties to the instrument or agreement, and that where the intention is clearly expressed, there is little room for a variety of construction, and that the words used, if of common use, are to be taken in their natural, plain, obvious and ordinary signification) to the provisions of the Act in question, I have been unable to discover any room for a doubt as to the intention of the authors of and parties to it so clearly expressed in the plain and common words used in it. The plain and direct import of them is that the State treasurer is authorized and directed by the Legislature to accept and receive from the other party, the Railroad Company, in the year 1873, and in each year thereafter, until otherwise directed by the Legislature, the annual sum of $27,000, to be paid in equal quarterly payments on the first day of July, October, January and April of each year, — 437 — the first payment to be made on the first day of July next, in lieu of all taxes which may hereafter become due from said Company in each year, as aforesaid, under any and all laws of this State, except such taxes as may become due under the provisions of an Act entitled “ An Act to Raise Revenue for This State,” passed August 11, 1864. This is the first section of the Act and substantially comprises, in perfectly clear and explicit terms, the aggregatio mentium of the parties to it; while the second section of it, without varying or changing it in any particular, actually repeats and reaffirms it by providing that upon the payment by the said Railroad Company to the State treasurer of the said sum of $27,000 in equal quarterly payments, as aforesaid, in any year, it shall be the duty of the said State treasurer, and he is hereby authorized to execute and deliver to said Company a proper acquittance and discharge from the payment of all taxes due or to become due in the year for which such payment shall have been made except the tax due or to become due under the provisions of the aforesaid Act entitled “An Act to Raise Revenue for this State,” passed August 11, 1864. And could any form of words or mode of expression be devised to declare in more explicit and unequivocal terms when taken in their natural, plain, obvious and ordinary signification, the meaning and intention of the Act, and of both of the parties to the agreement made and concluded by it, to be that the said sum of $27,000, when so paid as aforesaid by the said Company to the State treasurer in the year 1873, commencing the quarterly payments on the first day of July in that year, and in each and every year thereafter, until he should be otherwise directed by the Legislature in regard thereto, should be in lieu of, or in exchange for, all taxes which might thereafter become due from the said Company in each and every year, as aforesaid, under any and all laws of this State, except such taxes as should become due under the provisions of the Act, entitled “ An Act to Raise Revenue for this State,” passed August 11, 1864. And here I may add that the special exception of this Act from the operation of the agreement only the more conclusively shows that it was the intention of the statute in question and of the parties to the agreement made and enacted into a law for the — 438 — government of both the State and the Company, in relation to the subject matter of it, as provided for in it, that every other tax law to which the Company was then subject or might thereafter be attempted to be made subject, should be included in and covered by the agreement, according to the maxim of law, exeepiio probat regulam de rebus non exeeptis—An exception proves the rule, concerning things not excepted—and the further maxim on the same subject, Exeeptio quce firrtiat legem, exponit legem—An exception which confirms, expounds the law. The main object of the statute, as well as the express words of it in all the provisions of it relating to that object, was to authorize the Company, during the will and pleasure of the Legislature, to pay to the State treasurer thereafter annually the sum of $27,000 as therein stipulated and agreed upon, in lieu of, and in commutation of, all taxes which might thereafter become due from said Company in each year as aforesaid under any and all laws of this State, except such taxes as might become due under the said Act passed August 11, 1864; and furthermore under the fifth section of it to authorize the said Company, if it should thereafter desire to pay to the State a gross sum of $13,000 in lieu of the said tax provided for in said excepted Act passed August 11, 1864, in semi-annual installments, on the first day of October and the first day of April in each and every year, to do so; and to make it the duty of the State treasurer to receive the said amount from the said Company in lieu of said tax until otherwise directed by the Legislature, and which, with the said sum of $27,000, before mentioned in the first and second sections of the statute, would amount to $40,000 per annum; and which sum of $40,000 when paid in any year thereafter as therein provided for, I am also of the opinion was as clearly meant and intended by the plain and unequivocal words of the statute to be in lieu and satisfaction of all taxes which might thereafter become due from the said Company in any year as aforesaid, under any and all laws of the State subjecting it to taxation for the benefit of the State or any part of it. And as the road bed or right of way of the Company in the Northern or Second Collection District of Wilmington Hundred, New Castle County, was then subject, as real property, to county — 439 — assessment and taxation for county purposes under the general law of the State providing for the annual assessment and collection of county taxes, any tax thereafter assessed under it upon the road bed of the Company, as the tax in question in this case was, would be clearly subject, I think, to the provisions of the Act entitled “ An Act Relating to the Taxes of the Philadelphia, Wilmington & Baltimore Railroad Company,” passed April 11, 1873. The language of the Act is so broad and comprehensive, expressly declaring that the two sums of $27,000 and $13,000 when paid in any year to the State treasurer by the Company as authorized and provided for in it, should be in lieu of all taxes which might thereafter become due from the Company under any and all laws of the State, that I can find no warrant in the words of it anywhere for the construction contended for by the learned counsel for the appellant that the provisions of it were not intended to apply to a county tax assessed under the general statute and payable to a collector of county taxes, or to any other law than such as specifically imposed, like the other three Acts referred to in the case, a State tax upon the Company to be paid to the State treasurer; first, on the ground, as they earnestly contended, that each of those three Acts was a law of that specific character; and secondly, on the ground, as they also contended, that the words of the third section of the Act required this construction, inasmuch as it provides as follows: “ That nothing in this Act shall be construed to repeal, modify, or in any manner affect any existing law imposing taxes upon said Company, otherwise than to suspend a collection of said taxes in any year in which the said Company shall pay to the State treasurer the amount specified in this Act, nor shall the provisions of this Act or anything herein contained be construed into a contract exempting the said Company from the payment of such taxes as the Legislature of this State may hereafter impose upon said Company.” It is upon the meaning which counsel for appellant choose to give to the word “ imposing ” and the word “ impose ” taxes upon the said Company, as they occur in the first three and the last two lines of the section, that they have sought to limit the plain and obvious meaning of the words in the two preceding sections (which — 440 — were framed for the direct purpose of declaring and expressly enacting that the State treasurer should accept from the said Company and receipt to it for the said sum specified in them, and when paid to him by the said Company as provided for therein, it should be in lieu of all taxes which should thereafter become due from said Company under any and all laws of this State, except the tax due or to become due under the particular Act therein expressly excepted), by a labored argument to show that the incidental employment of the words “ imposing ” and “ impose ” in the third section oí it, which was framed and enacted for another and entirely different purpose, could not be intended to apply to and include the general law of the State for the assessment of county taxes, or the tax assessed under it in this case against the road bed of the Company in the collection district mentioned, because it was not a law in which the State imposed, as in the other three Acts specially named in it, the tax upon the Company, but like all county taxes it was imposed by the levy court of the county. Without entering into any nice or hypercritical consideration of the signification of the word, it is sufficient to say that the Latin word impono, from which it is derived, was as generally used in that tongue among the ancient Romans to mean to lay or levy a tax, as the derivative of it in our tongue has since been used in this country and among all English speaking people, to signify the same thing; and from it is also derived the word impost in our language, which has scarcely had any other meaning than a tax, however assessed, levied or collected by a government, although it has by usage acquired a more restricted meaning and is now confined in its application to taxes or duties imposed by Government on imports. But any tax authorized by the Legislature of the State, for whatever purpose and however ascertained and fixed in its amount, or which is assessed and collected by the instrumentality provided for it in the Act, is in effect imposed by law on the person who is bound to pay it, whether it be laid directly or indirectly upon him; and it is in accordance with both correct and common usage to so employ the word. And if the word in this case or in any other admits of two senses or either of the meanings contended for, it is a well settled principle of construction that the meaning which will give effect to — 441 — the intention of the parties is preferred to that which will destroy it; more especially where the words themselves, abstractly, may admit of either meaning. Pugh v. Duke of Leeds, 2 Cowp. 714. It was in the power of the Legislature to enter into such an agreement with the Company to accept thereafter from year to year so long as the Legislature should see proper to do so, the said sum of $40,000 annually, and the Company should continue to pay it yearly as provided for in the Act, in lieu of all taxes to be paid by it under any and all laws of the State, and as the Legislature must have been satisfied that it would constitute a fair and just equivalent therefor, I do not think that either the validity or the wisdom of it can be properly objected to, because the whole of the substituted sum is to be paid into the state treasury for the use of the State, in lieu of and to the total exclusion of any county tax on any part of the road bed in Hew Castle County for the benefit of that county under the general law of the State for the assessment of taxes for county purposes; for the extent to which the county is relieved thereby of State taxes, it is directly benefited by the substitution ; while the Act is so framed and expressed that as soon as it ceases to be a fair equivalent for all the taxes to be yearly remitted and released to the Company in lieu of it, the Legislature may terminate the agreement. I am, therefore, of the opinion that the decree of the Chancellor should be affirmed.