Appeal Tax Court v. Western Maryland Railroad

Alyey, J., delivered the opinion of the Court. Under the law by which these appeals are brought to-this Court (Act 1876, ch. 260, secs. 28, 30,) there are but two questions open for consideration: 1st. Whether the property assessed is rightly assessed to the particular individual or corporation as the owner thereof; and 2ndly, where claim is made that particular property is exempt from taxation, whether such claim be well founded or not. All other questions arising under the assessment laws are left to the decision of the boards of revision to whom ample power is given to correct any errors that may be found to exist in the assessment. Neither the Western Maryland Railroad Company nor the Union Railroad Company make any claim or pretence that their capital stock or the shares thereof in the hands of shareholders, are entitled to exemption. The Court below held the real and personal property of the appellees embraced in the assessments exempt, on the ground that,. — 293 — by the terms of the statute their capital stock was liable to be assessed. And while that conclusion may be quite correct as to levies made, or that may he made, under the Act of 1818, ch. 413, the first question here is: What was the effect of the passage of that Act upon the assessment previously made under the Act of 1816, ch. 260, as the basis of the levy for the year 1811 ? The appellees contend that the provisions of the Act of 1818, ch. 413, excluding from assessment the property, real and personal, of corporations incorporated by this State, having a capital stock divided into shares, and where such shares are subject to taxation as the property of the owners thereof, operated as a repeal pro tanto of the provisions of the general assessment Act of 1816, ch. 260, under which the assessment of the property in question was made, and that there is no authority for the maintenance of the assessment or the collection of taxes, except from the shares of capital stock. The Act of 1818, -ch. 413, became a law on the 5th of April, 1818, and because at that time the matters of the petitions in the present cases were then pending in the Baltimore City Court, undecided, it is supposed that the repeal of the law under which the property was included in the assessment necessarily rendered ineffectual and nugatory all that had been done under the law, with respect to the property in question, prior to the repeal. In other words, according to the theory of the appellees, the process of assessing the particular property had not been completed before the law authorizing it had ceased to exist, and that with the law ceased all power to proceed farther with the assessment of that particular property. But is this position maintainable? There is no ground whatever for contending that the Act of 1818, ch. 413, can have any retroactive operation. Before a statute can be allowed to have such operation, the Court must see that — 294 — the words arfe so clear, strong and imperative in their retrospective expression, that no other meaning can he .attached to them, or that the plain intention of the Legislature could not be otherwise gratified. In the language of the statute under consideration there is not the slightest warrant for any such construction. The statute must, therefore, be taken to refer to and speak exclusively of future proceedings under it, leaving acts and proceedings done under prior legislation to stand as they were at the time of the passage of the repealing statute. That being so, what was the state and effect of the proceeding that had taken place under that provision of the Act of 1876, ch. 260, repealed by the Act of 1878, ch. 413 ? The assessors had acted and completed their work and returned it to the-Board of Review and Control, and that Board had revised and corrected the assessment and valuation, and had returned the books and lists to the Appeal Tax Court, the tribunal authorized to levy the taxes upon the assessment and valuation thus made. So far as the State’s agents entrusted with the work of making the assessment were concerned, the assessment was then complete. It is true, the statute, by its 28th section, provides a mode by which those conceiving themselves aggrieved in respect to the questions of ownership of property assessed to them, or exemptions denied to them, may have a review of those questions. But that proceeding forms no part of the valuation and assessment proper, any more than the ordinary application that may be made at any time to the County Commissioners or the Appeal Tax Court to strike from the levy list property that has perished, or to transfer property to other parties who may have become liable to pay the taxes thereon. And the assessment being thus, complete, so far as the State was concerned, the 1st subsection of the Act of 1874, ch. 483, gave full authority for making the levy upon it; and the right of the State and — 295 — of the City of Baltimore to the taxes leviable upon this assessment and valuation was complete before the repeal of the statute, subject only to the right of the parties assessed, in the mode pointed out, to show and establish that they were not legally subject to such assessment. It seems to be settled by authority, that where rights are acquired under a statute, in the nature of a contract, or where there is a grant of power, a repeal of the statute will not divest the right or interest acquired, or annul acts done under it. In the case of the Steamship Co. vs. Joliffe, 2 Wall., 450, there was an action brought for half pilot fees, alleged to have accrued by operation of a provision in a statute which had been repealed; and it was held by the Supreme Court that when a right has arisen upon a transaction which has given rise to an implied contract, or a right in the nature of a contract, authorized by statute, and has been so far perfected that nothing remains to be done by the party asserting it, the repeal of the statute does not affect it, or an action for its enforcement. So here, if the appellees are liable to be taxed as owners of the property, a duty has arisen upon the assessr ment made to pay the taxes levied, and such duty could be enforced by an action at law, as upon an implied assumpsit (Mayor, &c. vs. Howard, 6 H. & J., 395,) notwithstanding the repeal of the statute. We are not however dealing with the question as to the mode of collecting the taxes, but simply with the question of the validity of the valuation and assessment as a basis upon which taxes might he levied. The General Assessment Act of 1876, ch. 260, required the property, real and personal, of all corporations to be valued and assessed to the particular corporations, as well as the shares of their stock in the hands of the shareholders ; and though the State by electing to tax the shares of stock in the hands of the shareholders, was precluded — 296 — from levying and collecting taxes from the corporations in respect of their real and personal property, yet there was a substantial necessity for valuing and assessing the real and personal property of all corporations of the class and character of the appellees, in view of the provisions of the Act of 1876, ch. 159. That Act provided that the property, real and personal, of each and every railroad company in this State, working their roads by steam, should be assessed and taxed for county and municipal purposes in the same manner as the property of individuals was then assessed and taxed. And though this particular provision of the Act has heen modified or partially repealed, because of its inconsistency or conflict with the provisions of the Acts of 1878, ch. 413, and 1878, ch. 178, yet it was not repealed by any repugnant provision in the General Assessment Act of 1876, ch. 260. The general doctrine on the subject of implied repeals is, that where there are two Acts on the same subject, both are to be given effect, if possible. If, however, the two Acts are plainly repugnant to each other in any of their provisions, the later Act, without any repealing clause, will operate to the extent of the repugnancy as a repeal of the first; and even where two Acts are not, in express terms, repugnant, yet, if the later Act covers the whole subject of the first Act, and embraces new provisions, plainly showing fhat it was intended as a substitute for the first Act, it will operate as a repeal of that Act. This doctrine, however, only asserts that the former statute is impliedly repealed, so far as the provisions of the last statute are plainly repugnant to it, or so far as the later statute, making new provisions, is plainly intended as a substitute for it. Therefore, where the powers or directions contained in several Acts are such as may well subsist together, a repeal by implication is never declared. This is substantially, the language of all the authorities. — 297 — Henderson’s Tobacco, 11 Wall., 652; Canal Co. vs. Railroad Co., 4 Gill & J., 1, 152; Dwar. on St., 674. And applying these familiar principles in comparing the provisions of the Act of 1876, ch. 159, with those of the later Act of the same session, 1876, ch. 260, there does not appear any such repugnancy between them as to require us to say that any part or provision of the former Act is, by implication, repealed by the latter. It follows from what we have said, that the repeal by the Act of 1878, ch. 413, of sub-section 2 of the Act of 1874, ch. 483, as that section was amended by the Act of 1876, ch. 260, and the sub-section 3 of the Act of 1874, ch. 483, as amended by the Act of 1876, ch. 340, did not annul and destroy the assessment made of the property in question, under the Act of 1876, ch. 260; but that those sections as thus amended only readjusted the basis of taxation for future levies, both for State and municipal purposes. What we have thus far said is applicable to the case of the Western Maryland Eailroad Company, and to that of the Union Eailroad Company of Baltimore; but the next subjects of consideration are peculiar to the Western Maryland Eailroad Company; and they are: 1st. Whether the property on Burén and Falls Streets and Liberty Alley, and at the córner of Hillen and Exeter Streets, in the City of Baltimore, could be lawfully assessed to the company as owner thereof; and 2ndly, Whether the cars, engines, tracks, &c., assessed to the company in the Eighth Ward of the City of Baltimore, were legally assessable to the company as of that locality. 1. The Railroad Company holds and occupies the permanent property assessed to it in the Eighth Ward or assessment district of the City of Baltimore, under the city Ordinance No. 97, dated the 24th of May, 1875, and under that Ordinance it is entitled to a formal lease from — 298 — the city of the property for ninety-nine years renewable forever, with the privilege of purchasing out the reversion upon payment of the entire outlay by the city. All the improvements upon the premises have been erected by the city, and the stipulation on the part of the Railroad Company is, that it will pay an annual rental, in monthly payments, equivalent to eight per cent, upon the investment by the city. No formal lease has yet been executed, hut it is admitted that the company has performed the conditions entitling it to the lease, and that such lease will he executed whenever required by the company. It is in full possession of the premises under the agreement contained in the Ordinance for the lease, and there is no apparent reason why the formal lease has not'been made. We think, however, the non-execution of the lease is quite immaterial; the company being in full possession under the Ordinance, and entitled to receive the lease, it must he regarded for practical purposes as the substantial owner of the leasehold interest in the property; and as the reversion belongs to the city, and therefore not liable to he taxed, we are of opinion that the company is liable to he assessed with the leasehold interest; that is to say, the value of the leasehold estate subject to the rental fixed by the Ordinance. 2. Then, as to the assessment of the rolling stock of the company, such as engines, cars, &c., and also the tracks within the Eighth Ward of the city, we think there was no ) error in the assessment with respect to the locality of this property. It is contended by the company that it is entitled to exemption from assessment, in the city of Baltimore, in respect to at least a part of its rolling stock; that such rolling stock should he treated as part of the road, and its value distributed pro rata in the assessments, along its entire line. But in this we do not agree. It is conceded that the principal business office and also the prin — 299 — cipal station of the company are located in the Eighth Ward of the city, and that must he taken as the'place of the domicile of the company for purposes of taxation. Whether the engines, cars, &c., he regarded as personal property, or as being so attached to the road and connected therewith as to partake of the nature of real estate, can make no difference, so far as the present question is concerned ; for whether we regard such rolling stock as belonging to the one species of property or the other, the entire road being within the limits of the State, the only practical place for assessment, in the absence of some positive rule of distribution and apportionment prescribed by the Legislature, is the place of the domicile of the company. See Burroughs on Taxation, 186, and cases there cited. The next question for consideration is one that relates exclusively to the Union Railroad Company; and that question is, whether the company is exempt from assessment for its tunnel and bridges as such, and the road-bed, though not the superstructures thereon. It is alleged by the appellee that the whole extent of its road is from a point near Belvidere bridge, in the city of Baltimore, to tide water at Canton,— a distance of 5f<nr miles, — and that the road is partly within the limits of the city, and partly in Baltimore county. That the tracks of the railway, within the city, are, to a considerable extent, constructed in a tunnel under the bed of Hoffman Street, a public highway of the city, and the other portion of the road within the city, not in tunnel, is, to a considerable extent, within the limits of public highways. That between the point of beginning and the Harford road, the whole length of railroad is 3100 feet, of which the length of 2062 feet is constructed in tunnel; that from the Harford road to Loney’s lane, the eastern limits of the city, the whole length of the road is 8645 feet, of which the — 300 — length of 1348 feet is in tunnel. It is then alleged that the assessors for the Eighth Ward or assessment district of the city of Baltimore, assessed the road-hed, together with the tunnel, from Belvidere bridge to the Harford road, at the sum of $300,000; and the assessors for the Seventh Ward or assessment district of the city, assessed the roadbed, together with the tunnel, from the Harford road to the eastern limits of the city, at the sum of $350,000. The truth of these allegations has not been controverted; indeed, their truth has been expressly conceded. The assessment, as it now stands in the Appeal Tax Court, appears thus: “ From Harford av. to Loney’s lane, seventh ward, including tunnel, road-bed, rails, ties, bridges, culverts, signal houses, &c., $350,000. Road-bed, tunnel, North street to Harford road, $300,000.” This was' the assessment made and returned under the General Assessment Act of 1876, ch. 260. By the Act of 1876, ch. 159, heretofore referred to, it was provided that the property, real and personal, of each and every railroad company in this State, working their roads by steam, should be assessed and taxed for county and municipal purposes, in the saíne manner as the property of individuals was then assessed and taxed; and by a distinct clause or proviso in that statute, it is provided “that no extra assessment shall be made, and and no extra or special tax shall be levied or collected on any bridge or bridges over streams, or on any tunnel forming any part of the roadway of any railroad or railroads In this State; it being the meaning and intent of this Act, that any bridge over streams, or any tunnel forming a portion of the roadway of any said railroads, shall be valued at the same rate that any other equal portion of said road is valued.” As we have already said, this Act was not, or any por-' tion of it, repealed by the General Assessment Act of 1876, — 301 — ch. 260. All the provisions of the two Acts can well stand together. As contended by the Attorney-General, no incongruity or inconvenience could result from requiring the real and personal property of railroad companies to be valued and assessed for purposes of county and municipal taxation, while the shares of the capital stock of such companies were valued and assessed for State taxation alone. And regarding the Act of 1876, ch. 159, as unrepealed by the General Assessment Act, it is quite plain that the tunnel, forming a part of the roadway, and the bridges in the line of the road, were not objects of separate valuation and assessment. It is only the road as such, irrespective of the tunnel or bridges, that should have been valued and assessed; that part of the road running through the tunnel to be valued and assessed at the same rate that any other equal portion of the road may be valued. But, while such is our opinion in regard to the manner of valuing the road with respect to the tunnel and bridges, we do not concur in the ¡msition of the appellee, that it should only be assessed with the superstructures on the bed of the road, irrespective of the road-bed itself, or any right or interest therein, because the road occupies a tunnel under a public street, or runs along thh highways of the city. The appellee has an easement in the way occupied by its road, and whether that easement be under or over the public street, it is an element of value to the road, and as such should be included in the valuation of the road itself. But few of the railroad companies of the country have any thing more than a mere easement in the ways occupied by their roads, and we are not aware that it has ever been held that because the company did not own the freehold estate in the bed of the road, that nothing but the mere superstructures thereon could be assessed to the company. The rule would seem to be — 302 — clearly otherwise, and that an easement enjoyed in the bed of a public street may he assessed and taxed as real estate. People vs. Cassity, 46 N. Y, 49; Appeal of N. B. & M. R. Co., 32 Cal., 499 ; Providence Gas Co. vs. Thurber, 2 R. I., 21. (Decided 30th January, 1879.) Upon the whole, this Oourt is of opinion that the orders appealed from in these cases should he reversed, and the records remanded, that the assessments in question he made to conform to the principles decided and announced in this opinion, as the basis of the levy for the year 1877. Orders reversed, and causes remanded.