State ex rel. Hagerman v. St. Louis & East St. Louis Electric Railway Co.

BOND, J. This is a suit by the Collector of the City of St. Louis for taxes for the year 1907, assessed by the State Board of Equalization against .364 of a mile of railroad, owned and operated by the defendant corporation in the City of St. Louis. The case was submitted to the trial judge, a jury being waived, upon an agreed statement of facts. The finding and judgment of the court were rendered in favor of the plaintiff for taxes and interest in the sura of $8356.19, to which was added one thousand dollars attorneys’ fee, allowéd and taxed as costs. Defendant duly appealed. The agreed statement of facts, or so much thereof as is pertinent, will be stated in connection with the rulings made upon the errors insisted upon in the brief and argument of appellant. cas?a Fa0ie I. It is claimed that plaintiff failed to prove the case stated. The defendant procured a charter from the State of Missouri in the year 1889, as a railway company, with its western terminus in Missouri and an eastern terminus in Illinois. It has exercised the franchise granted thereunder by entering into contracts with the St. Louis Bridge Company, a corporation organized in Missouri and Illinois and the owner of a toll bridge, known as the Eads Bridge, extending from the City of St. Louis, Missouri, to the City of East St. Louis, Illinois; the Missouri Pacific Railroad Company and the Wabash Railway Company, by virtue of which contracts the defendant, [623] in consideration of a certain division of the fare collected from passengers which it should transport across the upper deck of said bridge, was permitted to operate thereon electric trolley cars. In April, 1902, these contracts were cancelled and a neAV one made by defendant with the Terminal Railroad Company of St. Louis which had previously acquired the leasehold of said bridge. This “said substitute agreement is of date April 11, 1902, and permits defendant to operate electric cars on the upper roadway of said bridge for fifty years unless sooner terminated by said Terminal Company.” Two connecting street railways, both Illinois corporations, are made parties to this contract, the object of their joinder being to secure to the passengers carried by them a continuous passage over defendant’s electric trolley-car railroad running over said bridge and terminating in St. Louis, Missouri. In this connection the agreed statement of facts further recites: “Under said agreement the said Terminal Association retains ownership and control of the tracks over which said trolley cars are to he run for passenger traffic only; said passengers are to he carried for a certain division of the fare of not less than five nor more than ten cents per passenger, as determined hv said Terminal Company to he paid by said bridge passengers for riding across said Eads Bridge; said electric cars to he run between the termini of said bridge; and for refusal, inability or failure of the other parties to direct travel destined to pass by way of East St. Louis to or from said City of St. Louis exclusively to said Eads Bridge, or to keep the other conditions of said agreement, said Terminal Company reserves the rVht to declare said agreement terminated and canceled.” The defendant company was incorporated originally for $100,000. Its capital stock was subsequently increased to $250,000 in 1890, and in 1902 to $500,000. Its bonded indebtedness is $500,000, on Avbich it pays five [624] per cent interest, and has always paid dividends on its stock. The tax hill sued on contains intemizations according to the statute of the nature and valuation of defendant’s property and the rate of taxation levied thereon for that year, .showing the aggregate amount sued mitted to be correct, was filed with the petition. The petifor. The original bill was not filed, but a copy, adtion is substantially in the form prescribed by Section 11593, Revised Statutes 1909. In assessing the property of defendant for the year 1907, the Board of Equalization specified the value of its passenger cars, its money on hand, the proportion of its rolling stock in this State, the proportion of its roadbed and superstructure in this State, and lastly “all other property” at $500,000.4625 per mile, which last item, computed at the length of the road in this State, amounted to $173,000.16. The addition of all the items at $186,019.98, is the basis of the- taxes levied. The agreed facts show that at the time of this assessment defendant “owned property in the State of Missouri consisting of certain poles and overhead trolley wires erected and maintained on the west end of said tinuation of other poles and overhead trolley wires erectEads Bridge as a necessary working part and coned and maintained on the east or Illinois end of said bridge, all under said agreement of July 26, 1889, and said substitute agreement, and also $26,524.55 on deposit on June 1, 1906, in a certain bank of the city of St. Louis, Missouri, which was proceeds of said business done on said bridge under said agreements, and also two cars valued at $850 each.” The property, tangible and intangible, owned and operated in this State by defendant, possessed- great value and earning power and to provide for its taxation, the statutes relating to the taxation of franchises other than that of corporate entity, were enacted. [Laws 1901, p. 232; R. S. 1909 secs. 11551, 11552.] The [625] method and plan of assessment and valuation prescribed in these statutes was scrupulously followed by the State Board of Equalization. The record of its action was filed with the Auditor (R. S. 1909, sec. 11573) whose certificate thereof is made, prima-facie evidence of the facts therein recited (R. S. 1909, sec. 11578; State ex rel. v. Met. St. Ry. Co., 161 Mo. 188). We think this and other evidence in the agreed statement of facts sufficed to make a prima-facie case for plaintiff. We have not overlooked the contention that the admittedly correct tax bill copied in the agreed statement was not filed with the petition. That is not required by the statutory form applicable to suits against railroads for delinquent taxes. [R. S. 1909, sec. 11593; State ex rel. v. Railroad, 113 Mo. 297.] Taxation. II. It is insisted'by appellant that the tax assessed in this case is void because double taxation, in that the bridge, subject to the easements evidenced by contract under which defendant conducts and operates its electric railway, was also assessed for taxation against the grantors to the defendant. ’ It will be observed that in the assessment of the property of defendant the State Board of Equalization left out of view all of the structural elements essential to the purposes for which the bridge was built and the uses to which it was to be put, and confined its view exclusively to those things which were descriptive of the separable ownership of the defendant under and by virtue of the contract possessed by it to operate and conduct its electric railway over the upper surface of the bridge, and those things which it had placed on the bridge to facilitate the operation of its electric trolley railway. It is perfectly plain from the agreed statement of facts that the owners of the bridge were not the owners of the rolling stock, the. metals or rails over which the trolley line ran, nor the right of user thereof, nor the [626] trolley poles and wires, and it was these, coupled with the franchise value arising from the use and operation of them by the defendant railroad, which the Board of Equalization intended to assess as the property of defendant. And it is equally clear that in its separate assessment of taxation on the bridge itself, against the owners thereof, the board did not take cognizance of tho property and franchises assessable to the owners of tho trolley company. There is nothing in this method of taxation which militates against the doctrine stated in State ex rel. v. Railroad, 196 Mo. 523, where it was correctly held that a bridge as an entirety, having been taxed once, could not, without violating the constitutional principles forbidding double taxation, be taxed a second time against the lessor. In the case at bar the bridge as a bridge, embracing its multiform uses as such, was taxed against the owners thereof, but that assessment in nowise precluded the State Board of Equalization from making another assessment against the corporate grantee of a contract of user of a right of way for its electric trolley line over said bridge. The properties taxed were distinct and the ownerships were different, and there is nothing in the agreed statement of facts which shows that the Board of Equalization had in mind the values of the property belonging to defendant when it assessed the bridge property against its separate owners. Our conclusion is that the action of the State Board of Equalization in levying the assessment sued for, did not contravene the constitutional inhibition against double taxation. [627] Neglect to Assess Other Railroads. [626] III. There is no merit in the contention of unjust discrimination in this case. Whether defendant is taxable depends wholly upon the provisions of Sections 11551, 11552, Revised Statutes 1909 (Laws 1901, p. 232). If those statutes are valid and applicable, then the taxes assessed against defendant in this [627] case were lawfully made, irrespective of the omission of the State Board of Equalization to make assessments under the same statutes against ' other railroads liable to assessment thereunder. The cases cited by appellant on this point are wholly irrelevant in that they refer to the invalidity of a law or city ordinance, which, by its terms, was not uniform as to the same classes. Here there is no dispute as to the validity of the statutes requiring taxation of franchises, for the only point made is that the board neglected to assess others liable under a valid law. „ . Fr2iiichis6 IY. Appellant insists that the tax assessment is illegal because the defendant owns no railroad franehises except the franchise to be a corporation, which is a non-taxable one. This is a misconception. The defendant does not own railroad franchises other than that implied in that of a grant of a charter to it. It possesses, by the terms of its charter, the right to contract and operate a railroad. The bridge over which its track is laid is, in a general sense, a public highway. Under the Constitution of this State, its right to operate its street railway over the public highway (the bridge) could only be exercised by the consent of the local authorities having control of the highways proposed to be occupied by such street railway. [Constitution, art. 12, sec. 20.] When it obtained this permission to operate its street railway on this public highway for fifty years, the legislative grant instantly became effective and vested in appellant a valuable franchise wholly distinct from its franchise of artificial entity (State ex rel. v. Railroad, 140 Mo. 1. c. 549) and one which is specifically assessable for taxation under the terms of the statutes providing for taxation of franchises. [State ex rel. v. Wiggins Perry Co., 208 Mo. 622.] Proceeding under these statutes and in accordance with the method proscribed in a subsequent section (Sec. 11559, R. S. 1909) the Board of Equalization assessed and adjusted the taxes laid on defendant’s franchises on a mileage basis [628] and after the hearing of evidence, and in so doing it arrived at the conclusion that the value of the intangible property of defendant is Missouri was $173,000.16. It referred to this specific assessment as one made on “all other property” of defendant, a method of distinguishing the various items approved in State ex rel. v. Wiggins Perry Co., 208 Mo. 622. In the present case, as has been seen, the franchise to operate a railroad resting primarily in legislative grant, became consummate when the consent to occupy the bridge for that purpose was obtained, for then it ripened into a legislative privilege and fell within the correct meaning of the term “franchise,” which implies a privilege conferred by law to do that which “does not belong to the citizens of the country generally as a common right.” [12 R. C. L. 173, sec. 1 et seq.; State ex rel. v. Weatherby, 45 Mo. l. c. 20.] According to the agreed facts this franchise • vested in appellant, was a practical monoply with a possible life of fifty years.' „ , Jurisdiction. V. Nor are we able to concur in the view that in the assessment sued on in this case, the Board of Equalization undertook to tax property outside the jurisdiction of the State of Missouri. On " , , the contrary the description ox the property taxed, the itemization of amounts, discloses that they were referable only to tangible and intangible property of defendant within the territorial limits of this State. interstate Property. VI. It is finally insisted by appellant that the taxation sued upon is void under the Federal Constitution vesting in Congress the power to regulate interstate commerce and prohibiting the states from taking property without due process. It is not within the power of the states to put a direct burden on interstate commerce, the exclusive regulation of which is granted to Congress by the Constitution of the United States (U. S. Constitution, art. 1, sec. 8). But this provision does not prevent the assess [629] ment of property situated in the several states because it is a part of a unified system which is appropriated to interstate commerce. In such cases the property “may be taxed at its value as 'it is, in its organic relations, and not merely as a congeries of unrelated items, [for] taxes on such property have been sustained that took account of the augmentation of value from the commerce in which it was engaged. [Adams Exp. Co. v. Ohio State Auditor, 165 U. S. 194; Adams Exp. Co. v. Kentucky, 166 U. S. 171; Fargo v. Hart, 193 U. S. 490.] So it has been held that a tax on property and business of a railroad operated within the State might be estimated prima-facie by gross income, computed by adding to the income derived from business within the State the proportion of interstate business equal to the proportion between the road over which the business was carried within the State to the total length of the road over which it was carried. [Wisconsin & Mich. Ry. Co. v. Powers, 191 H. S. 379.] Since the commercial value of property consists in the expectation of income from it, and since taxes ultimately at least, in the long run, come out of income, obviously taxes called taxes on property, and those called taxes on income or receipts, tend to run into each other somewhat as fair value and anticipated profits run into each other in the law of damages. The difficulty of distinguishing them became greater when it was decided, not without much debate and difference of opinion, that interstate carriers’ property might be taxed as a going concern.” [Galveston etc. Ry. Co. v. Texas, 210 U. S. 217, 227.] Under the agreed statement of facts appellant owned a usufruct in about one-third of a mile of railroad track on that portion of the bridge within the limits of Missouri. It also owned, as stated before, the rails, the superstructure and wires which enabled it to operate its trolley cars over this line. It also owned money on deposits in banks in Missouri; also the franchise of operating its railroad, granted to it by [630] the Legislature of the State, and consented to by the local authorities in charge of the bridge. All of this property was within the territory of this State and, therefore, its assessment for taxation did not impose a direct burden upon interstate commerce under the principles declared and the rule stated in the foregoing quotation from the opinion of the Supreme Court of the United States and the authorities therein cited. The imposition in the case at bar was purely a tax on property as such, locally situated and upon a Missouri franchise locally enjoyed. It was assessed in strict accordance with the provisions of the statutes of this State and the Board of Equalization, in making this assessment, was entitled to consider' the increase in value of the property assessed by reason of its being an integral part of a railroad engaged in interstate traffic, and they were entitled to discerp the value of the property in Missouri from that of the other property of which it was a part, in the manner prescribed in the statute providing for its assessment and sanctioned by the foregoing decision of the Supreme Court of the United States. This, we think, was substantially done in the present case. We find nothing in the agreed statement of facts which tends to show that this assessment was so laid as to take the property of appellant without due' process. Our conclusion is that the judgment of the trial court must be affirmed. It is so ordered. Blair, P.. J., and Graves, J., concur; Woodson, J., absent.