State ex rel. Bell v. Harshaw

Cassoday, J. The grant to the North Wisconsin Railway Company, by ch. 126, Laws of 1874, was upon the express condition that the said company should immediately proceed with the construction of said road, and should construct so much thereof the first year as should, with that already constructed, make forty miles, and not less than twenty miles each year thereafter, and that the whole should be completed xoithin seven years after the passage of said act; and the act required the company, upon acceptance, to give a bond, as prescribed, for the performance of such condition, with a forfeiture in case of failure; and the governor was therein required, as often as “satisfactory proof that twenty continuous miles” of said road should be completed as required, to issue and deliver, or cause to be issued and delivered, to said company, patents in due form, from the state, for 200 sections of said lands. That act contained no exemption of the lands to be so patented, from taxation. Had that act been complied with, the whole of that line of the l’oad would have been completed in 1881, and the company then would have been entitled to all its patents. Of course, as fast as any portion of said railway was completed and went into operation, it was required, as the law then stood, to pay the license fee prescribed by the general statutes then in force. Secs. 1211-1213, R. S.. Sec. 2, ch. 113, Laws of 1875, provided that “all those railroad companies whose lines of road are now incomplete or are in process of construction, and to aid in the building of which the general government has donated grants of land, and which are not exempted from taxation on said lands for the next five years, are hereby exempted from the payment of the license fees required by law for said five — 237 — years.” That section applied to the North Wisconsin Rail-wajq then incomplete and in process of construction, and exempted that company from the payment of such license fees for the said period of five years; that is to say, to January 1, 1880. Sec. 1212, R. S. (ch. 261, Laws of 1878), provided, in effect, that the lands applicable to the construction of said road, by said company, through the counties of Ashland and Bayfield, and which might be acquired by the construction of the same, “ shall be and remain exempt from all assessments and all taxation of every kind for the period of five years from the time such company acquires .title to the same,” except that whenever any of said lands should be sold, contracted to be sold, or leased, the same should immediately become subject to taxation; but that exemption was subject to the condition that not less than twenty miles of said road, commencing at some point between Ashland and Bayfield, should be completed before April 2, 1880, and provided that the act should only apply to said lands in those two counties. Sec. 1, ch. 22, Laws of 1879, provided, in effect, that all lands theretofore patented by the state to the said North Wisconsin Railway Company not theretofore sold or contracted to be sold by said company, and all lands w,hich might thereafter be patented by the state to the said company under ch. 126, Laws of 1874, “are hereby exempted, and shall remain exempt, from taxation of all kinds, general and local, and from assessments of every nature, for the period of ten years.” Sec. 4 of the act provided, in effect, that whenever any of the lands so exempted should be sold, contracted to be sold, leased, or conveyed, or the pine thereon sold or cut, the same should immediately become taxable. Sec. 5 of the act declared, in effect, that the main object and purpose of the act was to aid in securing the completion and equipment of said railway, and to en — 238 — able the company-to apply the avails of its lands to such construction and equipment; the exemption therein provided being, in the opinion of the legislature, necessary for said purposes and demanded by the public interest. Sec. 6 of the act provided, in effect, that the said North Wisconsin Railway Company should, “ at the times and in the man-, ner fixed by the Revised Statutes for similar reports from other railroads of the state, make a report of its gross earnings for the preceding year, and shall each year, during the continuance of the exemption provided Toy section one, pay into the state treasury, at the times fixed by the Revised Statutes for the payment by railway companies of their license fees, a sum equal to' five per centum of its gross earnings for the preceding year, which will be in lieu of all other license fees exacted from said company.” Sec. 1 of the act provided, in effect, that the company should, on or before August 15th in each year, cause a sworn list of the lands owned by it August 1st in such year in each of said several counties, and exempt from taxation, to be prepared, and to file a copy thereof in the office of the state treasurer, and also send a copy thereof to the treasurers of said counties, respectively. Sec. 8 of the act provided, in effect, that the state treasurer, on the receipt of said list, should apportion the amount of money so received from the company among said several counties as they might be entitled to the same under that act, and thereupon pay over the same to said counties, respectively. The five per centum thus to be apportioned among and paid to the respective counties named, was a sum equal to five per centum of the gross earnings of the company for the preceding year, as required by sec. 6 of the act. By that section, such five per centum was only to be paid into the state treasury at the times fixed by secs. 1211-1213, R. S., for the payment by railway companies of their license fees for “each year during the-continuance of the ex239 em/ption provided by section one ” of that act. The material question for consideration, therefore, is, When did the exemption prescribed by sec. 1 of the act commence, and how long did it, or was it to, continue? The learned counsel for the relator contends that the wrords, “ are hereby exempted, and shall remain exempt, from taxation of all kinds, . . . for the period of ten years,” should be construed as not commencing, as to any batch of lands subsequently patented by the state to the company, until they were in fact so patented, and then, as to that batch, continue for the period of ten years from the date of such patents, unless in the meantime the company should part with the title, or sell or cut the pine thereon,, and that the same rule would apply to each and every batch so subsequently patented. A moment’s reflection as to the facts and circumstances existing at the time of the passage of the act, and the law applicable, will reveal the endless confusion that such a construction would necessarily create. As indicated in the foregoing statement, at the time that section went into effect a large portion of said lands had been patented to the company by the state; and many of them had been expressly exempted from taxation, and were still exempt. Only a portion of the line of road, however, had been constructed. As often as twenty miles of the road was subsequently constructed, the company was entitled to a new batch of patents therefor. The wThole was not completed until December 3, 1883. Of course,, such land-grant lands, even in the place limits, only became taxable as fast as they were earned by such construction and certified to by the state authorities. But none of such lands as were situated in the indemnity limits, even though so earned and so certified to, became taxable until actually selected and such selections actually approved by the secretary of the interior. Wis. Cent. R. Co. v. Price Co. 133 U. S. 496, in part reversing S. C. 64 Wis. 579. As there held,. — 240 — no constructive approval would render them taxable. Quite likely, some of those lands have not yet been so approved; and as to them, on the theory of counsel, the ten years would not begin until such approval. That theory would obviously lead to almost endless confusion, and should not be adopted unless imperatively demanded by the language of the section. The words “exempted,” and “remain exempt . . . for the period of ten years,” pretty clearly indicate that the legislature only contemplated one ten years period of exemption, and that that should include all such lands whether previously patented and then exempt, or exempt by reason of not yet having been earned and certified, or such as should be subsequently patented. This construction is strengthened by the well-settled rule in such cases repeatedly sanctioned by the supreme court of the United States, and very recently in these words: “Exemptions from taxation are regarded as in derogation of the sovereign authority and of common right, and therefore not to be extended beyond the exact and express requirements of the language used, construed strictissimi juris.” Yazoo & M. V. R. Co. v. Thomas, 132 U. S. 185; Vicksburg, S. & P. R. Co. v. Dennis, 116 U. S. 668, and cases there cited. We must hold that the period of ten years of such exemption commenced February 21, 1819, and completely terminated as to any and all lands to which it was or could become applicable, February 21, 1889. But it is contended by counsel for the relator that, even if such be the true construction of the section, yet that the five per centum so received by the state treasurer in 1889 was, in effect, a tax upon the gross earnings of that line of road for the year 1888, and hence that the counties in question were respectively entitled to their share of the same. The sixth section, however, provides, in effect, that such license fee to be so paid by said company for any current — 241 — year should be “ a sum equal to five per centum of its gross earnings for the preceding year,” payable at the times fixed in the general statutes. Secs. 1211-1213, R. S. In other words, that section and these general statutes merely prescribed that as the way for measuring and ascertaining the amount of such license fee for the year in which it was granted, and not as a tax on such gross earnings for such preceding year. State ex rel. C., M. & St. P. R. Co. v. McFetridge, 56 Wis. 256. Under this construction, the counties in question respectively received their proportionate share of such license fees collected under said ch. 22 in the year 1879, and each of the following years, down to and including 1S88, making ten consecutive years in all, or, in other words, the full period of such exemption. This fully appears from the relation as well as the return. But counsel for the relator further "contend that, even if such constructions are correct, and the counties in question have no legal right to the license fees so collected for the year 1889, yet that, as the company voluntarily paid them as such five per centum under said ch. 23, and the state treasurer received them as such, he thereby became a mere trustee for said counties, and hence is estopped from denying such trust, or refusing to execute the same by apportioning and paying over the money. There are several difficulties in the way of such contention. In the first place, it must be admitted that he received the moneys as state treasurer, and not as a mere individual. His duties as such state treasurer were prescribed by law. Since the law, as we have found, did not require him to apportion and pay that money over to the counties in question, it is very obvious that he, as such treasurer, owed no duty to them to do so. Besides, it appears from his return that he received said money with all other license fees due from the Omaha Company in gross, and receipted for the whole, and did not receive them specifically as five per centum paid under — 242 — said cb. 22; and be very properly claims that he is entitled to four fifths of said $41,207.09 as the amount due the state from the company for the year 1889, under secs. 1211-1213, E. S., and that, if he is not entitled to hold the other fifth, it is a matter entirely between the state treasurer and the Omaha Company, as to which none of the counties in question, as counties, have any concern. We are constrained tó believe that such are the legal rights of the parties. But there is still another reason which seems to be a perfect bar to the claim of the relator, regardless of whether one fifth of the amount named is rightfully or wrongfully in the hands of the state treasurer. It is enough to know that the whole amount is now in the state treasury, and that the constitution provides that “ no money shall be paid out of the treasury except in pursuance of- an appropriation by law.” Sec. 2, art.' Till, and amendment to the same. Since there is no law authorizing such apportionment among and payment to the counties in question, the state treasurer has no lawful right to make the same. By the Court.— The demurrer to the return is overruled, and the alternative writ of mandamus is quashed.