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Opinion of the Court.

and an appeal granted to the Supreme Court of the State, which affirmed the decree of the court below. Whereupon plaintiff sued out a writ of error from this court, which defendant moved to dismiss.

Mr. Eaton J. Bowers and Mr. Edward Mayes for plaintiffs in

error.

Mr. Frank A.

Mr. R. C. Beckett for defendant in error. Critz was on his brief.

Mr. Justice Brown, after making the above statement, delivered the opinion of the court.

1. The motion to dismiss must be overruled. Counsel for the railroad company appear to have invoked the contract clause of the Constitution upon the original argument; but whether this be so or not, the bill was subsequently amended under leave of the court, by averring that the charter and the exemption from taxation contained in the eighteenth section constituted a contract between the plaintiff corporation and the State of Mississippi that the State would not demand any taxes upon its capital, property or stock for the term of twenty years from the enactment of the charter; and that, if said exemption from taxation had been repealed, which the company denied, it was not within the power of the State to repeal such exemption for the reason that the same constituted a contract upon which the company had acted, and upon the faith of which it had constructed the road; and that such repeal was a violation of the contract clause of the Constitution The Federal question was properly raised, and there is at least sufficient color for it to sustain our jurisdiction. No opinion was delivered by the Supreme Court, but the Chief Justice certifies that the validity of the state legislation subsequent to the charter of 1882 was drawn in question upon the ground of its impairment of the contract contained in such charter, and that the decision was in favor of the validity of such legislation. While such a certificate is insufficient to give us jurisdiction, where

Opinion of the Court.

such jurisdiction does not appear in the record, it may be resorted to, in the absence of an opinion, to show that a Federal question which was otherwise raised in the record, was actually passed upon by the court. Armstrong v. Athens County Treasurer, 16 Pet. 281; Yazoo & Mississippi Railroad v. Adams, 180 U. S. 41, 48; Railroad Co. v. Rock, 4 Wall. 177; Parmelee v. Lawrence, 11 Wall. 36; Gross v. U. S. Mortgage Co., 108 U. S. 477.

2. The bill set out, and, until the argument in this court, the plaintiff company relied solely upon, a charter granted February 23, 1882, by the legislature of Mississippi to incorporate the Gulf and Ship Island Railroad Company, the eighteenth section of which declared : “ That in order to encourage the investment of capital in the works which said Company is hereby authorized to construct and maintain, and to make certain in advance of such investment, and as an inducement and consideration therefor, the taxes and burdens wbich this State will and will not impose thereon, it is hereby declared that said Company, its stock, its railroad, and appurtenances, and all its property in the State necessary or incident to the full exercise of all the powers herein granted, shall be exempt from taxation for a term of twenty years from the passage of this Act.”

To strengthen its position, and to enable the company to rally to its support an exemption antedating the constitution of 1869, upon which the defendant relies, the plaintiff calls to our attention an act passed in 1850 to incorporate the Gulf and Ship Island Railroad Company, and a further act approved March 1, 1854, c. 66, amendatory of that act, the eleventh section of which declares "that the property and investments of the Company connected with this enterprise, within this State, shall not be subject to taxation until the road shall be in full operation and completed.”

The position of the plaintiff in this connection is that, prior to the Code of 1857, there was no general law and no constitutional provision in any way restraining the legislature from granting irrepealable exemptions, and that the charter of 1882 was a mere continuance of the original charter of 1850–1854; that the construction of the road, authorized by that charter

Opinion of the Court.

had never been abandoned, and that so late as 1872 the legislature had adopted a memorial to Congress praying that a land grant made by Congress in 1858 for the benefit of the Gulf and Ship Island Railroad Company, and which had lapsed to the United States by the intervention of the Civil War, might be revived in favor of that railroad.

But we are of opinion that the charter of 1882 cannot be considered as a revival or continuation of the charter of 1854, since the names of the incorporators are entirely different, the routes of the two railroads are also different, and no reference is made in the charter of 1882 to the prior charters, although the names of the two corporations are identical. There is nothing in the act of 1882 to indicate even the existence of a prior act incorporating a road under the same name. It is true that, at the same session of the legislature (1882), another memorial to Congress was adopted by the legislature for a revival of the grant of public lands made by the United States in 1856 to aid in the construction of the Gulf and Ship Island Railroad, but in this very memorial it was stated that “at its present session our legislature has granted a new act of incorporation with liberal provisions, thus again attesting the abiding and earnest interest felt by our people in this important work.”

It is also true that on March 13, 1884, the legislature passed another act to facilitate the construction of the Gulf and Ship Island Railroad, and for other purposes, c. 612, p. 971, the eighth section of which declared: “That said Gulf and Ship Island Railroad Company are hereby subrogated to all the rights and privileges heretofore granted by the State of Mississippi to the Gulf and Ship Island Railroad Company, and shall have the right to use and enjoy such field notes, maps and surveys as have been heretofore made in the interest of said road as were authorized and granted by the State under the acts approved March 2, 1854, and December 3, 1858.” This is an effort to subrogate the new railroad to the rights and privileges of the former one, but its language contains an implied admission that, without such subrogation, the rights and privileges of the former company had lapsed, and that a new act was necessary to revive them. But if the act be considered as a

Opinion of the Court.

revival of the rights and privileges which had formerly belonged to the old company, such rights and privileges would be subordinated to the provisions of the new constitution of 1869, which in the meantime had been adopted. Planters' Ins. Co. v. Tennessee, 161 U. S. 193, 198. In addition to all this, however, the better opinion is that a subrogation to the "rights and privileges” of a former corporation does not inclucie an immunity from taxation. Phænix Ins. Co. v. Tennessee, 161 U. S. 174.

We are unable to see that there is anything in this legislalation to indicate that the plaintiff company stands in a position to escape the application of the constitution of 1869. Indeed, it seems to us entirely clear that the injunction of the charter of 1850-1854 into this case was a mere afterthought; and that the charter upon which the plaintiff must rely is that of 1882, set forth in this bill, and that such charter must be construed in subordination to the constitution of 1869, which we now proceed to consider.

3. The only provisions of the constitution pertinent to this case are the following sections of Article XII:

“SEC. 13. The property of all corporations for pecuniary profit, shall be subject to taxation, the same as that of individuals."

“ SEC. 20. Taxation shall be equal and uniform throughout the State. All property shall be taxed in proportion to its value, to be ascertained as directed by law.”

As it is not altogether clear from the language of these sections whether it was competent for the legislature to grant to a railroad company an exemption from taxation, it is conceded by both sides to this controversy that we are bound to look to the decisions of the Supreme Court of Mississippi at the time this charter was granted, for their proper interpretation. Douglass v. County of Pike, 101 U. S. 677. While the question of contract or no contract in a particular case is one which must be determined by ourselves, every such alleged contract is presumed to have been entered into upon the basis, and in contemplation of, the existing constitution and statutes, and upon the established construction theretofore put upon them by the highest judicial

Opinion of the Court.

authority of the State. Taylor v. Ypsilanti, 105 U. S. 60; Wade v. Travis County, 174 U. S. 499, 509, and cases cited.

We are referred to the case of Mississippi Mills v. Cook, 56 Mississippi, 40, decided in 1878, four years prior to this charter, as settling the proper construction of these sections of the con stitution. Indeed, counsel stipulate that the stockholders invested their money in reliance upon this adjudication. The Mississippi Mills were chartered in 1871 for the purpose of manufacturing cotton and woolen fabrics, and in 1872 an act was passed, of which the Mississippi Mills were subsequently given the benefit, providing that all taxes upon the property of said company should be applied to the payment of debts which the company had incurred in the construction of their factory. In 1877 this act was so far amended as to be substantially repealed ; and in 1878 the company filed a bill in chancery against the tax collector, setting up the acts of 1872 and 1873 as constituting a contract with the company, and alleging that the act of 1877 impaired the obligation of such contract, and was in violation of the Constitution of the United States.

The bill was held not to be maintainable, the court deciding:

(1.) That it was not intended by section 13 of article XII of the constitution to confer power on the legislature to tax the property of corporations, because that existed without this section as an inherent legislative power.

(2.) That the property of the corporations mentioned was declared to be subject to taxation, that is, liable to taxation, the same as that of individuals, but it was not necessarily to be sub

jected to taxation. Since overruled in Adams v. Yazoo & Mississippi Valley Railroad, 77 Mississippi, 194.

(3.) That any legislative act, “ whether it be a charter or other form of law, which says it shall be exempt, and not subject to taxation, is in conflict with the constitution.” But that the legislature might exempt property of a certain class, whether the owners were corporations or natural persons, but corporate property could never be placed beyond the reach of the taxing power. “It may not be taxed, but it must be ever liable. It need not be subjected, but it must always be subject, to taxation,

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