Page:St. Louis, Iron Mountain & Southern Railway Co. v. Berry (41 Ark. 509).pdf/14

522 levied until ten per cent. per annum on the amount expended in building and equipping it was realized. St. Louis Railway v. Loftin, 30 Ark., 718.

This provision undoubtedly implied an accounting between the company and the state. It imposed upon the company the duty of keeping accounts of the cost of construction and equipment of its road, and of its receipts and expenditures. Else, how could it be ascertained whether the contingency had arisen upon which the road was to become taxable?

But the new company was subject to no such duty. This brings the case within the operation of the principle laid down in Railroad Company v. Maine, 96 U.S., 499, where it was said:—

"The assets of all the companies were intermingled, and continuous trains were running over the whole length of the several roads. It would have been impossible to show what would have been the profit of each road without the consolidation. Only an approximation to them would have been attainable; and that would have been based upon estimate more or less speculative in their character.

"The consolidation of the original companies was a voluntary proceeding on their part. The law made it dependent upon their agreement. Having thus disabled themselves from a compliance with the conditions, upon the performance of which the amount to be paid as a tax to the State could be ascertained, they must be considered as having waived the exemption dependent upon such performance. Their exemption was qualified by their duties, and dependent upon them. They incapacitated themselves from the performance of those duties by a proceeding which they supposed would give them greater advantages than their exemption. The new company was not charged with the duties which they were to perform to the State, and by which the State was to be governed in its taxation, nor was the State under any obligation to accept a substituted performance from other parties."