Tomlinson v. Jessup

APPEAL from the Circuit Court for the District of South Carolina; the case being this:

Jessup, of New York, and owner of a number of shares in the Northeastern Railroad Company, a corporation created in 1851 by the State of South Carolina, filed a bill in the court below against Tomlinson and others, officers of the State of South Carolina, to enjoin them from levying a tax on the property of the road.

The question was whether the property was liable to taxation under the legislation of the State.

The act incorporating the company contained a grant of the usual powers of railroad companies, and the charter was for the term of fifty years. At the time of its passage the 41st section of an act of the General Assembly, passed in December, 1841, was in force, as follows:

'It shall become part of the charter of every corporation, which shall, at the present, or any succeeding session of the General Assembly, receive a grant of a charter, or any renewal, amendment, or modification thereof (unless the act granting such charter, renewal, amendment, or modification shall, in express terms, except it), that every charter or incorporation granted, renewed, or modified as aforesaid, shall at all times remain subject to amendment, alteration, or repeal, by the legislative authority.'

The act of incorporation did not except the charter of the company from the operation of this section. The company received extensions of their powers and privileges at various times subsequently, but in no case did the amendatory acts except the company from the operation of that section.

By an act, passed December 19th, 1855, entitled 'An Act to amend the charter of the Northeastern Railroad Company, and for other purposes,' it was enacted as follows:

'That the stock of the said company, and the real estate that it now owns or may hereafter acquire, which is connected with or subservient to the works authorized in the charter of the said company, shall be, and the same is hereby exempted from all taxation during the continuance of the present charter of the said company.'

This latter act did not except in terms the charter of the company from the provisions of the 41st section of the act of 1841, above recited.

The present constitution of South Carolina was adopted in 1868, and article 9, section 1, is as follows:

'The General Assembly shall provide, by law, for a uniform and equal rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, real, personal, and possessory, except mines and mining claims, the proceeds of which alone shall be taxed; and also exempting such property as may be exempted by law for municipal, educational, literary, scientific, religious, or charitable purposes.'

Article 12, section 2, is as follows:

'The property of corporations now existing or hereafter created, shall be subject to taxation, except in cases otherwise provided for in this constitution.'

On the 15th of September, 1868, the General Assembly passed an act entitled 'An Act providing for the assessment and taxation of property,' the first section of which declares

'That all real and personal property in this State, and personal property of residents of the State, which may be kept or used temporarily out of this State, with the intention of bringing the same into the State, or which has been sent out of the State for sale and not yet sold; all moneys, credits, investments, in bonds, stocks, joint stock companies or otherwise, of parties resident in this State, shall be subject to taxation.'

Subsequent acts provided specially for the taxation of the property of railroad companies, under which the officers of the State were proceeding to assess and tax the property of the Northeastern Railroad Company, when the present bill was filed.

The court below granted an injunction; at first temporary, and then final; and from the final injunction the officers of the State appealed.

Messrs. D. T. Corbin and D. H. Chamberlain, for the appellants; T. G. Barker, contra.

Mr. Justice FIELD delivered the opinion of the court.