OpenJurist

143 US 192 New Orleans City Co v. City of New Orleans

143 U.S. 192

12 S.Ct. 406

36 L.Ed. 121

NEW ORLEANS CITY & L. R. CO.
v.
CITY OF NEW ORLEANS.

February 29, 1892.

STATEMENT BY MR. JUSTICE GRAY.

This was a summary proceeding by the city of New Orleans against the New Orleans City & Lake Railroad Company in a civil district court of the parish of Orleans, to collect a license tax of $2,500 for the year 1887, imposed lby an ordinance of the city, pursuant to the statute of Louisiana of 1886, No. 101, § 8, which provided 'that for the business of carrying on, operating, or running any horse or steam railroad, or both, for the transportation of passengers within the limits of any city or town in this state, the annual license shall be based on the annual gross receipts, as follows, viz.: First class. When the said annual gross receipts are five hundred thousand dollars, or in excess of that amount, the license shall be twenty-five hundred dollars.' Acts La. 1886, pp. 165, 175.

The defendant admitted that its ammual gross receipts were more than $500,000; but contended that the statute and ordinance, so far as they affected the defendant, were unconstitutional and void, as impairing the obligation of the following contracts:

On October 2, 1879, the city of New Orleans sold to the New Orleans City Railroad Company, for the price of $63,000, the right of way and franchises for running certain lines of street railroad for carrying passengers within the city until January 1, 1906, 'to have and to hold the said right of way and franchises of the said railroad lines unto the said New Orleans City Railroad Company, its successors and assigns, transferees and vendees, for the full term and period hereinabove fixed;' and the company agreed to construct its railroad, to keep the streets in repair, and to comply with regulations as to the style and running of cars, the motive power, and the rates of fare, as therein provided, and to 'annually pay into the city treasury, upon the assessed value of said road and fixtures, the annual tax levied upon real estate, the value of said road and fixtures to be assessed by the usual mode of assessment;' and the city bound itself 'not to grant, during the perion for which said franchises are sold, a right of way to any other railroad company upon the streets through which said right of way is hereby sold, unless by mutual agreement between the city and the purchaser or purchasers of these franchises.'

On June 9, 1883, the liquidating commissioners of the New Orleans City Railroad Company, whose charter had expired, sold and transferred all that company's real and personal property, movable and immovable, right of way, and franchises for the privilege of running street-cars, to the defendant, by a contract by which, among other things, 'said New Orleans City Railroad Company, having, according to law, paid its state and city licenses for 1883, amounting to twenty-five hundred dollars each, hereby transfers the unexpired term thereof, extending to Cecember 31, 1883, to the present purchaser, the New Orleans City and Lake Pailroad Company.'

Judgment was given in favor of the city, and was affirmed on appeal by the superme court of Louisiana. 40 La. Ann. 587, 4 South. Rep. 512. The defendant sued out this writ of error.

C. F. Buck, for plaintiff in error.

W. D. Summerville, for defendant in error.

Mr. Justice GRAY, after stating the facts as above, delivered the opinion of the court.

1

Exemption from taxation is never to be presumed. The legislature itself cannot be held to have intended to surrender the taxing power, unless its intention to do so has been declared in clear and unmistakable words. Railroad v. Dennis, 116 U. S. 665, 668, 6 Sup. Ct. Rep. 625, and cases cited. Assuming, without deciding, that the city of New Orleans was authorized to exempt the New Orleans City Railroad Company from taxation under general laws of the state, the contract between them affords no evidence of an intention to do so. The franchise to build and run a street railway was as much subject to taxation as any other property.

2

In Gordon v. Appeal Tax Court, 3 How. 133, upon which the plaintiff in error much relied, the only point decided was that an act of the legislature, containing the charter of a bank upon condition that the corporation should pay certain sums annually for public purposes, and declaring that, upon its accepting and complying with the provisions of the act, the faith of the state was pleaded not to impose any further tax or burden upon the corporation during the continuance of the charter, exempted the stockholders from taxation on their stock; and so much of the opinion as might, taken by itself, seem to support this writ of error, has been often explained or disapproved. Bank v. Knoop, 16 How. 369, 386, 401, 402; People v. Commissioners, 4 Wall, 244, 259; Bank v. Skelly, 1 Black, 436, 446; Farrington v. Tennessee, 95 U. S. 679, 690, 694; Stone v. Trust Co., 116 U. S. 307, 328, 6 Sup. St. Rep. 334, 388, 1191.

3

The case at bar cannot be distinguished from that of Gas-Light Co. v. Shelby Co., in which this court upheld a license tax upon a corporation, which had acquired by its charter the privilege of erecting gasworks, and making and selling gas for 50 years; and, speaking by Mr. Justice MILLER, said: 'The argument of counsel is that, if no express contract against taxation can be found here, it must be implied, because to permit the state to tax this company by a license tax for the privilege granted by its charter is to destroy that privilege. But the answer is that the company took their charter subject to the same right of taxation in the state that applies to all other privileges and to all other property. If they wished or intended to have an exemption of any kind from taxation, or felt that it was necessary to the profitable working of their business, they should have required a provision to that effect in their charter. The constitution of the United States does not profess in all cases to protect property from unjust and oppressive taxation by the states. That is left to the state constitution and state laws.' 109 U. S. 398, 400, 3 Sup. Ct. Rep. 205.

4

The New Orleans City Railroad Company having had no right of exemption from the tax im question, it is unnecessary to consider whether such a right, had it existed, would have passed by the conveyance to the plaintiff in error. See Railway v. Miller, 114 U. S. 176, 184, 5 Sup. Ct. Rep. 813, and cases cited; Picard v. Railroad, 130 U. S. 637, 9 Sup. Ct. Rep. 640.

5

Judgment affirmed.