co. ".COUNTY COUR'rOI' -SCOTLAND
right.8of the other party -are affected or changed, and where no great prejudice could likely ensue. The only possible effect of allowing this objection. would be, if the petitioner's right to proceed depended upon this amendment, to turn it out of court, and compel it to begin de novo. Nothing thereby would be gained by the defendant except delay; and it does seem to me that the very spirit of the law should compel the court, in stich instance, to let the cause proceed. Under the view, however, I have expressed of the petitioner's right under its charter as it existed at the date it instituted this proceeding, it was not necessary for it to invoke the amendment of June 8, 1888, to enable it tt> reach the Union depot. Other matters might with propriety be discussed, arising on the evidence and the argument of counsel; but, as they are. not determinate in their character, and this opinion has already been greatly extended, further discussion is forborne. It results that the issues on hearing' are found for the petitioner, and judgment will be entered accordingly.
KEOKUK & W. R. Co. ". CoUNTY COURT
(CircUift Oourt, E. D. Missouri" N. D. January 28. 1890.)
R.uLBOAD,CQIlI'PANIEs-,-CONSOLIDATION-ExEMPTION J'ROIll' TAXATION.
A consolidation of two railroad companies underJ,be Missouri consolidation act of March 2,1869, operates as the creation of a new corporation, wholly distinct from .the-constituljnt, corporations out of which it is formed, whion new corporation derives its powers and franchises from the consolidation. act; . and since Const.. Mo. 1865;-art: 11, §16, prohibiting legislative exemption from'taxation, was adopted before the passage of the act, the consolldated corporation does not acquire the immunity .taxation grantl:ld in 1857 to one of its constituent corporations. Sta·te v. Rwttroud Co., 12 S. W. Rep. 290, followed. Thlj fact tbat the supreme court .of Missouri in a former decision, in whloh the exemption of the consolidated corporatiou was not a controverted question, assumed that it waaexempt, which deci.lob. was followed by this court in a case wherein no questions' were ,considered except as had been previously considered by the state supreml:l court, does not establIsh a settled rule, of property, to which .this court is bound to adhere.
COURTS-FEDERAL COUBTS-FOLLOWING DECISIONS OJ' STATE COURT.
On bill for injunction. F. T. Hughes, for complainant. John a.Moore, T. S.MootglY'lTU:l"Y, and Ander80n &- Schofield, for defendants. 'THAYER, J. This is a proceeding on February 13, 1888, ag!&ins the county courts of Scotland, Clark, and Schuyler counties, Mo., and against the several persons who at that time were judges of said courts, and also against the several collectors of revenue for ,said counties,to restrain them from collecting, or attempting to enforce the' collection of, certain taxes assessed against a certain railroad extending through. the counties aforesaid, which at the date of the filing of the bill belonged to v.41F.no.5-20
,an(twas being operated'l:>y!complainant,:thB'Keoktl]r &Western Rai:1ioad Q)mpany. ,The property 3n question fo-rmerly belonged to the Missouri, & Nebraska Raih,:aY'Company. 'I,Complainant aequited title thereto and possession on 'DecemberS, 188tl,by virtue of foreclosure proceedings :under a mortgage executed by ,the Missourii Iowa & Ne.braska Railway Company.. ·The· taxes, :in" dispute during the owner.company, and complainant's ,contention is, in brief, that the property inquestion.wasexempt'ttomtaxation while owned by the, mQrtg$gor company., I That it.was exempt from assessment after the purchase' by the Keokuk & ,Western is not claimed. Six months before the present bill was filed suit was instituted against' .the complainant in the st81te l.circuit.court,. under the revenUe laws :Of the same taxes that form; the subject of constate, to .recover a portion of .tention imthis·prooeeding.:That:suit has recently been decided by the 8upremecoWltofthestate, and it twas held, in an elaborate opinion,that that:portionQfAlQmplainant's.milroadsitttated in the .countiesiof Clark, Scotland, and Schuyler, in this state, was not exempt from taxation while owned by the Missouri, Iowa & Nebraska Railway Company. Statev. Railroad Co., 12 S. W. Rep:21)():.. · The facts on which the claim of exemption from taxation is predicated are tp.. It willsuffice to sQ,yr that the exem'ptlon'clalD:lEid conta'inell in speciarcharter granted to the Alexandria Ri\ilroad on, t\le9t1)9f February, 1857, (Sess. Laws :Mo. 1857, p. 94;) that the last-named company, by legisl.ative ·. its ,name t6J the A:leX:tl.ndria'&'Ne:'braska, anp. 'onJylay ·s, .1810,' .heCll.1l1econ.solidated 'with th$,.IowaSouthern' Railway (Jompanr,' a corporation of ;paAle. of the lqwa & Ni?praska Rail'YItYOompanYi,andthat the were had under the pro.'visions 'of a lawenatfedin'the on Marqh 2, ($ess. Laws Mo. 15.y The supreme cou:rtof the state decides, in effect, ,liS. a (1;\ltles and franchises of AleJl'andrla & 13loamfield Railroad Company, "faa gra?ted, 'apd ve, corporatlOD; that. by \Tirtue of the consolIdation proceedmgs, a newcorporation was created, which derived all of its powers and franchises in Missouri from the consolidation act of 1869';' illld that, :inasmuch RlJ·tbll.t! act was passed after the adoption of the constitution of l865,which.'prohib..itod:legislative \grants of, eX'emption: from· '·16; iart. 11,) no immunity from taxation was or could be acquired by the MiSSOUri, Iowa & Nebraska Railway Company, by virtue of the consolidation act ·is therefore conclusive 'of the present contra. :versy, if it: it!' foll£)wed.' ,': lhavee.ssumf:ldr ,in;accordBnce ,with what seems to be the doctrine thecaseof,Railroad Co.v. Palmes; 109 U. S. 256, 3 Sup. ofBurg,ess v.Seligroon; 107 U.8.,33, (2 SUp. Ct. 10, that .this.court is ,entitl to ,express an independent d upontbe giVing to the decision of the state
¥EOKUK & WIn.
t1.00UNTY COURT()F jSCOTLAND co.
CQllrt,8s a. matter of COtlrsej the weight and respeotfulconsideratibn,as an t\uthority upon the points involved, that the decisions of such are'always entitled to. There seems to be noadequa.teground fordissenLing from the sion reached. by the state supreme court in the case above referred to, that the result of the consolidation proceedings which took place on May 3, 1870,was to create a new c()rporation under the name of the Missouri, Iowa. & Nebraska Railway Company, that derived its powers and franchises from the consolidation act of March 2, 1869, supra. The general disposition of both the·jPderal and state courts seems to be, to regard conas that which prevails in solidationproceedings,taken under such Missou!i, as operating to create a new corporation wholly distinctfrom the constituent out of which it formed, and with powers and franchises derived from the act under which the proceeding is and from other general laws prescribing the powers of corporations as at the time prevail in the state. In addition to the authorities cited on ·tpis point in State v; Railroad 00., supra, the foll()willg cases may. be consulted 'with advantage: 'lailway 00. v. Berry, '1I3tI. S. i65, 5 Sup. Ot.Rep. 529, and MemphiIJ &: L. R.R. 00., v. 112 U. S. 609,5 Sup. Ct. Rep. 299. ,,' ' . , Conceding that the Missouri, Iowa & Nebraska Railway Company was a',new corporation forx;nedon May 3, 1870, and that the proceeding of that date,was not a. mere alliance. between two ol,d corporations, or a merger of the powers of the Iowa corporation ,witht1le Missouri corporation under the charter of the latter, theeonclusion also seems inevitable, considering the federal decisions on the subject, that the new or cousolidated C9JDpany did not acquire the immunity from taxation originally .granted,.in 1857, to the Alexandria & Bloomfield .Railroad Company. The law is well settled since the decision in Morgan v. Louisiana, 93V. S. 217, that exemptions from taxation must bEl construed as l! personal privilege· granted to the ,very corporation named in the to baye perished with it, unless the express and clear in,tention of the law requires that it should pass to an assignee or successor; and !tIt grants of that charllcter are to be construed BtrictiBsimi juriB. MemphiB &: L. R R. 00. v.Oommi88ioner8, BiJ,pra. In the case of Railway 00. v. Berry, 113D.S. 465, 5 Sup. Ct. Rep. 529, it appeared that a railroad corporation of the state of Arkansas had been created in 1853, with an exemption from ation, and alRo with a power under its charter to consolidate with :other as it deemed. adforeign railroad corpomtions under such an villRble. ,It executed the charter power of consolidation on May 4,,1874, by consolidating with a Missouri corporation. The agreement of conthat "all the rights, privi\eges, and franchises of each of the corporations" should pass to the consolidat!'ldcompany. In the mean time, however, (in 1868,) the constitution of. the state of Arkansas bad so as inefiilct to prohibit exemptions from taxatjon, and to, subject all property to like burdens. !twas held by the court t4at, all a new corporation h"d beenqrElated by the amalgamaUon of the consolidated', was
to ,a1l1awlI relating to taxation in existence when the consolidation took place. and hence was not entitled to any immunity from taiation with respect to the property acquired from the original Arkansas corporation. Concerning the nature of the contract between the state and the original company, granting to the latter the right to consolidate and immunity from taxation, the court said: "For what was the contract? Construed in the most liberal spirit in favor of the company, it cannot be extended beyond a stipulation on the part of the stat,e that the Cairo & FlIltonRldlroad Company may at any time thereafter, by cOllsoliq.atjon ,with any other rl;lilroad company, form .and become a new corporation, with such powers and priVileges as, at the tilDe w1.Jen the offer is accepted and acted upon, it may be within the power of th(J statetoconfer and lawful for th(Jnew corporation to accept. If acted upon before the law Was changed. It might well be that all powers and privileges originally conferred in the chartei" of the Cairo & Fulton Railroad C0rnpany, inclnding the exem'pUon in question. would hav6vested in the new company_ ,Brltas it was not ;accepted anq.'acted upon \ljochange in the organic In\V,oflthe state,forbade ,the creatioI,l, of Cf\pable of holding property Elxempt from taxa'tron. it m*st be presumed to\,t, when the origi naI company it -did so in flill'view of the exi$ti ng law.,and 'with the in tention of forming a new corporatio'u,'!luch as' the, constitution and laws' of,the state at that time permitted. That, at least, we must, hold tQbe the legal effect,of t1.Je transaction." ,. , i" , In the case at bar it will be noted that the Alexandria & Bloomfield Railroad.Compnnywas notll.ccorded the right to consolidate by the charter of 1857. Thahight'was'granted on March 2, aftedhe change in the Missouri exemptions from taxation. ,With much greater force, then,I1'lay it be sai<ithat the'right to consolidate, held out by the¥issouri act of 1869, was a right,to consolidate subject to then existing laws as to taxation. If it be urged, in opposition to this reasoning, that the offer held out by the act of 1869,was an offer to consolidate, and at'the same time to retain the ex:emption theretofore enjoyed, tpe thereto is twofold.' ·In the first place, the act of 1869 cmitainsno apt language to include'the exemption in question; Exemptions from taxation are properly classed as immunities; rather than as privileges or franchises, and the act of 1869 merely ,promised that the new cOll1pany formed should "be entitled to the13ame privileges· and franchises," as 1he Alexandria & Bloamfi,eld Railroad Com-pany.. Vide section 4,Act :March 2, 1869. This point was expressly 'ruled in the case of Railway Co. v. Miller, 114 U. 8',176,5 Sup. Ct. Rep. '813; where the words, "shalHmcceed to all stich franchises, rights, and privileges Ii< * * as would have been had," etc.,vvere held not'to 'include 'and pass an immunity from, taxation.' 13"Qt a: petter answer to , the objection bst supposed is, that the genl,lral assern'Bly Of the state of Missouri, after the adoption' of the constitution of 1885, had no power 'to promise to a new corporatioq to be therl,lafter form'ed, :that it would 1"e·new in its favor, an exemption theretoforeenjoyedbyotieofthedonstituent corporations that was to become dissolved bj' the lict 'creating the new entity; and this point has alsobeen expressly ruled i,n tpecase of ,Railrdad<JO. v.Palmes, 109 U. S. 244, 3 Sup. Ct. Rep.: 193; , Speaking
KEOKUK &: W. B. ('.0. t7. COUNTY COURT OF ScOTLAND CO.
ofasimilar prohibition to that found in the Missouri constitution of 1865, in a case that arose in the state of Florida, where an attempt had been made by the legislature of that state to renew or extend to a subsequent corporation an exemption from taxation possessed by a former corporation whose property it had acquired, the court say:
"The inhibition of the constitution applies in all its force against the reo newal of an exemption equally as against its original creation. * * * After the adoption of the constitution of Florida of 1868, there could be no qorporation created capable in law of accepting and enjoying such an exemption, for that was prohibited by the colJstitutional provisions that have been cited." Pages 254, 255.
, Strictly in line with the' decision in Railway 00. v. Berry, wupra, is the previous decision in Memplui8& L. R.B.Co. v. Commissioners, 112 U. S. 609, 5 Sup. ct. Rep. 299, heretofore cited.' In the latter case a corporation was created in 1853 by the state of Arkansas with an exemption from taxation, and with authority to mortgage its charter. The charter having been mortgaged and sold under a 'decree' of foreclosure, the purchasers organized as a corporation under the samej claiming all of the franohises:and:' immunities, specified therein, inclllding theexemptiol1 from The court held, amonj:!; other things, that even if the sale under the mortgage conveyed to the purchasers the rig'ht to organize asacorpora.' ti6n, or to become a corporation', it was' merely a right tp organize under such laws as might be'in force when the organization Itook place; that such an organization would be a corporate entity, distinct from that which originally organized and executed the mortgage; and accompany so iformed by purchasers would be subject to taxation according to the laws in force when such organizati0h took place, and that the ni ty :from taxation' grantecl: ·in ,the charter of 1853 wai:l limited to the <Jorporate body that first organized thereunder. It seemS unnecessaryto Jlursuethe subject further. ,If the question whether the Missoun.; Iowa 4'; Nebraska Railway Company acquired an immunity from taxation. is still an open question, and is to be determined in the light .<iffederal judications, I feel confident that the exeolption cannot be sustained. It is 'insisted, however, that the exemption was heretofore upheld by the supreme court of this state in case of Scotland Co. v. Railway Co., £5 Mo. 123; that a similar ruling was afterwards made by this court in Secor v. Singleton, 9 Fed. ,Rep. 809; and that the question has been settled in this· state by these deCisions" and is not open to further controversy. It is not asserted, however, (as I understand,) that the judgment referred to in the state court, or the decree in the federal court, operates 1l;ll an estoppel in this proceeding, so as to preclude the defel'ldantsfrom denying that the Missouri, Iowa & Nebraska Railway' Company wasehtitled to an immunityfrom taxation; The filing of the present bill by the complainant would seem to be an admission by it, that the decree of this'court in the Secor (hse is not available for its protection.. But the contention is that the judgment and decree in the two casesestaolished "8.,rule.ofproperty on the faith of which complainant hits acted, and herice' that the xulecannot be, disturbed, ,even though' it is 'erroneOUS";. accord-
mgnto !tbe principles iu'1n<>.U:naoo in. Gelpck8 v. DubuqUe, 1 Wall. 206, andJita;Burgesa v. Seligman,107'U. 8.20,2 Sup. Ct. Rep. 10, and cases It is questic;mablewhether the doctrine invoked can properly be to!tcase like the one at bar, under any circumstances. To say that, because a state court !bas once decided that a certain corporation is entitled to, exemption from taxation, the decision must thereafter be. followed, although erroneous, would involve consequences of such a serious nature that any court ought to besitate to give its assent to sucb a doctrine. Tbeexemption claimed and upheld might be a perpetual one, affectin'g 'property of the value of millions of dollars. The bare statement of the proposition that tbe sovereign power of taxation might be irrevocably Jqat in such a case, by an erroneous decision on a point not well argued or carefully considered, would seem to be its own refutation. In the present case, however, it is clear that the decisions relied upon did not establish a settled. rule of property, within the meaning of the doctrine invoked. .In the case of. Scotland 00. v. Rauway Co., supra, the supreme court of the stateevidentl)T did not consider the question whether an exemption from taxationpasaed to: the consolidated company, because it was not a controverted question in: that court. The fact that tbe exemption was.acquired by thecdusolidated company seems to bave been taken for granted, for the that counsel in the case so assumed, or at least raiseq· no issue on that point. The case of Secor l'. Singleton, subsequt:'I)tly tried inthiscourt,passed off on demurrer; the ruling on the demurrer having been followed by a decree pro ronfC880 taken against the defendants.; f It is obvious that no questions were considered in the Secor exceptsucb as had previously been cGnsidered by the aupreme court oftbe atate. The only allusion to the question of exemption is found in thefQllowing paragraph of Judge TREAT's opinion. Referring to the demurrer, he ·said : . "It was Interposed, delay. inasmuch as the only legal
state taxati()D." 9 Foo. Rep. 1:110. . . 'UndeJ:the circumstances, it .cannot. be admitted that the decisions in qqestion established a settled .rule of property to which this court, any than thesta,te court,. is bound. toadhere. In the case of Railroad Co.v. Palmes, .109 U. S. 256, 257, 0 'Sup. Ct. 193, the supreme cot1rt of tbe United States refused to recognize a previous decision of the sppreme coutt of Florida, which had incidentally upheld a corporate exe;r;nption froD) as establishing $; rule of property such as the federal coUrts tonpholdj and what was there said, considering the circumswpoos under which the decision of the Florida court had been rendered ,is stllictlY applicable to the. casealbar. Tbe courtaccordingly conclud.es rule to show cause why an shQuld notissue was heretofore entered in this suit) ought to be discharged, and aninjunctioD.l!ilfused. It is so ordered.: ,·It will be understood, of course, that rthecourt intends to express. no'opinion as to the effect of the See<»' 0a8e, which has :nQW, ,become final, further than,
question had bE.'e.n decldecl.3sllet ou.t in th8 bill. (65 Mo.12i3.) adversely; wl1icb decision this coprt recognizilli !IS conclusive on a question of
MISSOURi 'pA.c., BY. cO.
,C TEXU PAd. BY. CO.
as heretofore stated, that it Mnnot be regarded as working' an estoppel .in this proceeding. Whlltever rights were secured by that decree must, of course, be enforced as between parties now entitled to the protection of the decree.'
February 4, 1890.)
(Oilrcuit Oowt. E, D·
claimed' damages for injuries to his' wife,received while defetrd:ant and In' support of his claim prorallWBt' Cbmpany was in the: hands the adudgmentrelldered in the state court againstsucb receiver. On. reference to a maSter, intervenor a witnesll who further testified as'to 'the.'lact and extent of the injury,Helil, that this waS a waiver of the rightto claim,tbat tbe judgment agaitlst. the receiver was COIlclllsive as to negligellC6 and ' , , '... . '. " . " . 8; 'SAMtI:.i..VERDICT-ExOESSIVE' DAMAGES.' j Intervenor's wife waslniuted by the negllgence of the employes of defendant J:ailway.. appeared that she bad been employed in keeping the boarding-car attacbed to tbewnlitruction train; that by tbeaiJcident ber leg was ,broken, her arm dislocated, snd her back, shllulder, and sidiliniured. Sbe had done most of the workon but, by reason Qf her injuries, had 'bcenable to do nothing for two 'years; Held, that a verdict $10,000 damages was excessive, and that it would be reduced tof5,OOO. . '.
Armstrong, for mtervenor. . , Ptenti88 and T. H. P?"endfJl'gast, for defendant.
to the ¥aster's Report., Intervention of Owen Sullivan.
·. In this case, on October 26, court maqe an .' , orderdlsPhargi,ng the receiver, ,and directing the dellv:ery to the defendant company of all property, funds, and aseets in his bands as receh;er. It is further provided in said order that the said'(}ompal1y should take the saidptoperty subject to any andaUjudgments which have heretofore 'been rendered in favor pf intervenoTs in the case, which have not been paid, as well as subject to such judgments as might be thereafter rendered by the court. in' favor of intervenors on interventions then pending and or which might be file.d. prior to February, It further 'provides that all claims againat the receiver, aS8uch,up to *e 31st day of October, !..888, bepresente(iband prosecuted by intervention