County Commissioners v. Franklin Rail Road

Miller, J., delivered the opinion of the Court. The claim of exemption from taxation made by the appellee, rests upon, the first clause of the fourth section of the Act of 1836, chapter 79, which provides that “the said Company, in the location, construction and use of its road, shall have and be entitled to the like rights, privileges and immunities granted to and enjoyed by the Baltimore and Ohio Rail Road Company, in the location, construction and use of its road.” ¹⁶¹ It is insisted, that by force of the terms “privileges and immunities,” as here used, the same exemption from taxation was granted to the appellee that had been granted to the Baltimore and Ohio Rail Road Company by the last clause of the eighteenth section of the Act of 1826, chapter 123. But it is not necessary to inquire whether this position be sound, because assuming the exemption claimed once existed, we are of opinion it was repealed, and did not exist at the time these taxes were levied. The agreed statement of facts shows that State and county taxes for the year 1867 were levied under the Act of 1866, chapter 157, on a ticket office, and "warehouse and lot belonging to the appellee, a Company incorporated in pursuance of the Acts of 1836, chapter 79; 1853, chapter 135, and 1856, chapter 70, and organized and in existence in this State.

By this, we are referred to these several laws as the source from which the present corporation, whose property is taxed, derives its corporate existence, powers and privileges. From these it appears that, by the Act of 1836, chapter 79, power and authority was given to the Franklin Rail Road Company, a corporation chartered by the State of Pennsylvania, and having a lino of road in that State, to construct a rail road from a certain point on the line dividing the two States, to connect "with the Baltimore and Ohio Rail Road and the Chesapeake and Ohio Canal, at or near Hagerstown or Williamsport, but not to intersect the Canal more than half a mile west of the latter place. The road was constructed from the State line to Hagerstown, but the Company thereby incurred heavy debts, which they were unable to pay, and their entire road in both States having become greatly dilapidated, law’s v’ere passed by each State, appointing commissioners to sell that part of the road within its limits, and providing for distribution of the proceeds amongst the creditors of the Company. The first Act, providing for the sale of the Maryland portion of the road, is the law of 1853, chapter 135, the provisions of which need not be more particularly noticed than ¹⁶² to state that its eighth section is identical with the sixth section of the second and supplemental Act of 1856, chapter 70.

By the fourth section of this latter Act, it is enacted that the purchaser or purchasers, whether individuals or a foreign corporation, when they shall have relaid the road as therein provided, sháll be and “are hereby declared a body corporate by the name of ‘The Franklin Rail Road Company,’ with all the powers, franchises and privileges granted” by the two preceding Acts, “and with further power and authority ” to construct a railroad “ from Hagerstown to and across the Potomac river at any point between” Hancock and Knoxville, thus authorizing a different route and terminus of the road from that prescribed by the original Act of 1836. It is very clear the purchasers constituting the present corporation, called “ The Franklin Rail Road Company,” derived their corporate name and existence from this latter Act of 1856. For their powers and privileges, reference is made to the two antecedent laws, which, for that purpose, are to be regarded as embodied in and reenacted by this Act. This is their charter by which they were created a body corporate in and under the laws of this State.

By accepting it, with the benefit of the additional powers it conferred, and organizing and acting under it, they accepted all its provisions and conditions, including its sixth section, by which it is enacted, “ that the Legislature hereby reserves the right to alter, amend and repeal the provisions of this supplement, and to withdraw and abrogate all the rights, privileges and franchises vested in the said Franklin Rail Road Company by it or any other Act or Acts of Assembly of this State” Having thus reserved, in the broadest terms, the unfettered pow'er of alteration, repeal and withdrawal, it was competent for