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3. Cases numerous where property of corporations placed in receivers'
hands
4. That is the legitimate mode of granting execution in equity
5. The receiver not subject to the process of any other court
6. This does not affect the priority of liens
7. Subsequent mortgagee may have receiver. How extended
8. Courts of equity will appoint one receiver in all suits
9. Receiver represents only parties to particular suit
10. Liable for money in his hands to same extent as other trustees
11. All persons having any agency in matter liable as receiver
12. So also of one having any custody of the money
CHAPTER XXX.
INDICTMENT.
SECTION I.
363
363, 364
364
365
365, 366
366
INDICTMENTS AGAINST RAILWAY COMPANIES.
1. Are liable to indictment for obstructing public highway
2. Corporations liable to indictment for misfeasance, as well as non-
feasance
3. Not liable to indictment for disturbing quiet, by proper use of loco-
motives
4. Where the company have the right to divert highways, it is for the
jury to determine whether it is done in a reasonable manner
370, 371
5. All that is requisite is, that it produce no serious public inconvenience
6. Order or conviction of company, in relation to repair of highways,
may be general
7. Signals required to be given, at highway crossing, on level
n. 2. Review of the cases upon the subject.
371
367-369
SECTION II.
HOW FAR RAILWAYS MAY BECOME A PUBLIC NUISANCE.
1. Use of public streets of a city, by permission of city authorities, by
railway, not a nuisance
372, 373
2. But the use of locomotives, in the vicinity of a church, on Sunday,
may become a nuisance
3. City authorities may grant railway leave to use streets, or to tunnel
4. But company must not unnecessarily interfere with comfort of others
in such use
373
374
5. The slight obstruction of navigable waters, by railway company,
authorized by act of legislature, not a nuisance
6. Such grants construed strictly. Any excess of authority becomes a
nuisance
7. Company not justified in building stations, for passengers or freight,
in highway
8. Aggrieved persons cannot take redress into their own hands
SECTION III.
INDICTMENT FOR OFFENCES AGAINST RAILWAYS.
1. Railway tickets chattels. Railway pass subject of forgery.
2. Under the English statute, indictments for obstructing railway car-
riages, or endangering persons therein
n. 4. Loss of railway ticket. Negotiability of same
n. 5. Right of street railways to unobstructed track
CHAPTER XXXI.
TAXATION.
375, 376
376, 377
376
ASSESSMENTS UPON RAILWAY WORKS, AND UPON STOCK, OR SHARES.
1. Under English statutes, company assessed for net profits, in each
parish
378, 379
2. This may be increased by the traffic, or by smallness of repairs, in
the parish
3. Depreciation of road by time, to be taken into account
4. Mode of estimating yearly net profits
5. Rule stated in several of the American States
379, 380
380
380-382
382-385
6. Liability to taxation, on railway stock, same as other personal
property
386, 387
n. 15. Right of legislature to exempt company or stock from taxation 384–386
7. Railways not generally held liable to taxation, as a fixture, under
general laws.
8. Such erections as are necessary to the use of railway are not tax-
able separate from the road
9. But erections of mere convenience, for profit, may be
10. Or such as are without the limits of land allowed to be taken com-
pulsorily
11. As to taxation, capital given as a bonus is clearly capital
12. Municipalities may tax real estate for improvements
13. Generally called taxation, not eminent domain
14. Recent case in New York
n. 31. Power of courts to restrain excessive taxation seems to be out- grown, except in case of national stocks
2. General exemption from taxation includes stock
3. Qualifications of the general rule
4. Exemption of the capital stock includes all property of the company
necessary to its business
5. Exemption, with exception, includes all modes of taxation but that
390, 391
391
391, 392
392
one
6. Union of companies, where some are exempted from taxation and
some not
7. Construction of a qualified exemption from taxation
8. Such exemptions declared unconstitutional
393
393, 394
9. Where railway works are taxed indirectly, they cannot be taxed
directly also
10. Qualified exemptions held valid and inviolable
11. Exemptions from taxation should be held temporary, where they will
bear that construction
12. Land taken by right of eminent domain exempt
13. The distinction between public and private business corporations
14. The distinction between structures within and without the road-grant
clearly invalid
395, 396
396
15. Public corporations, as to property used for public purposes, exempt
from taxation
SECTION III
RIGHTS OF TOWNS AND COUNTIES TO SUBSCRIBE FOR RAILWAY STOCK.
1. Such subscriptions held valid, if authorized by legislature
396-398
2. Such subscriptions, in another state or province, held valid .
3. Lateral railway acts in Pennsylvania constitutional .
399, 400
401, 402
4, and n. 2. Some courts and judges have dissented from the general
view
5. Such acts have received a very strict construction
n. 1. Cases reviewed
402, 403, 398–402
6. Railways passing through must be regarded as leading to a city
403, 404
396-400
405
CHAPTER XXXII.
CONSTITUTIONAL QUESTIONS.
WHEN RAILWAY GRANTS ARE PARAMOUNT AND EXCLUSIVE.
1. In the English Constitution there is no restriction upon the legislature 406
2. Limitation in United States Constitution, upon the subject
406, 407
408, 409
409, 410
411
3. Essential requisites to constitute an exclusive franchise, or grant
4. Construction of such grant by the tribunal of last resort
5. Opinion of Massachusetts Supreme Court upon the subject .
6. Grants of the use of navigable waters, for manufacturing, revocable
412-418
7. Forfeiture, for the benefit of a county, may be remitted by legislature 418
8. Where the legislature repeal the charter of a corporation. Presump-
tions
9. Statement of an important case in Louisiana
10 and 11. Recent decisions of U. S. Supreme Court
12 and 13. Recent cases in the state courts
POWER OF THE LEGISLATURE TO IMPOSE RESTRICTIONS UPON EXISTING CORPORATIONS.
1. Are subject to legislative control in regard to police
2, and n. 3. Opinion of court in a case, as to railways
428
429-439
3. Important early case in Maryland
430-434
442 443
4. Extent of a reserved power to repeal charters of corporations 435-438
5. Where the charter is expressly exempted from legislative control 439–442
6. Effect of public patronage in regard to legislative control
7. Railway companies may be compelled to modify their erections 443-444
8. Summary remedies given to a corporation no part of its franchises
9. Statutes to compensate for animals killed on the railroad tracks ap-
ply to existing as well as future companies
444
CONSTRUCTION OF EXCLUSIVE RAILWAY GRANTS.
1. Such grants are to receive a strict construction in favor of the com-
pany
2. How far such companies can claim under implied grant
445
445, 446
3. Ambiguous terms construed most strongly against the company
4. Construction of statutes conferring powers for the public good more
re
liberal than those conferring powers for private profit
5. Legislature may remedy defects in organization.
446
446, 447
447
SECTION IV.
DISCRIMINATION AS TO FREIGHT.
1. Discrimination between freight not prohibited by the United States
Constitution
2. Tax upon the tonnage of railways brought from other states
CONSTITUTIONAL RIGHT OF THE STATES TO TAX SHARES OF DOMESTIC CORPORATIONS
HELD BY NON-RESIDENTS.
I. Vermont statute of 1854. Exemption from taxation not implied from
grant of charter
1. Corporations taxable for property, income, and faculty
451, 452
4. Three species of property taxable to the corporation
1st. Capital stock. 2d. Property. 3d. Franchise
2. The capital stock or property of corporations clearly taxable to them 453
3. Mr. Justice Wayne's exposition of the subject
5. Shares taxable only to the owners.
II. If, then, the corporation is taxable for its capital stock, why may it
not be taxed for the portion represented by shares owned by non-
residents?
1. It is certain this could not be done as to a portion of the capital rep-
resented by the shares of the resident owners
|_ 2. Taxation implies an equalization upon the same class of property
throughout the district taxed.
3. It is, therefore, not competent to tax property of the same class at
different rates, in different portions of the district taxed
III. But it may be urged that this rule does not extend to non-residents
1. As to real estate, a different mode of appraisal, on account of the
non-residence of the owner, will not render the tax void
2. But non-resident citizens and aliens do not stand upon equal footing
as to taxation
455
455, 456
IV. The United States Constitution secures to non-resident citizens of
any of the United States the right of equal taxation with the citi-
zens resident within the state where the tax is levied
1. The article in the old Confederation, compared with that in the pres-
ent Constitution upon this subject
456
456, 457
2. This article has always been regarded as having reference to the ac-
quiring and holding property in the several states by the citizens
of other states
3. This view was early adopted, when the subject was fresh in the minds
of all, and while the framers of the Constitution were upon the
bench and at the bar
4. Two decisions of the Maryland Court of Appeals stated, wherein it
is held to have chief reference to taxation
457
457, 458
5. The opinion of Mr. Justice Washington stated, wherein he held simi-
lar views
6. Cases cited from the Court of Appeals in Virginia and Kentucky,
holding similar views
7. A case from Alabama, expressly deciding the very point, within the
last few years, stated
459
8. The course of decision is uniform in that direction, and there is noth-
ing to oppose it
V. This indemnity against unequal taxation, extends not only to the
amount, but to the principle, or the mode of its levy
1. The security in regard to taxation being reasonable in degree, de-
pends much upon its affecting all alike; and this security is more
important to non-residents than to residents
459, 460
2. This applies with great force to the different corporate interests, both
as to the corporation and the corporators
460, 461
3. Shares are only taxable to the owner, in the place of his domicile
4. And it is not material where the corporation is located.
461
5. The shares have no situs, except the domicile of the owner
462
6. The title to the shares and to the capital stock entirely distinct
7. The only subject in regard to which the shares and the capital stock
are regarded as identical, is that of exemption from taxation. 462, 463
8. But this does not prove that both may not be taxed at once
463
9. Double taxation illegal, but taxing shares and capital stock is not 463, 464
10. The corporation is taxable, at the place of its principal office, for its
franchise and all its property, except real estate.
11. The injustice or abuse of taxation in detail will not render it void,
but its vicious principle will
464
464, 465
465, 466
12. The fact that the corporation is taxed for all its property and its
franchise has no tendency to exempt its shares from taxation
13. The objection in principle to a tax of this kind is, that it is a special
imposition upon a limited class of property, easily destroyed.
VI. Resumé of points established .
1. That a non-resident cannot be taxed upon shares
2. The United States Constitution secures equality of taxation to non-
residents, both in amount and in principle.
3. This tax is in reality upon the shares of a non-resident, but in form
against the corporation, upon an aliquot proportion of its stock
represented by the shares of non-residents
4. Illustrations of the entire inadmissibility of this mode of taxation 466, 467
5. And it is no excuse that, in consequence of the non-residence of the
owners, no other mode is practicable
6. It is in substance a levy of a tax, on account of choses in action, upon
the debtor, because the creditor does not reside where any such
levy can be made upon him
VII. Conclusion. The tax is void for many reasons .