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such holder of or person interested in a mortgage or lien paying such tax and interest shall pay such additional amount as a justice of the Supreme Court shall certify to be proper and reasonable for the expenses and services of the proceedings as far as they have progressed for the collection of said tax and interest thereon. (P. L. 1888, p. 284.)

187. Sec. 23. That if any railroad or canal shall be owned

or operated under a franchise by any individual or association Incorporated not incorporated, the term "company” used in this act shall

apply to such owners or operators, and such property shall be assessed and taxed under the provisions of this act in the same manner as if operated by a company, and the persons operating or owning such railroad or canal shall make the returns required by this act to be made by companies. (P. L. 1888, p. 284.)

Assessment of property of company operated by

Construction of section.—The franchise intended by this section is a franchise to own or operate a railroad or canal. The element of such a franchise enters into the classification of the act. State, Association v. Assessors, 60 N. J. L. 372.

Under the provisions of this section, and section 2, a railroad not the property of a railroad company, and neither owned nor operated under a franchise by an individual or an unincorporated association is not subject to taxation by the State Board of Assessors. State, Association v. Assessors, 60 N. J. L. 372.

See In re Erie Railroad Co., 64 N. J. L. 123.

AttorneyGeneral and State board may employ assistants.

188. Sec. 24. That the Attorney-General shall, with the approval of the Governor and Comptroller, have power to employ such assistant attorneys or counsel as may be necessary to protect and properly defend the interest of the State, in carrying out the provisions of this act; and such assistants shall be paid such compensation by the State as may be approved by the Attorney-General and the Comptroller; the State Board of Assessors* shall have power to employ such assistants in making their valuations as may be necessary to complete the same in due time, and such assistants shall be paid such reasonable compensation for their services as the board and the Governor shall approve. (P. L. 1888,

p. 284.)

* Superseded in 1915 by the State Board of Taxes and Assessment.

189. Sec. 25. That any corporation having or claiming to Taxes may have any contract with the State whereby any of its property Corporation is claimed to be exempted from the taxation imposed by this tract of

exemption. act, may, at its discretion, voluntarily pay to the State from year to year such sums of money as, added to the tax now assessable against such corporation under such alleged contract, will be equal to the tax assessable against such corporation under this act in respect to the property so claimed to be exempted, and such voluntary payment shall not be construed in any proceeding or suit to be a waiver by such corporation of its said alleged contract; provided, however, Proviso. that nothing in this section, or in this act contained, shall be construed or taken as an admission on the part of the State that any corporation is possessed of any contract or especial provision of the law on the subject of taxation which may not at any time be repealed or modified by the State. (P. L. 1888, p. 285.)

190. Sec. 26. That if any section of this act shall, for If one section any reason, be held to be unconstitutional or invalid, it shall tional, not to not affect the other provisions of this act or any of them. provisions. (P. L. 1888, p. 285.)

affect other

Operation of section.-In view of this section, the invalidity of the act of 1906 (P. L., p. 571), supplemental to the act, does not affect the validity of the act. Railroad Co. v. Baird, 75 N. J. L. 771.

may file in

n

tract for dif

sition of tax.

191. Sec. 27. That any corporation in this State having Corporation the right by contract, to any different imposition of tax, strument

waiving either State or municipal, than that provided for in this act, efit of con are hereby authorized to execute and file in the office of the ferent impoSecretary of State an instrument, to be first approved by the Attorney-General, waiving the benefit of any such contract, whereupon they shall be bound by the terms of this act, or any amendments hereto, or any further act of the Legislature, and upon filing any such instrument the State agrees to surrender its right to take the property of any such corporation under any law now existing; provided, that any such Proviso. corporation shall execute and file such instrument within six months from the time of the passage of this act. (P. L. 1888, p. 285.)

NOTE.-The following act of 1885, entitled "An act to provide for the surrender to the State by railroad and canal companies of special immunities with respect to taxation claimed by virtue of contracts with the State,is here inserted for convenience of reference.

191a. Sec. 1. That any railroad or canal company having the right, by contract, to any different imposition of tax, either State or municipal, than that provided for in the act entitled "An act for the taxation of railroad and canal property,” approved April tenth, one thousand eight hundred and eighty-four, is hereby authorized to execute and file in the office of the Secretary of State an instrument, to be first approved by the Attorney-General, waiving the benefit of any such contract and accepting and submitting to the provisions of the aforesaid act and the supplements thereto; whereupon they shall be bound by the terms of said act or any supplement or amendment thereto, or any further act of the Legislature, and upon filing any such instrument the State agrees to surrender its right to take the property of any such company under any statute now existing; provided, that any such company shall execute and file such instrument on or before the first day of July, one thousand eight hundred and eighty-five; provided, further, that the lessee or grantee of the railroad or canal of any such company shall join in such instrument (a). (P. L. 1885, p. 106.)

NOTE.The following act of 1890 (P. L. 1890, p. 171), entitled "An act to provide for the surrender and extinguishing on the part of any railroad or canal corporation of any contract of exemption from taxation in whole or in part which it may have or claim by virtue of its charter or any supplement thereto or under any law of this state, and for the surrender and extinguishment on the part of the State of any contract contained in the charter and supplements of said corporation, or in any law of the State empowering the State to purchase, take or acquire the railroad, canal and other property of such corporation, or any part thereof, upon an appraisement thereof, or in any other manner prescribed by such charter or supplement or law,” is inserted here for convenience of reference.

(a) The act of 1884, referred to in this section, was repealed by the act of 1888. See footnote to par, 165, ante.

of State.

State to take

instrument.

191b. Sec. 1. That any railroad or canal corporation hav- Railroad and ing or claiming to have any contract with the State by virtue rations may of its charter or any supplement thereto, or any law of this and extinState, whereby its property, or any part thereof, is claimed to contract of

exemption be exempted from the taxation imposed by any law of this from

taxation. State, it shall be lawful for such corporation, upon the written assent thereto of the Governor, to execute and file Assent to be in the office of the Secretary of State an instrument, to be of Secretary first approved by the Attorney-General, waiving the benefit of and surrendering any such contract and agreeing to submit itself and be subject to the operation of the provisions of all constitutional general laws of the State applicable to all the railroad and canal corporations of this State which can be taxed by the legislative power of the State by acts Right of passed or to be passed; and upon the execution and filing property ex

tinguished on of such instrument so approved as aforesaid, any contract or hling provision contained in the charter of such corporation or any supplement thereto, or any statute of the State, by which the State has or claims a right to take or purchase the property of such corporation, or any part thereof, shall be and the same is hereby wholly extinguished and surrendered. (P. L. 1890, p. 171.)

191c. Sec. 2. That whenever any dispute has hereto- Awards made fore arisen, or shall hereafter arise, between any rail- made be

made by arbiroad or canal corporation and the State respecting taxes in trators a arrears, or taxes theretofore paid to the State, and an award effectuating in respect to such taxes shall have been made, or shall be ment of

rights of hereafter made, by arbitrators appointed by the State and State. such corporation, the performance of such award by the State and such corporation shall be a condition to the effectuating the extinguishment and surrender of the respective rights of the State and the said corporation; and the said corporation shall do all acts and execute all instruments necessary for the performance of such award on its part, and the Governor of the State is hereby authorized to Governor do all acts and execute all instruments under the seal of the execute all State, necessary for the performance of such award on the part of the State and the extinguishment and surrender of

condition to

authorized to

acts, etc.

Expenses of arbitration, by whom audited and paid.

Instruments to be recorded in office of Secretary of State.

Proceeding's to determine character of property when assessed by both local authorities and State board.

the rights of the State, and to manifest the same; and the Governor and the Comptroller shall audit and allow the expenses of such arbitration on the part of the State and the l'ees of the counsel employed by the State, and such extra compensation to the Attorney-General as they may think proper, and also the fees of the arbitrator appointed by the State, and upon such allowance the treasurer shall pay the same on the warrant of the Comptroller; all instruments executed and delivered by the said corporation or by the Governor, in the performance of such award and for the purposes aforesaid, may be recorded in the office of the Secretary of State and shall be public records, and shall be lawful evidence in any court of this State. (P. L. 1990. p. 172.)

192. Sec. 28. That in case any property of any railroad or .canal company which has been, or shall hereafter be in any year assessed by the local authorities of any taxing diatrict has been or shall be also assessed by the State Board of Assessors as property used for railroad or canal purposes, the Supreme Court or any three justices thereof, to be assigned by the Chief Justice, shall determine, in a summary manner,

the character of the property and whether used for railroad or canal purposes, and by which assessors the same has lawfully been assessed, which determination shall be made whether the taxes in question have been paid or not, and whether a certiorari to review either assessment has been granted or not; such determination shall be made under an order to show cause at a time and place to be therein desigTiated, which order shall be granted by the Chief Justice of the Supreme Court upon application ex parte by any of the parties interested, namely, by the Attorney-General on behalf of the State, or by the owner of the property assessed, or by the authorities of the taxing district; and said order shall be served not less than ten days before the day fixed therein for the hearing, upon the said parties interested not making such application ; depositions may be taken, on two days' notice by either party, to be used on such hearing; the justices before whom the matter shall be heard, may, if they see fit, view the property in dispute, to guide them in their decision; the judgment of the court shall direct the cancella

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