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Statement of the Case.

By section one, the corporation is authorized to hold, purchase, receive and enjoy real and personal estate in Mississippi and other States, however acquired; and to sell, rent, lease, mortgage or otherwise dispose thereof.

By section five, it is empowered to consolidate with any other company or companies, and acquire or lease other railroads in or out of the State for a term of years or in perpetuity; to do an express business over its own and other lines of railroads and steamboats or other conveyances in and out of the State ; and to acquire, put up, use and operate a line or lines of telegraph in this or other State or States; by section six, to fix its own rate of charges, not to exceed a maximum indicated, provided, it may make special agreements with shippers as to lumber, coal, iron, etc., and other freights transported in car loads, without discrimination ; by section seven, to enter on state lands anywhere and take in fee simple one hundred feet on each side of the centre of any of its tracks, as right of way; to use any rocks, timber, earth, sand, gravel, water or other materials anywhere found on such state lands; to build bridges across any stream whether navigable or not, with power and authority “to build, construct, maintain and operate of itself or with others, in or out of this State, a ferry across, or a tunnel under, or a bridge over, the Mississippi River at any point within this State, where its railroads, branches, laterals or spurs may reach said river;” to acquire all lands and materials necessary for landings, wharves, inclines or approaches thereto; to establish such landings, .wharves, etc., as may be necessary or convenient in transporting freights, passengers, cars or rolling stock, loaded or unloaded, upon and across said Mississippi River, or any other river or body of water within this State; and to own, use and operate, and control by itself or others, “all such steamboats, ferries or other water craft as are or may be convenient or necessary in crossing such water, so as to develop trade over said lines of railroad;" by section nine, to insure persons and property, or either, transported or to be transported over any part of its line, and all other property coming into the possession or control of said company for transportation or storage,

VOL. CXXXII-12

Statement of the Case.

and to charge reasonable compensation for such insurance or storage; to erect or acquire and use such depots, storage houses, wharves, etc., as shall be necessary or convenient; and to construct and operate compresses and oil mills; by section ten, to run its railroad, branches, laterals or spurs into the corporate limits of any incorporated town or city; and to build and operate its tracks, across or along any streets of such incorporated municipality; and by section eleven, the board of directors, stockholders, executive committee, officers and agents of the company may hold their meetings and transact the company's business in or out of the State, and establish such offices as they deem best in or out of the State, and all acts done by said company, its officers or agents, out of the State shall be of the same force and effect as if done within the State.

By the Code of Mississippi of 1880, under the heading “Taxation of Railroads," taxation was provided for in certain sections, summarized by counsel, in substance as follows:

“Section 597 provides that each railroad company owning and operating a railroad in this State shall, on or before the third Monday in August in each year, file with the auditor of public accounts a complete schedule of all its property, real or personal, setting forth the length in miles or fractions of its road-bed, switches and side tracks, and showing the number of miles and fractions lying in the State, and in each county, and in each incorporated town, and the value of the whole, and each part as herein subdivided, capital stock, bonded indebtedness, the gross amount of receipts, the rolling stock, depot buildings, workhouses and machine shops, car shops, and stationary machinery, and the county and town in which situated, and the land on which they are situated, together with all other real, mixed and personal property.

“Section 599 requires: The auditor, when this schedule has been filed, and also in cases when it has been refused, is directed to notify the governor of the State of the fact, who shall proceed to convene the auditor, treasurer and secretary of State, who, thus convened, shall assess the value of each railroad for purposes of taxation and shall certify the same to the auditor of public accounts.

Statement of the Case.

“Section 600 provides the means of ascertaining the items and value of the property. The board is directed to value the entire road and property, that value is to be divided into the number of miles in the State, and the valuation for each county is to be according to the number of miles of the road in each. The number of miles for the State shall be the product for state taxes, and the number of miles in each county the product for county taxes; and, having thus ascertained the sums to be taxed, they shall certify the same and the facts to the auditor.

“ Under section 601 may be added ten per cent on the amount of taxes assessed against railroad companies failing or refusing to file schedules as directed by section 597, or filing unfair ones.

“Section 603 provides that when the valuation so ascer tained and certified has been furnished to the auditor, he shall ascertain the taxes due the State and counties, and notify the companies of the amounts due to the State, by letter or other wise, and shall certify the sums to be taxed in the several counties for county purposes to the clerk of the Chancery Court of the county, and the amount to be taxed by cities and towns to the mayor thereof, and the sums so certified shall be entered on the collector's books, to be collected as other taxes; and by section 604 the auditors shall collect the taxes due the State by distress warrants issued to any sheriff, authorizing the seizure and sale of personal property in the county: and, should the personal property be insufficient, the auditor may sell the entire road and franchise to the highest bidder, and the purchaser shall be put in possession.

“Section 605. The county taxes are to be collected as all other taxes.

“Section 606. Railroad property situated in any city or incorporated town may be taxed for city or town purposes, upon a valuation thereof made upon the same basis as the property of individuals, and this section is to apply to the foregoing as well as to the following modes of taxation herein provided for.

“Section 607 provides that every railroad accepting this

Statement of the Case.

act, and annually paying to the auditor of public accounts the taxes hereinafter provided for, and signifying its acceptance in writing, shall be exempt from all the foregoing provisions, except section 606 in relation to cities and towns, and such payment shall be in full of all state and county taxes ; fifty per cent of the amount paid to be placed to the credit of the counties through which the railroad may pass, to be divided amongst them according to the number of miles in each. Lands owned by such railroad companies, and not used in operating the roads, shall be taxed as other property and for all purposes.

“Section 608. Each railroad company whose line is in whole or in part in this State shall, if it accepts the provisions of this act, pay to the state treasurer, on the warrant of the auditor, on or before the 31st day of December, in each and every year, a privilege tax as follows, to wit : [IIere follows a list of the existing railroads in the State, their names being given and the sums required of each.] Provided, That no railroad company shall be subject to taxation under this chapter while the same is in process of construction, but if any part of any road shall be finished and used for profit, the part so used shall be taxed although the whole road may not be finished.” Code Mississippi, 1880, 194 et seq.

In 1884, section 604, so far as it provided for putting a purchaser of a railroad under the tax sale therein mentioned, in possession of the road, was repealed, and section 607 was so amended as to give to the counties two-thirds, instead of fifty per cent, of the privilege tax.

Section 608 was amended so as to read :

“Each railroad company whose line is in whole or in part in this State shall, if it accepts the provisions of this act, pay to the state treasurer, on the demand of the auditor, on or before the fifteenth day of December in each and every year, a privilege tax as follows, to wit: [then follow the names of the companies, not including appellant.] All the railroads not named herein, and not exempt from taxation by their charters, sixty dollars per mile: Provided, That no railroad company shall be subject to taxation under this chapter while

Statement of the Case.

any part of

the same is in process of construction but if

any road shall be finished and used for profit, the part so finished shall be taxed, although the whole road may not be finished nor where the same is now exempt from taxation by its charter.” Laws Mississippi, 1884, 29, 30, c. 22.

In 1886, the privilege tax for all railroads was increased twenty-five per cent. Laws Mississippi, 1886, 23.

April 3, 1888, the legislature of Mississippi passed an act entitled “ An act to provide for the assessment of past due and unpaid taxes on railroads which have escaped the payment thereof," the first section of which is in these words:

" That every railroad which has failed to pay the taxes for which the same was liable, for any year for which it was so liable, such railroad not being exempt by law or its charter from taxation for such years, and so being liable to taxation, shall be assessed for, and shall pay an ad valorem tax, to be assessed as hereinafter provided, unless such railroad shall, within sixty days after the passage of this act, pay the taxes for which the same was liable according to its charter, or shall pay the privilege taxes for which the same was liable, as follows: If a standard or broad gauge road, for the years prior to 1884, eighty dollars per mile; for the years 1884 and 1885, one hundred dollars per mile; and for the years 1886 and 1887, one hundred and twenty-five dollars per mile; and, if a narrow gauge, or not standard or broad gauge road, for the years prior to 1884, forty dollars per mile ; for the years 1884 and 1885, fifty dollars per mile; and for the years 1886 and 1887, sixty-two dollars and fifty cents per mile.” Laws of Mississippi, 1888, 49, c. 28.

Section two provides that sixty days after the passage of the act, the tax-collectors of the several counties through which any railroad runs, which has failed to pay the taxes for which it was liable, and failed to avail itself of the provisions of the first section and paid taxes according thereto, shall assess, as additional assessment, every such railroad in their respective counties for the several years for which taxes have not been paid, on lists duly prepared for that purpose by the Railroad Commission, whose duty it shall be to prepare such lists imme

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