Baltimore, Cheaspeake & Atlantic Railway Co. v. Mayor of Ocean City , 89 Md. 89 ( 1899 )

This is a suit brought by the Mayor and City Council of Ocean City, Maryland, against the Baltimore, Chesapeake and Atlantic Railway Company to recover certain taxes alleged to be due and unpaid by the defendant company. The case was tried upon an agreed statement of facts, and the judgment being for the plaintiff, the defendant has appealed. It appears that the defendant is a corporation formed under sections 187, 188, 189 and 190, of Article 23 of the Code of Public General Laws, for the purpose of "owning, possessing, maintaining and operating a railroad in this State," formerly known as the Baltimore and Eastern Shore Railroad; the latter road having been formed under the general incorporation laws of the State. By the Act of 1886, chapter 133, the powers of the Baltimore and Eastern Shore Railroad were enlarged, and "its franchises, property, shares of capital stock and bonds" were exempt from all State, county or municipal taxation for the term of thirty years, accounting from the date of the completion of the road, between the termini mentioned in its charter, that is, between Eastern Bay in Talbot County and the town of Salisbury in Wicomico County. This road was completed on or about the first of August, 1891. By section 5 of the Act, the Baltimore and Eastern Shore Railroad was authorized "to lease or purchase and operate any railroad or railroads" either in or out of this State, for the purpose of carrying on their business, and any other railroad company in this State was also authorized to lease or sell its railroad or other property to this road.

In pursuance of this power, the Baltimore and Eastern Shore Railroad, on the 30th of June, 1890, purchased the property known as the Wicomico and Pocomoke Railroad, a road about thirty miles long, extending from Salisbury to Ocean City and thus consolidating the two roads. Afterwards, in August, 1894, these two roads, as thus consolidated, together with their property rights, were sold by a decree of the Circuit Court of the United States for the District of Maryland, under certain mortgage foreclosure proceedings, and were purchased by Mr. Nicholas P. Bond, of Baltimore City, who subsequently with others formed the defendant corporation, the Baltimore, Chesapeake and Atlantic Railway Company.

So the principal question presented by this appeal, is whether the property formerly owned by the Wicomico and Pocomoke Railroad, situate in the town of Ocean City and now owned by the appellant company, is exempt from taxation, under section 2 of chapter 133 of the Acts of 1886.

Now, as we have seen, the Act of 1886 provided for the building and working of a railroad from the shores of Eastern Bay, in Talbot County, to Salisbury, in Wicomico County, passing through the counties of Talbot, Caroline, Dorchester and Wicomico, and it is quite clear, we think, that it was only such property as is necessary for the operation of this road, that the Legislature intended to exempt from State, county and municipal taxation, for the term of thirty years, from the date of the completion of the road. It means the railroad and its property mentioned in the Act and none other.

It is admitted that the Wicomico and Pocomoke Railroad Company was entitled to no such exemption at the time of its purchase by the Baltimore and Eastern Shore Road, either under its charter or by legislative exemption.

It is a sound rule of construction, said this Court, in State v. Baltimore and Ohio R.R. Co., 48 Md. 73, that the power of taxation is never presumed to be relinquished unless the intent to relinquish is clearly expressed. The Delaware Railroad TaxCase, 18 Wall. 206; Southwestern Railroad Company v. Wright,116 U.S. 235.

Nor was the exemption from taxation conferred by the consolidation of the two companies. The fourth section of the Act of 1886 declares that the Baltimore and Eastern Shore Railroad Company shall have power to unite, connect and consolidate with any railroad company or companies either in or out of this State, so that the capital stock of said companies so united, connected and consolidated, may at the pleasure of the directors constitute a common stock, and the respective companies may thereafter constitute one company and be entitled to all the property, franchises, rights, privileges and immunities which each of them possess, have and enjoy under and by virtue of their respective charters.

But even if we concede the contention of the appellant that the property in question was exempt from taxation, after its purchase by the Baltimore and Eastern Shore Railroad Company, this would not avail the defendant company in this case. An exemption from taxation is not such a right or privilege as passes to the purchaser of a railroad without express statutory direction. In Chesapeake and OhioRailway Company v. Miller, 114 U.S. 186, it is said: "The franchises of a railroad corporation are rights or privileges which are essential to the operations of the corporation, and without which its road and works would be of little value; such as the franchise to run cars, to take toll, to appropriate earth and gravel for the bed of its road or water for its engines and the like. They are positive rights or privileges, without the possession of which the road of the company could not be sucessfully worked. Immunity from taxation is not one of them. The former may be conveyed to a purchaser of the road as part of the property of the company, the latter is personal and incapable of transfer without express statutory direction."

In Picard v. Tennessee, c., R. Co., 130 U.S. 641, the Court said: "Yielding to the doctrine that immunity from taxation may be granted, that point being already adjudged, it must be considered as a personal privilege not extending beyond the immediate grantee, unless otherwise so declared in express terms, the same considerations which call for clear and unambiguous language to justify the conclusion that immunity from taxation has been granted in any instance must require similar distinctness of expression before the immunity will be extended to others than the original grantee. It will not pass merely by a conveyance of the property and franchises of a railroad company, although such company may hold its property exempt from taxation." The cases of Wilson v. Gaines, 103 U.S. 417;Morgan v. Louisiana, 93 U.S. 217; Morawetz on Corporations, sec. 935; Cook on Stock and Stockholders, sec. 572, are to the like effect.

There is no such express statutory authority in this case. The 187 and 188 sections of Art. 23 of the Code, relied upon by the appellant, refer to such rights and property, as would pass under the sale of a railroad mentioned in those sections and not to an exemption from taxation such as is presented here. We are of the opinion, therefore, that the property of the defendant company, described in the agreed statement of facts filed in this case, is liable for taxation and for the reasons we have given the Court committed no error in rejecting the appellant's prayers, so the judgment will be affirmed.

Judgment affirmed with costs.

(Decided March 14th, 1899).