Syllabus.

cution. Rex v. Harris, 1 Ld. Raym. 482; Rex v. Rogers, 3 Burrow, 1809, 1812; Rex v. Wyatt, Russ. & Ry. 230; Ex parte Howard, 17 N. H. 545; State v. Kitchens, 2 Hill (S. C.) 612; Bland v. State, 2 Carter (2 Indiana), 608; Lowenberg v. People, 27 N. Y. 336; State v. Oscar, 13 La. Ann. 297; State v. Cardwell, 95 N. Car. 643; Ex parte Nixon, 2 S. Car. 4.

The application for the writs must be denied.

WILMINGTON AND WELDON RAILROAD COMPANY v. ALSBROOK.

ERROR TO THE SUPREME COURT OF THE STATE OF NORTH CAROLINA.

No. 1074. Argued November 17, 1892. - Decided December 5, 1892.

The general rule that a valid grant to a corporation, by a statute of a State, of the right of exemption from state taxation, given without reservation of the right of appeal, is a contract between the State and the corporation, protected by the Constitution of the United States against state legislative impairment, is not qualified by Henderson Bridge Co. v. Henderson City, 141 U. S. 679; nor by St. Paul, Minneapolis &c. Railway v. Todd County, 142 U. S. 282.

The surrender of the power of taxation by a State cannot be left to inference or conceded in the presence of doubt, and when the language used admits of reasonable contention, the conclusion is inevitable in favor of the reservation of the power.

The exemption from taxation conferred upon the Wilmington & Raleigh Railroad Company by the act of January 3, 1834, incorporating it, was not conferred by that act upon the branch roads which the company was thereby authorized to construct.

Exemption from taxation may or may not be a "privilege" within the sense

in which that word is used in a statute; and in the act of North Carolina referred to, the word "privileges" does not include such exemption. The portion of the Wilmington and Weldon Railroad which lies between Halifax and Weldon, having been constructed by the Halifax & Weldon Railroad Company, and not under the charter of the Wilmington & Raleigh Railroad Company, is not exempt from state taxation. The proceedings in Wilmington Railroad v. Reid, 13 Wall. 264, and in the same case in the state courts of North Carolina, do not operate as an estoppel so far as the road from Halifax to Weldon is concerned, nor as controlling authority in the premises.

Statement of the Case.

THIS was an action brought in the Superior Court of Halifax County, North Carolina, by the Wilmington and Weldon Railroad Company, to restrain the sheriff of that county from collecting certain taxes assessed on so much of a branch road of the plaintiff, known as the Scotland Neck branch, as lay therein, and on that part of the plaintiff's road which formerly constituted the Halifax and Weldon Railroad, and the rolling stock used with said roads. The plaintiff was incorporated under an act of the general assembly of North Carolina, approved January 3, 1834, entitled "An act to incorporate the Wilmington and Raleigh Railroad Company." 2 Rev. Stats. N. Car. (1837), 335, 347. By the first section of this act, commissioners were designated "for the purpose of receiving subscriptions to an amount not exceeding eight hundred thousand dollars, in shares of one hundred dollars each, to constitute a joint capital stock, for the purpose of effecting a communication by a railroad, from some point within the town of Wilmington, or in the immediate neighborhood of the said town, to the city of Raleigh, or in the immediate neighborhood of the said city, the route of which road shall be determined on by the company hereby incorporated." The first twenty sections of the act relate to the main line thus described.

The nineteenth section is as follows:

"That it shall and may be lawful for the said president and directors to determine from time to time what instalments shall be paid on the stock subscribed; to purchase with the funds of the company, and place on the said railroad constructed by them, all machines, wagons, vehicles, carriages and teams of any description whatsoever, which may be deemed necessary and proper for the purposes of transportation; and all the property purchased by the said president and directors, and that which may be given to the company, and the works constructed under the authority of this act, and all profits accruing on the said works, and the said property shall be vested in the respective shareholders of the company, and their successors and assigns forever, in proportion to their respective shares; and the shares shall be deemed personal property, and the property of said company; and the shares

Statement of the Case.

therein shall be exempt from any public charge or tax whatsoever."

The twenty-first, twenty-second, twenty-third, and twentyfifth sections read thus:

"SEC. 21. That the stockholders in general meeting, may, if they think fit, resolve to construct a branch or branches to the main road, to be connected with the main road at such point or points as they may determine on, and to lead in such direction, and to such a point or points as they may think best; and in order that they may do so, the said stockholders are fully authorized to cause books to be opened for subscriptions to the said lateral road or branch of the main road, and the subscribers for stock shall be subject to all the rules previously made by the company, and become members of the company with this exception only, viz.: that the stock subscribed by them shall be faithfully and honestly applied to the construction of that branch of the road for which they subscribed it; but the subscribers for the main road and the branches shall constitute but one company; and their rights of property and estate shall be in common, and not separate: Provided, however, That the whole capital of subscribed stock shall not exceed one million of dollars.

"SEC. 22. That all the powers, rights and privileges conferred by the preceding sections upon the said company, in respect to the main road, and the lands through which it may pass, are hereby declared to extend in every respect to the said company, and the president and directors thereof, in the laying out, in the construction, and in the use and preservation of said lateral or branch roads.

"SEC. 23. That it shall and may be lawful for the said company to construct a branch to the main road as aforesaid, under the restrictions aforesaid, so soon as the main road has reached the point at which the branch road is intended to be joined with the main road; but they shall not, under any pretence whatever, apply the funds of the company to the construction of a lateral or branch road, until the main road is completed, except they be subscriptions specifically made for the branch or lateral road."

Statement of the Case.

"SEC. 25. That where a branch or lateral road to the main road is shorter than twenty miles, no other person or company shall be authorized and empowered to build a railroad from any point near its termination, so as to intersect with this main road in order to injure this company."

Section 24 refers to the right to connect or intersect with "said railroad or any of its branches," and these five sections, out of thirty-eight in all, relate to branch roads.

On December 15, 1835, an act of the general assembly was approved, entitled "An act to amend an act passed in the year one thousand eight hundred and thirty-three, entitled 'An act to incorporate the Wilmington and Raleigh Railroad Company.'" 2 Rev. Stats. N. Car., (1837,) p. 347. This act authorized the capital stock of the company to be increased to any sum not exceeding $1,500,000, and provided "that the stockholders of said company shall and may be at liberty to run the main road from some point within or near the town of Wilmington to some point in the city of Raleigh, or in the immediate neighborhood thereof, or from Wilmington, or near it as aforesaid to some point at or near the river Roanoke in this State, at the election of said stockholders, with the view of connecting with the Petersburg and Norfolk railroads;" "that the said company may be at liberty to lay off and construct any lateral road, under the rules and regulations, provided in the aforesaid act, before or after they have completed the main railroad aforesaid;""that it shall and may be lawful for the said company to purchase, own and possess steamboats, and other vessels to ply and sail from the port of Wilmington to Charleston, or elsewhere; and to take and receive for the use of said company, over and besides the profits allowed in the said original act, such sums of money or other property for freight, passengers or other accommodation on said boats and vessels, as they may be able to make by contracts with their customers, and according to such rates as they may from time to time establish;" and enlarged the time for commencing the road to three years from January 1,

1836.

At the session of 1833 of the general assembly an act was

Statement of the Case.

passed, entitled "An act to incorporate the Halifax and Weldon Railroad Company." 2 Rev. Stats. N. Car., (1837,) 325, 334. This act contained no exemption from taxation, and was subject to be altered, amended or modified by future legislatures. Under its provisions, the Halifax and Weldon Railroad Company procured its right of way, and laid out and constructed the road-bed and road from Weldon to Halifax, a distance of some eight miles, and entirely in the county of Halifax. The corporation had no rolling stock, but permitted the Portsmouth Railroad Company during the year 1836 to run its cars over its roadbed and track. In 1836 an act was passed, entitled "An act empowering the Halifax and Weldon Railroad Company to subscribe their stock to the Wilmington and Raleigh Railroad Company." 2 Rev. Stats. N. Car., (1837,) 334, 335. Pursuant to the provisions of this act the Halifax and Weldon Railroad Company and the Wilmington and Raleigh Railroad Company entered into an agreement, February 14, 1837, which agreement was in all respects executed and carried into effect by those corporations. The act authorized the stockholders of the Halifax Company to subscribe its stock on the books of the Wilmington Company, and sections two and three were as follows:

"SEC. 2. Upon the subscription of the stock held by the stockholders in the Halifax and Weldon Railroad Company, in the books of the Wilmington and Raleigh Railroad Company, all the property, real and personal, owned and held by the Halifax and Weldon Railroad Company, shall vest in and be owned and possessed by the Wilmington and Raleigh Railroad Company aforesaid, and be owned and held and possessed by the said company in the same manner that all the other property, real and personal, which has been acquired by the said company is owned, held and possessed; and the road which may have been built, or partly built, by the Halifax and Weldon Railroad Company, shall thenceforward be deemed to all intents, as well criminal as civil, a part of the Wilmington and Raleigh Road.

"SEC. 3. So soon as the subscription hereby authorized shall have been made, all the rights and privileges acquired