may, and are hereby authorized to impose taxes "1. That all taxable property shall be taxed anticipate the collection of a tax, after such tax | counties and incorporated towns in this State "2. The credit of no county, city, or town as the case may be, shall have full power to Section 2 of the Act enacts the constitutional It is contended by the plaintiffs that express authority for issuing the bonds in question is to be found in an Act of the Legislature of Tennessee, approved January 23, 1871, being chap[153] ter 50 of the Acts of 1870-71. In 1870 a new Constitution was adopted in Tennessee, section 29 of article 2 of which reads as follows: "Sec. 29. The General Assembly shall have power to authorize the several counties and in-county court or board of mayor and aldermen, corporated towns in this State to impose taxes for county and corporation purposes respectively, in such manner as shall be prescribed by law; and all property shall be taxed according to its value, upon the principles established in regard to state taxation. But the credit of no county, city, or town shall be given or loaned to or in aid of any person, company, association, or corporation, except upon an election to be first held by the qualified voters of such county, city, or town, and the assent of three fourths of the votes cast at said election. Nor This Act was manifestly passed for the object shall any county, city, or town become a stated in its title, to carry into effect the prostockholder with others in any company, asso-visions of section 29 of article 2 of the Constituciation, or corporation, except upon a like election and the assent of a like majority. But the Counties of Grainger, Hawkins, Hancock, Union, Campbell, Scott, Morgan, Grundy, Sumner, Smith, Fentress, Van Buren, White, Putnam, Overton, Jackson, Cumberland, Anderson, Henderson, Wayne, Marshall, Cocke, Coffee, Macon, and the new county herein authorized to be established out of fractions of Sumner, Macon, and Smith Counties, and Roane, shall be excepted out of the provisions of this section so far that the assent of a majority of the qualified voters of either of said counties voting on the question shall be sufficient, when the credit of such county is given or loaned to any person, association, or corporation: Provided, That the exception of the counties above named shall not be in force beyond the year one thousand eight hundred and eighty, and after that period they shall be subject to the three-fourths majority applicable to the other counties of the State.' tion of 1870, and to prescribe the manner and The enactments in that clause are entirely in- [155] [156] three fourths of the votes cast at it be first given. But the authority to give or loan credit, and to become a stockholder, under the conditions prescribed in the Act of 1871, must be found in an independent grant of authority, in some other statutory provision, either general or special. These were the views taken by the Supreme Court of Tennessee in the case of Pulaski v. Gilmore, before cited. See, also, Milan v. Tennessee Cent. R. R. Co. supra. bonds are to bear shall be specified and sub- [157] By the express provision of section 1 of this "Sec. 1. Be it enacted by the General Assembly of the State of Tennessee, That the Mayor and City Council, or the Board of Mayor and Aldermen, of any incorporated city or town in the State of Tennessee having a population of from One thousand to twenty thousand are hereby authorized in their corporate capacity to issue the bonds of the said city or town, signed by the Mayor and countersigned by the Recorder of said city or town, with coupons for interest attached, to an amount not exceeding Fifteen Thousand Dollars. The Bonds herein provided for may be executed of denominations from Twenty-five to Five Hundred Dollars, at discretion of said Mayor and City Council or Mayor and Aldermen, and to mature at such times as may be fixed by said Mayor and City Council or Mayor and Åldermen, from one to twenty years after date, and bearing interest at the rate of eight per cent per annum, payable semi-annually; the past-due coupons on which bonds shall be receivable for taxes and all other dues to the corporation issuing the same: Provided, That the bonds issued under the provisions of this Act shall be alone for the purpose of paying outstanding liabilities against the city or corporation issuing them, and shall not in any case exceed the unsettled and matured liabilities or debts of such city or corporation at the time of issuance thereof; but in no event shall the bonds be issued without the consent of three fourths of the qualified voters voting at an election to be held for that purpose under the supervision of said Mayor and City Council or Board of Aldermen. "Sec. 2. Be it further enacted, That the said Mayor and City Council or Mayor and Aldermen of said city or town are hereby authorized to issue at par such coupon bonds as are provided for in this Act, to the holders of bona fide claims against said city or town, in liquidation and discharge of such claims and interest thereon, and to such others as are willing to take them at par, not to exceed in amount said sum of fifteen thousand dollars: Provided, That in no case shall said Mayor and said City Council or Mayor and Aldermen of said city or town, as the agent for that purpose, sell under their par value any of the bonds the issuance of which is authorized by this Act: Provided further, That the proposed rate of interest the We are of opinion that this statute has no application to the present case. Its object was manifestly to enable certain incorporated cities and towns to fund their matured debts, by issuing bonds of the character specified in the Act. The debts for which they were to be issued were not only to be unsettled debts, but matured debts, and the bonds were not to be issued in any event without the consent of three fourths of the qualified voters voting at an election to be held for the purpose. When the election in the present case was held, no debt created by any subscription to any stock had yet been incurred; and it is expressly stipulated, in the agreed statement of facts, that the question of subscribing $12,000 to the stock of the company, and the question of paying such subscription in bonds, were submitted to the voters as a single question, at one and the same time, and were approved by the same vote. Indeed, from the record of the proceedings of the Board of Mayor and Aldermen of the Town, there does not appear to have been any submission to the voters of the question of subscribing to the stock of the railroad company, or of issuing the bonds in payment for any such subscription, but only the question of whether the bonds should be issued by the Town to the company as a donation or subscription of bonds; and the bonds themselves, on their face, carry out only the same idea. Still, it is agreed that the bonds were issued in payment of a "stock subscription" made by the Town to the railroad company. But, even in that view, the liability [158] on the subscription to the stock was not such a matured liability or debt of the Town, at the time the election was held, as the Act of 1872 refers to. The vote of the people was, at most, a vote to subscribe for the stock. The terms of the vote appear to have been "For subscription," or "No subscription." The vote to subscribe for the stock and the vote to issue bonds were one and the same vote, comprehended in the words "For subscription." In order to make the liability for the subscription a "matured" liability of the Town, it was necessary that the subscription should be actually made in pursuance of the vote, and that the terms for paying the money in discharge of it should be determined, and that an election should be thereafter held to vote in regard to issuing bonds for the liability as a matured liability, and in view of all the terms and circumstances of such liability. No such election was held after any liability for the subscription became a matured liability. 1. Chapter 119 of the laws of Virginia of 1881- it is found. [No. 223.] Argued April 12, 1888. Decided April 23, 1888. Opinion below, sub. nom. Baltimore & O. The facts are fully stated in the opinion. Messrs. John K. Cowen, Hugh W. Shef- In the absence of legislation to the contrary, Burr. Tax. 186; Orange & A. R. R. Co. v. Mr. Justice Matthews delivered the opinion This is a bill in equity filed by the Baltimore and Ohio Railroad Company against the taxing officer of the State of Virginia, for the purpose of enjoining him from selling certain engines and cars, the property of the complainant, for the payment of a tax alleged to have been illegally assessed thereon. There was a decree in the circuit court granting the relief prayed for, from which this appeal is prosecuted. its own rolling stock, consisting of engines and The trains in which the rolling The several Virginia corporations owning these four railroads, respectively, made their annual reports to the auditor of public accounts as required by law, and were by the board of public works duly assessed on their roadways, tracks, depots, and other real estate owned by them. No tax was assessed or levied as against them on account of any rolling stock, because they were not reported to be the owners of any. In the month of June, 1883, the Auditor of Public Accounts for the State of Virginia assessed the Baltimore and Ohio Railroad Company for taxes on its rolling stock used on these The material facts in the case are these: The roads for the years from 1870 to 1881, inclusive, Baltimore and Ohio Railroad Company is a amounting in the aggregate, for eleven years, to corporation organized under the laws of Mary- the sum of $22,249.25, and placed the assessland, and a citizen thereof, by virtue of whose ment in the hands of the treasurer of Augusta charter its rolling stock is exempt from taxa- County, Virginia, for collection. This officer tion. The line of its road does not at any was proceeding to collect these taxes by a dispoint lie in the State of Virginia. It, how-traint of the rolling stock in question, the propever, connects with certain roads belonging to corporations incorporated by various Acts of the Legislature of Virginia, to wit: the Winchester and Potomac Railroad, the Winchester and Strasburg Railroad, and the Strasburg and Harrisonburg Railroad, the last named being a part of the old Manassas Gap Railroad; and, during a portion of the time embraced in the period for which the taxes in question were levied, it worked the Valley Railroad from Har[118] risonburg to Staunton. All of these roads were operated by the Baltimore and Ohio Railroad Company by virtue of leases or contracts, which Company for that purpose furnished and used erty of the complainant, when his proceedings The Act of the General Assembly of the [119] Fifth. Stores. "Sixth. Telegraph lines. "Seventh. Miscellaneous property. It is admitted that this is the only legislation of the State of Virginia under which the tax in question can be justified; if it does not warrant the proceedings, there is no statute which does. The single question presented in the case is whether the Baltimore and Ohio Railroad Company, as to the property on account of which it is sought to be taxed, is liable to taxation under the provisions of this Act. It is not denied, as it cannot be, that the State of Virginia has rightful power to levy and collect a tax upon such property, used and found within its territorial limits as this property was used and found, if, and whenever, it may choose, by apt legislation, to exert its authority over the subject. It is quite true, as the situs of the Baltimore and Ohio Railroad Company is in the State of Maryland, that also, upon general principles, it is the situs of all its personal property; but for purposes of taxation, as well as for other purposes, that situs may be fixed in whatever locality the property may be brought and used by its owner, by the law of the place where it is found. If the Baltimore and Ohio Railroad Company is permitted by the State of Virginia to bring into its territory and there habitually to use and employ a portion of its movable personal property, and the Railroad Company chooses so to do, it would certainly be competent and legitimate for the State to impose upon such property, thus used and employed, its fair share of the burdens of taxation imposed upon other similar property used in the like way by its own citizens. And such a tax might be properly assessed and collected "Every such company shall also report, on individual items of property so used and em- terchange of interstate commerce would not But looking at the statute under which the [162] [163] $8.75. [164] [165] The question of the subscription referred to in the foregoing proceedings was left, under proper notices, to the decision of the qualified voters of the Town of Dyersburg, and the subscription was carried by a vote largely in excess of the requisite constitutional majority. [166] At the date of the subscription the Town was without railroad facilities, and the object of the subscription was to aid the building of the proposed line near the Town. The railroad has been built, but no part of the subscription has been paid except the first installment of interest, which was paid. [167] [168] The bill of exceptions states as follows: "The court found as facts 1st, that an ordinance was regularly and legally adopted June 5, 1872, by the Board of Mayor and Aldermen of the Town of Dyersburg, ordering an election to be The defendant pleaded nil debet and non est held by the qualified voters of said Town, to factum. The cause was tried by the court, on determine whether the said Town should subthe written waiver of a jury, and it found the scribe for $50,000 of the capital stock of the issues of law and fact with the defendant, and Paducah and Memphis Railroad Company, to rendered a judgment for it, to review which the be paid for by said Town by issuing to said plaintiff has brought a writ of error. There was railroad company its negotiable bonds to that an agreed statement of facts, which is embodied amount, bearing interest at 7 per cent, and payin a bill of exceptions, and there is a finding of able at 10 years from date; that on July 6, facts and of conclusions of law, also contained 1872, said proposition was voted on by the qualtherein. From this, the following facts appear: ified voters of said Town, after 30 days' notice [169] The plaintiff bought the bonds and coupons of such election had been duly published in the before maturity, for full value, and without newspapers of said Town, when said proposiany knowledge or notice of any defect, infirm- tion was carried by a vote of 126 for the subity, equity, or condition against the liability of scription to 2 against it; that at a meeting the Town therefor, unless, as matter of law, of the Board of Mayor and Aldermen of said the face of the bonds charges him with notice. Town, held on July 6, 1872, the returns of said The bonds and coupons were signed, sealed election were duly and properly canvassed by and delivered by the properly authorized said board, which, by ordinance then duly municipal officers of the defendant; but the passed, declared the subscription, on the terms want of authority so to do is controverted, the of the ordinance of June 5, 1872, was properly defendant insisting that no proper legislative or and legally carried, in said election, by the vote other authority existed for making the sub- as before stated, and instructed the Mayor to scription and issuing the bonds that were made subscribe said sum of $50,000 to the stock of and issued, the plea of non est factum only go- the said railroad company, upon the terms and ing to that extent. The Mississippi River Rail- conditions of said ordinance; that, acting purroad Company, to which it is claimed the sub-suant to that authority, the Mayor of said Town, scription was originally authorized to be made on May 10, 1873, subscribed, for and in the by the defendant, was afterwards consolidated name of said Town, said sum to the capital with and became a part of the Paducah and stock of said company, received certificate of Memphis Railroad Company. That company stock therefor, issued and delivered the coupon mortgaged its properties and franchises, the bonds of said Town for said amount to said mortgage was foreclosed, and the purchaser at railroad company, including those here in this the sale reorganized, under the statute of Ten-suit; that, when said coupon bonds were so exnessee, as the Chesapeake, Ohio and South-ecuted, issued and delivered by said Mayor to western Railroad Company, by which the road was built and finally completed on January 1, 1882, and is now operated as a railroad its entire length. The bed and track are now, and were at the date of bringing of the suit, fully built and equipped and operated through the County of Dyer, in which the county Town of Dyersburg is situated, and the last named company had built a depot building with in half a mile of the court house in the Town of Dyersburg before this action was brought. The proceedings of the Board of Mayor and "Memphis, Tenn., July 13, 72. said railroad company, the said company had "The minutes of the meeting of May 1st were "Juo. Overton, Jr., offered a resolution as follows: "Whereas, C. P. Clark, Mayor of the Town of Dyersburg, in the County of Dyer, in the State of |