Argument for Plaintiff in error.

immunities of the Alabama and Florida Railroad Company, the Pensacola and Louisville Railroad Company, and the Pensacola Railroad Company, under the various acts incorporating these companies, and acts amendatory to the same.

The plaintiff in error, the Louisville and Nashville Railroad Company, was a corporation of Kentucky, and by an amendment to its charter, which took effect March 6th, 1878, reciting that its stockholders had become largely interested in the commerce and railroad business between the States of Kentucky and Tennessee and the southeast, and the several railroad connections in that part of the country, by an extension of its system, was enabled "to operate, lease or purchase, upon such terms or in such manner as they deem best, any railroad in any other State or States deemed necessary for the protection of the interest of the stockholders."

Mr. John L. Cadwalader for the plaintiff in error.

I. All the facts necessary to obtain relief are admitted. II. The State contracted with the Pensacola Railroad Company that if it would buy the old road and carry on the business, it should be exempt from taxation. The State is estopped from denying the exemption. Humphrey v. Pegues, 16 Wall. 244; Railroad Companies v. Gaines, 97 U. S. 697, 711-2; Railroad Company v. County of Hamblen, 102 U. S. at 277. III. The State is also estopped by the decision of its own court in the case of Gonzales v. Sullivan, involving this right as between the State and the plaintiffs privy in estate. Bigelow, Estoppel, lxiii; 45, 94-5, 284; Cooley on Constitutional Limitations (5 ed.), 59-60; Freeman on Judgments, § 165; Taylor on Evidence, § 1689. Blakemore's Case, 2 Den. Cr. C. 410; Smith v. Kernochen, 7 How. 198; Preble v. Board of Supervisors, 8 Bissel, 358; Finney v. Boyd, 26 Wis. 366; State v. C. & L. Railroad Co., 13 S. Car. 290. Indeed, such an estoppel by judgment may fairly be said to make part of the title to the property concerned. Brooke's Abridgment, Estoppel, 15; Adams v. Barnes, 17 Mass. 364; Kelly v. Donlin, 70 Ill. 378; State v. C. & L. Railroad. Co., 13 S. Car. p. 313-4. IV. The

Opinion of the Court.

plaintiff's position is like that of a purchaser of bonds relying on the decision of the Supreme Court of a State adjudicating the validity of the bonds. Gelpcke v. Dubuque, 1 Wall. 175; Louisiana v. Pilsbury, 105 U. S. at 295. V. The constitutionality of the act of 1855 is not an open question in this court. New Jersey v. Wilson, 7 Cranch, 164; Jefferson Bank v. Skelley, 1 Black, 436; Home for the Friendless V. Rouse, 8 Wall. at 438; Wilmington Railroad v. Reid, 13 Wall. 264; Railway Company v. Whitton, 13 Wall. 269; Humphrey v. Pegues, 16 Wall. at 249. That being so, the Supreme Court of Florida has decided its meaning in accordance with the contention of the plaintiff. Gonzales v. Sullivan, 16 Fla. 791; and that construction is binding upon this court. Burgess v. Seligman, 107 U. S. 20. VI. The exemption in question was not attached to any particular corporation, but to the line of road. If this can be maintained, it follows that the exemption goes with the property. New Jersey v. Wilson, 7 Cranch, 164; Tennessee v. Hicks, cited in State v. Whitworth, 8 Lea (Tenn.), 594; Chicago, &c., Railroad Company v. Pfaender, 23 Minn. 217; St. Paul, &c., Railroad Company v. Parcher, 14 Minn. at 328; Winona, &c., Railroad Company v. County of Deuel, 7 Am. & Eng. R. R. Cas. 348.

Mr. E. A. Perry for the defendant.

MR. JUSTICE MATTHEWS delivered the opinion of the court. After reciting the facts in the foregoing language, he said: The exemption from taxation, created by the 18th section of the Internal Improvement Act of 1855, is, in every respect, similar to that which was declared in Morgan v. Louisiana, 93 U. S. 217, to be not assignable. No words of assignability are used by the legislature of the State in the language creating it, and, from its nature and context, it is to be inferred that the exemption of the property of the company was intended to be of the same character as that declared in reference to its capital stock and to its officers, servants and employees, and that all alike were privileges personal to the corporation or to individ

Opinion of the Court.

uals connected with it, entitled to them by the terms of the law. This exemption, therefore, did not pass from the Alabama and Florida Railroad Company to the Pensacola and Louisville Railroad Company by the conveyances which passed the title to the railroad itself, and to the franchises connected with and necessary in its construction and operation.

This conclusion is confirmed by the 18th section of the act of February 4th, 1872, amending the charter of the Pensacola and Louisville Railroad Company. That section recites that the last-named company having become assignee of the Alabama and Florida Railroad Company, and of its franchises and property, "which corporation was exempt from taxation for a limited period, the said Pensacola and Louisville Railroad Company and its property, now owned or hereafter to be acquired, shall also be exempted from taxation during the remainder of its said period." Here the original exemption is declared to be the privilege of the Florida and Alabama Railroad Company, the particular corporation to which it was granted, and the necessity for conferring it by a new legislative grant upon the assignee of the property and franchises of the original corporation, rests upon the implication that the exemption did not pass to it by the assignment between the parties. And the further inference is equally necessary, that the exemption transferred or created in the new company by the terms of the legislative grant, is identical in its character as a personal and unassignable privilege to the new grantee, with that it had when it belonged to the first company.

But the 2d section of the act of February 27th, 1877, incorporating the Pensacola Railroad Company, authorized and empowered it to acquire, by purchase and assignment, all the property, rights, franchises, privileges, and immunities of the Pensacola and Louisville Railroad Company, and upon completion of such purchase and assignment, declared that the former should be deemed, in law and in equity, to be fully invested with and entitled to all the said property, rights, franchises, privileges, and immunities as though the same were originally granted to or acquired by the said Pensacola Railroad Company.

Opinion of the Court.

It is claimed that this language is broad enough to cover the assignment and transfer of the immunity from taxation granted to the Pensacola and Louisville Railroad Company by the 18th section of its charter. And we are of this opinion. The language is comprehensive and unequivocal, and the word immunity is apt to describe the exemption claimed. It admits of no doubt, we think, if the Pensacola and Louisville Railroad Company were entitled to this exemption, and if the legislative grant of authority to make and accept this assignment of it was valid and effective, that the right to be exempt from taxation according to its terms passed to the Pensacola Railroad Company. But it must be borne in mind that it must be taken to have vested in the latter, if at all, precisely as it had in the former, that is, as a personal privilege. The assignment in the particular instance, based upon the express authority of a new enactment, did not impart to the immunity the quality of general assignability to other successors in the title to the property and franchises, claiming only under a conveyance between the parties.

The title of the plaintiff in error, therefore, to the exemption claimed, must be supported by some other authority. This is claimed to be found in the general power, given by the 13th section of its charter, to the Pensacola and Louisville Railroad Company to lease or sell to or consolidate with any other railroad company in or out of the State, which power passed with others to the Pensacola Railroad Company by the 2d section of its charter. But as we have already seen, and as was dccided in Morgan v. Louisiana, 93 U. S. 217, and Wilson v. Gaines, 103 U. S. 417, the exemption from taxation does not pass by virtue of a conveyance of the railroad and its franchises, which was all the Pensacola Railroad Company could pass under that authority, but requires for its transfer some particular and express description, indicating unequivocally the intention of the legislature that it might pass by an assignment. That does not exist in this case, and the exemption claimed by the plaintiff in error fails because it was not and could not be transferred to it, under the law, by the Pensacola Railroad Company.

It is sought to avoid this conclusion by converting the

Opinion of the Court.

question into one of pleading. It is said that the bill alleges, as a matter of fact, that the exemption passed to and vested in the complainant below, and that the truth of the allegation is admitted by the demurrer. But this is matter of law; the documents of title are exhibited with the bill and constitute part of the record; and we take judicial notice of their legal effect. A fact impossible in law cannot be admitted by a demurrer. In Wilson v. Gaines, 103 U. S. 417, it was inferred in the face of a demurrer, claimed to be an admission of a contrary allegation, that the sale did not pass any rights of property not described as within the lien of the mortgage.

We have thus shown that the claim of the plaintiff in error to the exemption alleged fails, because the Pensacola Railroad Company, if it possessed it, had no power to convey it. It will appear, on further examination, that it fails for a distinct and deeper reason, namely, because the Pensacola Railroad Company was itself not entitled to any such exemption. That company was incorporated by the act of February 27th, 1877, which undoubtedly did purport to grant to it, as assignee of the Pensacola and Louisville Railroad Company, in terms sufficiently broad, the immunity from taxation, which, by the 18th sec. of the act of February 4th, 1872, was expressly declared to be granted to the latter.

Both the statutes, however, were passed by the general assembly of Florida, acting under the Constitution of that State, which went into effect in 1868.

Article XII., sec. 1, of that Constitution, is as follows:

"The legislature shall provide for a uniform and equal rate of taxation, and shall prescribe such regulations as shall secure a just valuation of all property, both real and personal, excepting such property as may be exempted by law for municipal, educational, scientific, religious, or charitable purposes."

And article XIII., sec. 24, is as follows:

"The property of all corporations, whether heretofore or hereafter incorporated, shall be subject to taxation, unless such cor poration be for religious, educational, or charitable purposes."