concurring.
Plaintiff alleges that he is a citizen of the State, a tax-payer, and is Sheriff of his county, and as such Sheriff is interested in his commissions; that defendants are members of the North Carolina Corporation *392Commission, whose duty it is to- assess the property of the railroads of the State for taxation; that defendants have failed, neglected and refused to assess said railroads according to “Sections Jf-8 and 50, Chap. 7, Public Laws of 1901”; that he is reliably informed and believes, and avers, that said defendants are in possession of reliable information to the effect that the value of the property of said railroads in this State is as much as $150,000,000; that it is -found by defendants that the tangible or physical property of said companies is about $42,000,000, and that the value of the franchises is approximately $108,000,000, which it is the duty of the defendants to assess for taxation, in addition to their assessment of the tangible or physical property of said railroads. And plaintiff therefore ashs for a writ of mandamus compelling defendants to assess said franchises.
The defendants answered and admitted that they are the members of the Corporation Commission, and that it is their duty to assess the property of said railroads for taxation, which they allege they have done according to law as they understand it. And defendants- say they have assessed the entire property of said railroads, including the franchises, but say they did not assess the franchises separately from the other property of said companies, as they were advised and believed that it was not their duty to so assess said franchises; and they deny the fourth paragraph of the complaint, in which it is alleged that the franchises of said railroads are approximately of the value of one hundred and eight millions of dollars.
While I think the plaintiff’s right to bring and maintain this action is too broadly stated in the opinion, I do> not expect to put my opinion on that, as that would be putting it upon technical grounds, which I do not wish to do-; b-ut I do- not think the Illinois case, principally relied upon in the opinion of the Court-for that purpose, sustains the right of plaintiff *393to bring and maintain tbis action; that action was brought by tbe Attorney-General in tbe name of tbe State of Illinois, while the plaintiff in tbis case proceeds alone, upon bis own rights, and without tbe aid of tbe State. Would it be tbe plaintiff’s right, if be conceived tbe idea that my property was not assessed, for tbe purposes of taxation, high enough, to bring mandamus against tbe Commissioners of Iredell to compel them to reassess and increase its value? If be can do this; every tax-payer in tbe State may do so, and litigation would be interminable. If tbis is tbe law, it seems to me that it would be well to regulate it. But why discuss a mat-' ter that I shall not rely upon in my opinion ?
I shall endeavor to put my opinion upon tbe merits of tbe question presented by tbe record as to whether the franchises. of tbe railroads of tbe State shall be assessed separately for taxation for 1901 and 1902, or not until 1903. Tbis is the' question as I understand it, and not whether they “cam, he so taxed.’3 Nor do I understand tbe question to be as to whether tbe railroads “shall pay any tax upon their intangible property before tbe year 1903.”
And while this is stated to be the question in tbe opening sentence of tbe opinion of tbe Court, it is stated further on in tbe opinion that “It should be borne in mind that tbe sections under consideration do not impose any additional tax upon railroads, as Section 45 of tbe Machinery Act of 1899 expressly directs that tbe value of franchises shall be included in tbe assessment of railroad property.” So I do not think tbe question under consideration is correctly or fairly stated in tbe opinion of the Court.
Tbe Court, further on in tbe opinion, speaks of tbe great importance of tbis question to railroads on tbe one side and to tbe State on tbe other, and says: “We would have preferred that tbe parties whose real interest are at stake should have been directly represented in tbis action; they would have *394been beard bad tbej seen fit to become parties hereto.” It is true this is an action for mandamus for tbe purpose of compelling tbe Corporation Commission to increase tbe taxes on railroads. This I admit they bave tbe power to do, but tbe railroads bave no> sucb power. They can not levy or assess taxes, and it seems to me they would bave been improper parties to this action. And it also* seems to me that it is sufficiently understood that tbe interests of tbe railroads are involved.
It will be seen that tbe act of 1899 taxed everything that ifi taxed by tbe act of 1901, including franchises. So it is not a question of omission to1 tax, and whether tbe Legislature bad the right to do1 this — that is, omit to tax tbe franchise' — • it has not done so; and -the question is, was it tbe duty of tbe Commissioners, in 1901, to assess tbe franchise separately from tbe other property of tbe railroad companies ?
Tbe Constitution of tbe State does not require tbe franchise to be taxed. Article V, Section 3, of tbe Constitution is as follows: “Laws shall be passed taxing, by uniform rule, all monies^ credits, investments in bonds, stocks, joint stock companies, or otherwise; and also all real and personal property, according to its true value in money. Tbe General Assembly may also tax trades; professions, franchises and incomes, provided that no income shall be taxed when tbe property from which tbe income is derived is taxed.”
It therefore appears that there is no constitutional provision requiring tbe Legislature to tax franchises. This is admitted in tbe opinion of tbe Court. We bave seen they were taxed by tbe act of 1899, but if they bad, not been, this would bave given the plaintiff no right of action.
It is admitted that tbe Legislature of 1901 did not increase tbe subjects of taxation; that franchises were taxed by tbe act of 1899 ; and tbe only thing contended for by tbe plaintiff is that tbe franchises are to be assessed separately from tbe *395property of tbe railroads, which, he alleges, has not been done,, and this allegation is admitted by the defendants. It is true the plaintiff contends that if this had been done, it would have-shown 'these franchises to be “worth approximately one hurtr dred and eight millions of dollarsThat is, a property, including the franchises, now assessed at forty-two millions, would have been increased to- more than three times its present assessed value. The plaintiff offered no evidence to support this contention, and, to my mind, the contention is erroneous, and I can not accept it as true without any evidence-to support It. My own mind rejects this contention, and, besides, I can not accept it without finding that the Railroad Commissioners were either too stupid to discharge their duty, or too corrupt to he worthy to- hold their positions; as the-plaintiff alleges that the Commissioners had reliable information of facts that would have led to this result. I do- not believe that the Commissioners are either stupid or dishonest.
The act of 1901 was not a new act — not original legislation. It was only amendatory of the act of 1899, and the act of 1901 effected substantially but two- changes in the act of 1899; and these are the manner of assessing the property for taxation and the time when this new method of assessment' shall go< into effect. As to the manner of assessing the property under the act of 1901, there is no controversy; the only controversy is as to- when this new mode of assessment goes-into effect. Upon examination, it will be seen that Section 48 of the Acts of 1901 is Section 43 of the Acts of 1899, and that Section 50 of the Acts of 1901 is Section 45 of the-Acts of 1899, with only one change which is necessary to be-stated and considered in order to determine this controversy, as I think. ,
Section 43 of the Acts of 1899 is as follows: “The president, secretary, superintendent or other principal accountings officer within this State of every telegraph and railroad com*396pany, whether incorporated by any law of this State or not, shall return to the said Commissioners, for assessment and taxation, verified by the oath or affirmation of the officer making the return, all the following-described property belonging to such corporation on the first day of June of each year, within this State.” Then, naming the same property ;and subjects of taxation that are named in Section 48 of the Acts of 1901.
Section 48 of the Acts of 1901 is as follows : “The president, secretary, superintendent, or other principal accounting officers within this State of every railroad, telegraph, telephone, street railway companies, whether incorporated by the laws of this State or not, shall, at such dates as real estate is. required to be assessed for taxation, return to said Commissioners, for assessment and taxation, verified by the oath •or affirmation of the officer making the return, all the following-described property belonging to such corporations within this State” — then describing the articles subject to taxation, being substantially the same as in section 43, act of 1899' — changing June of each year, in the act of 1899, to such time as real estate shall be required to’ be listed for taxation in the act of 1901.
By every rule of interpretation known to the law, these two •acts, that of 1899 and that of 1901 — must be considered together. The language and meaning of the act of 1899 must first be determined and then the language used in the act of 1901; and if the act of 1901 differs from the act of 1899, in what respect, and then determine what is the meaning of the act of 1901. There has been a change in the language of the two acts, which, in my opinion, materially affects and changes their meaning. It would have been folly in the Legislature •of 1901 to have changed the language in Section 43 of the Acts of 1899, unless it had intended to change the meaning •of Section 43 of the Act of 1899, when the Legislature of 1901 reenacted Section 43, in every other substantial part.
*397- Section 43, Acts of 1899, provides that said property shall be returned “to said Commissioners for assessment and taxation * * * on the first day of June of each yew.” This is plain, unmistakable language that the assessment and taxation should he every yew.
Section 48, Acts of 1901, re-enacting Section 43 of act of 1899, in other respects, uses this language, in lieu of the' "first day of June of each yew ” "shall, at such dates as real 'estate is required to he assessed for taxation, return to said Commissioners, for assessment and taxation, verified by the oath or affirmation of the officer making the returns, all the following property,” etc.
Reading and construing these sections together, it is manifest — indeed, to my mind, “it is perfectly clear,” that these’ franchises were not intended to be, and are not to be, assessed, for taxation until 190S.
If it was intended they should be assessed each year, why was this language, already in Section 43 of the Acts of 1899, changed in the act of 1901 so as to read, “shall be assessed for taxation at such dates as real estate is required to he assessed for taxation”?
It will be noted that the language used in Section 43, act 1899, and in 48, act of 1901, is not only that the officers therein named shall make returns of the property therein named, but it shall be made by them for the purpose of assessment and taxation. This language is not used in either of the other sections quoted and relied on in the opinion of the Court. In those it is provided that the officers shall make returns.
Section 49 of the act of 1901 is the same in substance, if not in very words, of Section 45 of the act of 1899', including the reference to Section 1959 of The Code. Section 50 only provides for the manner of assessment, and has m> reference-to the time when the assessment shall be made. As to this,, *398the time of assessment depends upon Section 48, Acts 1901, ^construed in the light of Section 43, Acts 1899.
If the language of Section 48, Acts 1901, is to prevail, and the assessment is to' take place when real estate is required to be assessed for taxation, this assessment will be in 1903, .-as that will be the time, under former legislation, when such assessments will take place. But if the act of 1901, Chap. 7, Sec. 12, expressly provides that such assessments shall take place in 1903.
It seems to' me that by every rule of construction, without any aid outside of the statute, it should be held that there : should be no.new assessment of these franchises, for the purpose of taxation, until 1903.
■ But if the act itself does not plainly show that no new assessment of these franchises is to be made until 1903, it would seem that the act, taken in connection with the Gov■ernor’s message, puts it beyond all doubt. The Legislature of 1901 was elected at the same time Governor Aycock was -elected, and was composed of more than two-thirds of his political friends. This being so, on the first of February he transmitted to the Legislature the special message set out in -defendant’s answer and quoted in the opinion of the Court.
This message commences as follows: “I transmit herewith the second annual report of the North Carolina Corporation Commission. You will observe from said report that the cases known as the Railroad Taxation Cases, pending in the Circuit Court of the United States for the Eastern District -of North Carolina, have been compromised and settled. Under the provisions of law, the Corporation Commission, in 1899, assessed the property'of the Atlantic Coast Line at "$12,885,775, the Southern Railway at $14,713,850, and the Seaboard Air Line at $7,980,245 — making a total assessment of $35,579',870, which was a total increase on the three systems over the assessment of 1898 of $9,022,678. The .assess*399ment of the three systems named in 1900 was $36,373,382.” The message further states that the railroads were unwilling to pay this increased assessment of $9,022,678, and were resisting its payment in the Federal Courts. But finally they agreed to> pay it provided the assessment should not be increased until 1903, and inasmuch as it was costing the State as much as $20,000 a year to carry on this litigation •with these railroads, the proposed compromise was accepted by him (the Governor) under the advice of his counsel. He then says that he considers this settlement just, and recommends its- ratification by the Legislature, and says: “If such a law shall be passed, the railroads will not be again assessed, until 1903.” It is contended, in the opinion of the Court, that this message is ambiguous and uncertain as to what it recommends. But whether there is ambiguous language contained in it or not, there is not, and can not be^ any ambiguity in the closing sentence in the recommendations (though not in the message), which says if such a law is passed, “the railroads will not again be assessed for taxation until 1903.” This message was sent to the Legislature the first of February, and the act under consideration was passed and ratified on the 15th of March following, changing the language from “each year” to such time as “real estate shall be required to be assessed for taxation.”
The opinion of the Court does not admit that the message militates against the construction contended for by the plaintiff and adopted by the Court; but, for some reason, the Court undertakes to show that its consideration as a means of interpretation is incompetent and improper. But I propose to show by high authority that its consideration is not only competent, but proper.
It is the spirit and purpose of the act that gives it life, and is to be observed and control in its construction, if this can be ascertained, where there is doubt as to the meaning of *400tbe language used, unless sueb intention conflicts witb provisions and requirements of tbe Constitution. In sucb cases, to carry out tbe supposed or ascertained intent, tbis intent will bave to yield to tbe bigber law, if in conflict witb tbe Constitution, as in Wilson v. Jordan, 124 N. C., 685; Wood v. Bellamy, 120, N. C., 212. But nothing of that kind appears in tbis case to interfere witb tbe Court ascertaining tbe meaning of tbe act; and nothing could be more pertinent for that purpose than tbe message of Governor Aycoek to' tbe Legislature of 1901, for reasons I bave given, and tbe legislation passed in pursuance thereof, as we must suppose tbis act was.
It is said by Endlicb on tbe Interpretation of Statutes, Sec. 27, “Lord Coke’s Buie”: “Tbe literal construction, then, has in general but a prima facie preference. To arrive at tbe real meaning, it is always necessary to take a broad general view of tbe act, so as to get an exact conception of its aim, scope and object. It is necessary, according to> Lord Coke, to consider, first, what was tbe law before tbe act was passed; second, what was tbe mischief or defect for which tbe law bad not provided, and, fourth, tbe reason of tbe remedy. According to another authority, tbe true meaning is to be found not merely in tbe words of tbe act, but from tbe cause and necessity of its being made, from a comparison of its several parts and from extraneous circumstances, or by an examination of and comparison of tbe doubtful words witb tbe context of tbe law, considering tbe reason and spirit and tbe inducing cause of its enactment. Tbe true meaning of any passage is to be found not merely in tbe words of that passage, but in comparing it witb every other part of tbe law, ascertaining, also; what were tbe circumstances witb reference to which tbe words were used, and what was tbe object appearing from those circumstances which tbe Legislature had in view, and what were tbe causes and occasion of tbe *401passage of tbe act and the purpose intended to be accomplished by it in the light of the circumstances at the time and the necessity of its enactment.” And to the same effect are Sections 29 and 30. The same doctrine is laid down in Black on Interpretation of Law, Chap. 1, Secs. 85 and 87, and, in fact, in all the works on this subject that I have been able to examine. But I will not consume the time of the Court by making further quotations. I take it that these authorities have fully sustained me in referring to the message of Governor Aycock, which gives the reason and the object for changing the statute of 1899, which provided for an assessment for taxation every year, to a provision for an assessment for the purposes of taxation when it is required that real estate shall he assessed for the purposes of taxation.
It is admitted in the opinion of the Court that the Governor and Legislature had the right to compromise with railroads, but it is contended that there was no compromise. The Governor says there was a compromise, and I must believe he knew whether there was a compromise or not, and I do not believe he would have said there was if there had not been. I do not understand the Court to say, or even to. intimate, that the Governor would say what was not so if he knew it; but that he does not know a compromise when he sees it; that he only claims that there was something over nine millions a year involved in the controversy which the roads yielded,, upon condition that their property (the assessment of which had increased $9,000,000 since 1898) should not be assessed' for taxation again until 1903. The Court seems to think this was no. compromise, because the plaintiff has alleged that the franchises alone are worth approximately one hundred and eight millions of dollars, without offering one particle of' evidence to support this disputed allegation, and which seems-to me to be large enough to fall of its own weight. But if the-Governor and the Legislature had the right to enter into *402¡this compromise, and this is admitted in the opinion of the Court, and there was no' fraud in it, I do say that I think good faith requires that it should be kept. I do not understand it to be our duty to revise this action of the Governor and Legislature, and whether they made a good compromise or not, is not for this Court to- say. It may not have been a good compromise, but if there was no fraud in the transaction, I do not consider that this Court has any right to- revise their action.
In the opinion of the Court the question is asked: “Will it be contended that a franchise is real estate V’ I might ask if it is contended that, for the purpose of taxation, a franchise is personal property ? If it is personal property, it is already taxed, as the Constitution requires the Legislature to pass laws taxing all property, personal and real, by a uniform rule, and the Legislature has done this. But it is manifest that a franchise is not considered property for the purposes of taxation in the Constitution. If it had been so considered, it •would not have been classed among trades and professions, which the Legislature might or might not tax, at its option. It is thus seen that if the Legislature does tax a franchise, it taxes it as it would a profession or trade, and not as property. It is taxed as a lawyer and doctor are taxed, for practicing their professions. There can not be anything, in my 'opinion, in .the argument advanced in the opinion of the Court that another Legislature will assemble before 1903, and the Legislature of 1901 knew they could not pass a law that the next Legislature could not repeal. And that it can not be supposed they would have been guilty of the vain thing of attempting to- do so-. If they have passed such a law, then it is passed whether it was a vain thing or not. But I maintain that they have not done a vain thing in attempting to forestall the succeeding Legislature. The succeeding Legislature does not assemble until 1903, and the new mode of as- *403• sessment goes into effect that year without any further legislation. It is true the Legislature may repeal this act and restore the old mode of assessing franchises and ‘property all together, but I do not understand that is what the plaintiff wants.
It is said in the opinion of the Court that “Great stress is laid upon the fact that Section 48 of the act of 1901, which is substantially a re-enactment of Section 43 of the act of 1899, changes the latter section by omitting the words ‘on the first day of June of each year,’ and inserting the words ‘at such dates as real estate is required to be assessed for taxation.’ From this it is argued that the Legislature intended that franchise should be assessed for taxation only once in four years, like real estate, and therefore should not be assessed until 1903. The fallacy of this argument lies in the fact that Section 48 of the act of 1901, and Section 43 of the act of 1899, are both, by their express terms, limited to the tangible or physical property of the railroads, and do not pretend to relate to the assessment of the franchise.”
If I understand the above-quoted paragraph, it is a virtual admission that "tangible or physical property is not to be assessed for taxation until 190S. To my mind, it is susceptible of no other construction. It admits that the statute of 1899 has been changed from "the first day of June of each year ” to read as follows, "at such date as real estate is required to be assessed for taxationAnd it is not denied that Section 12 of the act of 1901, fixes that time in 190S. But it is argued that this change only applies to “tangible or physical property, as the word franchise is not mentioned in either Section 43 of the act of 1899, nor in Section'48 of the .act of 1901. This argument, if true, would make the “tangible or physical” property of the railroads — that is, everything they owned — except franchises, assessed for taxation in 1903, .and every four years thereafter, but that franchises must be *404assessed for taxation every year. If that proposition can be maintained, I admit that I have neither the power to compreu hend language nor to construe the same.
It is not denied that Section 50 of the act of 1901 (as did Section 45 of the act of 1899) provides for making reports to the Commissioners. These reports are to enable them to make the reports they are required to make to the Governor and the County Commissioners, and not for the purpose of assessments for taxation, as it is stated to be in Section 43, act of 1899, and Section 48 of the act of 1901.
The property and franchises of the railroads are taxed under the act of 1899, Section 45, as is admitted in the opinion of the 'Court, and this assessment is continued to 1903, and reports of such taxes have to be made to the Governor and the Board of County Commissioners, that they may levy the county taxes. These are the purposes for which the reports mentioned in Section 49 and Section 50 are to be made to the Corporation Commission.
In my opinion, the judgment appealed from should be affirmed. Justice Cook concurs in this dissenting opinion.
This was written as a dissenting opinion to the opinion of Justice Douglas, which was written as the opinion of the Court. It expresses my view's of the case, and is now filed as a concurring opinion to the opinion of Justice MONTGOMERY, I concur in the conclusion at which he arrives, that there was “no1 error in the action of the Judge in dismissing the action.” Justice Cooe now concurs in this as a concurring opinion.