These are actions for the recovery of unpaid state and county taxes levied upon certain property of the several defendants, either for the fiscal year of 1881 or of 1882, and alleged to he due to the plaintiffs, with an additional 5 per cent, as a penalty for their non-payment and interest. The defendants are corporations formed under the laws of California, and the taxes claimed were levied on the franchise, roadway, road-bed, rails, and rolling stock of each of them as a unit, without separation or distinction in the valuation of the different parts composing the whole. To two of the corporations, the Southern Pacific Railroad Company and the Central Pacific Railroad Company, privileges and powers, other than those acquired under the laws of the state, were conferred by grant of the general government; and for them obligations and burdens were assumed not contemplated nor possible under their original organization.
It is contended that congress has selected these corporations as the special agents and instruments of the nation for public purposes, and to that end has clothed them with faculties, powers, and privileges to enable them to construct and maintain their roads as postal and military roads of the government; that the state, by an act of its legislature, has assented to the acceptance of these faculties, powers, and privileges, and that the companies, in consideration thereof, have assumed obligations to the general government with the discharge of which the state cannot interfere; that the power to tax their franchises involves the power to destroy the companies and thus deprive the general government of the benefit of the roads, for the construction and maintenance of which its grants -were made; that the existence and exercise of the power on the part of the state are therefore incompatible with the duties devolved upon and assumed by the companies to the United States. Hence it is claimed by counsel that the tax levied upon the franchises of the defendants is illegal and void; and they refer to numerous decisions of the supreme court, which hold, in general language, that an agency of the United States, an instrumentality by which the federal government discharges its obligations to the people of the country, cannot be taxed by any state or subordinate authority. Certainly no state can impede or embarrass the federal government in its operations, as might be done if it could impose a tax upon the necessary means adopted for their execution; nor can the federal government impede or embarrass the operations of the state governments, as it might do if it could impose a tax upon the necessary means adopted by them in the exercise of their powers.
The correctness of this general principle is not controverted, and cannot be in the face of the numerous decisions of the supreme court, when applied to the means or instrumentalities created by the federal government, or existing under its laws, for the exercise of its powers, such as officers of its courts in the administation of justice, or fiscal agents in the collection, custody, or distribution of its funds. But we are unable to accede to the position that every agent or instrument which the United States may see fit to employ, is thereby exempted from the common burdens of the state in which it may be found or used, i in the absence of specific congressional legislation declaring such exemption. The coach employed to carry the mail, or the ferry-boat to convey it across a navigable stream, would hardly, by reason of this employment alone as an instrumentality of the general government, he considered as withdrawn from the taxing power of the state. As well observed by Chief Justice Chase, with reference to the exemption from state taxation claimed by the Kansas Division of the Pacific Railroad Company for its property, no limits can be perceived to the principle of exemption which the companies thus seek to establish. “Every corporation,” he added, “engaged in the transportation of mails, or of government' property of any description, by land or water, or in supplying materials for the use of the government, or in performing any service of whatever kind, might claim the benefit of the exemption. The amount of property now held by such corporations, and having relations more or less direct to the national government, and its service, is very great. And this amount is continually increasing; so that it may admit of question whether the whole income of the property, which will remain liable to state taxation, if the principle contended for is admitted and applied in its fullest extent, may not ultimately be found inadequate to the support of the state governments.” Thomson v. Pacific R. R. 9 Wall. 579, 591.
It is true that, in the ease from which this citation is made, exemption from taxation was claimed only for the property — the road and rolling
The objection presented by counsel is not free from difficulty. At one time I thought that it was tenable, and so expressed myself by joining in the dissent in Railroad Co. v. Peniston, reported in 18 Wall. 5; but, on further consideration, I have come to the conclusion that the rule laid down in Thomson's Case is the true and sound rule. The state, it is conceded, cannot use its taxing power so as to defeat or burden the operations of the general government. And when that government has itself created the instrumentality used, its exemption from state taxation necessarily follows. But we are of opinion, yielding to tho decision cited, that when the instrumentality is. the creation of the state, — a corporation formed under its laws, — and is employed or adopted by the general government for its convenience, although to enlarge its use and render it more available additional privileges and benefits are conferred by that government upon the corporation,it remains subject to the taxing power of tho state, unless congress declares it to be exempt from such power. Congress can undoubtedly exempt any agencies it may employ for services to the general government from such taxation as will in its judgment impede or prevent their performance. Occasions may arise hereafter, especially in time of war, where the necessities of the federal government will require such exemption of the roads of the companies, and of tlieir franchises and appurtenances, to be declared and enforced; the exemption to continue until the necessities calling for it shall cease. But as yet congress has not declared any such exemption either of their property or of their franchises, and we therefore think that none exists.
Of the other defenses interposed to the claim of the plaintiffs, some are founded upon an alleged neglect of tho assessing officers to comply with requirements of the laws of the slate, and some upon the alleged conflict of provisions of the state constitution, under which they acted, with requirements of the federal constitution. Of the former are objections to what is termed the lumping character of the assessment; that is, the blending of the different items composing the whole into one valuation, namely, the value of the franchise, roadway, road-bed, rails, and rolling stock, without any designation of the value of each distinct part; and to the including in the road
The constitution of California provides for taxes on property, on incomes, and on polls. The taxation on property, with which alone we are concerned in this case, is to be in proportion to its value. There is no provision for levying a specific tax upon any article or kind of property. It declares that all property, not exempt under the laws of the United States, shall, with some exceptions, be taxed according to its value, to be ascertained as prescribed by law; and that the word “property” shall “include moneys, credits, bonds, stocks, dues, franchises, and all other matters and things, real, personal, and mixed, capable of private ownership.”
It also declares that “a mortgage, deed of trust, contract, or other obligation by which a debt is secured, shall, for the purposes of assessment and taxation, be deemed and treated as an interest in the property affected thereby.” And that, “except as to railroad and other quasi public corporations, in case of debts so secured, the value of the property affected by such mortgage, deed of trust, contract, or obligation, less the value of such security, shall be assessed and taxed to the owner of the property, and the value of such security shall be assessed and taxed to the owner thereof.” It also provides that “the taxes so levied
By the constitution, not only is the ad valorem rule established for the taxation of property, but provision is also made for its assessment. The franchise, roadway, road-bed, rails, and rolling stock of railroads operated in more than one county, are to be assessed by a special board, termed the “State Board of Equalization.” All other property is to be assessed in the county in which it is situated. The supervisors of each county are constituted a board of equalization of such taxable property, and must act upon prescribed rules of notice to its owners. The state board is authorized to act, not only as assessor of the franchise, roadway, road-bed, rails, and rolling stock of railroads mentioned, but as a board of equalization of the taxable property in the several counties, so that equality may bo secured between the tax-payers of different localities. Its action in this latter character must also be upon prescribed rules of notice. But though the officers by whom the assessment of these properties is to be made be different, the properties are subject to the same rule of taxation; that is, they are to be taxed in proportion to their value. In fixing, however, the liabilities of parties to pay the tax assessed and levied upon properties subject to a mortgage, and in estimating the value of such properties as the foundation for the tax, a discrimination is made between the property held by railroad and quasi public corporations, and that held by natural persons and other corporations. A mortgage, as seen by the provisions of the constitution quoted above, is deemed and treated; for the purposes of assessment and taxation, as an interest in the property affected. At common law a mortgage of property is a conveyance of the title, subject to a condition that if the debt secured be paid as stipulated, the conveyance is to become inoperative. Until the debt secured is paid, the title is in the mortgagee. By the constitution, a mortgage, for the purposes of assessment and taxation, operates in like manner to transfer the mortgagor’s interest to the extent represented by the amount secured. If such amount be half the value of the property, the taxable interest of the mortgagee is an undivided half interest in the property. If the amount equal or exceed the whole value of the property, the taxable interest of the mortgagee embraces the entire property. The value of the security can never exceed the value of the property mortgaged; it may be less, and is so if the amount secured be less than such value.
Now, under the constitution, when, by the execution of a mortgage, a taxable interest in the property held by natural persons, or by corporations other than railroad or quasi public, is transferred by the
The discrimination thus made will more clearly appear by an illustration of the practical operation of the provisions. If, for example, A., owning property worth $20,000, should execute a mortgage thereof to the Nevada Bank, in San Francisco, to secure $10,000, the bank would hold a taxable interest in that property to the amount of an undivided half. Its liability for taxation would be precisely as though an absolute conveyance of an undivided half interest had been made to it. And the constitution, as seen above, requires that each owner shall pay the tax on his separate interest, and if he pay the tax chargeable on the interest of the other he shall be allowed for it, either by an addition to the mortgage debt, or a discharge of a portion of that debt according as he is the one or the other party to the seQurity. No one would pretend that the mortgagor should pay without such allowance the tax chargeable to the bank, nor that the bank should pay the tax chargeable to the mortgagor, except upon like condition. It would be difficult to state any principle which would justify the exaction from one of a tax leviable on the interest of the other. No power in any state has ever been asserted going to that extent, except the power to confiscate. The exaction would not be the taking of property by due process of law, even upon the theories as to what constitutes such process asserted in this case. It would be sheer spoliation by arbitrary power.
If, however, a railroad corporation should execute its mortgage to the Nevada Bank to secure a loan equal to half or the whole of the value of its property, and thus transfer to the bank a portion or the whole of its taxable interest in the property, that which is thus condemned as sheer spoliation would be enforced, if effect be given to the constitution as it is written. The taxable interest in that case held by the bank would not be assessed nor taxed to the bank. • If the mortgage should be for half of the value of the property, the railroad company would still have to pay the tax on the interest transferred, and would not be allowed any credit on the mortgage for the amount paid. If the mortgage should be equal to or exceed the whole value of’the property, the railroad company, which would not in such a case hold any taxable interest in the property, — ¿no more than if it had been previously transferred by an absolute conveyance, — would still
Under the provisions of the constitution cited, the property of the several railroad companies, defendants in these cases, was assessed and taxed, and in such assessment and taxation all the injurious discriminations mentioned were applied against the companies, as will appear by a statement of the proceedings. In considering them it will tend to clearness and brevity if we confine what we have to say principally to the case of Santa Clara county against the Southern Pacific Railroad Company. The circumstances distinguishing the other cases from it do not affect the questions involved.
The Southern Pacific Railroad Company operates a railroad through several counties. The entire length of the road is somewhat over 711 miles, of which 59 miles and throe-tenths of a mile are in the county of Santa Clara. The principal place of business of the company is in the city of San Francisco. Its stockholders are citizens of the United States, some of whom reside in California, and some in other states. On the first of April, 1875, it was indebted to divers persons in large sums of money advanced for the construction and equipment of its road; and to secure this indebtedness, and to complete the construction and equipment, it executed and delivered to certain parties, D. 0. Mills and Lloyd Tevis, of the city and county of San Francisco, a mortgage upon its road, franchises, rolling stock, and appurtenances, and upon a largo number of tracts of land, situated in different counties, aggregating over 11,000,000 acres, which were the property of the company. The indebtedness amounted to the sum of $32,520,000, and consisted of various bonds of the company. A portion of these bonds, amounting to about $1,632,000, has been paid; and so has the accruing interest on all of them. The balance of the bonds, amounting to about $30,898,000, remains a subsisting indebtedness. This mortgage was soon afterwards placed on record in the office of the recorder of deeds in the several counties of the state in which the property is situated.
The state board of equalization assessed the franchise, roadway, roadbed, rails, and rolling stock of that portion of the road which is designated as its main branch, being 160 84-100 miles in length, at
. The same discrimination will appear against railroad companies in the taxation of their property, if we treat mortgages thereon, not as interests in the property which the constitution declares they shall be deemed and treated to be, but as mere liens or incumbrances-thereon. The basis of all ad valorem taxation is necessarily the assessment of the- property; that is, .the estimate of its value. Whatever affects the value necessarily increases or diminishes the tax proportionately. If, therefore, any element which is taken into consideration in the valuation of the property of one party, be omitted in the valuation of the property of another, a discrimination'is made against the one, and in favor of the other, which destroys the uniformity so essential to all just and equal taxation. Such an element -exists where, in the assessment of property subject to a mortgage, the value of the mortgage is deducted if the property be owned by a natural person, and is not deducted if owned by a railroad corporation. And the constitution of the state declares' that, in the ascertainment of values as the basis of taxation, such deduction shall be allowed in the one case and denied in the other.
Instances of every-day occurrence will show the effect of this discrimination in a clear light. A natural person and a railroad company own together a parcel of property in equal proportions, subject to a mortgage. In estimating the value of the undivided half belonging to the natural person, half of the amount of the mortgage is deducted. In estimating the value of the undivided half belonging to the railroad company, no part of the mortgage is deducted. The
The principle which sanctions the elimination of one element in assessing the value of property held by one party, and takes it into consideration in assessing the value of property held by another party, would sanction the assessment of the property of one at less than its value,— at a half or a quarter of it, — and the property of another at more than its value, — at double or treble of it, — according to the will or caprice of the state. To-day railroad companies are under its ban, and the discrimination is against their property. To-morrow it may he that other institutions will incur its displeasure. If the property of railroad companies may be thus sought out and subjected to discriminating taxation, so, at the will of the state, by a change of its consti
Until the adoption of the fourteenth amendment there was no restraint to be found in the constitution of the United States against the exercise of such power by the states. In many particulars the states were previously limited; their sovereignty was a restricted one. They could not declare war, nor make treaties of peace. They could not enter into compacts with each other. They could not pass a bill ■of attainder, nor an ex post facto law, nor a law impairing the obligation of contracts. They could not interfere with the exercise of the powers, nor obstruct the laws of the federal government. But in many other particulars the power of the states was supreme, subject to no control by the constitution.of the United States. The original amendments were only limitations upon the federal government, and did not affect the states. Among the powers still held by the states was the power of taxation. When not interfering with any power or purpose or agent of the federal government, there was no limitation upon.its.exercise. .Except as restrained by their own constitutions-,
The first section of the fourteenth amendment places a limit upon all the powers of the state, including, among others, that of taxation. After stating that all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state in which they reside, it declares that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person (dropping the designation ‘citizen’) of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” The amendment was adopted soon after the close of the civil war, and undoubtedly had its origin in a purpose to secure the newly-made citizens in the full enjoyment of their freedom. But it is n no respect limited in its operation to them. It is universal in its application, extending its protective force over all men, of every race and color, within the jurisdiction of the states throughout the broad domain of the republic. A constitutional provision is not to be restricted in its application because designed originally to prevent an existing wrong. Buch a restricted interpretation was urged in the Dartmouth College Case, to prevent the application of the provision prohibiting legislation by states impairing the obligation of contracts to tlio charter of the college, it being contended that the charter was not such a contract as the'prohibition contemplated. Chief Justice Marshall, however, after observing that it was more than possible that the preservation of rights of that description was not particularly in view of the framers of the constitution when that clause was introduced, said:
“It is not enough to say that this particular case was not in the mind of the convention when the article was framed, nor of the American people when it was adopted. It is necessary to go further and to say that, had this particular case been suggested, the languago would have been so varied as to exclude it, or it would have been made a special exception. The case being within the words of the rule, must he within its operation likewise, unless there be something in the literal construction so obviously absurd or mischievous, or repugnant to the general spirit of the instrument, as to justify those who expound the constitution in making it an exception.” 4 Wheat. 611.
All history shows that a particular grievance suffered by an individual or a class, from a defective or oppressive law, or the absence of any law, touching the matter, is often the occasion and cause for enactments, constitutional or legislative, general in their character, designed to cover eases not merely of the same, but all cases of a
With the adoption of the amendment the power of the states to oppress any one under any pretense or in any form was forever ended; and henceforth all persons within their jurisdiction could claim equal protection under the laws. And by equal protection is meant equal security to every one in his private rights — in his right to life, to liberty, to property, and to the pursuit of happiness. It implies not only that the means which the laws afford for such security shall be equally accessible to him, but that no one shall be subject to any greater burdens or charges than such as are imposed upon all others under like circumstances. This protection attends every one everywhere, whatever be his position in society or his association with others, either for profit, improvement, or pleasure. It does not leave him because of any social or official position which he may hold, nor because he may belong to a political body, or to a religious society, or be a member of a commercial, manufacturing, or transportation company. It is the shield which the arm of our blessed government holds at all times over every one, man, woman, and child, in all its broad domain, wherever they may go and in whatever relations they may be placed. No state — such is the sovereign command of the whole people of the United States — no state shall touch the life, the liberty, or the property of any person, however humble his lot or exalted his station, without due process of law ; and no state, even with
Unequal taxation, so far as it can be prevented, is, therefore, with other unequal burdens, prohibited by the amendment. There undoubtedly are, and always will be, more or less inequalities hi the operation of all general legislation arising from the different conditions of persons from their means, business, or position in life, against which no foresight can guard. But this is a very different thing, both in purpose and effect, from a carefully devised scheme to produce such inequality; or a scheme, if not so devised, necessarily producing that result. Absolute equality may not be attainable, but gross and designed departures from it will necessarily bring the legislation authorizing it within the prohibition. The amendment is aimed agains.t the perpetration of injustice, and the exercise of arbitrary power to that end. The position that unequal taxation is not within the scope of its prohibitory clause would give to it a singular meaning. It is a .matter of history that unequal and discriminating taxation, leveled against special classes, has been the fruitful means of oppressions, and the cause of more commotions and disturbance in society, of insurrections and revolutions, than any other cause in the world. It would, indeed, as counsel in the San Mateo Case ironically observed, be a charming spectacle to present to the civilized world, if the amendment were to read, as contended it does in law: “Nor shall any state deprive any person of his property without due process of law, except it be in, the form of taxation; nor deny to any person within its jurisdiction the equal protection of the law's, except it be by taxation.” No such limitation can be thus in-grafted by implication upon the broad and comprehensive language used. The pow'er of oppression by taxation without due process of law is not thus permitted; nor the pow'er by taxation to deprive any person of the equal protection of the laws.
Soon after the adoption of the amendment, congress recognized by its legislation the application of the prohibition to unequal taxation. The original civil rights act, previously passed, made persons of the emancipated race citizens, and declared that all citizens of the United States, of every race or color, should have the same rights in every state and territory to make and enforce contracts; to sue, be parties, and give evidence; to inherit, purchase, lease, sell, own, and convey real and personal property; and to the benefit of all laws and proceedings for the security of persons and property, — as was enjoyed by white citizens, and should be subject to like punishments, pains, and penalties, and to none other. After the adoption of the amendment the act was re-enacted, and to the clause that all persons should enjoy the same rights as white citizens, and be subject to like punishments, pains, and penalties, it added: and subject scly to like “taxes, licenses, and exactions of every land, and to no other.si The congress which re-enactod the civil rights act with this addition was
“If it be true that new needs have come; if it be true that wrongs have arisen, or shall arise, which the framers in their forebodings never saw,— wtongs: which shall be righted by the words they established, — then all the more will those words be sanctified and consecrated to humanity and progress.”
The fact to which counsel allude, that certain property is often exempted from taxation by the states, does not at all militate against this view of the operation of the fourteenth amendment in forbidding the imposition of unequal burdens. Undoubtedly, since the adoption of that amendment, the power of exemption is much more restricted than formerly; but that it may be extended to property used for objects of a public nature is not questioned,- — that is, where the property is used for the promotion of the public well-being and not for any private end." Thus property used for public instruction, for schools, colleges, and universities, which are open to all applicants on similar conditions, may properly be exempted. The public benefit is the equivalent to the state for the tax which would otherwise be exa'cted; If buildings, used as churches for public worship, are also sometimes exempted, it must be because, apart from religious considerations, churches are regarded as institutions established to inculcate principles of sound morality, leading citizens to a more ready obedience to the laws. Whatever the exemption, it can only be sustained for the public service or benefit received. The equality of protection which the fourteenth amendment declares that no state shall deny to any one, is not thus invaded. That amendment requires that exactions upon property for the public shall be levied according to some common ratio to its value, so that each owner may contribute only his just proportion to the general fund. When such exaction is ’ made without reference to a common ratio, it is not a t^x, whatever else it may be termed; it is rather a forced contribution, amounting, in fact, to simple confiscation. As justly said by the supreme court of Kentucky, in the celebrated case of Lexington v. McQuillan’s Heirs, whenever the property of a citizen is taken from him by the sovereign will and appropriated without his consent to the benefit of the public, the exaction should not be considered as a tax unless similar
The cases of People v. Weaver, 100 U. S. 539, and of Evansville Bank v. Britton, 105 U. S. 322, will illustrate the character of the discrimination of which the defendants complain. By an act of congress passed in 1864, and re-enacted in the Revised Statutes, the shares in national banks are allowed to be included in the valuation of the personal property of the owner in the assessment of taxes imposed by authority of the state in which the banks are located, subject to two restrictions: that the taxation shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of the state, and that the shares owned by nonresidents of the state shall be taxed at the place where the bank is located. Bev. St. § 5219. In People v. Weaver, 100 U. S. 539, the meaning of these restrictions upon the state was considered by the supreme court, and it was held:
(1) That the restriction against discrimination has reference to the entire process of assessment, and includes tlie valuation of the shares, as well as the rate of percentage charged thereon; (2) that a statute of .New York, which established a mode of assessment by which such shares were valued higher in proportion to their real value than other moneyed capital, was in conflict with the restriction, although no greater percentage was levied on such valuation than on other moneyed capital; and (3) that a statute which permitted a party to deduct his just debts from the valuation of his personal property, except so much as consisted of those shares, taxed them at a greater rate than other moneyed capital, and was, therefore, void as to them.
Tlie discrimination there condemned, by which an increased value was given to the shares of the national banks beyond what was given to other moneyed capital, is a discrimination similar to that made by the elimination of mortgages in estimating the Value of railroad property in the cases before us. In Evansville Bank v. Britton the doctrine of this case is approved, and it was held that tlie taxation of shares in the national banks, under a statute of Indiana, without permitting the owner to deduct from their assessed value the amount of his bona fide indebtedness, as he was permitted to do in tlie case of other investments of moneyed capital, was a discrimination forbidden by the act of congress.
That the proceeding by which the taxes claimed in these several actions were levied against the railroad companies on taxable interests with which they had parted was not due process of law, seems to me so obviously true as to require no further illustration. Any additional argument would rather tend to obscure a truth which should be evident upon its simple statement; and if we assume that the mortgage in each case was a mere lien or incumbrance on the property affected, and not an interest in it, as the constitution declares it is, then also is it clear that its elimination as an element in the valuation of the property of the defendants for taxation, while it
To justify these discriminating provisions, and maintain the action in face of them, the plaintiffs have taken positions involving doctrines which sound strangely to those who have always supposed that the constitutional guaranties extend to all persons, whatever their relations, and protect from spoliation all property, by whomsoever held. These positions are substantially as follows: That persons cease to be within the protection of the fourteenth amendment, and as such entitled to the equal protection of the laws, when they become members of a corporation; that property, when held by persons associated together in a corporation, is subject to any disposition which the state may, at. its will, see fit to make; that, in any view, the property upon which the taxes claimed were levied was classified by its use, taken out of its general character as real and personal property, and thus lawfully subjected to special taxation; and that the power of the state cannot be questioned by the Southern Pacific Railroad Company by reason of the covenant in its mortgage. These positions are not advanced by counsel in this language, nor with the baldness here given; but they mean exactly what is here stated, or they mean nothing, as will clearly appear when we analyze the language in which they are presented.
Private corporations — and under this head, with the exception of sole corporations, with which we are not now dealing, all corporations other than those which are public are included — private corporations consist of an association of individuals united for some lawful purpose, and permitted to use a common name in their business and have succession of membership without dissolution. As said by Chief Justice Marshall: “The great object of an incorporation is to bestow the character and properties of individuality on a collective and changing body of men.” Providence Bank v. Billings, 4 Pet. 514, 562. In this state they are formed under general laws. By complying with certain prescribed forms any five persons may thus associate themselves. In that sense corporations are creatures of the state; they could not exist independently of the law, and the law may, of course, prescribe any conditions, not prohibited by the constitution of the United States, upon which they may be formed and continued. But°the member's do not, because of such association, lose their rights to protection, and equality of protection. They continue, notwithstanding, to possess the same right to life and liberty as before, and also to their property, except as they may have stipulated otherwise. As members of the association — of the artificial body, the intangible thing, called by a name given by themselves — their interests, it is true, are undivided, and constitute only a right during the continuance of the corporation to participate in its dividends, and, on its dissoiu
Whatever affects the property of the corporation — that is, of all the members united by the common name — necessarily affects their interests. If all the members of the corporation die or withdraw from the association, the corporation is dead; it lives and can live only through its members. When they disappear the corporation disappears. Whatever confiscates or imposes burdens on its property, confiscates or imposes burdens on their property, otherwise nobody would bo injured by the proceeding. Whatever advances the prosperity or wealth of the corporation, advances proportionately the prosperity and business of the corporators, otherwise no one would be benefited. It is impossible to conceive of a corporation suffering an injury or reaping a benefit except through its members. The legal entity, the metaphysical being, that is called a corporation, cannot feel either. So, therefore, whenever a provision of the constitution or of a law guaranties to persons protection in their property, or affords to them the means for its protection, or prohibits injurious legislation affecting it, the benefits of the provision or law are extended to corporations; not to the name under which different persons are united, but to the individuals composing the union. The courts will always look through the name to see and protect those whom the name represents. Thus, inasmuch as the constitution extended the judicial power of the United States to controversies between citizens of a state and aliens and between citizens of different states, because its framers apprehended that state tribunals in such controversies might bo swayed by local feelings, prejudices, or attachments, Chief Justice Marshall, speaking for the whole supreme court, held that corporations were within the provision. “Aliens, or citizens of different states,” said that great judge, “are not loss susceptible of these apprehensions, nor can they be supposed to be less the objects of constitutional provision, because they are allowed to sue by a corporate name. That name, indeed, cannot be an alien or a citizen, but the persons whom it represents may be the one or the other, and the controversy is in fact and in law between these persons suing in their corporate character, by their corporate name, for a corporate right, and the individual against whom the suit may be instituted. Substantially and essentially the parties in such a case, where the members of the corporation are aliens, or citizens of a different state from the opposite party, come within the spirit and terms of the jurisdiction conferred by the constitution on the national tribunals. Such fias been the universal understanding on the subject.” Bank of U. S. v. Deveaux, 5 Cranch, 61, 87.
Similar was the construction given by that court to a clause in the treaty of peace of 1783 between the United States and Groat Britain. The sixth article provided that there should be “no future confisca
The fifth amendment to the constitution declares that no person shall “be deprived of life, liberty, or property without due process of law.” This is a limitation upon the federal government similar to that which exists in the constitution of several of the states against their own legislative bodies; and the term “person” thus used has always been held, either by tacit assent or express adjudication, whenever the question has arisen, to extend, so far as property is Concerned, to corporations, because to protect them from spoliation is to protect the corporators also.
Now, the fourteenth amendment extends in this respect the same prohibition to the states that the fifth amendment did to the federal government: “Nor shall any state deprive any person of life
The constitutional guaranties of due process of law, and of equality before the law, would be dwarfed into comparative insignificance, and almost emasculated of their protective force, if restricted in their meaning and operation, 'as contended by counsel. A large proportion of our people are members of some corporation, — religious, educational, scientific, trading, manufacturing, 'or commercial, — and the
The value of the property of manufacturing companies is over §1,000,000,000; of national banks, over $700,000,000; of insurance companies, over $600,000,000; of mining companies, over $300, 000,000; and of telograph companies and shipping companies, each over $100,000,000. Indeed, the aggregate wealth of all the trading, commercial, manufacturing, mining, shipping, transportation, and other companies engaged in business, or formed for religious, educational, or scientific purposes, amounts to billions upon billions of dollars ; and yet all this vast property which keeps our industries flourishing, and furnishes employment, comforts, and luxuries to all classes, and thus promotes civilization and progress, is lifted, according to the argument of counsel, out of the protection of the constitutional guaranties, by reason of the incorporation of the companies; that is, because the persons composing them — amounting in the aggregate to nearly half the entire population of the country — have united themselves in that form under the law for the convenience of business. If the property for that reason is exempted from the protection of one constitutional guaranty, it must he from all such guaranties. If, because of it, the property can be subjected to unequal and arbitrary impositions, it may for tbo same reason be taken from its owners without due process of law, and taken by the state for public use without just compensation. If the position be sound, it follows that corporations hold all their property, and the right to its use and enjoyment, at the will of the state; that it may be invaded, seized, and the companies despoiled at tlm state’s pleasure. It need hardly he said that there v/ould bo little security In the possession of property lield by such a tenure, and of course little incentive to its acquisition and improvement. ■ -
But in truth the state possesses no such arbitrary power over the property of corporations. When allowed to acquire and own property, they must be treated as owners, with all the rights incident to ownership. They have a constitutional right to be so treated. Whatever power the state may possess in granting or in amending their charters, it cannot withdraw their property from the guaranties of the federal constitution. As was said in the San Mateo
The doctrine of unlimited power of the state over corporations, their franchises and property, simply because they are created by the state, so frequently and positively affirmed by counsel, has no foundation whatever in the law of the country. By the decision of the supreme court of the United States in the Dartmouth College Case, it was settled, after great consideration, that the charter of a corporation, under which its franchise — its capacity to do business and hold property — is conferred^ is a contract between the corporators and the state, and therefore within the protection of the federal constitution prohibiting legislation impairing the obligation of contracts. So far from the state having unlimited control over the franchises and property of corporations, because of its paternity to them, it has under that decision only such as it possesses over the contracts and property of individuals. It cannot, from that fact alone, alter, lessen, or revoke their franchises, although they be a free gift. It cannot, from that fact alone, interfere with or impose any burdens upon their property, except as it can interfere with and impose burdens upon the property of individuals.
Such is the doctrine not only of the Dartmouth College Case, but of an unbroken line of decisions of the supreme court of the United States, and of the supreme courts of the several states since that case. To avoid that limitation upon their power, most of the states, in charters since granted, have reserved a right to repeal, amend, or alter them, or have inserted in their constitutions clauses reserving a right to their legislatures to repeal, alter, or amend the charters, or to repeal, alter, or amend general laws under which corporations are permitted to be formed. This reservation, in whatever form expressed, applies only to the contract of incorporation, without which it would be beyond revocation or change by the state. It removes any impediment which would otherwise exist to legislation affecting that contract. It leaves the corporation in the same position it would have occupied had the supreme court held in the Dartmouth College Case that charters are not contracts, and that laws repealing or modifying them do not impair the obligation of contracts. It accomplishes nothing more; therefore, the legislation authorized by it must relate to the contract embodied in the charter, amending, altering, or
The state may, of course, accompany its grant with such conditions as it may deem proper for the management of the affairs of the corporation which do not impinge upon any provision of the federal constitution; and by the reservation clause it will retain control over the grant, and may withdraw it or modify it at pleasure. It is on this ground that the state has asserted a right to regulate the charges —the fares and freights — of corporations. But it is a novel doctrine that it can on that ground also control their property, appropriate it, burden it, and despoil them of it,- as it may choose, unrestrained by any constitutional inhibitions. That doctrine has no standing as yet in the law of this country. The property acquired by corporations is held independently of any reserved power in their charters. By force of the reservation the state may alter, amend, or revoke what it grants; nothing more. It does not grant the tangible and visible property of the companies, their roads, their roadways, road-beds, rails, or rolling stock. These are their creation or acquisition. Over them it can exercise only such power as may be exercised through its control of the franchises of the companies, and such as may be exercised over the property of natural persons engaged in similar business.
As justly said by the supreme court of Michigan, speaking by Mr. Justice Cooley:
“It cannot be necessary at this day to enter upon a discussion in denial of the right of the government to take from either individuals or corporations any property which they may rightfully have acquired. In the most arbitrary times such an act was recognized as pure tyranny, and it has been forbidden in England ever since Magna Charla, and in this country always. It is immaterial in what way the property was lawfully acquired, — whether by labor in the ordinary vocations of life, by gift or descent, or by making profitable use of a franchise granted by the state; it is enough that it has become private property, and it is then protected by the law of the land.” Detroit v. Detroit & Howell Plank-road Co. 43 Mich. 146-7; [S. C. 5 N. W. Rep. 275.]
But it is urged that, even with an admission of these positions, property may be divided into classes and subjected to different rates; that such classification maybe made from inherent differences in the nature of different parcels of property, and also from the different uses to which the same property may be applied; and it is sought to place the tax levied in these cases under one of these heads. As already mentioned, the constitution of the state provides with respect to property that it shall be taxed in proportion to its value; it pro
The ground of complaint is not that any different rate of taxation is adopted, — for there is none, — but that a different rule is followed in ascertaining the value of the property of railroad corporations, as ■a basis for taxation, from that followed in ascertaining the value of property held by natural persons. In estimating the value in one case, certain elements are considered, by which the value as a basis for taxation is lessened; in estimating the value in another ease, those elements are omitted, by which the valuation is proportionately increased. .All property of railroad corporations, whether used in connection with the operation of their roads or entirely distinct from any such use, is estimated without regard to any mortgages thereon, while the property of natural persons is valued with a deduction of such mortgages.
, Of the property of the railroad company, — the Southern Pacific,— several million acres .of farming lands are included in the same mortgage which covers the roadway, roadrbed, rails, and rolling stock of the company. No distinction is made in the assessment of the value of any of this property because of the use of it. The whole is assessed in the same manner without regard to the mortgage thereon ; and the taxes on the whole of it thus assessed, with the exception of the taxes on the road-bed, roadway, rails, and rolling stock, have been paid by the companies or parties to whom, since the levy, certain parcels have been sold. The discrimination between the railroad companies and individual proprietors, in the estimate of the value of their property, is made because of its ownership, and not from any specific differences in the character of the property, or in the specific uses to which it is applied.
The farming lands held by the company are not different in character from adjoining farming lands held by natural persons, yet they are assessed, under the system established by the constitution of the state, upon different principles. The road-bed, roadway, rails,
“If you once concede the point that you may classify different rates upon the vaiues of things, or may put up your values on different principles, as values by deduction or otherwise, — -which is the same thing stated in another way, — then there is no check upon the exercise of arbitrary power. The mob or commune that can get possession of the state legislature for one term may despoil every one of the citizens whom it chooses to despoil, and the liberty and the security of the constitution of the United States, secured through painful exertion and great consideration, crystallized in unmistakable language, — historic, indeed, and benefloient as it is historic, securing national intrinsic rights everywhere and to everybody. — -will turn out to be an utter sham and delusion ”
If, to the position of counsel that property may be classified simply because owned by a corporation, and thus differently assessed, we add the further position that the owner of the property assessed has no constitutional right to have notice of the assessment, or to be heard respecting it, though it he double or treble the value of the property, — though the property be assessed at thousands, when worth only hundreds, — we have a system established with a power of oppression under which no free man should ever be contented to live.
In the argument of counsel, the distinction between taxes for licenses and franchises, and taxation upon values, seems to have been overlooked, and because no notice is required in the former case, and no opportunity given to be heard, therefore it is contended that the rule is not sound; that notice is necessary, and an opportunity of being heard in the latter case where an assessment is made upon property and values are found upon evidence; yet the distinction is plain and everywhere recognized. A license tax paid by an insurance company of another state, in order to exercise its corporate powers in this state, is the consideration given for a privilege which the company may or may not take; if taken, the fee must be paid. Of coarse, no notice there is necessary. If a person wishes a license to do business at a particular place, or of a particular kind, such as selling liquor, cigars, clothes, or keeping a restaurant or hotel in a city, he is only to pay what the law requires and go into the business. Notice in such cases would be of no service to him, and no hearing could change the result. And the state may exact the payment of a particular sum — such as it deems proper — as a condition of the grant of corporate powers, or for their continuance, and may
The notice to which we refer need not be a personal citation; it is sufficient if it be given by a law designating the time and' place where parties may contest the justice of the valuation. As a general rule only a statutory notice is given. The state may designate the kind of notice and the manner in which it shall be given. All that we assert, or have asserted, is that there must be a notice of some kind which will call the attention of the parties to the subject, and inform them when and where they will be permitted to expose any alleged wrong in the valuation of which they may complain.
It was with reference to the class of cases where values are to be found upon evidence, that we said in the San Mateo Suit that notice and opportunity to be heard were essential to the validity of the assessment, and without which the proceeding by which the tax-payer’s property was taken from him would not be due process of law. We have heard nothing in the argument of the present cases or in the criticism of the authorities which in the slightest degree affects the accuracy of the statement. In Stuart v. Palmer, 74 N. Y. 191, the court of appeals of New York, in an elaborate opinion, speaking by Mr. Justice Earl, said:
“It is difficult to define with precision the exact meaning and scope of the phrase ‘due process of lawr.’ Any definition which could be given would probably fail to comprehend all the cases to which it would apply. It is probably better, as recently stated by Mr. Justice Miller, of the United States supreme court, ‘to leave the meaning to.be evolved by the gradual process of judicial inclusion and exclusion, as the cases presented for decision shall require, with the reasoning on which such decisions may be founded.’ Davidson v. New Orleans, 96 U. S. 104. It may, however, be stated generally that due process of law requires an orderly proceeding, adapted to the nature of the case, in which the citizen has an opportunity to be heard, and to defend, énforce, and protect his rights. A hearing, or an opportunity to be heard, is absolutely essential. We cannot conceive of due process of law without this.”
l'‘ It has always been the general rule in this country, in every system of assessment and taxation, to give the person to be assessed an opportunity to be heard at some stage of the proceedings. That due process of law requires this, has been quite uniformly recognized.”
Numerous other authorities might be cited to the same purport, and the language of Judge Cooley in his treatise on Taxation, which exhibits a thoughtful consideration of the subject, and a careful examination of the adjudged cases, expresses the established law. Speaking of tax cases he says:
“ We should say that notice of proceedings in such eases, and an opportunity for a hearing of some description, were matters of constitutional right. It has been customary to provide for them as a part of what is ‘due process of law ’ for these cases, and it is not to be assumed that constitutional provisions, carefully framed for the protection of property, were intended or could be construed to sanction'legislation under which officers might secretly assess one for any amount in their discretion, without giving him an opportunity to contest the justice of the assessment. It has often been very pointedly and emphatically declared that it is contrary to the first principles of justice that one should he condemned unheard; and it has also been justly observed of taxing officers that ‘it would be a dangerous precedent to hold that any absolute power resides in them to tax as they may choose, without giving any notice to the owner. It is a power liable to great abuse;’ and it might safely have been added, it is a powrer that, under such circumstances, would be certain to he abused. ‘ The general principles of law applicable to such tribunals oppose the exercise of any such power.’ ” Cooley, Tax’n, 266.
The suggestion of counsel that there is a difference in the law as to notice and opportunity of being heard, where an assessment is made for local purposes, and where it is made under a statute providing revenue for the state, is without foundation. Taxation for local improvements, or for city, county, or town purposes, involves the exercise of the same power which is exerted in taxation for state or general purposes. It is the sovereign powmr of the state in both cases which authorizes the tax, whether that power be exerted directly by an act of the legislature, or by a municipal body as an instrumentality of the state. “That these assessments,” says Cooley, speaking of such as are special, “are an exercise of the taxing power, has over and over again been affirmed, until the controversy may be regarded as closed.” And tbis statement is supported in a note to his treatise, by a reference to numerous adjudged cases, (page 430.)
The object both of taxation for general purposes and of assessments for local purposes is to raise money. In both cases property is valued and a certain proportion of tbe valuation taken for the designated purpose. Whether that purpose be general or local it in no respect changes the essential character of the proceeding. The-property from which the exaction is to be made is less extensive in the one case than in the other. But in both there must be evidence of its value, and a judicial determination respecting it. And the fact that in cases of local improvements there is sometimes a consideration
The clause of the constitution which forbids deprivation of property without due process of law, places liberty under the same guaranty, and no one can be deprived of either, — property or liberty, — under the name of taxation, any more than under any other name, by officers of the state, without some notice of their proceedings, -and a right to be heard respecting their determination before it is executed.
The covenant in the mortgage of the Southern Pacific Railroad Company cannot affect one way or the other the right of the plaintiff to recover against that company. The power of the state is not enlarged nor diminished by it. It is not made with the state and could not be enforced by it. So far as the power or action of the state is concerned, it cannot possibly have any influence. It is a matter which concerns only the parties. They can by arrangement vary it any day; they may enlarge it, qualify it, or release it, whenever they choose. It would be strange indeed if the state’s power of taxation depended in any way upon the stipulation of third parties, or the validity of a tax could be affected by it. The covenant reads as follows:
“And the said party of the first part hereby agrees and covenants to and with the said parties of the second part, and their successors in said trust, that it will pay all ordinary and extraordinary taxes, assessments, and other public burdens and charges which shall or maybe imposed upon the property herein described and hereby mortgaged, and every part thereof.”
Then follows a provision that the mortgagees or. any bondholder may, in ease of default by the mortgagor, pay and discharge the taxes and any lien or incumbrance upon the property prior to the mortgage, and that for such payments the party making them shall be allowed interest and be secured by the mortgage.
The covenant is necessarily limited to such taxes as may be lawfully levied on the mortgaged property, such as the mortgagor is personally bound to the state to pay, and to such other liens as may arise from Ijis previous contract with respect to the property. The mortgagor could not be required to pay any other taxes or discharge any other liens; and should the mortgagees pay or discharge any other, they could neither hold the mortgage as security for the amount, nor the mortgagor liable. The covenant cannot be construed to extend to any taxes levied in disregard of the constitution or laws, nor to such liens as may arise from a tax on other than the mortgaged property, nor from any act of the mortgagees, nor any judgment against them. Should a judgment, for instance, against them become a lien upon all their interests in real property, and among others on that conferred by the mortgage, it would not be embraced by the covenant. That does not cover taxes levied or leviable on the-mortgage, nor on the bonds secured; they are not within its terms, and the state cannot enlarge its meaning.
Fo the question comes back to the original point in the case — were the taxes for which the present action was brought lawfully levied? if so, they can be enforced, whatever may be the private relations or stipulations between the parties to the security. If not lawfully levied; if the law or state constitution under which, they wore imposed is in conflict with the inhibitions of the federal constitution; if the taxes were laid upon interests with which the mortgagor had parted, — they cannot be enforced, whatever may be the pledges of the parties to each other. The argument of the plaintiff amounts to this: if the taxes had been lawfully levied on the mortgage, the mortgagor would have been obliged to pay them under its covenant; therefore it is not injured by the illegality of the levy, and, not being injured by it, should not be heard to complain of it, but be compelled to pay the taxes. The answer to this specious reasoning is obvious. If the taxes are not lawfully levied, there are none for the payment of which the covenant can be invoked even by the mortgagees. The plaintiff must show that there rests upon the mortgagor a legal obligation to the state to pay the taxes arising upon its constitution or laws; not from any stipulation the parties may have made with each other, with which the state has no-concern. The action is not to enforce a lien upon the property; it is for a personal demand, and a personal liability to the state must be shown. No other liability of any kind to any party can aid a recovery.
The covenant we have been considering is not contained in the mortgage on the lands of the Central Pacific Company, and for such
I have thus gone over, so far as I deem it necessary or important, the several positions of counsel for- the plaintiffs, and in none of them do I find any sufficient answer to the objection of the defendants. This opinion might, therefore, close with a simple order directing judgment for the defendants. But owing to misapprehensions, that have largely prevailed in the community since the trial of the San Mateo Case, which involved similar questions as to the effect of a decision against the state upon' its right to subject railroad property to its just proportion of the public burdens, I will venture to make some suggestions as to the manner in which all such demands of the state may be enforced without infringing any principle of constitutional law. I am profoundly sensible of the irritation which a supposed desire to escape from the just burdens of government naturally creates. The more powerful, the more wealthy, the party, the more intense the feeling, and it finds expression in words of bitter complaint, not merely against the party, but sometimes, also, against any administration of justice which tolerates such supposed evasion. It is sometimes forgotten that the courts cannot supply the defects of the law, nor always correct the mistakes of public officers, nor the errors even of learned counsel. Certainly no member of this court would countenance the escape of anybody from his just obligations, but it cannot, with any seeming justice, declare that one party shall discharge an obligation which the law, properly administered, would impose upon another. Its duty is to administer the law as it finds it, not to make it, never forgetting that its administration must always be in subordination to those great principles for the protection of private rights which are embodied in our national constitution, and which are of priceless value to every one in the state.
The railroad companies in California are taxed yearly to an amount exceeding $600,000. Their property is heavily incumbered with mortgages, amounting to much more .than its actual value. Why should they not be allowed by law, if they pay this sum, a credit for it on their mortgages, as any natural person paying it would be allowed ? Why should this unjust discrimination be made against them? Why should they by law be denied a credit for this more than $600,000 a year? Is there any justice in this denial? There is no difficulty in assessing and‘taxing the mortgages, if the words “except as to railroad and other quasi public corporations,” be eliminated from the constitution as invalid. ’ The imaginary difficulty has arisen from the supposed necessity of taxing the debts which the bonds secured. A.s these are held in different parts of the country, some out of the state, it would be impossible, it is said, to reach them. But the answer is
It follows from the views expressed that findings must be had for the defendants, and judgment in their favor entered thereon.
These figures are taken by the commissioner from the estimate of Henry V. Poor, a compiler of railroad statistics.
Pollard v. State, 65 Ala. 635; Nat. Bank v. Com. 9 Wall. 353.
concurring. The discussion in this opinion, though applicable to all the cases tried, will have special reference to the facts in the case of Santa Clara county, No. 3,074.
This case is similar, in the main features, to that of San Mateo Co. v. Southern Pac. R. Co., decided by this court last year. 8 Sawy. 281; [S. C. 18 Fed. Rep. 147, 722.]
The questions involved require for their solution a construction of two clauses in the first section of the fourteenth amendment to the constitution of the United States, which declares that no state shall “deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. ” Poes the requirement of due process of law extend to the taking of property by taxation; and does equality of pro-
1. As to the meaning of the phrase “due process of law,” found in the fourteenth amendment, I used this language in the San Mateo Case:
“ No one, I apprehend, would for a moment contend that a man’s life, or his liberty, could be legally taken away without notice of the proceeding, or without being offered an opportunity to he heard; or that a proceeding whereby his life or liberty should be forfeited, or permanently affected, without notice, or opportunity to be heard in his own defense, could, by any possibility, be by ‘due process of law.’ In sueh cases there could be no just conception of1 due processpf law,’ that would not embrace these elements of notice, and opportunity to be heard. Any conception excluding these elements would be abhorrent to all our ideas of either law or justice. If these elements must enter into and constitute an essential part of due process of law, in respect to life and liberty, they must, also, constitute essential ingredients in due process of law where property is to be taken; for the guaranty in the constitution is found in the same provision, in the same connection, and in the identical language applicable to all. One meaning, therefore, cannot be attributed to the phrase with respect to property, and another with respect to life and liberty.” 8 Sawy. 288; [13 Fed. Rep. 762, 763.]
It was then argued that the same construction must be given to the same language, when used in the same relation with reference to property, that is given when used with reference to life and liberty; and therefore that due process of law, whereby a party is to be deprived of his property, as one element or ingredient, must include an opportunity to be heard; and it was said that this principle was conceived to be established by an unbroken line of authorities. On the trial of this case counsel have vehemently assailed this doctrine, accompanied with the confident assertion that it has not the sanction of any authority, and that the only authority upon the point is against it, and was not referred to by the court, or by counsel, in the San Mateo Case. It may be well, therefore; to give some further consideration to the position thus asserted.
No counsel has yet appeared who has endeavored to maintain the -proposition that; if a man’s life is taken, or he is permanently deprived of his liberty, by some secret tribunal or body of men, without having notice or an opportunity to be heard in his own defense, he has had the benefit of >“due process of law.” If there is anything that was settled under the principles of the common and the constitutional law of England before the severance of the colonies from the mother country, and the establishment of our national constitution, it is that no man can be deprived of his life or his liberty without a trial by his peers — without an opportunity to be heard in his own
These rights of life, liberty, and property are all fundamental personal rights of the same grade or character. They are treated as such in the amendment to the constitution in question, and placed upon precisely the same legal footing, in the same sentence; the identical words, without even a repetition, covering them all: nor “shall deprive any person of life, liberty, or property without due process of law. ” No one has attempted to maintain the proposition that a person can be lawfully deprived of his life or liberty without an opportunity to be heard; nor has any ono, so far as I am aware, endeavored to show that “duo process of law,” as a general rule, respecting notice, and an opportunity to be be heard, means one thing with reference to depriving one of life and liberty, and something else with reference to depriving him of property. It is only sought by counsel to maintain that “due process of law” does not universally require an opportunity to be heard, as a condition of lawfully depriving one of his property, without considering the other branch of the proposition at all. It devolves upon those who maintain that there is a difference in the signification of this clause, as a general rule, as applied to life and liberty, and to property, to clearly establish it; and if there is an exception to the universality of the rule, to point it out, and show that the case under consideration is within tho exception.
The counsel, in combating the principle stated, insists that the language used by the court is altogether too broad; that there are cases,— peculiar cases, — as shown by the authority cited by him, to which it is inapplicable. If this were so, it would only show that there may be exceptions to the general rule, depending upon special circumstances and long-established usage. But it would, then, bo necessary to show that the case in hand is within some recognized exception, and this has not been done. ■
In the San Mateo Case we disclaimed any attempt to give an accurate definition of the term, “due process of law,” that should be “applicable to all casos,” as it was not deemed “necessary for the determination of this ease to do so.” This disclaimer loft room for exceptions founded upon long-recognized and well-established usage.
The mode of proceeding in this particular class of eases had the sanction of long-established usage in England before and down to the settlement of our country; and Mr. Justice Curtis’ whole opinion, is a labored effort to show that the case he was discussing was an exception to the ordinary rule of law, dependent alone upon long-established and exceptional usage. The case was that of a defaulting public officer, who had collected a large amount of public revenue of the United States, and appropriated it to his own use. The act of congress provided a summary mode of proceeding to collect the money from him. It provided, among other things, for an auditing of the defaulting official’s accounts, and certifying the amount due by the proper officers of the treasury, (the accounts are made up from the returns of the officer himself, and are matters of record in the treasury department;) that, when so audited and certified, it should become a lien on the property of the defaulting officer, which should be enforced by seizure and sale under a distress warrant issued by the solicitors of the treasury. The constitution having invested the judicial power in the courts mentioned in it, and declared that the judicial power shall extend to controversies to which the United States are a party, the questions were whether these acts under the statute of 1820 were an exercise of judicial power vested solely in the courts; and, if not an exercise of judicial power, whether such a seizure, under the warrant, without the action of the judicial power, did not deprive the party of his property “without due process’of law,” in violation of the provisions of the constitution on that point. Or, as stated by Mr. Justice Curtis himself, the questions were, whether “a collector of customs, from whom a balance of account has been found to be due by accounting officers of the treasury, designated for that purpose by law, can be deprived of his liberty or property in order to enforce payment of that balance, without the exercise of the judicial power of the United States, and yet by ‘due process of law,’ within the meaning of those terms in the constitution; and if so, then, secondly, whether the warrant in question was such due process of law?” He discusses the question as to what is meant by “due process of law,”
Justice Cubits proceeds:
“ This brief sketch of the modes of proceeding to ascertain and enforce payment oí balances due from receivers of the revenue in England, is sufficient to show that the methods of ascertaining the existence and amount of such debts, and compelling their payment, have varied widely from the usual course of the common law on other snlyeets; and that, as respects such debts due from such officers, the law of the land authorized the-employment of auditors, and an inquisition without notice, and a species of execution, bearing a very close resemblance to what is termed a warrant of distress in the act of 1820, now in question. * * * It is certain that this diversity in the law of the land, between public defaulters and ordinary debtors, was understood in this country, and entered into the legislation of the colonies and provinces, and more especially of the states, after the declaration of independence, and before the formation of the constitution of the United States.”
As thus seen, this mode of enforcing the payment of balances was limited to defaulting collectors, and “receivers of the public revenues of England, and where the debts were of record in the king’s exchequer.” And it shows that the methods of ascertaining the existence and amount of such debts and compelling their payment have varied widely from the usual course of the common law on, other subjects; “and as respects such debts due from such officers ‘the law of the land’ authorized” a summary process similar to that of the law of 1820;
“What officers should be appointed to collect the revenue thus authorized to he raised, and to disburse it in payment of the debts of the United States; what duties should be required of them; when and how and to whom they should account, and what security they should furnish, and to what remedies they should be subjected to enforce the proper discharge of their duties, — congress was to determine. In the exercise of their powers they have required collectors of customs to be appointed; made it incumbent on them to account, from time to time, with certain officers of the treasury department, and to furnish sureties by bond for the payment of all balances of the public money which may become due from them. And by the act of 1820, now in question, they havb undertaken to provide summary means to compel these officers — and, in case of their default, their sureties — to pay such balances of the public money as may be in their hands.”
Whatever may have been tbe grounds of tbe distinction originally made between defaulters among public revenue officers and other citizens, the case of such defaulting officers is clearly shown to be an exception to the general rule, resting upon very special circumstances; and the Hoboken Land Co. Case, cited by counsel, affords a striking illustration of the maxim that “the exception proves the rule.”
But again, under the statute of 1820, (3 St. 595,) by express provisions of section 4, tbe party did in fact have an opportunity to be beard before be could be deprived of his property. That section provided “that if any person should consider himself aggrieved by any warrant issued under this act, be may prefer a bill of complaint to any district judge of tbe United States, setting forth the nature and
Both the ordinary tax-payer, under the laws of California, and the defaulting officers, under the act of 1820, therefore, have an opportunity to be heard before their property can be finally appropriated in a similar sense, and at a corresponding stage of the proceeding. If the opportunity thus afforded the tax-payer is in accordance with due process of law within the general rule, it is not apparent why the opportunity afforded the defaulting officer by the act of 1820 is not, also. They both stand upon the same footing as to the time when an opportunity to be heard is given, — the first determination before a hearing being only provisional; the accounting and seizure under the act of 1820 being something in the nature of an attachment to secure a lien, with an opportunity to be afterwards heard if the amount claimed by the government is not, in fact, due.
In our judgment, this case in no sense or particular conflicts with the point decided by us as to the general rule, — and the rule applicable to that case, — in the San Mateo County Case; on the contrary, we think it a strong case to support the rule. It was cited by counsel and considered by us in the San Mateo Case, but we did not think it militated against our decision, and we did not deem it necessary to extend the discussion by noticing it in the opinions delivered.
But after carefully reviewing the case, in consequence of its being so confidently relied on, and the only one relied on, as being directly inconsistent with our decision on this point, we think it may well be cite,d by us as a strong authority in support of our judgment. These tax cases certainly are not within the exception recognized in that case. The case is the only authority cited — unless the Illinois Railroad Tax Cases, 92 U. S. 575, were so regarded by counsel — claimed to be in direct conflict with our decision on this point, and the Hobo-ken Land Case had no relation at all to what is necessary to constitute a valid levy of a public tax. No authority was cited'to show that a tax levy upon property to be assessed upon evidence of its value is one of the exceptions to the general rule, that an opportunity to be
In the Illinois Railroad Tax Gases, referred to by counsel, the points discussed and relied on were that the act under which the tax was levied and equalized was void, as being in contravention of the constitution of that state; and that the bills in chancery filed presented no case for an injunction, for the reason that there had been no payment or'tender of so much of the tax as was conceded ought to be paid. The court rested its decision mainly upon the latter ground, but also held that, as the supreme court of Illinois had decided the act not to be’in contravention of the state constitution, that decision would control the action of the courts of the United States. The court, however, expressed its concurrence with the views of the state supreme court, on that point.
In the course of the opinion delivered it was said that the state board of equalization of Illinois, in equalizing the taxes of the several counties, — the equalization being by classes and counties, — need give no notice to individual tax-payers, other than such as the law afforded; but, as I understand the decision, this was said with reference to the point whether^ the statute was valid under the state constitution. There does not appear to have been any point argued or relied on as to what constitutes “due process of law;” and the court, in its decision, does not decide, discuss, or even allude to the question as to what are the necessary elements in “due process of law,” with reference to taxation, or otherwise, within the meaning of the fourteenth amendment to the national constitution. That question was, evidently, not decided or considered by the court, or argued by counsel. We therefore do not regard the observations made in the course of the opinion upon statutory notice in its relation to the equalization >of taxes, on the question bf the validity of the statute under the state constitution, or other casual remarks upon points not argued or well considered, as authoritative upon the point now under consideration.
This case, as well as the San Mateo Case, has been laboriously prepared and elaborately argued by many eminent counsel, and if the industry of the attorney general, and the large number of attorneys and special counsel -for the numerous counties interested in the question, has failed to find any recognition of the principle they were endeavoring to maintain, either in the practice of the several states, in the text-books, or,decisions, or even dicta of the courts, we think it will be safe to presume that none can' be found. The assertion of counsel — which, for its positiveness, is extraordinary — that the court “finds no warrant whatever in the books” for the views expressed in the San Mateo Case, that an opportunity to be heard before property can be compulsorily taken from a person in the form of a general tax upon property, is an essential element in “due process of law,” may be attributed to the zeal of the advocate. This assertion is not based on the pretense that the language quoted from the various cases cited
As to the first class of cases, one of the counsel of the defendant well says, and his language is adopted as a clear, general statement of a principio often acted upon by the courts:
“ The existence of doctrines and rules of law is often shown and established by a continuous and uniform series of judicial dieta, incorporated into their opinions by judges arguendo, although, perhaps, the actual facts of the cases under discussion did not absolutely require the statement of such doctrines or rules. And here you will discriminate. * * * Those expressions of judicial opinion may be correct, or may not be correct. They maybe expressions of well-settled rules, of well-settled and established principles,- — principles the statement of which is not absolutely necessary to the final decision, — and yet a continuous and uniform series of such judicial statements is often very high, in fact the highest, evidence of the existence of the rule of law which they do set out. One simple dietum may not be of much weight, or it might have much weight, depending largely upon the ability, the character, and authority of the judge. .But a uniform concensus of such judicial expressions of opinions, even when they are dieta of different judges in various courts, especially when they have been accepted by able text writers and not contradicted by a single direct decision, is as high evidence of a doctrine or rule as can' be found.” "
In all the cases of this class cited by the court, even if the decision did not turn upon this point of constitutional law, the discussion was cognate to the case, and the judges clearly and distinctly stated the right to an opportunity to be heard as a constitutional right. Some of these declarations can scarcely be called dicta, and they relate both to general taxation and local assessments. While such assertions of the principle of law may not be of so controlling a character as a decision of a court of acknowledged authority, directly determining the point in issue, upon mature consideration, they are certainly of some authority as being the deliberately expressed opinions of eminent judges, and entitled to great weight. So, also, so distinguished a jurist and text writer as Chief Justice Cooley, gives it as his deliberate opinion, and not merely the supposed result of the authorities so cited, as well as the rule drawn from the authorities cited by him, as is claimed, that notice of the proceedings and opportunities to be heard are essential. His language is:
“ Wo should say that notice of proceedings in such cases, and an opportunity for a hearing of some description, were matters of constitutional right. It has been customary to provide for them as a part of what is ‘ due process of law ’ for these cases, and it is not to be assumed that constitutional provisions, carefully framed for the protection of property, were intended or could be on-strued to sanction legislation under which officers might secretly assess -me for any amount in their discretion, without giving him an opportunity to con*424 test-the justice of the assessment. It has often been pointedly and emphatically declared that it is contrary to the first principles of justice that one should be condemned unheard; and it has also been justly observed of taxing officers that ‘it would be a dangerous precedent to hold that any absolute power resides in them to tax as they may'choose without giving any notice to the owner. It is a power liable to great abuse;’ and, it might safely have been added, it is a power that, under such circumstances, would be certain to be abused. * * * The general principles of law applicable to such tribunals oppose the exercise of any such power.”
In the other class of cases arising out of local assessments, the point was directly in issue, and the point in the case upon which the decision turned, and in no case was there any distinction drawn between taxation for special local purposes and general taxation. There can be no difference. In either case, whether general taxation, or local assessment for special purposes, the tax or assessment is levied and collected under and by virtue of the sovereign power of taxation] There is no difference in the power or principle exercised. The only difference recognized is the difference in the mode of ascertaining the proper amount to be paid by each. Both are assessed and collected for a public purpose as the party’s share of the public burden, but the local assessment is distributed over a smaller number of persons and a more limited territory, and is usually assessed upon that part of the property supposed to be especially benefited. It is not always, and perhaps not usually, assessed according to the value of the property, but according to benefits, or according to the square foot, or front foot, or number of acres, or on some such principle of apportionment. It is as necessary to apportion it according to some fixed, uni-fofm rule, requiring action of a judicial nature, as in the case of general taxation. This rule is the only distinction recognized — both systems of assessment and collection resting ultimately upon the sovereign power of taxation. Emery v. San Francisco Gas Co. 28 Cal. 349, and People v. Mayor of Brooklyn, 4 N. Y. 420, well illustrate the only distinctions between general taxation and local assessments, and none affect the point under discussion. In both it is necessary to ascertain the amount, extent, and character of the property which forms the basis of the public charge, and on account of which it is to be collected, in order to properly apportion to each owner his proper share of the public burden. There is as great necessity for him to have an opportunity to be heard before the tax, in the case of general taxation, becomes final, as there is in the case of an assessment for local purposes, as street improvements, which is also technically and legally a tax — as much necessity for an opportunity to be heard in the one case as in the other.
The levy and collection of taxes for general purposes, under laws providing for general taxation, are just as clearly a depriving of the owner of his property as the levy and collection of a street or other assessment for local purposes. It is impossible to distinguish them on this point, and no distinction is made' in the books. A decision
Again, so far as we are advised, — and such is the statement in the books, which has not been controverted, — it has been the usual practice in the legislation of all the states, at some point in the proceedings, to levy and collect a tax based upon property, where it is necessary to ascertain its amount, character, and value before the liability becomes finally and irrevocably fixed, to give to the owner or tax-payer an opportunity to be heard. Such has always been and is now the case under the constitution of California, except as to railroads operated in more than one county; and where there has been a departure from the rule, and the validity of such statutes litigated, on the ground of want of due process of law, as we have seen, the statutes have been overthrown. The fact of Such general practice in legislation is very persuasive evidence that, in the estimation of the legislators and people of the several states, an opportunity to be heard in such cases is an important element in “due process of law.” This is of itself authority entitled to serious consideration. As the case stands, then, no decision of any court, no dichm of any respectable judge, — other than so far as the cases cited may be so regarded, — no passage from any text writer, has been brought to our notice which is in direct conflict with the law and principles as stated in the citations made by us on this point in the San Mateo Case.
In view of the numerous dicta — conceding them to be properly dicta —of able judges in one class of cases cited; of the able decisions directly in point in the other class, arising under local assessment laws; of the assumption of the existence of the rule by the United States supreme court in Davidson v. Neio Orleans, 96 U. S. 97; of the adoption and laying down of the rule by text writers of the highest eminence and judicially recognized authority; in view of the general legislation of the states upon the subject, from the beginning, recognizing and practically acting upon the principle; and in view of the further fact that no decision of a judge, or statement of the rule by text writers; to the contrary, has been brought to our notice, — we think that the court was fully justified, in the San Mateo Case, in expressing the belief that the authorities established, beyond all controversy, that somewhere in the proceeding of assessing a tax upon property, where it is necessary to ascertain its amount, character, and value, as a means of apportionment under a law or state constitution, — at some point, before the amount of the assessment becomes finally and irrevocably fixed, — the statute or state constitution must provide for notice to be given to the owner of the property taxed, and an opportunity be afforded to make objections and be heard upon them. If
We have never contended that some species of taxes, as a poll tax, license tax upon occupations, trades, etc., where the tax is specific, and not ad valorem, and does not depend upon the amount of the business done, and the like, may not be levied without an opportunity to be heard. Taxes of these and like kinds operate upon all alike, and a hearing would be of no possible avail. The law itself fixes the amount. It is a legislative act, wherein the-objects of taxation are indicated, and amount fixed alike for all, leaving nothing of a judicial nature to inquire into or determine. But where the tax is based upon the amount, character, condition, and Value of property, the amount of business, income, ete.,< and it is necessary to inquire into, examine, hear evidence, and decide upon these matters, in order to assign to each individual his proper share of the public burden, he is entitled to notice of some kind, and an opportunity to be heard, before the extent of his liability is finally and irrevocably fixed. The notice may not be required to be personal to each individual, or anything other than statutory, but the statute- should fix some time within and place at which he may appear, and must give to the tax-payer a right and some opportunity to appear and be heard upon the matter. He may not succeed in reducing his tax, but the law affording an opportunity presumes that justice will be done upon a proper hearing and proofs by the officers charged with the duty of doing justice in these matters. The same observation applies to the suggestion that a party is as much entitled to be heard upon the fixing of the rate of taxation as to ascertaining the kind, amount, and value of the property. Fixing the rate is a matter of legislative discretion, and a legislative ,act. An estimate of the amount of revenue required, the probable total amount of property upon which it must be imposed being made, the rate is fixed upon that basis, making the allowance suggested by experience for inability to collect the whole tax. But, when fixed, it operates equally upon all. It is only when it is necessary to ascertain the kind, amount, condition, and value of each man’s property for the purpose of apportioning his proper share of the public burden, that it is necessary to act judicially, and to give an opportunity to be heard before the amount shall be finally and irrevocably fixed.
2. We are of the opinion, expressed in the Sam Mateo Case, that the statement required by section 3664 of the Political Code, as adopted in 1880, does not afford notice and an opportunity to be heard sufficient to constitute “due process of law,” within the meaning of the constitutional'provision, for the reasons there stated. 8 Sawy. 296; [S. C. 13 Fed. Rep. 147, 722.] In this, case the assessment was largely in excess of the valuation furnished by the railroad
“ The decision of the speaker and the house to the effect that less than a • majority of the whole can concur in an amendment which may take all the virtue out of a bill, I regard as dangerous. * * * Wherefore, I desire to enter my solemn protest against such proceedings.” Id. 475.
And Mr. Kellogg said:
“I desire to have my protest entered upon the journal of this assembly against tlio decision of the speaker, in declaring that the assembly had concurred in the senate amendments to the bill, * * * for the reason that the journal' shows that forty-one members did not vote aye in concurring with said amendments.”
This was the last action of the house on the bill. It will be seen, then, that while counting up the ayes in the printed journal 41 names are found, yet they were footed up and carried out as 39; the vote was announced by the speaker as 39, and the whole subsequent action of the house was upon the assumption that there were but 39. Upon comparing the printed journal with the original written journal, however, on file in the office of the secretary of state, it is conceded, on all sides, that they do not agree in the names voting aye; the original written journal containing only forty names, one of the names in the printed journal not appearing in the written journal. We are of opin
At the time the assessment in question was made, then, neither the constitution, nor any statute of California, gave the defendant any right, or afforded it any legal notice of the proceeding, or opportunity, to be heard as to the correctness or propriety of the assessment. The assessment was an arbitrary exercise of power by the state board of equalization, according to its own will and pleasure. It is true that in some of the eases, though not in this case, an agent of defendant did appear before the board, after the assessment was made, and sought to get the assessment reduced, and the board, after hearing the application, refused to reduce the assessment, but upon what grounds it does not appear. The defendant offered to §how, by the testimony of members of the board, upon what ground the refusal was made, but the evidence was ruled out, on the objection of the plaintiff that it was incompetent. As there was no law authorizing such an application or hearing, or authorizing a modification of the assessment by the board upon such application, and the listening to the application was a mere matter of grace, it is the legal presumption that the board acted in conformity with the law, and put its refusal on that ground — that it would be unlawful to reduce the amount on such application. But whether it did or not can make no difference.
If such a right and opportunity to be heard is an essential element
• 3.. The next question is whether the provision of the state constitution under which the assessment in question was made is in conflict with tho clause of the fourteenth amendment to the national constitution, which provides that no state “shall deny to any person within its jurisdiction the equal protection of the laws.” In order that my views on this point may be presented in a connected, unbroken order, I shall adopt the reasoning contained in the discussion of the fifth point of my opinion in the San Mateo Case, with such additional observations, incorporated at the proper places, as occur to me, illustrative of the views entertained. In the forcible and accurate language of Mr. Edmunds, which I cannot improve, the—
“Fourteenth amendment was a new Magna Charta, that was in fact, in form, and in effect a fundamental security to every person in the state in respect of every private right that could be invaded, and an absolute affirmation of equality of civil rights to all persons before the law. The first clause forbids the state to touch life, liberty, or property without due process of law; and the second forbids that even with due process of law any person shall be denied the equal protection of tho laws. This is-the plain letter of tho amendment. It is its intrinsic and benefleieut spirit, and it was its purpose. * * *
“What, then, is equality of protection? A civil right under a government is a distinct thing from a political right in it. Tims a state may deny to females the right to vote, but it cannot deny to them the right to sue in courts, or impose on their property all the burdens of the community. To hold otherwise would lead to the affirmation of tho right of the state to make race, or color, or religion, or ago, or stature the criterion of civil rights, and to exert the absolute right of confiscation by classes or descriptions; for in such a case every person of that class or description would stand on ail equality with his fellow-victims.
It is not denied that a state may classify the persons who are to perform certain public duties, or bear certain public burdens, based upon personal peculiarities of either sex or calling, etc., as to require military service only from males, or to exempt females from a poll-tax and impose a license tax upon certain trades, or tax all franchises of corporations and their special privileges; but it could not impose a poll-tax on one-lialf its male or female citizens that it did not impose on the rest in like degree. And when we come to the ease of property, as property, to be affected by a tax, or any other imposition imposed upon it as a thing of value, a distinction cannot be made to depend upon character, or occupation, or quality, or any individual characteristic of the citizen. To hold otherwise would be to set up the very essence of tyranny and arbitrary power.
“ ‘Equal protection’ is the same protection under the same circumstances; all are to stand alike in like intrinsic conditions. Holding property as property is certainly a like intrinsic condition. In the administration of justice, if the criterion of a right to sue be value, all must have the same right when*430 the same value is concerned; or, if the criterion be the nature of the controversy, all must have the same right whose cases are of the same nature. This appears to be too clear for discussion.
“ So, too, in the matter of taxation, if the tax, as in this case, be laid upon' the values of property, all persons must stand on the same footing, according to the value of their respective property, as to the proportionate burden they are to bear in respect to the value.
' “ The farmer must be assessed at the same rate for the value of his laud as the lawyer for the value of his land, and he must have the same right of notice and hearing, etc., as his fellow-citizens of other callings: and if deductions are provided' to be made from values on account of debts (which is only a method of reaching effective value) of one class of citizens, they must be made from those of other classes, without reference to what particular characteristics as citizens or persons they may have, as sex, or race, or age, or quality, or calling.
“The basis of the imposition being property as such, the fact that certain property is owned by a corporation, or a white man, or man of bad character, or a clergyman, cannot be made the ground of a levy that, both in form, in fact, and in result, is unequal and injurious. Any other doctrine necessarily implies that the state may carry such unequal exactions to the end of complete confiscation by edict of all the property of any class or man, who, during the passion of the hour, may not .be in the sunshine of popularity.”
It is insisted that the constitutional provision under which the tax in question is levied does not deny to the defendant the equal protection» of the laws, an,d it is sought to maintain the validity of the provision on the ground that it is a proper exercise of the principle of classification; — that the property is classified according, to its condition and use, — and on that ground properly taxed upon a basis different from that applied to other property. The provision to be considered is as follows: :
“A mortgage, deed of trust, contract, or other obligation by which a debt is secured, shall, for the purposes of assessment and taxation, be deemed and treated as an interest in the property affected thereby. JSxcept as to railroad and other quasi public corporations, in case of debts so secured, the value of the property affected by such mortgage, deed of trust, contract, or obligation, less the value of such security, shall be assessed to the owner of the property, and the value of such security shall be assessed and taxed to the owner thereof in the county, city, or district in which the property affected thereby is situate. The taxes so levied shall be a lien upon the property and security, and may be paid by either party to such security; if paid by the owner of such security, the tax so levied upon the property affected thereby shall become a part of the debt so secured; if the owner of the property shall pay the tax so levied on such security, it shall constitute a payment thereon, and to the extent of such payment a full discharge thereof: provided, that if any such security or indebtednesss shall be paid by any such debtor or debtors, after assessment and before the tax levy, the amount of such levy may likewise be retained by such debtor or debtors, and shall be computed according to the tax levy for the preceding year.”
Whatever the property, then, real or personal, mortgaged to secure a debt, or however used, the value of the debt so secured, in the case of everybody, “except a railroad and other quasi public corporation, ” is to be deducted from the value of the property mortgaged; and the value only of the property mortgaged, “less the value of such security, shall be as
' . Does a law which authorizes such proceedings — such discrimina-tions — hear or press equally upon A. and G., or equally upon B. and C. ? Is C. equally protected in its rights of property with A., or equally protected with B., or equally with all other natural persons; or all corporations other than railroad or other quasi public corporations? Although situated precisely alike with reference to their property, do they feel .the pressure of the public burdens equally and alike ? The question does not appear to me to admit of argument. Upon the fery statement of the proposition, it seems to me to be self-evident that a law authorizing and requiring such proceedings does not afford, but expressly denies, the equal protection of the laws. The constitution in the one'case says that “the mortgage, deed of trust, contract, or obligation” shall be “deemed and treated as an interest in the land affected thereby,” which, in the eases supposed, together with the debt secured, it undoubtedly, in fact, is; but, in effect, the constitution says it is not so in the other case. Different kinds of property may require to be taxed in different forms and modes, in or-. der to be equally taxed; and classifications of property for purposes of taxation should have reference to the just equality of burdens, so far as that is practically attainable. Classification should have reference to the different character, situation, and circumstances of the property, making a different form or mode of taxation proper, if not absolutely necessary. It cannot be arbitrarily made with mere reference to the nationality, color, or character of the owners, whether natural or artificial persons, without any reference to a difference in the character, situation, or circumstances of the property. Should second mortgagees foreclose a mortgage on a railroad or other property of a “railroad or other quasi public corporation,” and a natural person become the purchaser of the road, or other property subject to the prior mortgage, at the next annual assessment the amount of the first-mortgage bonds, or indebtedness secured, would be deducted from the value of the road or other property, and the amount of the bonds or other indebtedness assessed to the mortgagees. Such, also, would be the result in the case before supposed, if C. — a railroad or other quasi public corporation — should convey its land to a natural person- subject to the mortgage to B.; and although there would be no change in the condition, circumstances, use, or value of the property, — the change being only in the owner, — O.’s grantee would only be required to pay one-half the amount of taxes which C. had been compelled to pay, and B., who before .paid nothing, would be required to pay the other ;half. Should the Southend Pacific Railroad and its lands pass into the hands-of a natural person, upon a foreclosure and sale under a
That natural persons may own and operate a railroad in this state, as well as corporations, is manifest from the fact that this road is mortgaged under the authority of the laws of the state, and this of itself necessarily involves the power to sell and convey, in ease the occasion arises, under a decree of foreclosure, to any party who is willing to pay the highest price for the road. It also appears, as a fact in this case, that a natural person purchased a railroad operated in more than one county, extending from Marysville, in the county of Yuba, to Oroville, in the county of Butte, under a decree foreclosing a mortgage, received his conveyance therefor, and that he has been operating it and been assessed and has paid taxes upon it for more than two years past. So, also, numerous statutes of the state were introduced in evidence, granting the right to natural persons, not incorporated, to build and operate railroads. “An act to provide for the construction of a railroad from Mokelumne City to Woodbridge, in the county of San Joaquin,” (St. 1862, p. 97,) and an act authorizing the building of a railroad from the Embarcadero on the bay to Petaluma, in Sonoma county, (Id. 295,) are examples-of numerous acts of a similar character found scattered through the volumes of the statutes from that time to the present. Thus private
There is no difference in the rate imposed; it is taxed according to its value, like all other property; no more and no less tax, in the aggregate, is levied. It is, therefore, taxed upon the same principle as other property; no more and no less revenue is raised by the classification. The state is not benefited. The burden is simply taken from the owner and thrown upon one who does not own the property taxed. It is not taxed to, and made a personal charge upon, the owner, as other property is under like circumstances.
Suppose the position of the parties, the mortgagor and mortgagee, in this case, in regard to the imposition and payment of the tax, had been reversed, and the constitution had imposed the tax upon the whole, as a personal charge upon, and compelled payment by, the mortgagee, the holder of the security, instead of upon the mortgagor, the mortgagor not being taxed at all, would such a provision have been valid upon the principle of classification or any other ? Would the mortgagee stand upon the same footing with other mortgagees ? I apprehend that such a provision would not stand for a moment in the presence of the provision of the national constitution assuring to all the equal protection of the laws. Such a provision would not operate equally upon the two parties interested in the property, nor
Conceding the fourteenth amendment to apply to taxation, as it undoubtedly does, I think I hazard little in saying that nc possible reasoning can'justify such classification or discrimination under it; that classification upon such principles is arbitrary, tyrannical, and unjustifiable.
There can be no valid classification of property, under the state constitution, for purposes of taxation, based upon the uses to which it is applied, except so far as the use may give additional value to the property; and the principle under the constitutional provision requiring all property to be taxed at its value, would only authorize the increase or modification of the assessment by adding the increased value so arising from the use. One owner may pasture his land; another raise wheat, cotton, or sugar-cane; another plant a vineyard for the production of wine, or an orange grove; another erect buildings upon his land, and enjoy the rents arising therefrom; another devote his to the construction and operation of a railroad. If any of these uses give additional value to the land, or other property, it must still be taxed at its actual value, be it greater or less. But, under the constitutional provision requiring all property to be taxed at its actual value, it cannot be classified by its uses for the purpose of applying other principles of taxation than value as a basis; or for the purpose of taxing it according to ownership, so as to make one class of owners, as such, pay more than another; or orie class of oivners pay the taxes that ought to be assessed against and paid by another class. The state constitution does not profess to classify upon the basis of the uses to which property is applied. It recognizes no such principle in terms or by implication. It says nothing about uses, but classifies, in terms, by ownership, and includes all of the property of the same owners in its class for non-deduction of the value of the security, — lands and other property held for sale, as well as property used for operating railroads, or other corporate uses of quasi public corporations, — without making any reference whatever to its uses. The only rule by which any property is authorized to be assessed is according to its value. The constitution arbitrarily provides, as to a particular class, that they shall pay the taxes upon the interest, ac
For authorities, including decisions of the United States supreme court illustrating the point, reference is made to the San Mateo Case, 8 Sawy. 302-304; [S. C. 13 Fed. Rep. 147, 722.]
It is argued that the taxing of the whole value of mortgaged property of railroads and other quasi public corporations to the corporation owning it, subject to the mortgage, while the same thing is not done with respect to the property of natural persons, or other corporations, similarly situated, is valid as being simply a franchise tax, — a tax for the privilege of being a corporation, “ a tax imposed as a return for privileges and powers not possessed by individuals.” It is further said that it is not material by what standard a franchise tax is measured, —whether the tax is in gross, or measured by receipts, the amount of property acquired, or by any other standard; and cases are cited from some of the states, where a franchise tax is claimed to have been sustained on such principles. But this view wholly ignores the. provisions of the state constitution itself on the subject. This is
Great stress was laid in the arguments of plaintiffs’ counsel upon the growing and overweening power and greed of corporations; and it was vehemently asserted that this is a struggle between the people and the corporations for supremacy; that corporations by corrupt means, and through their large and wide-spread influence, have obtained, and they are obtaining, control of legislatures, etc. If this be so, then it is of the utmost importance to every natural person in the United States that these guaranties of the fourteenth amendment to the national constitution should be maintained in all their length and breadth. They are the only means of protection left to the people. If these unequal taxes can be imposed upon the class of corporations named in the constitution, the position of the parties can be reversed, and the unequal lax ■now throicn upon the corporations may hereafter be imposed upon the other parties. If these, can be taxed loithout a hearing, then all or any class of persons cam be taxed ivithout a hearing; and if there is good ground for the alarm manifested by the counsel, of the plaintiff, such corporations, when they acquire the deprecated power and control indicated, will not be likely to be slow in shifting the unequal burden to the other side. There is, therefore, upon that hypothesis, no safety to the people, except in most rigidly maintaining the guaranties of the fourteenth amendment in their broadest scope.
4. Upon the point as to whether the provision of the state constitution under which the tax in question was levied is valid by virtue oí the power of the state over corporations under the authority re
In order to sustain the validity of the tax on that ground, the constitutional provision must operate as an amendment to the general statute of California, by which it imposes upon railroad and other quasi public corporations under the amended statute, as a condition of their continued existence, a liability to be taxed otherwise than as natural persons and other corporations are taxed. It is not pretended by .anybody that any express intention to amend the act relating to corporations is found in the new constitution, or that any reference is anywhere made to the act. The operation of the amendment of the statute is sought to be worked out by implications, and the necessities of the case which require the tax to be sustained on that ground, as there is no other on which it can rest. But repeals or amendments of statutes by implication never were favored; and under our constitution, limiting the power of the legislature to the passage of acts embracing but a single subject, which must be expressed in the title of the act, and forbidding an amendment, otherwise than by re-enacting the whole section as amended, would seem to render the rule still more restrictive in its operation. No reference to this matter of taxation is made in any part of the chapter devoted to corporations. The provision is found in the chapter providing for taxation, and which deals with taxation, and only taxation, as taxation. It is manifest that the idea of amending the act relating to corporations was never contemplated by the convention in framing, or the people in adopting, the constitution. We are satisfied that the charge must be sustained, if sustained at all, only as a tax, without reference to the power of the state to impose further conditions upon corporations not imposed at their creation, by. amendment to the general laws under which they became incorporated.
But if the state, under its power to amend the laws under which corporations are formed, is entitled to impose this charge, not imposed upon natural persons and other corporations under like circumstances, as a condition of its continued future existence, the corporation is not bound to accept the condition and go on. No charter can be forced upon an association of natural persons, and no new or more onerous conditions can be forced upon a corporation already formed. It may elect to dissolve and retire from the field of enterprise occupied rather than accept the new conditions; and such conditions might be imposed as would compel that course. But until accepted they form no part of the charter, and impose no new valid obligations. An acceptance of the new conditions cannot be presumed while the corporation is protesting that none have been imposed; or, if attempted to be imposed, is insisting that they are invalid,
The doctrine asserted and sought to be maintained, that because a corporation owes its origin and existence to the state, — is a creature of the state, — it and all its belongings are under the arbitrary power and control, and at the absolute mercy, of the state, is monstrous. The state, through general laws applicable to all similar corporations, may abolish corporations, may take away their faculties, may enlarge or restrict their powders and functions for the future; but it cannot lay its hand upon their lawful acquisitions or property, otherwise than as upon the acquisitions and property of natural persons. Although the title and management of these are vested in the ideal being called a corporation, the ultimate property is in the corporators, and their rights in the property and acquisitions are as sacred in their corporate as in any other of their relations to society, or to the state.
Had the state constitution provided that the property of corporations might be taken for public use without any compensation, and without a trial or hearing of any kind, such as for the sites of public buildings, public streets or squares, or for the use of railways, and the corporations had denied and resisted the validity of such provision, I apprehend that no court would hold that because it did not immediately dissolve and retire from business, upon the adoption of such a provision, that it had been accepted, and thenceforth become one of the conditions of the future continued existence of the corporation, and, in consequence of the fact, that its property might thenceforth be arbitrarily taken and appropriated to public use without any
From these considerations,, and those expressed upon this point in the San Mateo Case, and from the expressed terms of the constitution itself, it is clear to me that the provision in question attempts to provide only for exercising the sovereign power of taxation, has no other-end to accomplish, and accomplishes no other purpose; and that the rights of.the parties must be determined on that hypothesis alone,— that is to say, the hypothesis that this charge is a tax merely, without any reference to a change of the fundamental conditions upon whieh-the corporation is to continue in existence. If not, then that the new conditions have not been accepted, and there is no ground upon which this action can be maintained. ' The suit is simply one at law for a, tax, and nothing else, and the plaintiff must recover on that theory, and on the case made, or not at all. If this tax can be imposed upon the defendant simply because it is a corporation, when it could not be imposed upon natural persons holding, owning, and using its property under like conditions in all other respects, then it would be difficult to point out what rights are left to corporations, or natural persons in their corporate relations, which the state, under the fourteenth amendment, or otherwise, is bound to respect.
5. At the time of the assessment and levy of the tax in question there was a deed of trust in existence, and operative, to secure a large indebtedness, executed by defendant to D. 0. Mills and Lloyd Tevis before the adoption of the present constitution of the state of California, which covered the Southern Pacific Railroad, its track, depots, rolling stock, and all appurtenances, — the road aggregating 1,150 miles in length, of which over 700 are completed and in operation. It also covered all the lands granted by the United States to aid in the construction of said railroad, aggregating, as estimated, 10,000,-000 acres, after excluding reserved lands embraced in the statutory description. This Meed of trust or mortgage was duly recorded in the several counties' of the state through which the road extended and in which the lands were situated. •
’ A portion of the road and lands mortgaged is situated in the county of Santa Clara. The mortgage was for $46,000 per mile, of •which amount bonds have been issued to tlje amount of $39,000 per mile. The lands mortgaged, so far as they had been patented, including the lands in Santa Clara, had been taxed to defendant in the several counties in which they were situated, at their full value, and without any reduction on account of the mortgage, and the taxes duly paid. So, also, no reduction in the amount of the assessed value of the road, rolling stock, etc., was made in consequence.- Thus, all the property embraced in the mortgage was taxed to the defendant at its full value, without any reduction in the amount on account of the. mortgage. ■ The trust deed contains the. following covenant:
*441 “And the said party of the first part hereby agrees and covenants to and with the said parties of the second part, and their successors in trust, that it will pay all ordinary and extraordinary taxes, assessments, and other public burdens and charges which may be imposed up on the property herein described, and hereby mortgaged, and every part thereof; and the said parties of the second part, the survivor of them or their successors in said trust, or any one or more of the holders of said bonds, may, in case of default of the said party of the first part in this behalf, pay and discharge the same, and other lien or incumbrance upon said property which may in any way, either in law or equity, be or become, in effect, a charge or lien thereon prior to these presents, or to which this mortgage may be subject or subordinate, and for all payments thus made the parties so making the same shall be allowed interest thereon at the rate of 7 per centum per annum, and such payments, with the interest thereon, shall bo, and are hereby, secured to them by these presents, and declared to be payable and collectible in the same sort of currency or money wherein they shall have been paid, and the same shall be payable by said party of the first part to said parties of the second part, upon demand, in trust for the party or parties paying the same, and may be paid out of the proceeds of the sale of said property and franchises hereinbefore provided.”
It is gravely and earnestly insisted bere that under this covenant the defendant had bound itself to the trustees to pay the whole taxes assessed upon the property covered by the mortgage; that if the tax should be assessed upon defendant, and there should be a recovery in this case and payment of the judgment, the defendant would pay no mpre than it is bound to pay under the covenant in the trust deed, and could not be injured; therefore, the tax is valid and a recovery should he had in this action, even though the tax, as levied against the defendant, is unauthorized by any valid law, or was levied without the authority of any law. It would seem to be only necessary to state the proposition to make manifest its fallacy. The proposition in substance is that, if a valid tax bad been levied, the defendant had bound itself by a contract to protect a third party with whom the plaintiff is not in privity against it, by payment, or allowing such third party to pay it, and make it a secured charge against defendant. And since this is so, although it is not authorized by any valid law, it would not injure the defendant to levy the tax against it, and compel it to pay the whole amount of tax that ought to have been properly levied on somebody on account of the property; therefore, the plaintiff ought to recover, although there is no valid tax levied against him or anybody else, — no tax for which anybody is now legally liable. Somebody, ought to have been made personally liable to pay this tax by a proper and legal assessment of it; and if anybody had been made liable, defendant would have been bound to pay it under its covenant; but there was no valid assessment, mither against the defendant or anybody else, yet the defendant is personally liable and plaintiff ought to recover. Such is, in effect, the reasoning, though not expressed in that language, presented to us.
This tax as levied is either valid, as properly levied under the
The covenant in the mortgage in this case is clearly of the first kind. It only required the mortgagor to pay the taxes or liens which it toas at that time hound to pay without the covenant, and in no way extended its liability. A law or constitutional provision which should compel him to pay the taxes assessed upon the property of the mortgagee would enlarge his liability beyond that covered by his covenant, and be void. This covenant only extended to taxes for which the defendant was already liable. Besides, if no valid tax has been levied, then the case is not within the covenant, for the defendant cannot be called upon under the covenant to pay a tax absolutely void.
Again, suppose the covenant had been in a mortgage or trust deed between two natural persons, made at the same time, the sum secured being the whole value of the property. Under the constitutional provision in question, the value of the security, which, in the case supposed, is the whole value of the property, must be assessed to the holder of the security, and made a personal charge on him alone. It could not be asssessed to the mortgagor, and made a personal charge or liability on him, and enforced by a suit for a personal judgment, because there is no statute or constitutional provision purporting to authorize such a proceeding. Yet he has covenanted with the holder of the security, in the same sense as in the trust deed in question, to pay the whole tax levied on the land, and he would not be injured, according to the theory of the plaintiff, if the whole tax should be assessed and recovered against him. If such assessment should be made against the mortgagor instead of the mortgagee,
In my judgment the provisions or the state constitution upon which the validity of this tax and the right to recover alone rest, violate the provisions of the fourteenth amendment in question in four vital „ particulars:
(1) They assess railroad and other Quasi public corporations upon a different basis from that adopted with respect to natural persons and other corporations similarly situated with respect to their property in the particulars in these opinions, and in the opinions in the San Mateo Case pointed out.
(2) They provide, with respect to all property other than railroads operated in more than one county, an opportunity to be heard in the course of the proceeding to assess their property before the assessment becomes irrevocably fixed, while they afford no such notice or opportunity to be heard with reference to railroads operated in more than one county, and in both these particulars deny to the defendant the equal protection of thelaws, within the meaning of the fourteenth amendment to the national constitution.
(3) In not affording notice and an opportunity to be heard before the tax becomes finally and irrevocably fixed, they deprive the defendant of its property without due process of law.
(4) In assessing a tax, and enforcing it as a personal liability against defendant upon property which it does not own, but which is owned by other parties, who pay no tax upon it, the defendant’s property, to the extent of the amount taken beyond his proper share of the public burden, is taken for public use, both without due process of law and without compensation.
As there must be judgment for defendant upon the points arising under the national constitution, it is unnecessary for us to extend these opinions by examining the questions arising alone under the state laws and constitution, over which we would have had no jurisdiction but for the fact that the questions already discussed are in the case. Those are questions more properly belonging to the state courts. We have found the facts in the case, however, and if it should turn out that we are in error upon the points decided, the supreme court will.
For the reasons herein, and in the opinion of the presiding justice stated, in addition to those given in the several opinions delivered in the San Mateo Case, I think judgment should be rendered for defendant as directed.
LxjiitatioN ON Right to Tax. In the American system of taxation there are limitations upon the right.
MEANS AN» InstruMeotaI/Ttebb of Government. The means necessary and proper to carry into effect the powers of government are vested by the United States constitution in congress.
PbopeRtt and Appliances oe Government. Property used as the means and appliances of government, either state or national, is not within the reach of the taxing power of the other;
Exemption of Railroad Property by Charter. The property of a railroad company may be by its charter exempted from taxation, and when all the property of a railroad company is exempt its franchise is also, and such charter is a contract, the obligation of which is inviolable;
Reservation of Power to Alter or Amend. Grants of immunity from taxation must always be construed most favorably.to the state, and where the power over them is reserved to the legislature, it cannot be said that they constitute a contract protected by the constitution of the United States from being altered or repealed by the legislature.
PoweR OVER Private Corporations. The legislature has the same right of general control over corporations that it has oyer natural persons,
Due Process of Law. The principle is universal that no man’s property can be taken from him without his consent, express or implied, except by duo course of law.
Equal ProtectioN of the Laws. The provision as to equal protection of the laws contemplates the protection of persons and classes of persons against unjust discrimination by a state, but it does nob relate to territorial
Eight to a HbariNG. It is a fundamental principle that before a person can be deprived of a right, even by judicial suit, he must have notice, and reasonable opportunity to be heard in defense of his rights.
NOTICE Essential. Taxing officers have no absolute power to tax as they may choose without giving any notice to the owner of the property taxed; the general principles of law oppose the exercise of such a power.
Passage of Eevenue Laws. Any law which provides for the assessment and collection of a tax to defray the expenses of the government is a revenue law.
TasatioN of Railroads — California. The legislature may tax railroad property and telegraph lines within its limits.
DeduotioNS or Mortgage Interest. Under the state constitution the property of railroads and other quasi public corporations is subject to assessment and taxation without deduction of the amount of any mortgage or like lien thereon.
Dobbins v. Erie Co. 16 Pet. 435.
Railroad Co. v. Husen, 95 U. S. 465.
Andrews v. Auditor, 28 Grat. 123; Weston v. Charleston, 2 Pet. 467
Dobbins v. Com’rs of Erie, 16 Pet. 435; Andrews v. Auditor, 28 Grat. 127.
Luehrman v. Taxing Dist. 2 Lea. 438; Memphis v. Memphis W. W. 5 Heisk. 529; Hope v. Deaderick, 8 Humph. 9; Bell v. Bank of Nashville, Peck, 269; Knoxville & O. R. Co v. Hicks. 1 Tenn. Leg. Rep. 338; Pollard v. State, 65 Ala. 631; Appeal Tax Ct. v.Patterson, 50 Md. 369; Howell v. State, 3 Gill. 14; Weston v. Charleston, 2 Pet 467; Andrews v. Auditor. 28 Grat. 123; Transp. Co. v. Wheeling, 99 U. S. 279; Savings Soc. v. Coite, 6 Wall. 601; Providence Bank v. Billings, 4 Pet. 563; McCulloch v. Maryland, 4 Wheat. 429; Transp. Co. v. Wheeling, 99 U. S. 277; State Ton. Tax Cases, 12 Wall. 204; Day v. Buffington, 3 Cliff. 387.
Transp. Co. v. Wheeling, 99 U. S. 282; Gibbons v. Ogden, 9 Wheat. 201.
Dobbins v. Erie Co. 16 Pet. 435.
Fisher v. Blight, 2 Cranch, 396; McCulloch v. Maryland, 4 Wheat. 316; Gibbons v. Ogden, 9 Wheat. 73; Metropolitan Bank v. Van Dyck, 27 N. Y. 400; U. S. v. Marigold, 9 How. 560; Lick v. Faulkner, 25 Cal. 404.
Legal-tender Cases, 12 Wall. 457.
Legal-tender Cases, 12 Wall. 457. But see U. S. v. Bailey. 1 McLean, 234.
McCulloch v. Maryland, 4 Wheat. 316; U.S. v. Fisher, 2 Cranch, 358; Metropolitan Bank v. Van Dyck, 27 N. Y. 400; Com. v. Lewis, 6 Bin. 270.
Metropolitan Bank v. Van Dyck. 27 N.Y. 400.
McCulloch v. Maryland, 4 Wheat. 316; U. S. v. Rhodes, 1 Abb. (U. S.) 49.
United N. J. R., etc., Co. v. Binninger, 42 N. J. Law, 529; New Jersey R. & T. Co. v. Hancock, 35 N. J. Law, 537.
Farmers’ Nat. Bank v. Dearing, 91 U.S. 29; National Com. Bank v. Mobile, 62 Ala. 284; Railroad Co. v. Peniston, 18 Wall. 34; Pollard v. State, 65 Ala. 631; Transp. Co. v. Wheeling, 99 U. S. 279; Nathan v. Louisiana, 8 How. 73; Brown v. Maryland, 12 Wheat. 419; Weston v. Charles ton, 2 Pet. 449; McCulloch v. Maryland, 4 Wheat. 429; Savings Soc. v. Coite, 6 Wall. 604; State Ton. Tax Cases, 12 Wall. 204; Andrews v. Auditor, 28 Grat. 124; Day v. Buffington, 3 Cliff. 387; Osborn v. Bank of U. S. 9 Wheat. 738.
Weston v. Charleston, 2 Pet. 449; Thomson v. Pacific R. Co. 9 Wall. 579; Bank of Commerce v. Tax Com’rs, 2 Black, 620.
Fagan v. Chicago, 84 Ill. 233; McCulloch v. Maryland, 4 Wheat. 316; Osborn v. Bank of U.S. 9 Wheat. 738; Day v. Buffington, 3 Cliff. 387; Transp. Co. v. Wheeling, 99 U. S. 282.
People v. Com’rs of Taxes, 76 N. Y. 76; Nat. Bank v. Com. 9 Wall. 353; Railroad Co. v. Peniston, 18 Wall. 15; Waite v. Dowley, 9 Chi. Leg. News, 263; Dobbins v. Erie Co. 16 Pet. 435.
Railroad Co. v. Peniston. 18 Wall. 5.
U.S. v. Railroad Co 17 Wall. 322; Crandall v. Nevada, 6 Wall. 35; McCulloch v. Maryland, 4 Wheat. 316; Collector v Day, 11 Wall. 113; Weston v. Charleston, 2 Pet. 449,
Railroad Co. v. Peniston, 18 Wall. 34; McCulloch v. Maryland, 4 Wheat. 316; Osborn v. Bank of U. S. 9 Wheat. 738.
Thomson v. Pacific R. Co. 9 Wall. 579. See People v. Cent. Pac. R. Co. 43 Cal. 398; Huntington v. Cent. Pac. R. Co. 2 Sawy. 503; Inhab. of Worcester v. Western R. Corp. 4 Metc. 568; Boston & Me. R. R. v. Cambridge, 8 Cush. 237.
U. P. R. Co. v. Peniston, 18 Wall. 5.
Thomson v. Pacific R. R. 9 Wall. 579; Huntington v. Cent. Pac. R Co. 2 Sawy. 503; People v. Cent. Pac. R. Co. 43 Cal. 398; Worcester v. Worcester R. Corp. 4 Metc. 568; Boston & M. R. Co. v. Cambridge, 8 Cush. 237
Railroad Co. v. Peniston, 18 Wall. 32; Thomson v. U. P. R. Co. 9 Wall. 579.
Lane Co. v. Oregon, 7 Wall. 77; Nat. Bank v. Com. 9 Wall. 353; Thomson v. Pacific R. Co. 9 Wall. 591.
Thomson v. Pacific R. Co. 9 Wall. 579,
Wilmington R. Co. v. Reid, 13 Wall. 264.
Scotland Co. v. Missouri, Iowa & N. R. Co. 65 Mo. 123.
Moore v. Holliday, 4 Dill. 52; State v. Hannibal & St. J. R. Co. 37 Mo. 265; Livingston Co. v. Hannibal & St. J. R. Co. 60 Mo. 616; Bailey v. Magwire, 22 Wall. 215.
Baltimore v. Baltimore City P. R. Co. 57 Md. 31.
Hand v. Savannah & C. R. Co. 17 S. C. 221; Hand v. Same, 12 S. C. 814, explained.
Memphis & C. R. Co. v. Gaines, 3 Tenn. Ch. 478.
Wells v. Cent. Vt. R. Co. 14 Blatchf. 427.
State v. Balt. & Ohio R. Co. 48 Md. 71 ; State v. North. Cent. R. Co. 44 Md. 162; Miller v. State, 15 Wall. 488.
Scotland Co. v. Missouri, Iowa & N. R. Co. 65 Mo. 123.
N. J. Midland R. Co. v. Jersey City, 42 N. J. Law, 97.
id.
Delaware Railroad Case, 18 Wall. 225; Tucker v. Ferguson, 22 Wall. 575; Erie R. Co. v. Pennsylvania, 21 Wall. 498; Appeal Tax Court v. Rice, 50 Md. 302; Railroad Co. v. Marion Co. 7 Lea. 665; Wilson v. Gaines, 2 Tenn. Leg. Rep. 28; Railroad Co. v. Loflin, 105 U. S. 261; Bailey v. Magwire, 22 Wall. 215; Theological Sem. v. People, 101 Ill. 580; Hoge v. Railroad Co. 99 U. S. 349; Louisville & N. R. Co. v. Gaines, 2 Flippin, 621; Appeal Tax Court v. Balt. Acad. of Visitation, 50 Md. 416; Tomlinson v. Jessup, 15 Wall. 459; Miller v. State, Id. 478; Pennsylvania Coll. Cases, 13 Wall. 190; West Wis. R. Co. v Sup’rs, 93 U. S. 585.
Miller v. State, 15 Wall. 478; Holyoke Co. v. Lyman, Id. 522; Pennsylvania Coll. Cases, 13 Wall. 214; Com. v. Fayette Co. R. Co. 55 Pa. St. 452; English v. N. H. & N. Co. 32 Conn. 243; and see Fletcher v. Peck, 6 Cranch, 87.
Tomlinson v. Jessup, 15 Wall. 434; West Wis. R. Co. v. Sup’rs, 93 U. S. 595; 35 Wis. 257; Hewitt v. N. Y., etc., R. Co. 12 Blatchf. 452; C. R. & R. Co. v. State, 54 Ga. 401; A. & C. R. Co v. State, 55 Ga. 312; City v. Metrop. Bank. 27 La. Ann. 648; Iron City Bank v. Pittsburgh, 37 Pa. St, 310; State v. Miller, 31 N. J Law, 521; State v. Mayor, Id. 575; Com. v. Fayette Co. R. Co. 55 Pa. St. 452; Union Improve. Co. v. Com. 69 Pa. St. 140.
Iron City Bank v. Pittsburgh, 37 Pa. St. 340.
New Orleans v. St. Anna’s Asylum, 31 La. Ann. 296; Lothrop v. Stedman, 42 Conn. 583; Suydam v. Moore, 8 Barb. 362; Oliver Lee & Co.’s Bank, 21 N. Y. 9; Hyatt v. Whipple, 37 Barb. 595; Com. v. Fayette Co. R. Co. 55 Pa. St. 452; Bangor, etc., R. Co. v. Smith, 47 Me. 34; West Wis. R. Co. v Sup’rs, 35 Wis. 257.
New Orleans v. St. Anna’s Asylum, 31 La. Ann. 294; Guillotte v. New Orleans, 12 La. Ann. 434; Palfrey v. Paulding, 7 La. Ann. 363; Miller v. State, 15 Wall. 488; Holyoke Co. v. Lyman, 15 Wall. 511; Tomlinson v. Branch, 15 Wall. 469; Railroad Co. v. Maine, 96 U. S. 510
Benson v. N. Y. 10 Barb. 223; Galena, etc., R. Co. v. Loomis, 13 Ill. 548; Ohio, etc., R. Co. v. McClelland, 25 Ill. 140; N. W. Fert. Co v. Hyde Park, 70 Ill. 634; New Albany, etc., R. Co. v. Tilton, 12 Ind. 3; Gorman v. Pacific R. R. 26 Mo. 441; Boston, etc., R. R. v. State, 32 N. H. 215; State v. Matthews, 3 Jones. (N. C.) Law, 451; Nelson v. Vermont, etc., R. R. 26 Vt. 717; Thorpe v. R. & B. R. Co. 27 Vt. 140.
Bank v. Hamilton Co. 21 Ill. 53; Peters v. Railroad Co. 23 Mo. 107; Thorpe v. R. & B. R. Co. 27 Vt. 140.
Union Imp. Co. v. Com 69 Pa. St. 140; Com. v. Fayette Co. R. R. 53 Pa. St. 452; Iron City Bank v. Pittsburgh, 37 Pa. St. 340; Hewitt v. N. Y., etc., R. Co. 12 Blatchf. 467.
St. Joseph v. Hannibal & St. J. R. Co. 39 Mo. 476.
State v. Northern C. Ry. Co. 44 Md. 131.
Morris & Essex R. Co. v. Minton, 23 N. J. Law, 529; Morris & Essex R. Co. v. Haight, 35 N. J. Law, 40; Morris & Essex R. Co. v. Com’r, 37 N. J. Law, 229.
New Jersey v. Yard, 95 U. S. 104.
Sinking-fund Cases, 99 U. S. 720; Tomlinson v. Jessup, 15 Wall. 459; Railroad Co. v . Maine, 96 U. S. 510.
Shields v. Ohio, 95 U. S. 324.
Nichols v. New Haven & N. Co. 42 Conn. 105.
St. Louis v. Boatman’s Ins. & T. Co. 47 Mo. 155.
Greenwood v. Union F. R. Co. 105 U. S. 13.
Railroad Tax Cases, 13 Fed. Rep. 735; S. C. 8 Sawy. 238; Exch. Bank of Columbus v. Hines, 3 Ohio St. 1,
State v. Hannibal, etc., R. Co. 75 Mo. 212; Knowlton v. Sup'rs, 9 Wis. 410; Hale v. Kenosha, 29 Wis. 599.
People v. Cent. Pac. R. Co. 43 Cal. 398; Bright v. McCullough, 27 Ind. 223; Merrick v. Amherst, 12 Allen. 500; Com’rs v. Alleghany Co. 20 Md. 457.
Blackman v. Lehman, 63 Ala. 547.
McMillen v. Anderson, 95 U. S. 37. See. to same eifeot, Pearson v. Yewdall. Id. 294; Murray’s Lessee v. Hoboken, etc., Co. 18 How. 272; Davidson v. New Orleans, 96 U. S. 897; Greene v. Briggs, 1 Curt. 311; Hoke v. Henderson, 4 Dev. Law, 15; Taylor v Porter, 4 Hill, 146; Van Zandt v. Waddel, 2 Yerg. 260; State Bank v. Cooper, Id. 599; Jones v. Perry, 10 Yerg. 59.
Parsons v. Russell, 11 Mich 113.
Bertholf v. O’Reilley, 18 Am. Law Reg. (N. S.) 149; Ex parte Ah Fook, 49 Cal 402.
Wilkinson v. Leland, 2 Pet. 658; Osborn v. Nicholson. 13 Wall. 662.
Hoke v. Henderson, 4 Dev. Law, 15; Taylor v. Porter, 4 Hill, 146; Wynehamer v. People, 13 N. Y. 393; Norman v. Heist. 5 Watts & S 171.
Baker v. Kelley, 11 Minn. 480; Rowan v. State, 30 Wis. 129; State v Becht, 23 Minn. 413. The law of the land: Matter of Meador, 1 Abb. (U. S.) 331; Murray’s Lessee v. Hoboken, etc., Co. 18 How. 472; Janes v. Reynolds. 2 Tex. 251.
Newcomb v. Smith, 1 Chand. (Wis.) 71.
Dwight v. Williams, 4 McLean, 586.
Murray’s Lessee v. Hoboken, etc., Co. 18 How. 272; Huber v. Reily, 53 Pa. St. 112; Rees v. Watertown, 19 Wall. 122; Westervelt v. Gregg, 12 N. Y. 202.
Pennoyer v. Neff, 95 U. S. 714.
Id.
Ex parte Meador, 1 Abb. (U. S.) 317; Petition of McMahon, 22 N. Y. Daily Reg 881.
Mille Lacs Co. v. Morrison, 22 Minn. 178.
Davis v. Clinton City, 55 Iowa, 549; S. C. 8 N. W. Rep. 423; McCarroll’s Lessee v. Weeks, 5 Hayw. 246; Cowles v. Brittain, 2 Hawks, (N. C.) 204; New Town Cut v. Seabrook, 2 Strobh. 560; Co. Com’rs v. Morrison, 22 Minn. 178.
Cowles v. Brittain, 2 Hawks, 207; Hagar v. Sup’rs, 47 Cal. 233.
Kelly v. Pittsburgh, 104 U. S. 78; Railroad Tax Cases, 13 Fed. Rep. 722, and note, 782.
People v. Essex Co. 70 N. Y. 229.
Zeigler v. S. & N. A. R. Co. 58 Ala. 594; Wilburn v. McCalley, 63 Ala. 436.
McMillen v. Anderson, 95 U. S. 37.
Martin v. Mott, 12 Wheat. 19; U. S. v. Ferreira, 13 How. 40; Murray’s Lessee v. Hoboken, etc., Co. 18 How. 272.
Weimer v. Bunbury, 30 Mich. 212.
Springer v. U. S. 102 U. S. 586.
Kent v. Kentland, 62 Ind. 291; Pearson v. Yewdall, 95 U. S. 296.
McMillen v. Anderson, 95 U. S. 37.
Davidson v. New Orleans, 96 U. S. 97.
Kelly v. Pittsburgh, 104 U. S. 78.
Munn v. Illinois, 94 U. S. 118.
Astor v. New York City, 37 N. Y. Super. 561.
Norris v. Waco City, 57 Tex. 635.
Id.
Harper v. Rowe, 53 Cal. 233.
Missouri v. Lewis, 101 U. S. 22.
San Francisco & N. P. R. Co. v. Board of Equalization, 60 Cal. 12.
Id.
Railroad Tax Cases. (San Mateo Co. v. Southern Pac. R. Co.) 8 Sawy. 238; S. C. 13 Fed. Rep. 722.
In re Ah Fong, 3 Sawy. 144.
Pearson v. Portland City, 69 Me. 281,
Railroad Tax Cases, (San Mateo Co. v. Southern Pac. R. Co.) 8 Sawy. 238; S. C. 13 Fed. Rep. 722.
Id.
Id.
Gilmore v. Sapp, 100 Ill. 297.
Railroad Tax Cases, 13 Fed. Rep. 765; Philadelphia v. Miller, 49 Pa. St. 448; Overing v. Foote, 65 N. Y. 263; Westervelt v. Gregg, 12 N. Y. 209; Butler v. Saginaw Co. 26 Mich. 29; Davidson v. New Orleans, 96 U. S. 97.
Butler v. Saginaw Co. 26 Mich. 22; Cleghorn v. Postlewaite, 43 Ill. 428; Philadelphia v. Miller, 49 Pa. St. 440.
Lehman v. Robinson, 59 Ala. 244; Darling v. Gunn, 50 Ill. 424.
Marsh v. Chestnut, 14 Ill. 223; Billings v. Detton, 15 Ill. 218.
Jones v. Randle, 68 Ala. 258; Eldridge v. Kuehl, 27 Iowa, 160; Henderson v. Oliver, 28 Iowa, 20; McCready v. Sexton, 29 Iowa, 356; Thomas v. Stickle, 32 Iowa, 71; Brown v. Painter, 38 Iowa, 456; Baker v. Kelley, 11 Minn. 480.
Sioux City, etc., R. Co. v. Washington Co. 3 Neb. 30.
State v. Lindell Hotel Co. 9 Mo. App. 455; Patten v. Green, 13 Cal. 325.
Patten v. Green, 13 Cal. 325; Cleghorn v. Postlewaite, 43 Ill. 428; Darling v. Gunn, 50 Ill. 424; Leavenworth Co. v. Lang, 8 Kan. 284; Kansas Pac. R. Co. v. Russell, Id. 558; Griswold v. School-dist. 24 Mich. 262; Sioux City, etc., R. Co. v. Washington Co. 3 Neb. 30; Matheson v. Mazomanie, 20 Wis. 191; Phillips v. Stevens Point, 25 Wis. 594; State v. Utter, 33 N. J. Law, 183.
Lott v. Hubbard, 44 Ala. 593; Winnisimmet Co. v. Chelsea, 6 Cush. 477; Lincoln v. Worcester, 8 Cush. 55 ; Porter v. Co. Com’rs, 5 Gray, 365; Otis Co. v. Inhab. of Ware, 8 Gray, 509; Sharp v. Apgar, 31 N. J. Law, 358; Young v. Parker, 33 N. J. Law, 192.
McMillen v. Anderson. 95 U. S. 37.
Patten v. Green, 13 Cal. 329; Cleghorn v. Postlewaite, 43 Ill. 428.
Matter of Smith, 52 N. Y. 526; Moulton v. Blaisdell, 24 Me. 283; Lagroue v. Rains, 48 Mo. 536; Dool v. Cassopolis, 4 N. W. Rep. 265.
Lehman v. Robinson, 59 Ala. 219; Hambleton v. Dempsey, 20 Ohio 173; Thomas v. Gain, 35 Mich. 164; Philadelphia v. Miller, 49 Pa. St. 440; Paulison v. Taylor, 35 N. J. Law, 188; Perrine v. Parker, 34 N. J. Law, 352; Nixon v. Ruple, 30 N. J. Law, 60; Patten v. Green, 13 Cal. 325; State Railroad Tax Cases, 92 U. S. 609; Jewell v. Van Steenburgh, 58 N. Y. 89.
Thames Manuf’g Co. v. Lathrop, 7 Conn. 555; Lowell v. Wentworth, 6 Cush. 221; Kansas Pac. R. Co. v. Russell, 8 Kan. 558.
Lyon Co. v. Sergeant, 24 Kan. 572; Leavenworth Co. v. Lang, 8 Kan. 284.
Philadelphia v. Miller, 49 Pa. St. 448.
Appeal of Powers, 29 Mich. 501.
Moulton v. Blaisdell, 21 Me. 283; Lovejoy v. Lunt, 48 Me. 377. See Lagroue v. Rains, 48 Mo. 536.
Schushard v. Drake, 33 N. J. Law, 194.
Id.
St. Paul v. Merritt, 7 Minn. 258.
Pritchard v. Madren, 21 Kan. 492; Gulf R. Co. v. Shepard, 9 Kan. 647; Fudge v. Fudge, 23 Kan. 416.
Com. v. Runk, 26 Pa. St. 235.
Griffith v. Watson, 19 Kan. 27; Leavenworth Co. v. Lang, 8 Kan. 284; Kansas Pac. R. Co. v. Russell, Id. 564; Same v. Wyandotte Co. 16 Kan. 587.
Relfe v. Columbia L. Ins. Co. 11 Mo. App. 374; Pacific R. Co. v. Cass Co. 53 Mo. 30.
Methodist Prot. Church v. Baltimore, 6 Gill. 391; O’Neal v. Bridge Co. 18 Md. 26.
Stuart v. Palmer, 74 N. Y. 183.
Astor v. New York, 37 N. Y. Super. 556; Sharp v. Spier, 4 Hill, 76; Sharp v. Johnson, Id. 96; Matter of Douglass, 16 N. Y. 42; In re Smith, 52 N. Y. 526.
Peyton v Bliss, 1 Woolw. 173.
The Nashville, 4 Biss. 188.
Worthen v. Badgett, 32 Ark. 496; Burr v. Ross, 19 Ark. 250; English v. Oliver, 28 Ark. 321. Vinsant v. Knox, 27 Ark. 278; State v. Little Rock, etc., Co. 31 Ark. 716; Jones v. Hutchinson, 43 Ala. 723; Sup’rs v. Heenan, 2 Minn. 399 ; Smithee v. Garth, 33 Ark. 17.
Brown v. Nash, 1 Wyo. 85. See Railroad Tax Cases, 13 Fed. Rep. 722.
Amoskeag Nat. Bank v. Ottawa, 105 U. S. 667.
People v. N. Y. Floating Dry-dock Co. 63 How. Pr. 451.
People v. Central Pac. R. Co. 43 Cal. 398; Thomson v. Pac. R. Co. 9 Wall. 579.
Huntington v. Cent. Pac. R. Co. 2 Sawy. 503. See Albany & S. R. Co. v. Osborn, 12 Barb. 225; A. & W. R. Co. v. Canaan, 16 Barb. 244; S. & M. R. Co. 14 Ill. 163; Tax Cases, 12 Gill. & J. 117; Mohawk & Hudson Riv. R. Co. v. Clute, 4 Paige, 384.
Huntington v. Cent. Pac. R. Co. 2 Sawy. 503.
San. Fran. & N. P. R. Co. v. Board of Equalization, 60 Cal. 12. See Appeal of N. B. & M. R. Co. 32 Cal. 499.
San Francisco & North. Pac. R. Co. v. State Board, 60 Cal. 12.
Central Pac. R. Co. v. State Board of Equal. 60 Cal. 35.
S. F. & North. Pac. R. Co. v. State Board, 60 Cal. 12.
Railroad Tax Cases, 13 Fed. Rep. 749; People v. Sacramento Co. 8 Pac. C. Law J. 103.
Sonoma Co. Tax Case, 13 Fed. Rep. 789.
San Francisco & North. Pac. R. Co. v. State Board, 60 Cal. 12,
Id.
Id.
Id.
Central Pac. R. Co. v. State Board, 60 Cal. 35.
People v Sacramento Co. 59 Cal. 321.
Railroad Tax Cases, 13 Fed. Rep 749; People v. Sacramento Co. 8 Pac. C. Law J. 103.
San Francisco & N. P. R. Co. v. State Board, 60 Cal. 12.
Id.
Huntington v. Cent. Pac. R. Co. 2 Sawy. 503. Sec State v. Cent. Pac. R. Co. 10 Nev. 47.
Cent. Pac. R. Co. v. State Board, 60 Cal. 35.
Blythe v. Luning, 7 Sawy. 504.
Id.
Savings & Loan. Soci. v. Austin, 46 Cal. 415.