Russell v. Croy

164 Mo. 69 | Mo. | 1901

VALLIANT, J.

— These two cases come here by appeal from the circuit court of Buchanan county. The plaintiffs are holders of notes secured by mortgages on lands in that county, which are owned by individuals. The defendants are the assessor and the members of the county court. The object of the suits is to prevent the defendants from enforcing against the plaintiffs the terms of the third constitutional amendment voted on and declared adopted at the general election in November, 1900.

The proposed amendment was to add to article 10 of the Constitution, two sections as follows:

“Section 22. 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, except as to railroad and other quasi-public corporations, for which provision has already been made by law; 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, in the manner hereinafter to be provided by law, and the value of such security shall be assessed and taxed to the owner thereof, in the county, city or other local subdivision 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 the 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 in all-such eases the interest of the owner of the security, as well as that of the owner of the property affected by such mortgage, deed of trust, contract or obligation shall be assessed on terms equally fair and just. If the note or other obligation secured, is entitled' to a credit by payment on the principal thereof, the assessable value of the owner of the security, upon the fact being made known to the assessor prior to the assessment, shall be diminished by the amount of such payment, and the assessable value of the owner of the land or other property, correspondingly increased, the intent hereof being to place those interested in any way in such land or other property, on the plane of absolute equity as to taxation.

“Section 23. Every contract hereafter made by which a debtor is obligated to pay any tax or assessment on money loaned, or on any mortgage, deed of trust, or other lien, shall, as to any interest specified therein and as to such tax or assessment, be null and void.”

The contention of the plaintiffs- is that this amendment was not legally adopted, and that it is in violation of the four-teeth amendment to the Eederal Constitution. The judgment of the circuit court was that the amendment was legally adopted and that it was not obnoxious to the Eederal Constitution, and that plaintiffs’ mortgage notes were subject to taxation as therein indicated. From that judgment the plaintiffs appeal. There is no dispute as to the facts.

I. Appellant’s first proposition is that notice of the proposed amendment was not published for the length of time required by law. The requirement of the Constitution on that point (sec. 2, art. 15) is: “The proposed amendments shall be published with the laws of that session, and also shall be published weekly in some newspaper, if such there be, within each county in the State, for four consecutive weeks next preceding the general election then next ensuing.”

The general election in 1900 occurred November 6th, which was the first Tuesday in that month. The record shows that the notice was published in every county once a week^in each of the following weeks in October, viz., the weeks beginning Sunday the 7th, 15th, 21st, and 28th. In eighteen counties only, there was in each a publication in the week beginning Sunday, September 30, and continuing through October. The publications in the week beginning October 7th, were made as follows: In one county on Monday the 8th, in one on Tuesday the 9th, in eight counties on Wednesday the 10th, in fifty-four on Thursday the 11th, in forty-three on Friday the 12th, and in eight on Saturday the 13th. That was caused from the fact that the county newspapers were published weekly in those counties, respectively, on those days only. The result was that whilst there was a publication in every county once a week in the four consecutive weeks next preceding the day of election, yet in a majority of the counties the first publication was less than twenty-eight days before that day, and for that reason appellants say the requirement of the Constitution on that point was not fulfilled, and the election was invalid. A decision of this point requires a construction of that clause of the Constitution above quoted. To aid us in this study we are referred to decisions of this and other courts construing statutes somewhat similar. In Young v. Downey, 150 Mo. 317, we construed the statute which prescribes the notice to be given by an administrator of his application to the probate court for authority to sell land for the payment of debts. In that case the subject was thoroughly considered, and the previous decisions reviewed by Burgess, J., speaking for the court, and we are entirely satisfied with the conclusion therein reached and the interpretation of the statute then under consideration. But the same words occurring in different statutes of somewhat similar character do not necessarily bear the same interpretation; their meaning is influenced by the particular context and sometimes by the object to be attained by the statute itself. Thus in Young v. Downey, supra, wherein the words “four consecutive weeks” were shown to mean twenty-eight days, a former (decision of this court, in which it was held that the notice “was published in a weekly paper, for four consecutive numbers, which makes four weeks” (Haywood v. Russell, 44 Mo. 252), was held not to be in conflict with the view then taken of the statute then under consideration, for the very obvious reason that there was difference in the context and also in the purpose of the two statutes. In Haywood v. Russell, the publication was of a notice to a, non-resident defendant in an attachment suit which the statute required to be for four weeks, and the last insertion to be four weeks before the return term of the court. In Young v. Downey the statute was: “Such notice shall be published for four weeks in some newspaper in the county in which the proceedings are had.” [G. S. 1865, sec. 25, p. 498; sec. 148, R. S. 1899.] If four weeks under all circumstances and in every connection must mean twenty-eight days, then in the attachment suit against a non-resident defendant, the publication would have to run twenty-eight days, and be completed four weeks before the commencement of the term, but that is what this court has said the statute does not mean. In the statute concerning the sale of real estate by order of the probate court, the requirement is that the notice be “published for four weeks” without any limitation or qualification as to that period.

So that, according to the interpretation we have given the statutes in regard to notice to non-residents in attachment and such like suits, and in regard to sales of real estate by order of the probate court, requirement of publication for four weeks sirccessively in the one, is satisfied by a publication in a weekly paper for four consecutive numbers, the last insertion to be four weeks (as it formerly was, G. S. 1865; fifteen days as it now is, sec. 581,'R. S. 1899) before the return day of the term, while in the other the publication must cover a period of full twenty-eight days before the return day, and there is no inconsistency in the two interpretations, and both are right.

Now, in the clause of our Constitution regarding the publication of notice of the submission of a constitutional amendment to the vote of the people, we have the words “four consecutive weeks,” but they are in context with words different from those in connection with which the same are used in the statutes above mentioned. The language we now have to construe is, “Shall he published with the laws of the session at which they are proposed, and also in some newspaper, if such there be, in each county in the State for four consecutive weeks next preceding the general election then next ensuing,” etc. The four weeks here called for are not any four weeks the Secretary of State may select prior to the election, but they must be the four weeks next preceding the election. If the Secretary of State had chosen to begin the publications on the first day of September and run them into the first week in October so as to secure, with the varying days of publication among the newspapers, a full period of twenty-eight days, that would not have answered the requirement of the Constitution, because the four weeks so covered would not have been those next preceding the election. And if he had run the publication so begun, through the month of October and thus covered more than twenty-eight days or four weeks, still the only period of the publication that would have answered the requirement of the law would have been the four weeks next preceding the election, the rest would have been in legal effect as if it had not been. If the publication should be for four weeks and it began five weeks before the day of the election, it would not have covered the period called for by the Constitution, because it would not have covered the week immediately preceding, and if had continued five weeks up to the day of the election, the only valid publications would be those in the last four weeks, and if the days of publication in those weeks did not compass twenty-eight days, any other group of twenty-eight days carved out of the five-weeks period would not avail. If we must construe the Constitution in this respect as strictly as appellants would have us to construe it, and if we must say' that four weeks there means twenty-eight days, then we must say that the four publications called for must have occurred within the twenty-eight days next preceding November 6th, that is, from Tuesday, October the 9th, to November the 5th, both inclusive, not sooner than the one nor later than the other date. But in a county where the newspaper was not published on Tuesday, the publication could not begin on the 9th, and if Saturday was the day of issue, the first insertion within the twenty-eight days next preceding the election would be on the 13th. If the officer had begun to publish on the Saturday previous in order to cover the full limit of twenty-eight- days, he would have compassed thirty-one days, but he would not have accomplished a publication once a week within the last twenty-eight days, and he would have fallen outside the constitutional line, if four weeks in that connection means twenty-eight days.

The Constitution uses the words “four consecutive weeks.” The word “week” in its most accurate sense means seven consecutive days beginning with Sunday; in that sense it is most usually used. But it is also appropriately used to mean seven consecutive days beginning with any day. If we mark off the four weeks next preceding Tuesday, November the 6th, according to the first meaning of the word above given, then we would have the four weeks beginning each, Sunday October the 7th, 14th, 21st and 28th, and ending Saturday, November the 3d. Within that meaning of the word those are the particular four weeks specified by the Constitution during which in each the notice must be published once. If we mark them off on the calendar by periods of seven days, not regarding Sunday as the first of each, then we would have four weeks beginning each, Tuesday October the 9th, 16th, 23d and 30th, and ending Monday November the 5th, and within each of those periods there must be a publication. Whether we begin to count the week with Sunday or Tuesday, the four that we so mark off are the four'which the Constitution calls for, and none other will satisfy. The record in this ease shows that in each of those weeks, whether marked off by one rule or the other, there was a publication of the notice with one exception, that is, if we begin to count with Tuesday, October the 9th, there was no publication that week in Dallas county because the only paper in the county was issued on Monday alone.

The Constitution qualifies its requirement in this respect by saying the publication shall be made “weekly in some newspaper, if such there be.” Of course, if there should be no newspaper in the county, or, what is the same thing, if it be not issued within the period required, the publication in that county is not required.

It appears from the record before us that since the adoption of our Constitution in 1875, there have been twenty amendments submitted to a vote of the people by joint resolution of the General Assembly, beginning in 1878 and following in 1882, 1884, 1886, 1890, 1892, 1894, 1896 and 1900, and that in every instance the notice has been published for the same period that this notice was. Thus it appears that the Executive Department was early called on to construe the clause in the Constitution which we have just been considering and the construction it placed upon it was that the particular four weeks designated were those regular calendar periods of seven days each, beginning on Sunday and occurring next before the Tuesday of election day, and that a publication in each of those periods was what the Constitution required. The Executive Department has never changed its rulings on that point and all the amendments of the Constitution that have been adopted have been by a vote of the people on notice given in accordance with that interpretation. A very large and important part of the State government has rested for the last ten years on an amendment to the Constitution adopted in accordance with that interpretation. Even if we have any doubt about the correctness of the construction given by the Executive Department, we should hesitate to overthrow a rule of construction upon which so much had been builded. There is a very learned and demonstrative argument in the brief of the Attorney-General to show that under such circumstances the court should follow the construction placed by the Executive Department on the written law. The position is supported not only with forceful argument but abundant authority, but as we agree with the Executive Department in the interpretation it has given the clause, the question of whether we would be bound by or justified in following regardless of our own views, if to the contrary, the long-established rule of the Executive Department, is not before us for decision. We hold that the publication of the notice in this case was made as the law requires.

II. The next point advanced by appellants is, that the ballot was not sufficient in form. Section 7122, Eevised Statutes 1899, prescribes the form of the ballot to be voted on a

proposition to amend the Constitution, and among other requisites is: “The Secretary of State shall certify to the different county clerks, or other proper officers, the form of the ballot, which shall also state or indicate the character or nature of the proposed constitutional amendment or amendments to be voted on; which statement, indicating the character or nature of any proposed constitutional amendment, shall be printed upon the official ballot, in addition to and in connection with the form above provided.” The form of the ballot in this instance was:

“Third constitutional amendment (Providing that the value of property subject to mortgage, deed of trust, etc., less the value of such security shall be assessed to the owner of the property, and the value of the security assessed to the owner thereof; and that a contract made in violation of such provision is null and void). Yes.”

Then the same form is repeated ending, “No.”

Appellants contend that this did not indicate to the voters the nature of the proposed amendment, and that it was “misleading, confusing, defective, and contradictory, deceiving the voters,” etc.

The law requires that the proposed amendment be published in the session acts of the General Assembly at which they were proposed, and in a newspaper in each county for four consecutive weeks, and two or more copies printed in great primer poster type, posted at each voting place. It is by those methods that the people are to be informed of the precise meaning of the proposed amendments. The indication to be placed on the ballot is not designed to give that minute information, but only to inform the voter in a very general way of the subject. When, as in the last election, there are several amendments to be voted on, the voter would not be apt to remember each by its number and so to prevent confusion or mistake lie is informed by tbe ballot that the first relates to making information and indictment concurrent remedies; the second to providing for the levy of a road and bridge tax; the third to provide that the value of property subject to mortgage, deed of trust, etc., shall be assessed, etc. That method simply distinguishes one proposed amendment from another, if there are more than one, and whether one or more, calls the general subject to his attention.

The general purpose of this amendment was sufficiently indicated on the ballot.

III. We come now to consider the most serious objection alleged against the validity of the amendment, that is, that it is in violation of the fourteenth amendment of the Constitution of the United States.

Under our system as existing before the adoption of this amendment, mortgages on real estate are taxed as personal property and the mortgagee is required to give them in for taxation, while the land is also taxed on its assessed value without deducting the value of the mortgage. Thus, there is, in theory at least, a double taxation on the value of the property.

By this amendment the mortgagee is to be deemed to have taxable interest in the property and the value of that interest is to be deducted from the total assessed value of the property, leaving the mortgagor to pay taxes on the assessed value of the equity of redemption. It was supposed that in this way mort-. gage securities could be more effectively reached for taxation, than experience shows they have heretofore been. [Judson on Taxation, 282.] The language of the amendment is: “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, except as to railroad and other quasi-public corporations, for which provision has already been made by law; 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, in the manner hereinafter to be provided by law, and the value of such security shall be assessed and taxed to the owner thereof in the county, city, or other local subdivision in which the property affected thereby is situate. The taxes so levied shall be a lien upon the property and security,” etc. The pqint made by the appellants is that whilst this amendment seeks to impose the burden therein specified upon them, as holders of mortgages éxecuted by individuals, it expressly exempts from .such burden those who hold mortgages executed by railroad and other quasi-public corporations. They say that under the terms of this law a man holding bonds issued by a railroad or other quasi-public corporation secured by a mortgage of lands of the same kind, in use for a like purpose and lying by the side of the lands covered by the mortgages they hold, is expressly free from the burden that is thereby laid upon them, and therefore they are not afforded “equal protection of the law.” This amendment is copied, with a slight addition, from the Constitution of California, where it was adopted in 1879, and where it is still the law. We therefore naturally look to that State for decisions construing it. In C. P. R. R. Co. v. Board of Equalization, 60 Cal. 35, the plaintiff, the railroad company, challenged the validity of that clause of the Constitution as being in violation of the fourteenth amendment of the United States Constitution in that it denied it the “equal protection of the laws,” by requiring it to pay taxes on the value of its mortgaged property, without deducting the value of the mortgage, while it made a different rule for an individual mortgagor. The court, conceding the inequality complained of, held nevertheless that in the matter of taxation the State was supreme, and that the law was not in violation of the fourteenth amendment, because the provisions of that amendment embraced only natural persons and did not include a railroad corporation. Afterwards, in a group of cases, the question came before the United States circuit court for that district; the court was aided by an array of able counsel on both sides, and -the subject was considered by the court with the care that its great importance and the large interests involved demanded. Mr. Justice Field delivered the opinion, holding the California law to be a palpable violation of the requirements of the fourteenth amendment, upon the very points, which the appellants in the case at bar now advance. [County of Santa Clara v. S. P. R. Co., 18 Fed. R. 385.] That group of cases went to the Supreme Court of the United States, but the cases there were decided on another point, and the point now being considered was not passed upon. But at the argument Chief Justice Waite said: “The court does not wish to hear argument on the question whether the provision in the fourteenth amendment of the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to corporations. We are all of the opinion that it does.” [Santa Clara Co. v. S. P. Ry. Co., 118 U. S. 394.] If what the court there said hy its chief justice be regarded as only obiter dictum, the same has since more than once been pronounced by the court in solemn judgment. [Covington, etc. v. Sandford, 164 U. S. 578, 592; U. S. v. Northwestern Exp. Co., Id. 686, 689; Gulf C. & S. F. Ry. v. Ellis, 165 U. S. 150, 154.] In the last case, the court, per Mr. Justice Brewer, said: “It is well settled that corporations are persons within the provisions of the fourteenth amendment of the Constitution of the United States,” and cited several previous decisions of that court to the same effect. If the question of the validity of this clause in the California Constitution, in the light of the fourteenth amendment, has ever received any further consideration in the California or Federal courts, our attention has not been drawn to the case.

In a later case in the Supreme Court of the United States Mr. Justice Field referred to the omission of the court, to, decide the question- in the Santa Clara County case, and said it would continue to come up until it was decided. [San Bernardino Co. v. Ry., 118 U. S. 422.] In Guthrie, on the Fourteenth Amendment, published in 1898, the author, referring to the comment of Mr. Justice Field in the ease last cited, at p. 121, says: “That was in May, 1886, but the point has not been squarely decided to this day.”

But the constitutional provision in question has been the law of California ever since its adoption in 1879. Why the war against it, which was so fierce in the beginning, has appar-, ently ceased, and its operation suffered to go on without question, we do not know. Mr. Judson in his recent book on Taxation in Missouri, which was published while the adoption of this amendment was pending in this State, at p. 287-8, says: “As we are now asked to adopt a system which has been in force in California for over twenty years, it is important to study the experience of California with reference to this very matter. This subject has been carefully investigated by Prof. Carl C. Plehm, professor of history and political science in the University of California, in a recent article.

“As a result of an exhaustive investigation, he finds that the provision against the shifting of the tax back to the mortgagor has proved wholly ineffective. So successful have been the devices to shift the burden of the tax upon the mortgagor, that they have come into practically universal use, and printed blanks are used embodying agreements, which have been sustained by the Supreme Court of the State. Prof. Plehm says: ‘Possibly the oldest and certainly the most widely used of the successful devices invented for this purpose, is that of a contract separate and distinct from the mortgage, in which the creditor agrees to reduce the interest, -in case the debtor pays the taxes. The method is so common in the south that all stationers carry regular blank forms of these contracts.’ And he adds:

“ ‘The feeling that the provision of the Constitution which requires the mortgagee to pay the taxes accomplishes no good and really increases the burden of debt, and that its evasion affords the debtor a genuine relief, while working no injustice to the creditor, probably accounts for this far-reaching opinion rendered in the recent case of the London and San Francisco Bank v. Bandman, 120 Cal. 221 (decided March 31, 1898). In this case, it was held that a valid agreement, not simultaneous with or directly a part of the mortgage, providing for the payment of taxes by the mortgagor does not violate the constitutional provision. This sweeping decision makes the constitutional provision entirely devoid of meaning and brings the California system of taxing mortgages into practical conformity with that of Massachusetts. - That is, the two parties to the mortgage can make any agreement they please as to the payment of the tax.

“ ‘Thus it is that this famous “experiment in taxation” has come to an end.’

“As we are now asked to adopt a constitutional provision of another State, which has been construed by the Supreme Court of that State, will we not adopt this construction with the amendment?”

It may be, therefore, that evasion of the law has been found so much easier than contesting its validity, that the legal warfare has ceased and the patient borrower bears the burden as of old. We do not know of another State that has copied this feature of the California law, and if, as indicated in the above quotation, the conflicting interests there have made peace on terms that practically annul the law, that fact may account for the absence of other decisions on the question.

Just why the holders of “railroad and other quasi-public corporation” securities were exempted, while all others were included, is not entirely clear. Evidently it was so written in our amendment because we copied it from the California law. But it is not always easy to adjust a borrowed ordinance to another system of laws. Our Constitution ordains that taxes “shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.” [Art. 10, sec. 3.] But whilst that was in the former Constitution of California, it was stricken out of the one adopted in 1879. In a recent case in that State the Supreme Court, giving the reasons for the discrimination in the matter we are now discussing, said: “At the time the Constitution was framed and adopted it was supposed that the property of such corporations was commonly mortgaged to an amount equal to or greater than its value; the difficulty or impossibility of reaching their mortgage bonds when held, as is frequently the case, in the hands of numerous owners dispersed over the world, may have made it seem politic and convenient to fix them as an interest in the 'property; by taxing the property without deduction (on account of the debt) allowed to natural persons, the State could lose no revenue, nor .could railroad property in anywise escape taxation, both of which contingencies were doubtless designed to be avoided; the plan was not open to the imputation of an attempt at double taxation.” [Germania Trust Co. v. San Francisco, 128 Cal. 589.] Perhaps also the fact that the United States government, whose holdings could not be taxed, was a creditor to a large extent of the great railroad corporations of that State, had considerable influence in shaping that clause in the constitutional convention. In a dissenting opinion by Van Dyke, J., in the case last above cited, it is said: “One of the controlling purposes of the people of this State, in calling that convention and by the adoption of the Constitution framed by such convention, was to compel the creditor class to bear a fair share of the burdens of taxation.... No plan, however, that may be devised will, in practice, operate entirely equal and uniform. This fact was realized by members of the convention, as the debates will show. Hence, the clause of the Constitution of 1849 declaring that ‘taxation shall be uniform throughout the State,’ was omitted from the present Constitution; and section 1 of the article on revenue and taxation, as first reported by the committee, declaring that ‘all taxes shall be uniform upon the same class of subjects’ was, after debate, stricken out.” ■

These decisions show that when the clause was inserted in the California Constitution it was the deliberate purpose to discriminate between the holders of mortgage securities executed by natural persons and those holding such securities executed by “railroad and other quasi-public corporations;” they expressly cut out of their Constitution the rule of equality and uniformity, and, as their Supreme Court said when the question first came up for adjudication, the fact that the law did discriminate, requiring one class to pay more taxes “than is required to be paid upon like property by others” did not affect the validity of the law because in its power of taxation the State was supreme, and that the fourteenth amendment was no restriction in that case, because its protection was designed only for natural persons. [C. P. R. R. v. Board of Equalization, supra.] The letter and spirit of our Constitution, however, declare for uniformity and equality in taxation of the same kind of property under like circumstances, and this amendment is out of harmony with the general tone of our organic law. Of course, it is no legal objection to the validity of an amendment to say that it is contrary to the pre-existing Constitution, for the very purpose of an amendment is to make some change in the original. But as we have copied this amendment from the Constitution of another State and the question is, does it create an arbitrary discrimination? it is proper in determining its intent and purposes, to contrast the general spirit of the two Constitutions and interpret this in the light of that Constitution from which it was borrowed, rather than in that of our own. Taking it, then, as meaning what the California courts say it means, and as what they say the debates in the constitutional convention show its framers avowed they intended it to mean, it creates the very invidious and arbitrary discrimination that appellants say it does. In none of the California decisions to which our attention has been called is there any distinction drawn between mortgages given by a railroad company on its roadbed and those covering lands held for sale; they are all treated alike., As we borrowed the text of the law from that State, we are presumed to take its interpretation there given.

There is a slight difference between the words employed in our amendment and those in the California law, and there is also a difference in the punctuation. The form of expression in the California law is: “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 afforded thereby. Except as to railroad and other quasi-public corporations, in ease of debts so secured the value of the property affected,” etc.

In our law it is: “A mortgage, deed of trust, contract or other obligation by which a debt is secured, shall, for the purposes of assessment and taxation, bé deemed and treated as an interest in the property affected thereby, except as to railroad and other quasi-public corporations, for which provision has already been made .by law; in case of debts so secured, the value of the property affected,” etc. It is contended in behalf of respondents that the words “for which provision has already been made by law,” obviate the objection and sufficiently justify the discrimination. Those words it is contended refer “to the special provisions made in our statutes for the taxation of the railroad property absolutely essential to the operation of the road and to the performance of the functions and duties as a common carrier.” [Brief of Attorney-General, p. 96.] But that would be an arbitrary construction, there is nothing in the context limiting the application of those words to that kind of railroad property. They were used without limit in reference to all railroad and other quasi-public corporations. Besides, the roadbed, rolling-stock, etc., was not the only kind of railroad property for which provision for taxation had already been made by law. At the time of the proposal or the adoption of that amendment, there were provisions already made in our laws not only for the taxation of the railroad structure and outfit as a carrier, but also of all its other property and also of all property in the State whether covered by mortgage or clear. The words are applicable to all mortgaged property of every class owned by “railroad or other quasi-public corporations.” Besides, if the words were intended to refer only to that property of a railroad corporation which the State Board of Equalization assesses, still it does not alter the case, because there is no provision made in those statutes for separating the interest of the mortgagee from that of the mortgagor and taxing it as an interest in the property, and, hence, the discrimination in favor of these mortgagees against the holders of other mortgage securities is just as glaring as it would be if the provision already made by law had not been made. And referring again to the California cases, we discover that they have the same system of railroad taxation there that we have. The State Board of Equalization assesses the railroad and its equipment as a whole, and distributes the amount pro rata through the counties just as we do, yet they hold that their Constitution exempts holders of securities covered by mortgages on all property owned by railroads. If we should be compelled to enforce this law in this State a further question not entirely free from difficulty might arise when we would be called on to say what corporations were to be understood as embraced in the term “other quasi-public corporations,” for the holders of mortgages under all such are within the favored class. Judge Van Dyke, in his opinion above quoted, says that it includes street railroads, irrigation and drainage, water and lighting corporations, and all that possess public franchises and deal with public utilities.

It is further contended in behalf of respondent that the unlawful discrimination (if such it be) is against the railroad corporations in requiring them to pay taxes on the value of their mortgaged property, without deducting the value absorbed by the mortgage, and that appellants are not concerned in that, and have no right to complain. But if the law is to be construed as not affording railroad corporations the equal protection of the laws and therefore invalid, the burden that it would lay on their shoulders they can not be compelled to carry, and as the law does not lay it on those who stand in relation to the railroad property as these appellants stand in relation to the property embraced in their mortgages, that interest goes untaxed, and the result is that the mortgage securities held by the appellants are made to bear a part of the burden of the State government, while the same hind of securities held.by their neighbors are unburdened. And it puts mortgage securities issued by quasi-public corporations in a position of advantage.over such securities made by individuals, and thus, with no better security, so far as the value of the property pledged is concerned, than that covered by the mortgage made by the natural person or the private corporation, the money Tender can afford to lend his money to a quasi-public corporation at a less rate of interest than to others. In this view the railroad corporation may receive compensation for the discrimination against it, and the invidious discrimination results in practice only between the smaller capitalist who lends money to the individual and the larger one who deals with railroad and other quasi-public corporations.

It is not denied that the State may classify property for taxation. And nothing said herein is to be understood as drawing in question or casting any doubt as to the validity of section 5, article 10, of our Constitution, relating to the taxation of railroad corporations, but we do mean to say the classification must rest on some reason other than mere ownership and that different pieces of property of the same kind, held and used for the same or similar purposes within the same jurisdiction, can not lawfully be so classified as that one is subjected to the tax and the other exempt, merely because one belongs to a natural person and the other to a corporation, or that one is the obligation of a corporation and the other that of a natural person, or one that of a large concern and the other that of a small one.

In Santa Clara Co. v. S. Pac. Ry., supra, it is said: “A natural person and a railroad company may 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 discrimination is made against the company for no other reason than its ownership.....The principle which justifies such a discrimination in assessment and taxation, where one of the owners is a railroad corporation and the other a natural person, would also sustain it where both owners are natural persons. A mere change in the State Constitution would effect this if the Federal Constitution does not prohibit it. Any difference between the owners, whether of age, color, race or sex, which the State might designate, would be a sufficient reason for the discrimination.” And again, referring to the protection afforded by the fourteenth amendment, the court said: “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..... Unequal taxation, so far as it can be prevented, is, therefore, with other unequal burdens, prohibited by the amendment.... Absolute equality may not be attainable, but gross and designed departures from it will necessarily bring the legislation authorizing it within the prohibition.”

The opinion of Mr. Justice Field in that case is very elaborate. It seems to furnish a conclusive answer to every proposition advanced by respondents in defense of this law, and we are satisfied with the soundness of its reasoning and the correctness of its conclusion.

In Northern Pacif. R. Co. v. Walker, 47 Fed. R. 681, the converse of the proposition in the California case was before the court, and was shown to be equally true. The railroad company owned large quantities of land in Dakota; an act of the Legislature of Dakota Territory had provided that in lien of all other taxes on railroad property a certain tax on its gross earnings should be levied and upon payment thereof its property otherwise be exempt. The railroad company sued to enjoin the county officials from collecting taxes assessed against its lands. The cause came before Caldwell and Thomas, JJ., in the United States circuit court for that district. The court, in its opinion by Caldwell, J., said: “It will thus be seen that, while the plaintiff railroad is taxed on its gross earnings, the lands belonging to the company are not taxed at all......Lands, by whomsoever owned, are subject to taxation, by a uniform rule according to their value.....But it is said the Legislature in the exercise of its powers to select the subjects of taxation and classify property for taxation, 'may place railroads in a class by themselves, and tax them and their property different from other persons; the only limitation being that all railroads in the same class must be taxed alike.’ But, as before stated, conceding that under the organic act railroads may be classed by themselves for purposes of taxation, and taxed by a method applicable to them alone, still that classification and method of taxation must be restricted to what is railroad property. It can not be extended to lands which have no relation to the railroad, or its use or operation. The franchises of railroad companies, and their earnings, and railroad property, as before defined, may well be classed by themselves for purposes of taxation, and taxed by a different method or rule, from that applied to other property. This may be done because it is unlike other property.....Property of the same kind, in the same condition, and used for the same purpose, must be taxed by a uniform rule without regard to its ownership.....It was not competent for the Legislature, either under the organic act, or the fourteenth amendment of the Constitution of the United States, to classify the lands in the Territory, for purposes of taxation, into lands owned by railroad companies and lands owned by all other persons, and declare that the former should not and the latter should be taxed.”

In a late treatise on the Eourteenth Amendment, which has been received with marked approbation by the profession, the author says: “Indeed, in one of the early cases, the extreme statement was made that 'the Federal Constitution imposes no restraints on the States’ in regard to unequal taxation. If this language means that the amendment does not prohibit legitimate classification, and that it does not require all kinds of property to be taxed at the same rate, the statement is correct. Certain kinds of property and certain classes of persons can be singled out for taxation, even though this may result in exempting other property and other classes from any tax burden. But the statement is too broad, and is misleading. Unequal taxes may not be imposed upon property of the same kind, in the same condition and used for the same purposes. 'Equality is of the very essence of the taxing power itself.’ The fourteenth amendment does impose a practical and effective restraint against such taxes.” [Guthrie on Fourteenth Amendment, pp. 117-118.]

If in the case at bar we could limit the operation of the discriminating clause to property owned and used by a railroad company in its equipment as a common carrier, as the Attorney-General in his brief has with great force endeavored to do, we might find in such classification a justification for the act. But the language of the amendment justifies no such restriction. It covers not only all property of every description the title to which is in a railroad company, but also all property owned by other quasi-public corporations, and it is so interpreted by the State from which we borrowed it.

Our judgment is that the third constitutional amendment adopted at the election in November, 1900j is in violation of the fourteenth amendment of the Constitution of the United States, and therefore void.

The judgments are reversed and these causes are remanded to the Buchanan Circuit Court with directions to en-

ter judgment for tbe plaintiffs in both cases as prayed.

As to paragraph I, Brace, Marshall and Gantt, JJ., concur; Burgess, O. J., and Sherwood and Robinson, JJ., dissent. As to paragraph II, Burgess, G. J., and Robinson, Brace, Marshall and Gantt JJ., concur; Sherwood, J., expresses no opinion. As to paragraph III, Robinson, Brace and Gantt, JJ., concur; Burgess, C. J., and Sherwood and Marshall, JJ., dissent.