A Treatise on the Law of Railways

the law of said state, and sustained as legal by the Supreme Court of the United States, by adding together the market value of the whole capital, and the whole sum of the company's funded debt, and from the aggregate sum produced by these deducting the assessable value of all real and personal tangible property of the company, and then taking the remainder as the true assessable amount to be taxed; such balance being that which the entire value of the franchise and intangible interests of the corporation amount to. This seems to be the rule established in the State Tax Cases, above cited-a rule which, while we accept it as law, emanating as it does from our highest judicial tribunal, to our mind savors much of taxing the company's indebtedness as well as its property. This ruling is predicated upon the idea that there is something of taxable value in the corporate privilege or franchise over and above the value of the capital stock, but we think the capital stock is the full representative of every interest, and all property which is servient to the enterprise or franchise; that if the franchise has a value in itself, that value adds value to the capital stock. If this supposition be correct, then all extra taxation as for the supposed value of the franchise, is double taxation.

21. Taxation by municipal corporations.--It was held in City of Dubuque v. Illinois Central R. R. Co." (and overruling City of Davenport v. Mississippi & Missouri R. R. Co.3), that a municipal corporation has a right to tax a railroad company.* Their rolling stock is personal property, and may be taxed by the city which is the principal place of business of the company, for municipal purposes. And where the company is created by the laws of another state, the situs of such property, for the purpose of taxation, is that of the property of the manager or agent in whose possession the property is; in contemplation of

law it is his."

1 State Railroad Tax Cases, 2 Otto, 575; L. & N. R. R. Co. v. State, supra.

239 Ia. 56; S. C. 8 Am. Ry. Rep. 496, 20 Am. Ry. Rep. 124.

3 16 Ia. 348.

And see Dunleith & Dubuque Bridge Co. v. City of Dubuque, 32 Ia. 427.

5 Dubuque v. Ill. Cent. R. R. Co.

Dubuque v. Ill. Cent. R. R. Co., supra. But where the right to tax is established by one city, no other will possess the power: 39 Ia. 56, per BECK, J. But this question would seem to be not entirely free from doubt in the Iowa court. In the cases of Dubuque v. Ill. Cent. R. R. Co.,

Sec. 3275, Rev. Stat. of Iowa, 1860, which provides that if a debtor corporation issues no scrip or evidences of debt in payment of judgments, a tax must be levied to pay the same, confers no independent power of taxation, and does not require a levy in excess of the maximum rate of taxation established by statute.' Sec. 710 of the revision is intended to invest counties with the anthority necessary to raise all revenue, including whatever may be required for the payment of debts; and the limitations in that section have the same controlling operation which those in a city charter have upon municipal taxation. And an affirmative vote upon a proposition to levy a special tax above that provided by law, to pay off ordinary county indebtedness, failing to specify the date of the levy, or the year to which the taxes were to be applied, will not confer power to levy the same; but the validity of such a tax may be established by subsequent legislation, even pending litigation on the question, and after an opinion filed by the court declaring the tax illegal, but pending a petition for rehearing and before final judgment.*

A constitutional provision giving a legislature power to tax corporations, does not operate as a prohibition on all other bodies to tax them, or prevent their being taxed for other purposes than state revenue; and the legislature may authorize municipal corporations to impose such taxes."

22. Retrospective taxation.-A tax may be retrospectively laid, if for a lawful purpose; and taxes levied without authority of law may be legalized by subsequent legislative enactments. Thus a tax levied entitled "County Judgment Taxes,"

supra, the decision in Davenport v. Miss. & Mo. Ry. Co. is not regarded as a binding precedent, because the decision therein was announced by a divided court, and but two of the judges concurred in the reasoning upon which it was based. The Dubuque case, however, stands itself in exactly the same position, and therefore is, by its own reasoning, of no force as a precedent. MILLER, Ch. J., and COLE, J., dissent in that case, holding the law to be settled by the Davenport case, and Dubuque & Sioux City R. R. Co. v. City of Dubuque, 17

for the purpose of paying certain judgments against a county, in addition to ordinary taxes, is lawful, and a law legalizing it is a general law.'

23. Effect of leasing on taxation.-Where the charter of a railroad company authorizes it to acquire, by lease, purchase, or otherwise, other roads, etc., and provides that property so acquired shall become the property of the corporation lessee, the courts will give effect to such provision, and property thus leased will become, for purposes of taxation, at least, the property of the lessee. And in distributing the value of the capital stock for taxation among the different counties, in proportion to the length of the main line in each county, such leased roads will be considered parts of the main line."

1 Iowa R. R. Land Co. v. Soper, supra.

2 Huck v. Chicago & Alton R. R. Co., 86 Ill. 352, 17 Am. Ry. Rep. 419. And see, to the same principle, Hagan v. Hardie, 8 Heisk. 812, 19 Am. Ry.

Rep. 138. See in this connection, Ap-
peal Tax Court v. Western Md. R. R.
Co., 50 Md. 274; Phil., Wilm. & Balt.
R. R. Co. v. Appeal Tax Ct., Id. 397.
Huck v. C. & A. R. R. Co., supra.