nant to the Constitution and laws of the United | States and the power given to Congress to regulate 3. Franchises conferred by Congress cannot, with-out its permission, be taxed by the States.

commerce among the several States.

4. Congress has authority, in the exercise of its power to regulate commerce among the several States, to construct, or authorize individuals or corporations to construct, railroads across the States and Territories of the United States.

[Nos. 660, 661, 662, 663, 664, 1157.]

Kimball, 12 Mass. 337; Boody v. Watson, 1 New
Eng. Rep. 2, 63 N. H. 320; Ramsey County v.
Chicago, M. & St. P. R. Co. 33 Minn. 537; Nas-
sau Gaslight Co. v. Brooklyn, 89 N. Y. 409.

This case is not distinguishable from Thomson v. Union Pac. R. R. Co. 76 U. S. 9 Wall. 579 (19:792); and Union Pac. R. R. Co. v. Peniston, 85 U. S. 18 Wall. 5 (21:787); U. S. v. Union Pac. R. R. Co. 98 U. S. 619 (25:156).

A railroad cannot be regarded as mere land;

Argued Jan. 11, 12, 13, 1888. Decided April 30, its value depends upon the whole line as a unit.

1888.

Union Pac. R. Co. v. Cheyenne, 113 U. S. 517 (28:1099); San Mateo County v. Southern

IN ERROR to the Circuit Court of the United Pac. R. R. Co. 13 Fed. Rep. 725.

Railroad property should be assessed as a

States for the Northern District of California, to review judgments in favor of defend-unit. auts, Railroad Companies, in actions to recover taxes. Affirmed.

The facts are fully stated in the opinion. Messrs. J. M. Wilson, and George A. Johnson, Atty-Gen. of California, and S. Shellabarger, for plaintiffs in error:

The State has the right not only to tax according to its discretion, but also to classify property for assessment and taxation.

Union Pac. R. R. Co. v. Peniston, 85 U. S. 18 Wall. 5 (21:787); Williams v. Albany County, 122 U. S. 163, 164 (30:1089); Kentucky R. R. Tax Cases, 115 U. S. 321 (29:414); State R. R. Tax Cases, 92 U. S. 611 (23-672).

This power of classification is not one that is unlimited.

Cooley, Const. Lim. 175; Stuart v. Palmer, 74 N. Y. 189; Wilkinson v. Leland, 27 U. S. 2 Pet. 657, 658 (7:553); Terrett v. Taylor, 13 U. S. 9 Cranch, 43 (3:650); Von Hoffman v. Quincy, 71 U. S. 4 Wall. 550 (18:408); Sinking Fund Cases, 99 U. S. 719 (25:501).

The assessment is not an attempt to take the property of the defendant without "due process of law."

State R. R. Tax Cases, 92 U. S. 575 (23:663); McMillen v. Anderson, 95 U. S. 37 (24:335); Davidson v. New Orleans, 96 U. S. 97 (24:616); Kentucky R. R. Tax Cases, 115 U. S. 331 (29: 416).

There was notice in the State Constitution that this property would be assessed. The Leg islature made provision for such assessment, and for hearing.

Here is not only notice to the Company, but an actual appearance by the Company before the board; this is notice,-"due process of law."

Does the Fourteenth Amendment affect this -case?

Strauder v. West Virginia, 100 U. S. 306 (25: 665); Ex parte Virginia, Id. 344 (25:678); Elk v. Wilkins, 112 U. S. 94 (28:643); Ins. Co. v. New Orleans, 1 Woods, 87; Santa Clara County v. Southern Pac. R. R. Co. 118 U. S. 396 (30:118); Philadelphia Fire Asso. v. New York, 119 U. S. 121 (30:347).

Laws which have received judicial sanction as valid laws must perish if the position of the defense is sustained.

Commonwealth v. People's Sav. Bank, 5 Allen, 428; Illinois Cent. R. R. Co. v. McLean County, 17 Ill. 291; Monroe County Sav. Bank v. Rochester, 37 N. Y. 366; Vicksburg, S. & P. R. R. Co. v. Dennis, 116 U. S. 665 (29:770); Tennessee v. Whitworth, 117 U. S. 129 (29:830); Ruggles v.

Porter v. Rockford, R. 1. & St. L. R. R. Co. 76 Ill. 584, 595; Cincinnati, N. O. & T. P. R. R. Co. v. Commonwealth, 81 Ky. 492; 1 Desty, Tax. pp. 392, 393; Pacific Hotel Co. v. Lieb, 83 Ill. 606.

So long as the State does not violate the Constitution of the United States, this court can afford no relief against State taxation.

Kelly v. Pittsburgh, 104 U. S. 79 (26:658); State Ř. R. Tax Cases, 92 U. S. 575 (23:663); Kennard v. Louisiana, Id. 480 (23:478); Davidson v. New Orleans, 96 U. S. 97 (24:616); Kirtland v. Hotchkiss, 100 U. S. 491 (25:558); Missouri v. Lewis, 101 U. S. 22 (25:989); German Nat. Bank v. Kimball, 103 U. S. 732 (26:469). Defendants are not denied the equal protection of the laws.

Central Pac. R. R. Co. v. State Equalization Board, 60 Cal. 59; Post v. Kendall County, 105 U. S. 669 (26:1205); Beckman v. Skaggs, 59 Cal. 541; Stanley v. Álbany County, 121 U. S. 545, 550 (30:1002, 1003); Union Pac. R. R. Co. v. Peniston, 85 U. S. 18 Wall. 30 (21:791); Kentucky R. R. Tax Cases, 115 U. S. 336 (29:418); Delaware R. R. Tax, 85 U. S. 18 Wall. 231 (21: 896); Chicago, B. & Q. R. R. Co. v. Iowa, 94 U. S. 163 (24:95).

Apportionment of taxation is purely a legislative function.

Milwaukee & M. R. R. Co. v. Waukesha County, 9 Wis. 431, note; Johnson v. Roberts, 102 Ill. 655; People v. Brooklyn, 4 N. Y. 419; State v. Ogden, 10 La. Ann. 402; New Orleans v. Kaufman, 29 La. Ann. 283; State v. Lathrop, 10 La. Ann. 402; Missouri River Ft. S. & G. R. R. Co. v. Morris, 7 Kan. 210; Kittanning Coal Co. v. Commonwealth, 79 Pa. 104, 105; Vasser v. George, 47 Miss. 713; Woodbridge v. Detroit, 8 Mich. 274; Waring v. Savannah, 60 Ga. 97; Athens v. Long, 54 Ga. 330; Gatlin v. Tarboro, 78 N. C. 119; Burr. Tax. § 77, pp. 147-159.

The absence of a provision in the State Constitution for an opportunity for parties to be heard in defense of their rights before the State Board of Equalization is not in violation of the Fourteenth Amendment to the Federal Constitution.

Beers v. People, 83 Ill. 488; Hallo v. Helmer, 12 Neb. 93; Dundy v. Richardson County, 8 Neb. 508; Gillett v. Lyon County Treasurer, 30 Kan. 166; McMillen v. Anderson, 95 U. S. 37, 41 (24:335); Cooley, Tax. 238, 246, 169-170; State v. Runyon, 41 N. J. L. 98; Kelly v. Pittsburgh, 104 U. S. 79 (26:658); State R. R. Tax Cases, 92 U. S. 575 (23:663); Kennard v. Louisiana, Id. 480 (23:478); Davidson v. New

The Constitution and laws of California, in respect to the taxation of railway corporations, are in violation of the Fourteenth Amendment to the National Constitution, in so far as they require the assessment of their property at its full money value, without making deduction for mortgages covering the property; thus im-ation. posing upon defendant unequal burdens, and, Burr. Tax. 194; Cooley, Tax. 244, 245; Hill. to that extent, denying to it the equal protec-Tax. 290, 291; People v. Hastings, 29 Cal. 451. tion of the law.

McCulloch v. Maryland, 17 U. S. 4 Wheat. 316, 421 (4: 579, 605); Union Puc. R. R. Co. v. Peniston, 85 U. S. 18 Wall. 32 (21:792).

The State cannot destroy the agent selected. Osborn v. Bank of U. S. 22 U. S. 9 Wheat. 738 (6: 204); Weston v. Charleston, 27 U. S. 2 Pet. 466 (7: 487).

The power to tax is the power to destroy. Dobbins v. Erie County, 41 U. S. 16 Pet. 435 (10: 1022); U. S. v. Union Pac. R. R. Co. 91 U. S. 79 (23: 228); Union Pac. R. R. Co. v. Peniston, 85 U. S. 18 Wall. 5 (21:787); Van Brocklin v. Tennessee, 117 U. S. 151 (29: 845); Pollard v. Hagan, 44 U. S. 3 How. 225 (11: 571); Pensacola Tel. Co. v. Western Union Tel. Co. 96 U. S. 6 (24:708); San Francisco v. Central Pac. R. R. Co. 63 Cal. 467; Santa Clara County v. Southern Pac. R. R. Co. 118 U. S. 413 (30:124).

Mr. Justice Bradley delivered the opinion of the court:

| alleged in defense that the Board of Equalization included in the assessments a valuation of rights, franchises and property which they had no authority to assess; as, for example, franchises granted to the companies by the United States, and ferryboats, fences and other property subject to be assessed by the local county boards and not by the state board; and that the assessments were for aggregate amounts, not showing on their face what part of the valuation represented the property illegally included therein; thus rendering the entire assessment in each case void. It was on this latter ground that the judgments for the defendants in the former cases were affirmed. If these defenses, or either of them, are supported by the facts, it is unnecessary for us to decide the question raised under the Fourteenth Amendment of the Constitution. The questions arising under that amendment are so numerous and embarrassing, and require such careful scrutiny and consideration, that great caution is required in meeting and disposing of them. By proceeding step by step, and only deciding what it is necessary to decide, light will gradually open upon the whole subject, and lead the way to a satisfactory solution of the problems that belong to it. We prefer not to anticipate these problems when they are not necessarily involved.

The ground on which it is alleged that the assessments in question were made to include property which the state board had no authority to assess, is to be found in article XIII, sections 9 and 10, of the State Constitution. Those sections are as follows:

These cases are substantially similar to those of Santa Clara County v. Southern Pac. R. R. Co. and the other cases decided at the same time, and reported in 118 U. S. 394 [30: 118]. It will be unnecessary, therefore, to set out many provisions of the Constitution and laws of the United States and of California, which are involved in the present cases in common with those referred to. The actions were brought by the State of California in the Superior Court for the County of San Francisco, and were removed into the Circuit Court of the United States, where a jury was waived in each case and the causes were tried by the court, whose findings of fact and conclusions of law are con- "Sec. 9. A State Board of Equalization, contained in the respective records. One of the sisting of one member from each congressional cases (No. 660 on the docket) was brought district in this State, shall be elected by the against the Central Pacific Railroad Company qualified electors of their respective districts for the recovery of the state and county taxes at the general election to be held in the year due upon the assessment of the company's one thousand eight hundred and seventyproperty made by the State Board of Equaliza- nine, whose term of office, after those first tion for the year 1883; said assessment being elected, shall be four years, whose duty $18,000,000, and the taxes amounting to $276, it shall be to equalize the valuation of 865.10, 60 per cent of which was tendered and the taxable property in the several counties. paid, without prejudice to either party, after the in the State for the purposes of taxation. The suit was brought. Another case (No. 1157) controller of State shall be ex-officio a member is an action against the same Company for the of the board. The boards of supervisors of taxes of 1884, due upon a like assessment of the several counties of the State shall constitute $24,000,000. A third (No. 664), against the boards of equalization for their respective same Company, is for the taxes of 1884, upon counties, whose duty it shall be to equalize the an assessment of $22,000,000. No. 661 is a valuation of the taxable property in the county similar action against the Southern Pacific for the purpose of taxation: Provided, Such Railroad Company for the taxes of 1883. No. state and county Boards of Equalization are 662 is a similar action against the Northern hereby authorized and empowered, under such Railway Company for the taxes of 1883. No. rules of notice as the county boards may pre663 is a similar action against the California scribe as to the county assessments, and under Pacific Railroad Company for the taxes of such rules of notice as the state board may 1883. Tender and payment of 60 per cent of prescribe as to the action of the state board, to the taxes were made in all the cases except increase or lower the entire assessment roll, or 1157, in which the amount tendered and paid any assessment contained therein, so as to was 50 per cent. Similar defenses were set up equalize the assessment of the property conin these cases as in the cases reported in 118 U.tained in said assessment roll, and make the S. It was claimed, as in those cases, that in assessment conform to the true value in money making the assessments no deduction was made of the property contained in said roll. for the mortgages on the Companies' property, "Sec. 10. All property, except as hereinafter whilst such deduction was made on the property in this section provided, shall be assessed in of other citizens, by assessing to the mortgagees the amount of the mortgages as an interest in real estate; thus discriminating against the Company, and denying to it the equal protection of the laws, contrary to the Fourteenth Amendment of the Constitution. It was also

the county, city, city and county, town, township, or district in which it is situated, in the manner prescribed by law. The franchise, roadway, roadbed, rails, and rolling stock of all railroads operated in more than one county in this State shall be assessed by the State Board

of Equalization at their actual value, and the same shall be apportioned to the counties, cities and counties, cities, towns, townships, and districts in which such railroads are located, in proportion to the number of miles of railway laid in such counties, cities and counties, cities, towns, townships and districts."

must assess the franchise, roadway, roadbed, rails, and rolling stock of all railroads operated in more than one county. Assessment must be made to the corporation, person, or association of persons owning the same, and must be made upon the entire railway within the State, and must include the right of way, bridges, culverts, wharves, and moles upon which the track is laid, and all steamers which are engaged in transporting passengers, freights, and passenger and freight cars across waters which divide the road. The depots, stations, shops, and buildings erected upon the space covered by the right of way are assessed by the assessor of the county wherein they are situate. Within ten days after the third Monday of August the

the franchise, roadway, roadbed, rails, and rolling stock of each railway to the counties, or cities and counties, in which such railway is located, in proportion to the number of miles of railway laid in such counties and cities and counties."

Here, it will be perceived, that the Legislature undertakes to define what things are, and what are not, comprised within the five categories of railroad property assessable by the state board, and declares that they include not only the entire railway within the State, the right of way, bridges and culverts, but also the wharves and moles upon which the track is laid, and all steamers which are engaged in transporting passengers, freights, and passenger and freight cars across waters which divide the road." This is clearly an enlargement of the terms of the Constitution. Steamers, at least, are not, and have been held by the Supreme Court of California not to be, embraced in the five categories.

The last section shows explicitly that, in regard to a railroad, the state board has power to assess only five things, the franchise, roadway, roadbed, rails and rolling stock; the county boards are authorized to assess all the rest of the property. If the state board includes in its assessment any more of the railroad property than it is authorized to do, the assessment will be pro tanto illegal and void. If the unlawful part can be separated from that which is law-board must apportion the total assessment of ful, the former may be declared void, and the latter may stand; but if the different parts, lawful and unlawful, are blended together in one indivisible assessment, it makes the entire assessment illegal. This is so well settled that it needs no citation of authorities farther than to refer to the opinion of this court in the former cases. 118 U. S. [30:118]. In the present assessments, all parts of the property are blended together and are inseparable. If it be true, therefore, that property not authorized to be included in the assessments is included therein, the assessments must be declared void. The Legislature of California, in passing laws for carrying out the principles and methods of taxation laid down in the Constitution, has deviated from its words, and has adopted some provisions which would seem to be a departure from it. As the State Board of Equalization in making the assessments in question undertook to follow the law, it will be necessary to examine it. By section 3628 of the Political Code, as amended in 1880, it was provided as follows: "The franchise, roadway, roadbed, rails, and rolling stock of all railroads operated in more than one county in this State shall be assessed by the State Board of Equalization as hereinafter provided for. Other franchises, if granted by the authorities of a county, city, or city and county, must be assessed in the county, city, or city and county within which they were granted; if granted by any other authority, they must be assessed in the county in which the corporations, firms, or persons owning or holding them have their principal place of business. All other taxable property shall be assessed in the county, city, city and county, town, township, or district in which it is situated. *** The assessor must, between the first Mondays of March and July in each year, ascertain the names of all taxable inhabitants, and all property in his county subject to taxation, except such as is required to be assessed by the State Board of Equalization, and must assess such property to the person by whom it was owned or claimed, or in whose possession or control it was at 12 o'clock of the first Monday next preceding."

Now, one of the grounds of defense set up by the Central Pacific Railroad Company in Nos. 660 and 1157, by the Northern Railway Company in No. 662, and by the California Pacific Railroad Company in No. 663, is, that the value of their steam ferryboats was blended by the State Board of Equalization with the other values contained in the assessments. The Central Pacific Company, in its answers (and the others contain similar averments), says:

"The western terminus of the said railroad of defendant is in the City of San Francisco, on the west side of the Bay of San Francisco. The distance across said bay is five miles, and the whole thereof is part of the navigable waters of said bay. The cars of the Company are transported from the end of the railroad track of said road, on the eastern side of said bay, to the end of the railroad track on the western side of said bay, on steam ferryboats belonging to the defendant, built, owned, and constructed for that purpose, and are of great value. For more than four years past the defendant has been the owner of two steam ferryboats, one of the tonnage of 1,566 tons and one of the tonnage of 1,012 tons, and during the whole of that time has used said boats for the purposes aforesaid. Said boats now are, and for more than four years last past have been, of a class which are "The State Board of Equalization must meet by law required to be registered, and now are, at the state capitol on the first Monday in and for more than four years last past have August, and continue in open session from day been, duly registered and enrolled in the City to day, Sundays excepted, until the third Mon- and County of San Francisco, State of Calday in August. At such meeting the board | ifornia.

By section 3665 of the same Code, as amended by the Act of March 9, 1883, it is, amongst other things, provided as follows:

"The State Board of Equalization, in making | ment made by the county board upon the same said pretended assessment of the said roadway, ferryboats now assessed by the state board. roadbed, rails, and rolling stock of defendant, The Company resisted the tax on the ground did willfully and designedly include in the val- that these boats were assessable by the state uation thereof the value of said boats; and the board, and not by the county board. The Suvalue of said boats is blended in said pretended preme Court of California decided against the assessment with the value of said roadway, Company. Its finding of facts was as follows, road bed, rails, and rolling stock; and there namely: "That the defendant is a corporation is no means by which such value can be sep- existing under the law of the United States, arated from the valuation placed by said board and of this State, *** owner of a line of upon said roadway, roadbed, rails, and rolling railroad known as the Central Pacific Railroad, stock, or either of them." extending from a point in the City of San This allegation is sustained by the court Francisco *** to Ogden in the Territory of below in its findings of facts in the cases re- Utah; that the length of said road in the City ferred to. The finding in 660, and substan- and County of San Francisco is four miles tially the same in the other cases, is as follows: from a point within said city to the eastern That on the 18th day of August, 1883, the shore of the southern arm of the Bay of San State Board of Equalization of the State of Francisco; that from said point on the eastern California, pretending to act under and by shore *** to a point on the western shore of virtue of the powers conferred upon it by sec- said bay, where the railway of defendant again tion 10 of article XIII of the Constitution of the commences, is about twelve miles; that across State of California, did make a pretended as- said bay no line of railroad has been constructsessment, for the purposes of taxation for the ed; and freight and passengers carried upon fiscal year of said State then next ensuing, upon said road are taken across said bay upon steam the franchise, roadway, roadbed, rails, and ferryboats; *** that upon the decks of said rolling stock of said railroad, against defendant. vessels are laid railroad tracks, etc." After Said pretended assessment was not made sep-giving judgment for the plaintiff upon these arately upon the franchise, roadway, roadbed, rails, and rolling stock, or any properties of said railroad, but all of said property was blended together in making said assessment, which assessment was then and there so entered upon the minutes of said board. Said assessment is the assessment upon which the several taxes mentioned in the complaint herein are based, and no other assessment than the aforesaid was ever made of said property or any part thereof for said fiscal year. Said assessment included all property and kinds of property mentioned in section 3665 of the Political Code of California, as amended March 9, 1883, except depots, sta-sors. Are the steamers above named embraced tions, shops, and buildings erected upon the space covered by the right of way, which lastmentioned property was assessed, as provided in said section, by local assessors.

This is a clear affirmation of the allegation of the answer. Section 3665 of the Political Code, as amended March 9, 1883, requires the State Board of Equalization to include in their assessment of railroad property "all steamers which are engaged in transporting passengers, freights, and passenger and freight cars across waters which divide the road." It is a matter of public notoriety-as much so as the existence of the railroad itself, or that of the Sierra Nevada, or any other geographical feature on the route-that the Railroad Companies in the cases referred to have steam ferryboats engaged in the transportation of passengers and freight across the Bay of San Francisco and the straits of Carquinez; and that without such means of transportation those waters could not be crossed.

The question whether steamers and ferryboats should be included in the property as sessed by the State Board of Equalization, or in that assessed by the county board, was distinctly raised in the case of San Francisco v. Central Pacific R. R. Co. 63 Cal. 469, and decided in favor of the county board. That was an action brought by the City and County of San Francisco against the Company to recover taxes imposed upon it by virtue of an assess

facts, the court says: "The sole question presented for decision herein is whether the steamers Thoroughfare and Transit, mentioned in the above findings, are to be assessed by the assessor of the City and County of San Francisco or by the State Board of Equalization. The property to be assessed by the board is defined in the 10th section of article XIII of the Constitution of 1879. It is the franchise, roadway, roadbed, rails, and rolling stock of all railroads operated in more than one county in the State. All property other than the above mentioned is to be assessed by the local asses

within the category of property named in the section above referred to? The relation of such steamers to the Central Pacific Railroad Company is set forth in the findings." The court then proceeds to show that the ferryboats cannot be included in either of the five categories mentioned in the Constitution, namely, in either the franchise, roadway, roadbed, rails or rolling stock; and concludes as follows: "We are of opinion that the assessment of the steamers above mentioned pertained to the local assessor, and was properly made by the assessor of the City and County of San Francisco." This decision was made in June, 1883, and is a construction of the Constitution of California. It follows that the Act of March 9, 1883, as reproduced in section 3665 of the Political Code, departs from the constitutional provi. sion; and that the assessments, in following the Act, are also unconstitutional and void.

In No. 1157, one of the cases against the Central Pacific Railroad Company, being for the taxes of the year 1884, the court finds that the State Board of Equalization, in making the assessment, did knowingly and designedly include in the valuation of the roadway the value of fences erected upon the line between said roadway and the land of coterminous proprietors. This brings that case precisely within the decision made in the former cases reported in 118th United States Reports [30: 118].

Another defense set up by the Central Pacific