Santa Clara County v. Southern Pacific Railroad Co.

U.S. Supreme Court Santa Clara County v. Southern Pacific
R. Co., 118
U.S. 394 (1886) Santa Clara County v. Southern
Pacific Railroad Company Argued January 26-29,
1886 Decided May 10, 1886 118
U.S. 394 ERROR TO THE CIRCUIT COURT OF THE
UNITED STATES FOR THE DISTRICT OF
CALIFORNIA Syllabus The defendant Corporations are persons within the intent of the
clause in section 1 of the Fourteenth Amendment to the Constitution
of the United Page 118 U. S. 395 States, which forbids a state to deny to any person within its
jurisdiction the equal protection of the laws.

															Under the Constitution and laws of California relating to
taxation, fences erected upon the line between the roadway of a
railroad and the land of coterminous proprietors are not part of
"the roadway," to be included by the State Board in its valuation
of the property of the corporation, but are "improvements"
assessable by the local authorities of the proper county.

															An assessment of a tax is invalid, and will not support an
action for the recovery of the tax, if, being laid upon different
kinds of property as a unit, it includes property not legally
assessable, and if the part of the tax assessed upon the latter
property cannot be separated from the other part of it.

															The State Board of Equalization of California were required by
law to assess the franchise, roadway &c., of all railroads
operated in more than one county and apportion the same to the
different counties in proportion to the number of miles of railway
in each. They made such assessment of the Southern Pacific
Railroad, improperly including therein the fences between the
roadway and the coterminous proprietor, and apportioned it and
returned it as required to the different counties. In a suit by one
of the counties to recover its proportion of the tax levied in
accordance with such apportionment and return, the court below at
the trial found that "said fences were valued at $300 per mile,"
which was the only finding on the subject, and it did not appear
that the county, plaintiff, offered to take judgment for a sum
excluding the rate on the value of the fences within the county at
that valuation. Held (1) that the finding was too vague
and indefinite to serve as a basis for estimating the aggregate
valuation of the fences included in the assessment, or the amount
thereof apportioned to the respective counties; (2) that under the
circumstances, the Court could not assume that the State Board
included the fences in their assessment at the rate of $300 per
mile for every mile of the railroad within the state, counting one
or both sides of the roadway, and could not, after eliminating that
amount from the assessment, give judgment for the balance of the
tax, if any.

															These actions, which were argued together, were brought to
recover unpaid taxes assessed against the several railroad
corporations, defendants, under the laws of the California. The
main -- almost the only -- questions discussed by counsel in the
elaborate arguments related to the constitutionality of the taxes.
This Court, in its opinion passed by these questions and decided
the cases upon the questions whether under the Constitution and
laws of California, the fences on the line of the railroads should
have been valued and assessed, if at all, by the local officers, or
by the State Board of Equalization; whether, Page 118 U. S. 396 on the record, the assessments and taxation upon the fences are
separable from the rest of the assessment and taxation, and what
was the effect of the record upon the rights of the state and the
county.

															One of the points made and discussed at length in the brief of
counsel for defendants in error was that "corporations are persons
within the meaning of the Fourteenth Amendment to the Constitution
of the United States." Before argument, MR. CHIEF JUSTICE WAITE
said:

															"The Court does not wish to hear argument on the question
whether the provision in the Fourteenth Amendment to the
Constitution which forbids a state to deny to any person within its
jurisdiction the equal protection of the laws applies to these
corporations. We are all of opinion that it does. " Page 118 U. S. 397 MR. JUSTICE HARLAN delivered the opinion of the Court.

															These several actions were brought -- the first one in the
Superior Court of Santa Clara County, California, the others in the
Superior Court of Fresno County, in the same state -- for the
recovery of certain county and state taxes claimed to be due from
the Southern Pacific Railroad Company and the Central Pacific
Railroad Company under assessments made by the State Board of
Equalization upon their respective franchises, roadways, roadbeds,
rails, and rolling stock. In the action by Santa Clara County, the
amount claimed is $13,366.53 for the fiscal year of 1882. For that
sum, with five percent penalty, interest at the rate of two percent
per month from December 27, 1882, cost of advertising, and ten
percent for attorney's fees, judgment is asked against the Souther
Pacific Page 118 U. S. 398 Railroad Company. In the other action against the same company,
the amount claimed is $5,029.27 for the fiscal year of 1881, with
five percent added for nonpayment of taxes and costs of collection.
In the action against the Central Pacific Railroad Company,
judgment is asked for $25,950.50 for the fiscal year of 1881, with
like penalty and costs of collection.

															The answer in each case puts in issue all the material
allegations of the complaint and sets up various special defenses,
to which reference will be made further on.

															With its answer, the defendant in each case filed a petition,
with a proper bond, for the removal of the action into the circuit
court of the United States for the district as one arising under
the Constitution and laws of the United States. The right of
removal was recognized by the state court, and the action proceeded
in the circuit court. Each case, the parties having filed a written
stipulation waiving a jury, was tried by the court. There was a
special finding of facts, upon which judgment was entered in each
case for the defendant. The general question to be determined is
whether the judgment can be sustained upon all or either of the
grounds upon which the defendants rely.

															The case as made by the pleadings and the special finding of
facts is as follows:

															By an Act of Congress approved July 27, 1866, the Atlantic &
Pacific Railroad Company was created, with power to construct and
maintain, by certain designated routes, a continuous railroad and
telegraph line from Springfield, Missouri, to the Pacific. For the
purpose -- which is avowed by Congress -- of facilitating the
construction of the line and thereby securing the safe and speedy
transportation of mails, troops, munitions of war, and public
stores, a right of way over the public domain was given to the
company and a liberal grant of the public lands was made to it. The
railroad so to be constructed, and every part of it, was declared
to be a post route and military road, subject to the use of the
United States for postal, military, naval, and all other government
service, and to such regulations as Congress might impose for
restricting the charges for government transportation. By the Page 118 U. S. 399 18th section of the act, the Southern Pacific Railroad Company
-- a corporation previously organized under a general statute of
California passed May 20, 1861, Stat.Cal. 1861, p. 607 -- was
authorized to connect with the Atlantic and Pacific Railroad at
such point near the boundary line of that state as the former
company deemed most suitable for a railroad to San Francisco, with
"uniform gauge and rate of freight or fare with said road," and in
consideration thereof, and "to aid in its construction," the act
declared that it should have similar grants of land, "subject to
all the conditions and limitations" provided in said act of
Congress, "and shall be required to construct its road on like
regulations, as to time and manner, with the Atlantic and Pacific
Railroad." 14 Stat. 292, §§ 1, 2, 3, 11, 18.

															In November, 1866, the Atlantic and Pacific Railroad Company and
the Southern Pacific Railroad Company filed in the office of the
Secretary of the Interior their respective acceptances of the
act.

															By an Act of the Legislature of California passed April 4, 1870,
to aid in giving effect to the act of Congress relating to the
Southern Pacific Railroad Company, it was declared that

															"To enable the said company to more fully and completely comply
with and perform the requirements, provisions, and conditions of
the said act of Congress and all other acts of Congress now in
force or which may hereafter be enacted, the State of California
hereby consents to said act, and the said company, its successors
and assigns, are hereby authorized to change the line of its
railroad so as to reach the eastern boundary line of the State of
California by such route as the company shall determine to be the
most practicable, and to file new and amendatory articles of
association, and the right, power, and privilege is hereby granted
to, conferred upon, and vested in them to construct, maintain, and
operate, by steam or other power, the said railroad and telegraph
line mentioned in said acts of Congress, hereby confirming to and
vesting in the said company, its successors and assigns all the
rights, privileges, franchises, power, and authority conferred
upon, Page 118 U. S. 400 granted to, or vested in said company by the said acts of
Congress and any act of Congress which may be hereafter
enacted."

															Subsequently, by the Act of March 3, 1871, Congress incorporated
the Texas Pacific Railroad Company, with power to construct and
maintain a continuous railroad and telegraph line from Marshall, in
the State of Texas, to a point at or near El Paso, thence through
New Mexico and Arizona to San Diego, pursuing as near as might be
the thirty-second parallel of latitude. To aid in its construction,
Congress gave it also the right of way over the public domain, and
made to it a liberal grant of public lands. The 19th section
provided

															"That the Texas Pacific Railroad Company shall be, and it is
hereby, declared to be a military and post road, and for the
purpose of insuring the carrying of the mails, troops, munitions of
war, supplies, and stores of the United States, no act of the
company nor any law of any state or territory shall impede, delay,
or prevent the said company from performing its obligations to the
United States in that regard, provided that said road
shall be subject to the use of the United States for postal,
military, and all other governmental services at fair and
reasonable rates of compensation, not to exceed the price paid by
private parties for the same kind of service, and the government
shall at all times have the preference in the use of the same for
the purpose aforesaid."

															The twenty-third section of that act has special reference to
the Southern Pacific Railroad Company, and is as follows:

															"SEC. 23. That for the purpose of connecting the Texas Pacific
Railroad with the City of San Francisco, the Southern Pacific
Railroad Company of California is hereby authorized (subject to the
laws of California) to construct a line of railroad from a point at
or near Tehacapa Pass, by way of Los Angeles, to the Texas Pacific
Railroad at or near the Colorado River, with the same rights,
grants, and privileges, and subject to the same limitations,
restrictions, and conditions as were granted to said Southern
Pacific Railroad Company of California by the Act of July 27, 1866, provided however that this section shall in no way Page 118 U. S. 401 affect or impair the rights, present or prospective, of the
Atlantic and Pacific Railroad Company or any other company."

															Under the authority of this legislation, federal and state, the
Southern Pacific Railroad Company constructed a line of railroad
from San Francisco, connecting with the Texas and Pacific Railroad
(formerly the Texas Pacific Railroad) at Sierra Banca in Texas,
and, with other railroads, it is operated as one continuous line
(except for that part of the route occupied by the Central Pacific
Railroad) from Marshall, Texas, to San Francisco. It is stated in
the record that the Southern Pacific Railroad Company of
California, since the commencement of this action, has completed
its road to the Colorado River at or near the Needles, to connect
with the Atlantic and Pacific Railroad, and that with the latter
road it constitutes a continuous line from Springfield, Missouri,
to the Pacific, except as to the connection, for a relatively short
distance, over the road of the Central Pacific Railroad
Company.

															On the 17th of December, 1877, the said Southern Pacific
Railroad Company, and other railroad corporations then existing
under the laws of California, were legally consolidated, and a new
corporation thereby formed under the name of the Southern Pacific
Railroad Company, the present defendant in error, 59.30 miles of
whose road is in Santa Clara County and 17.93 miles in Fresno
County.

															On the 1st of April, 1875, this company was indebted to divers
persons in large sums of money advanced to construct and equip its
road. To secure that indebtedness, it executed on that day a
mortgage for $32,520,000 on its road, franchises, rolling stock,
and appurtenances and on a large number of tracts of land in
different counties of California aggregating over 11,000,000 acres.
These lands were granted to the company by Congress under the
above-mentioned acts, and are used for agricultural, grazing, and
other purposes not connected with the business of the railroad. Of
those patented, 3,138 acres are in Santa Clara County and 18,789
acres in Fresno County. When these proceedings were instituted, no
part of its above mortgage debt had been paid except the accruing
interest Page 118 U. S. 402 and $1,632,000 of the principal, leaving outstanding against it
$30,898,000.

															In the year 1852, California, by legislative enactment, granted
a right of way through that state to the United States for the
purpose of constructing a railroad from the Atlantic to the Pacific
Ocean, declaring that the interests of California, as well as the
whole union,

															"require the immediate action of the government of the United
States for the construction of a national thoroughfare connecting
the navigable waters of the Atlantic and Pacific Oceans for the
purpose of the national safety in the event of war, and to promote
the highest commercial interests of the Republic."

															Stat.Cal. 1852, p. 150. By an act passed July 1, 1862, 12 Stat.
489, §§ 1, 8, Congress incorporated the Union Pacific Railroad
Company, with power to construct and maintain a continuous railroad
and telegraph line to the western boundary of what was then Nevada
Territory, "there to meet and connect with the line of the Central
Pacific Railroad Company of California." The declared object of
extending government aid to these enterprises was to effect the
construction of a railroad and telegraph line from the Missouri
River to the Pacific, which, for all purposes of communication,
travel, and transportation, so far as the public and the general
government are concerned, should be operated "as one connected,
continuous line." Ibid., §§ 6, 9, 10, 12, 17, 18.

															In 1864, the State of California passed an act to aid in
carrying out the provisions of this act of Congress, the first
section of which declared that

															"To enable said company more fully and completely to comply with
and perform the provisions and conditions of said act of Congress,
the said company, their successors and assigns, are hereby
authorized and empowered, and the right, power, and privilege is
hereby granted to, conferred upon, and vested in them to construct,
maintain, and operate the said railroad and telegraph line not only
in the State of California, but also in the said territories lying
east of and between said state and the Missouri River, with such
branches and extensions of said railroad and telegraph line, or
either of them, as said company may deem necessary or proper, and
also the right of way for said railroad and telegraph line over any
lands belonging to Page 118 U. S. 403 this state, and on, over, and along any streets, roads,
highways, rivers, streams, water, and watercourses, but the same to
be so constructed as not to obstruct or destroy the passage or
navigation of the same, and also the right to condemn and
appropriate to the use of said company such private property,
rights, privileges, and franchises as may be proper, necessary, or
convenient for the purposes of said railroad and telegraph, the
compensation therefor to be ascertained and paid under and by
special proceedings, as prescribed in the act providing for the
incorporation of railroad companies, approved May 20, 1861, and the
act supplementary and amendatory thereof, said company to be
subject to all the laws of this state concerning railroad and
telegraph lines except that messages and property of the United
States, of this state, and of said company shall have priority of
transportation and transmission over said line of railroad and
telegraph, hereby confirming to and vesting in said company all the
rights, privileges, franchises, power, and authority conferred
upon, granted to, and vested in said company by said act of
Congress, hereby repealing all laws and parts of laws inconsistent
or in conflict with the provisions of this act, or the rights and
privileges herein granted."

															In 1870, the Central Pacific Railroad Company of California and
the Western Pacific Railroad Company formed themselves into one
corporation under the name of the Central Pacific Railroad Company,
the defendant in one of these actions, 61.06 miles of whose road is
in Fresno County. The company complied with the several acts of
Congress, and there is in operation a continuous line of railway
from the Missouri River to the Pacific Ocean, the Central Pacific
Railroad Company owning and operating the portion thereof between
Ogden, in the Territory of Utah, and San Francisco.

															When the present action was instituted against this company, the
United States had and now have a lien, created by the acts of
Congress of 1862 and 1864, for $30,000,000, with a large amount of
interest, upon its road, rolling stock, fixtures, and franchises,
and there were also outstanding bonds for a like amount issued by
the company prior to January 1, 1875, and secured by a mortgage
upon the same property.

															Such were the relations which these two companies held to Page 118 U. S. 404 the United States and to the state when the assessments in
question were made for purposes of taxation.

															It is necessary now to refer to those provisions of the
constitution and laws of the state which, it is claimed, sustain
these assessments. The Constitution of California, adopted in 1879,
exempts from taxation growing crops, property used exclusively for
public schools, and such as may belong to the United States or to
that state or to any of her county or municipal corporations, and
declares that the legislature "may provide, except in the case of
credits secured by mortgage or trust deed, for a reduction from
credits of debts due to bona fide residents" of the state.
It is provided in the first section of Article XIII that, with
these exceptions,

															"all property in the state not exempt under the laws of the
United States shall be taxed in proportion to its value, to be
ascertained as provided by law. The word 'property,' as used in
this article and section, is hereby declared to include moneys,
credits, bonds, stocks, dues, franchises, and all other matters and
things, real, personal, and mixed, capable of private
ownership."

															The fourth section of the same article provides:

															"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, 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, 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 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 if any such security or indebtedness shall
be Page 118 U. S. 405 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 of the preceding year."

															The ninth section makes provision for the election of a State
Board of Equalization, "whose duty it shall be to equalize the
valuation of the taxable property of the several counties in the
state for the purpose of taxation." The boards of supervisors of
the several counties constitute boards of equalization for their
respective counties, and they equalize the valuation of the taxable
property therein for purposes of taxation; assessments, whether by
the state or county boards, to "conform to the true value in money
of the property" contained in the assessment roll.

															The tenth section declares:

															"All property, except as hereinafter in this section
provided, shall be assessed in 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."

															The assessments in question, it is contended, were made in
conformity with these constitutional provisions, and with what is
known as § 3664 of the Political Code of California. That section
made it the duty of the State Board of Equalization, on or before
the first Monday in May in each year, to "assess the franchise,
roadway, roadbed, rails, and rolling, stock of railroads operated
in more than one county," to which class belonged the defendants.
It required every corporation of that class, by certain officers,
or by such officer as the state board should designate, to furnish
the board with a sworn statement showing, among other things, in
detail, for the year ending March 1, the whole number of miles of
railway owned, operated, or leased by it in the state, the value
thereof Page 118 U. S. 406 per mile, and all of its property of every kind located in the
state; the number and value of its engines, passenger, mail,
express, baggage, freight, and other cars, or property used in
operating and repairing its railway in the state, and on railways
which are parts of lines extending beyond the limits of the state.
It is also directed that "the said property shall be assessed at
its actual value," that the "assessment shall be made upon the
entire railway within the state, and shall include the right of
way, roadbed, track, bridges, culverts, and rolling stock," and
that "the depots, station grounds, shops, buildings, and gravel
beds shall be assessed by the assessors of the county where
situated, as other property." It further declares:

															"On or before the fifteenth day of May in each year, said board
shall transmit to the county assessor of each county through which
any railway operated in more than one county may run a statement
showing the length of the main track or tracks of such railway
within the county, together with a description of the whole of said
tracks within the county, including the right of way by metes and
bounds or other description sufficient for identification, and the
assessed value per mile of the same, as fixed by a pro
rata distribution per mile of the assessed value of the whole
franchise, roadway, roadbed, rails, and rolling stock of such
railway within this state. Said statement shall be entered on the
assessment roll of the county. At the first meeting of the board of
supervisors after such statement is received by the county
assessor, they shall make and cause to be entered in the proper
record book an order stating and declaring the length of the main
track and the assessed value of such railway lying in each city,
town, township, school district, or lesser taxing district in their
county through which such railway runs as fixed by the State Board
of Equalization, which shall constitute the taxable value of said
property for taxable purposes in such city, town, township, school,
road, or other district."

															Stat.Cal. 1881, c. 73, § 1, page 82.

															These companies, within due time, filed with the state board the
detailed statement required by that section.

															At the trials below, no record of assessment against the
respective defendants, as made by the state board, was given in
evidence, and there was introduced no written evidence of the Page 118 U. S. 407 assessment except an official communication from the state board
to each of the assessors of Santa Clara and Fresno Counties,
called, in the special findings, the assessment roll for the
particular county. The roll for Fresno County, in 1881, relating to
the Southern Pacific Railroad Company, is as follows:

															" Original -- Assessment Book of the Property of Fresno
County for the Year 1881. Assessed to all Known Owners or
Claimants, and when Unknown to Unknown Owners or
Claimants. "

															image:a Page 118 U. S. 408 There were similar rolls in reference to the Central Pacific
Railroad in the same county, for the same year, and the Southern
Pacific in Santa Clara County for 1882. For each of those years,
the board of supervisors of the respective counties made an
apportionment of the taxes among the legal subdivisions of such
counties.

															It is stated in the findings that the delinquent lists for those
years, so far as they related to the taxes in question, were duly
made up in form corresponding with the original assessment roll;
that, in pursuance of § 3738 of the Political Code of California,
the board of supervisors of the respective counties duly passed an
order, entered on the minutes, dispensing with the duplicate
assessment roll for that year; that the comptroller of the state
transmitted a letter to the tax collector of the county, in
pursuance of the provisions of § 3899 of that Code, directing him
to offer the property for sale but once, and, if there were no bona fide purchasers, to withdraw it from sale; that the
tax collector, in obedience to the provisions of that section,
transmitted to the comptroller, with his endorsement thereon of the
action had in the premises, a certified copy of the entry upon the
delinquent list relating to the tax in question in these several
actions; that such endorsement shows that the tax collector had
offered the property for sale, and had withdrawn it because there
was no purchaser for the same, and that the comptroller, in
pursuance of the provisions of the same section, transmitted to the
tax collector of the county a letter directing him to bring
suit.

															In each case, there were also the following findings:

															"The State Board of Equalization, in assessing said value of
said property to and against defendant, assessed the full cash
value of said railroad, roadway, roadbed, rails, rolling stock, and
franchises, without deducting therefrom the value of the mortgage,
or any part thereof, given and existing thereon as aforesaid, to
secure the indebtedness of said company to the holders of said
bonds, notwithstanding they had full knowledge of the existence of
the said mortgage, and in making said assessment, the said State
Board of Equalization did not consider or treat said mortgage as an
interest in said property, but assessed Page 118 U. S. 409 the whole value thereof to the defendant in the same meaner as
if there had been no mortgage thereon. The State Board of
Equalization, in making the supposed assessment of said roadway of
defendant, did knowingly and designedly include in the valuation of
said roadway the value of fences erected upon the line between said
roadway and the land of coterminous proprietors. Said fences were
valued at $300 per mile."

															The special grounds of defense by each of the defendants
were:

															1. That its road is a part of a continuous postal and military
route, constructed and maintained under the authority of the United
States by means in part obtained from the general government; that
the company having, with the consent of the state, become subject
to the requirements, conditions, and provisions of the acts of
Congress, it thereby ceased to be merely a state corporation and
became one of the agencies or instrumentalities employed by the
general government to execute its constitutional powers, and that
the franchise to operate a postal and military route, for the
transportation of troops, munitions of war, public stores, and the
mails, being derived from the United States, cannot without their
consent be subjected to state taxation.

															2. That the provisions of the Constitution and laws of
California in respect to the assessment for taxation of the
property of railway corporations operating railroads in more than
one county, are in violation of the Fourteenth Amendment of the
Constitution insofar as they require the assessment of their
property at its full money value without making deduction, as in
the case of railroads operated in one county and of other
corporations and of natural persons, for the value of the mortgages
covering the property assessed, thus imposing upon the defendant
unequal burdens, and to that extent denying to it the equal
protection of the laws.

															3. That what is known as § 3664 of the Political Code of
California, under the authority of which, in part, the assessment
was made, was not constitutionally enacted by the legislature, and
had not the force of law.

															4. That no void assessment appears in fact to have been made by
the state board.

															5. That no interest is recoverable in this action until after
judgment.

															6. Page 118 U. S. 410 That the assessment upon which the action is based is void
because it included property which the State Board of Equalization
had no jurisdiction under any circumstances to assess, and that as
such illegal part was so blended with the balance that it cannot be
separated, the entire assessment must be treated as a nullity.

															The record contains elaborate opinions stating the grounds upon
which judgments were ordered for the defendants. Mr. Justice Field
overruled the first of the special defenses above named, but
sustained the second. The circuit judge in addition held that §
3664 of the Political Code had not been passed in the mode required
by the state constitution, and consequently was no part of the law
of California. These opinions are reported as the Santa Clara
Railroad Tax Case, 18 F. 385.

															The propositions embodied in the conclusions reached in the
circuit court were discussed with marked ability by counsel who
appeared in this Court for the respective parties. Their importance
cannot well be over-estimated, for they not only involve a
construction of the recent amendments to the national Constitution
in their application to the constitution and the legislation of a
state, but upon their determination, if it were necessary to
consider them, would depend the system of taxation devised by that
state for raising revenue from certain corporations for the support
of her government. These questions belong to a class which this
Court should not decide unless their determination is essential to
the disposal of the case in which they arise. Whether the present
cases require a decision of them depends upon the soundness of
another proposition upon which the court below, in view of its
conclusions upon other issues, did not deem it necessary to pass.
We allude to the claim of the defendant in each case that the
entire assessment is a nullity upon the ground that the State Board
of Equalization included therein property which it was without
jurisdiction to assess for taxation.

															The argument in behalf of the defendant is that the state board
knowingly and designedly included in its assessment of "the
franchise, roadway, roadbed, rails, and rolling stock" of Page 118 U. S. 411 each company, the value of the fences erected upon the line
between its roadway and the land of coterminous proprietors; that
the fences did not constitute a part of such roadway, and therefore
could only be assessed for taxation by the proper officer of the
several counties in which they were situated, and that an entire
assessment which includes property not assessable by the state
board against the party assessed, is void, and therefore
insufficient to support an action, at least when -- and such is
claimed to be the case here -- it does not appear with reasonable
certainty from the face of the assessment or otherwise what part of
the aggregate valuation represents the property so illegally
included therein.

															If these positions are tenable, there will be no occasion to
consider the grave questions of constitutional law upon which the
case was determined below, for in that event the judgment can be
affirmed upon the ground that the assessment cannot properly be the
basis of a judgment against the defendant.

															That the state board purposely included in its assessment and
valuation the fences erected on the line between the railroads and
the lands of adjacent proprietors at the rate of $300 per mile is
undoubtedly true, for it is so stated in the special finding of
facts, and that finding must be taken here to be indisputable. It
is equally true that that tribunal has no general power of
assessment, but only jurisdiction to assess "the franchise,
roadway, roadbed, rails, and rolling stock" of railroad
corporations operating roads in more than one county, and that all
other property of such corporations, subject to taxation, is
assessable only "in the county, city, city and county, town,
township, or district in which it is situated, in the manner
prescribed by law." Such is the declaration of the state
constitution. People v. Sacramento County, 59 Cal. 324;
Art. XIII, § 10. It must also be conceded that "fences" erected on
the line between these railroads and the lands of adjoining
proprietors were improperly included by the state board in its
assessments unless they constituted a part of the "roadway". Some
light is thrown upon this question by that clause of § 3664 of the
Political Code of California, which, in the view Page 118 U. S. 412 we take of these cases, may be regarded as having been legally
enacted, providing that "the depots, station grounds, shops,
buildings, and gravel beds" shall be assessed in the county where
situated as other property. From this it seems that there is much
of the property daily used in the business of a railroad operated
in more than one county that is not assessable by the state board,
but only by the proper authorities of the municipality where it is
situated, so that even if it appeared that the fences assessed by
the state board were the property of the railroad companies, and
not of the adjoining proprietors, they could not be included in an
assessment by that board unless they were part of the roadway
itself, for, as shown, the jurisdiction of that board is restricted
to the assessment of the "franchise, roadway, roadbed, rails, and
rolling stock." We come back, then, to the vital inquiry, whether
the fences could be assessed under the head of roadway. We are of
opinion that they cannot be regarded as part of the roadway for
purposes of taxation.

															The Constitution of California provides that "land, and
improvements thereon, shall be separately assessed." Art. XIII, §
2, and although that instrument does not define what are
improvements upon land, the Political Code of the state expressly
declares that the term "improvements" includes "all buildings,
structures, fixtures, fences, and improvements erected upon or
affixed to the land." § 3617. It would seem from these provisions
that fences erected upon the roadway, even if owned by the railroad
company, must be separately assessed as "improvements," in the mode
required in the case of depots, station grounds, shops, and
buildings owned by the company -- namely by local officers in the
county where they are situated. The same considerations of public
interest or convenience upon which rest existing regulations for
the assessments of depots, station grounds, shops, and buildings of
a railroad company operated in more than one county would apply
equally to the assessment and valuation for taxation of fences
erected upon the line of railway of the same company.

															In San Francisco & Northern Pacific Railroad Co. v.
State Board of Equalization, 60 Cal. 12, 34, which was an
application Page 118 U. S. 413 on certiorari to annul certain orders of the state board
assessing the property of a railroad corporation, one of the
questions was as to the meaning of the words "roadbed" and
"roadway." The court there said:

															"The roadbed is the foundation on which the superstructure of a
railroad rests. Webster. The roadway is the right of way, which has
been held to be the property liable to taxation. Appeal of N.
B. & M. R. Co., 32 Cal. 499. The rails in place constitute
the superstructure resting upon the roadbed."

															This definition was approved in San Francisco v. Central
Pacific Railroad Co., 63 Cal. 467, 469. In the latter case,
the question was whether certain steamers owned by the railroad
company, upon which were laid railroad tracks and with which its
passenger and freight cars were transported from the eastern shore
of the Bay of San Francisco to its western shore, where the railway
again commenced, were to be assessed by the City and County of San
Francisco, or by the State Board of Equalization. The contention of
the company was that they constituted a part of its roadbed or
roadway, and must therefore be assessed by the state board, but the
supreme court of the state held otherwise. After observing that all
the property of the company, other than its franchise, roadway,
roadbed, rails, and rolling stock, was required by the constitution
to be assessed by the local assessors, the court said:

															"They are certainly not the franchise of the defendant
corporation. They may constitute an element to be taken into
computation to arrive at the value of the franchise of the
corporation, but they are not such franchise. It is equally as
clear that they are not rails or rolling stock. . . . Are they,
then, embraced within the words 'roadway' or 'roadbed,' in the
ordinary and popular acceptation of such words as applied to
railroads? These two words, as applied to common roads, ordinarily
mean the same thing, but as applied to railroads, their meaning is
not the same. The 'roadbed' referred to in § 10, in our judgment,
is the bed or foundation on which the superstructure of the
railroad rests. Such is the definition given by both Worcester and
Webster, and we think it correct. The 'roadway' has a more extended
signification as applied to railroads. In addition to the part
denominated Page 118 U. S. 414 roadbed, the roadway includes whatever space of ground the
company is allowed by law in which to construct its roadbed and lay
its track. Such space is defined in subdivision 4 of the 17th
section and the 20th section of the act 'to provide for the
incorporation of railroad companies,' etc., approved May 20, 1861.
Stat. 1861, p. 607; S.F. & N.P. R. Co., 60 Cal.
12."

															The argument in support of the proposition, that these steamers
-- constituting, as they did, a necessary link in the line of the
company's railway, and upon which rails were actually laid for the
running of cars -- were a part either of the roadbed or roadway of
the railroad is much more cogent than the argument that the fences
erected upon the line between a roadway and the lands of adjoining
proprietors are a part of the roadway itself. It seems to the Court
that the fences in question are not, within the meaning of the
local law, a part of the roadway for purposes of taxation, but are
"improvements" assessable by the local authorities of the proper
county, and therefore were improperly included by the state board
in its valuation of the property of the defendants.

															The next inquiry that naturally arises is whether the different
kinds of property assessed by the state board are distinct and
separable upon the face of the assessment, so that the company,
being thereby informed of the amount of taxes levied upon each,
could be held to have been in default in not tendering such sum, if
any, as was legally due. Upon the transcript before us, this
question must be answered in the negative. No record of assessment
as made by the state board was introduced at the trial, and
presumably no such record existed. Nor is there any documentary
evidence of such assessment, except the official communication of
the state board to the local assessors, called in the findings the
assessment roll of the county. That roll shows only the aggregate
valuation of the company's franchise, roadway, roadbed, rails, and
rolling stock in the state; the length of the company's main track
in the state; its length in the county; the assessed value per mile
of the railway, as fixed by the pro rata distribution per
mile of the assessed value of its whole franchise, roadway,
roadbed, rails, Page 118 U. S. 415 and rolling stock in the state, and the apportionment of the
property so assessed to the county.

															It appears, as already stated, from the evidence that the fences
were included in the valuation of the defendants' property, but
under what head -- whether of franchise, roadway, or roadbed --
does not appear. Nor can it be ascertained with reasonable
certainty either from the assessment roll or from other evidence
what was the aggregate valuation of the fences or what part of such
valuation was apportioned to the respective counties through which
the railroad was operated. If the presumption is that the state
board included in its valuation only such property as it had
jurisdiction under the state constitution to assess -- namely such
as could be rightfully classified under the heads of franchise,
roadway, roadbed, rails, or rolling stock -- that presumption was
overthrown by proof that it did in fact include, under some one or
more of these heads, the fences in question. It was then incumbent
upon the plaintiff by satisfactory evidence to separate that which
was illegal from that which was legal -- assuming for the purposes
of this case only that the assessment was in all other respects
legal -- and thus impose upon the defendant the duty of tendering,
or enable the court to render judgment for, such amount, if any, as
was justly due. But no such evidence was introduced. The finding
that the fences were valued at $300 per mile is too vague and
indefinite as a basis for estimating the aggregate valuation of the
fences included in the assessment or the amount thereof apportioned
to the respective counties. Were the fences the property of
adjacent proprietors? Were they assessed at that rate for every
mile of the railroad within the state? Were they erected on the
line of the railroad in every county through which it was operated,
or only in some of them? Wherever erected, were they assessed for
each side of the railway, or only for one side? These questions, so
important in determining the extent to which the assessment
included a valuation of the fences erected upon the line between
the railroad and coterminous proprietors, find no solution in the
record presented to this Court.

															If it be suggested that under the circumstances, the court Page 118 U. S. 416 might have assumed that the state board included the fences in
their assessment at the rate of $300 per mile for every mile of the
railroad within the state, counting one or both sides of the
roadway, and, having thus eliminated from the assessment the
aggregate so found, given judgment for such sum, if any, as, upon
that basis, would have been due upon the valuation of the
franchise, roadbed, roadway, rails, and rolling stock of the
defendant, the answer is that the plaintiff did not offer to take
such a judgment, and the court could not have rendered one of that
character without concluding the plaintiff hereafter, and upon a
proper assessment, from claiming against the defendant taxes for
the years in question upon such of its property as constituted its
franchise, roadway, roadbed, rails, and rolling stock. The case, as
presented to the court below, was therefore one in which the
plaintiff sought judgment for an entire tax arising upon an
assessment of different kinds of property as a unit, such
assessment including property not legally assessable by the state
board, and the part of the tax assessed against the latter property
not being separable from the other part. Upon such an issue, the
law, we think, is for the defendant. An assessment of that kind is
invalid, and will not support an action for the recovery of the
entire tax so levied. Cooley on Taxation 295, 296, and authorities
there cited; Libby v. Burnham, 15 Mass. 147; State v.
City of Plainfield, 38 N.J.Law 94; Gamble v. Witty, 55 Miss. 35; Stone v. Bean, 15 Gray 45; Mosher v.
Robie, 11 Me. 137; Johnson v. Colburn. 36 Vt. 695; Wells v. Burbank, 17 N.H. 412.

															It results that the court below might have given judgment in
each case for the defendant upon the ground that the assessment,
which was the foundation of the action, included property of
material value which the state board was without jurisdiction to
assess, and the tax levied upon which cannot, from the record, be
separated from that imposed upon other property embraced in the
same assessment. As the judgment can be sustained upon this ground,
it is not necessary to consider any other questions raised by the
pleadings and the facts found by the court. Page 118 U. S. 417 It follows that there is no occasion to determine under what
circumstances the plaintiffs would be entitled to judgment against
a delinquent taxpayer for penalties, interest, or attorney's fees,
for if the plaintiffs are not entitled to judgment for the taxes
arising out of the assessments in question, no liability for
penalties, interest, or attorney's fees could result from a refusal
or failure to pay such taxes. Judgment affirmed.