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resort of many of the states and of the ues representing the value of the entire United States as best calculated to more property within the state. No two miles of nearly approach perfect uniformity than a railway system, if regard be had solely to any other plan that has heretofore been de the real estate composing the roadbed and vised. It may be, and possibly is, true right of way, the cost of construction, and that legislative provisions might be enacted the value of the superstructures and buildin the interest of more just and equitable ings thereon necessary for the operation of taxation that would allow some latitude on the road, would be exactly the same. Each the part of an assessing body clothed with taxing district would have located therein the power to value and assess railway property of a value peculiar to itself and property to vary the value of different to no other, and, if the rule of uniformity parts of a railway line in the distribution be observed, an assessment must be made of the value of the whole to conform to the of such property according to its value as improvements made and character of the thus localized. Must all railway property property assessed in the different localities be thus localized for the purposes of taxathrough which the right of way and road-tion ? The assessment of the property, bed extends. It is, however, for us to de- which is the subject of the present controtermine only as best we may whether the versy, and the validity of which is chalplan of valuing and assessing railway prop lenged, was made by the State Board of erty as adopted by the legislature is in con- Equalization under the old revenue act flict with fundamental law. The courts (Comp. Stat. 1901, chap. 77, art. 1). The have generally recognized that upon legal provisions assailed are found in 88 39 and principles and as a practical question the 40 of the act. The provisions of the new properties of a railroad company, because revenue act (Cobbey's Anno. Stat. 1903, $$ of their peculiar character, can best be as 10,484, 10,485, and 10,486) in regard to the sessed by one assessing body, and cannot questions herein being considered are bewith any degree of satisfaction be left with lieved to be in all material respects the local assessing officers. The wisdom and ne same as the provisions of the old law. By cessity for a taxing body having authority $ 39, art. 1, chap. 77, Comp. Stat. 1901, it and jurisdiction over the territory covered is made the duty of certain officers of every by all the property of a railroad company, railroad company doing business in this and with power to assess the whole of such state and having property therein subject property, and fix values which would be to taxation to file schedules under oath of uniform over the different lines of rail the property of such company with the roads to be assessed, seems so apparent that state auditor at a time as therein stated. argument can scarcely add anything. At The schedule is required to disclose the least, the wisdom and experience of those number of miles of such railroad in each having to do with the subject of taxation organized county, and the total number of have in very many of the states of the miles in the state, including the roadbed, Union brought about plans for the assess right of way, superstructures thereon ment of properties of this character by one main and side tracks, depot buildings and assessing body, and this method is now depot grounds, section and tool houses, rollquite generally resorted to as the best solu ing stock, and personal property necessary tion of a difficult problem of railroad taxa- for the construction, repairs, or successful tion. As to those properties which have no operation of such railroad lines; “provided, fixed situs, such as the rolling stock, fran- however,” says the statute, “that all machises, and other intangible property, it is chine and repair shops, general office builddifficult to conceive of any more just or ings, store houses, and also all real and perequitable scheme or plan than to find the sonal property, outside of said right of value of the whole and distribute the same way and depot grounds as aforesaid, of and throughout the different taxing jurisdic- belonging to any such railroad and teletions according to the distance of the line graph companies, shall be listed for purof road situated in each district for whose poses of taxation by the principal officers benefit taxes are levied. In a measure, or agents of such companies, with the prethis same principle, it is manifest, obtains cinct assessors of any precinct of the counin respect of the line of a railroad, includ-ty where such real or personal proping all properties necessary and used in its erty may be situated, in the operation in the accomplishment of the ob- provided by law for the listing and valujects of its incorporation. Carried to its ation of real and personal property.” By logical conclusion, the contention of the re the succeeding section authority is givlators would require the assessment of every en to the State Board of Equalization to fractional part of a railroad within any tax- value and assess all property required to ing district as separate and independent be listed and returned to the auditor of property, the aggregate of these several val. public accounts at its actual value for each


mile of said road or line, the value of each , standing and application of the principles mile to be determined by dividing the sum underlying the taxation of this species of of the whole valuation by the number of property and of the decisions of the courts miles of such road or line. It is also made of other states relating to the subject. the duty of the auditor to certify to the The supreme court of Tennessee, in the county clerks of the several counties in

cases of Chattanooga v. Nashville, C. & St. which the property of the corporation or L. R. Co. 7 Lea, 561, and Nashville, C. et any part thereof may be situated the as St. L. R. Co. v. Franklin County, 12 Lea, sessment per mile so made on the property 521, by its opinions therein comes nearest of such corporation, specifying the number supporting the contention of counsel for of miles and amount in each of such coun relators, and yet these cases are, we think, ties. The value of the whole, when ascer- clearly distinguishable, and are not authortained, is by this method apportioned to ity of a decisive character in the determithe several counties, townships, cities, and nation of the questions as presented in the villages and other subdivisions through case at bar. In the first case cited all the which such railway line extends according property of whatever description, and to the number of miles of railroad situated wherever situated, was, for the purpose of in such subdivision. It is further declared taxation under the statute, being considthat all such property shall, for the pur- ered to be thrown together as a unit or as pose of taxation, be deemed "personal one property, valued as a whole, and the property," and placed on the tax lists as value distributed on a mileage basis. In thereinafter provided. It will be observed the latter decision of that court judicial that in the assessment of railroad property sanction is given to the validity of an asunder this statute no property located off sessing statute very similar to the one unthe right of way is assessed by the state der consideration, except that it was held board, and that there are certain excep-that depots have a local situs, and should tions as to property, which is specified, be assessed accordingly. But the reasoning which is situated on the right of way. It by which this conclusion is reached, as is only the lines of railways, including su counsel well says, is somewhat bewildering. perstructures, appurtenances, and property In a discussion of the character of railon the right of way necessary to the suc road property required to be assessed by the cessful operation of the road, and the roll. State Board of Equalization and the reaing stock and franchises, that are required sons for legislation providing for the asto be assessed by the state board as a unit. sessment of such property as a unit, the

In Adans County v. Kansas City & 0. total value thereof to be distributed on a R. Co. (Neb.) 99 N. W. 245, this court had mileage basis, this court has expressed itoccasion to construe the language of the self in Chicago, B. & Q. R. Co. v. Richard. proviso found in § 39, and it is there held son County, 61 Neb. 519, 85 N. W. 532, as that the phrase "outside of said right of follows: “The common sense view of the way,” etc., qualifies only the word "proper subject would seem to be that such purty” immediately preceding it, and not the pose was to enable the proper authorities specific terms used in the enumeration of to distribute the avails of such taxation other property therein. Accepting this as equitably among all the municipal suba correct construction, as we do, and keep divisions through which a road may pass ing in view the entire act relating to the in the ratio which the number of miles subject, it becomes obvious that the legis within each subdivision bears to the total lative intendment was to enlarge the situs number of miles of road within the state, of the property of a railway company nec- treating each mile as equal in value to every essary for and used in the construction of other mile, and regardless of whence came its lines and the prosecution of its business the power under which any particular porso as to cover the entire line of its roadbed tion of the road is constructed. A railroad and right of way. All of this property is might have vast terminals at one point, so intimately related to each of the differ worth as much as the remainder of the line, ent parts, and so connected together, that though it extended through a dozen counit is, it seems, appropriate and legal to so ties. The subdivision in which these termitreat and regard it when fixing its value nals are located is not, under this law, perfor assessment purposes and apportioning mitted to reap an advantage over other lothe value to the different tax districts calities, by reason of the mere accident of through which the road extends. A clear location, but must share its advantages understanding of the character of the prop with these others pro rata. That evidently erty of a railway company, which the stat. is the reason behind and under this legisute requires to be valued and assessed as a tion. How a franchise has been acquired, unit and the value distributed on a mileage or whether a particular portion of a line basis, is necessary to an intelligent under- l is more expensive to construct than others,

is unimportant in determining whether the of final resort, including the Supreme Court property should be taxed locally or other of the United States and our own court, as wise. As a matter of fact, this inequality will be seen from the cases already cited, of value was the principal motive for the have held that the method of ascertaining legislation, which sought to obviate the and distributing values of railroad property evils attendant upon such a state of facts. like that prescribed in the statute under Without such inequality, no legislation consideration, if not the only rational one, would have been necessary, the general laws is at least the best and fairest thus far inbeing in that event adequate for the pur- vented.” And further on in the same opinpose." While the constitutionality of the ion the court treats the subject in the folstatute was not directly involved, the dis- lowing manner: "It follows that, in order cussion of the subject is valuable as show- to secure a just valuation for taxation of ing the reasons for treating and assessing this class of property, all of it that is used railroad property as a unit, and the diffi. for the convenient and proper operation of culty of separating it into fractional parts, the railway may be assessed as a unit, and each piece, for the purpose of assessment, the valuation thus ascertained may be apto be localized, and treated as a specific item portioned to the various taxing districts of property having a value independent of upon a mileage basis. Indeed, construing, the other portions of the whole. In Cooley as we should, $$ 3 and 10 together, such of on Taxation, 3d ed. vol. 1, p. 693, it is ob- the property of a railroad company, real served by the eminent author: “The prop- and personal, as is used for the convenient erty of railroad and canal companies con- and proper operation of its railway, can stitutes a legitimate class of property for properly only be assessed and apportioned the purposes of taxation; a class which, in for taxation as a unit; and the apportionorder to treat it fairly in the matter of ment upon a mileage basis, as this act pretaxation, must be treated separately. In- scribes, will come as near to doing exact deed, the difficulties of assessing, in the justice as it is possible to do.

This same way that property in general is as- method of apportionment, in our judgment, sessed, lines of railroad extending through gives to each local taxing district its just many municipalities, are so great and so proportion of tax; that is to say, each taxobvious that in many states it is not at- ing district gets for purposes of taxation tempted, and a franchise tax is imposed as the just valuation of the property physica substitute for all other taxation. But in ally situate within its territorial limits, for other states a railroad is listed, assessed, the value of property situate therein cannot and valued as an entirety, and the value is be made to depend upon its so-called natthen apportioned for taxation among the ural situs, entirely disassociated from the several municipalities by some standard use made of it. But that value in great prescribed by law, which generally is the measure depends upon its connection with length of line within the municipalities re- every other part of the corporation propspectively. There is no constitutional ob-erty so used, and situate in every other taxjection to that method of taxing this ing district in which any part of its railspecies of property, and it is perhaps more road lies, considered always in connection just than any other."

with the character of the use made of it. The supreme court of Colorado, in the Thus the command of the Constitution is case of Ames v. People, 26 Colo. 83, 56 Pac. obeyed, and in fact to each taxing district 656, in passing upon a controversy identi- is given a fair valuation of the railroad cal in principle with one in the case at bar, property within its territorial limits; and upholds the validity of statutory enact that is all the section requires.” Says the ments providing for one body to value and supreme court of Michigan: assess all the property of a railway com- priety of treating aggregations of property pany as a unit, and to distribute the value as a unit is as natural and proper for the upon a mileage basis. The constitutional purposes of assessment as for sale, and this provisions as to uniformity in that state, is especially so, where the various articles while not the same, are substantially so are so essential to the purpose for which in principle, and the necessity for equality they are combined that the withdrawal of of taxation is recognized in the decision one or any class would destroy, or substanrendered. In the opinion it is said: “In tially impair, the use of all for the purposes the method of laying a tax, either as to the to which in their new form they are assessment or the apportionment, the gen- adapted.” Detroit Citizens' Street R. Co. v. eral assembly is not restricted by the Con- Detroit, 125 Mich. 673, 84 Am. St. Rep. 589, stitution; and, unless the legislation is pal. 85 N. W. 96, 86 N. W. 809. In People ex pably unjust, oppressive, or inadequate, rel. Chicago v. State Board, 205 Ill. 296, 68 courts will not substitute their judgment N. E. 943, it is said: “The right of way for that of the legislature. Many tribunals of a railroad company cannot be cut up,

“The pro

for the purposes of assessment, into parts, of taxation in the district where it is situeither by dividing it into sections by the ated, these properties should be localized lines of the different taxing bodies which in the taxing district in which they are it crosses, or by severing from its main physically situated, and assessed upon their track the portions that lie outside of some separate values for municipal purposes. Of arbitrary line drawn through the center of course, if we assume that such properties the right of way. A railroad is a unit, and have a legal situs and an ascertainable for the purposes of assessment its right of value of themselves within the limits of the way must be treated as a whole. The municipality, separate and apart from the switch or side track at which it receives remainder of the line, and are possessed of coal, grain, stock, or freight in a country a greatly enhanced value over other porvillage is as essential to the successful options of the main track of equal extent, eration of the road as is the switch or side the contention of relators is conceded, and track in the city at which the articles there is left no room for discussion or arguwhich it handles as a common carrier are ment. discharged; and the land upon which its The principle underlying the legislation side or second track and turnouts, and its complained of undoubtedly is that every station, machine shops, roundhouses, etc., portion of the property of a railway comstand, is as necessary to the successful op- pany going to make up the whole is intereration of the road and as much a part of dependent, and that the situs must be deits right of way as the land upon which its termined with respect to the entire property, main track is laid; and the value of each and not any fractional portion of it. The piece of its right of way must be deter- legislature has fixed, or undertaken to fix, mined by taking into consideration the the legal situs of a railroad where the orvalue of the entire right of way, rather ganic structure is, in all the counties and than the value of each piece for commercial subordinate districts through which the purposes wholly disconnected from the use road is constructed, and has provided for to which it has been applied, as compared the apportionment of a share of the total with contiguous property used for purposes value to each taxing district in proportion other than right of way.” Many other au- to the length of the main track in such thorities could be cited, but the foregoing district, upon which taxes are to be levied give a very accurate idea of the trend of for all purposes. It is the fractional projudicial opinions regarding the propriety portion of the whole distributed to any and legality of this method of assessing the one taxing district that represents the taxproperty of railway companies. The prin able property of such railway line in such ciples justifying the assessment of railroad district, rather than the physical property properties as a unit, and distributing the found therein. This method does not efvalue on a mileage basis to the different tax fectuate a moving about of property havdistricts through which the railway line or ing a fixed place of location,-a change of track extends, seem to be that in fact and situs,—but amounts only to the valuing of in legal contemplation for the purpose of the whole as a unit, and the distribution assessment, use, and sale such property may of the total value along the line and rightfully be regarded as a physical whole throughout the extent of the physical propor one entire property extending over the erty on what is regarded as a fair, just, whole line of the railway, the value of and equitable basis. The nature and charwhich depends not on any separate or frac- acteristics of the property are such as to tional part, but upon the whole of the prop-render it incapable of division into fragerty as an entirety.

mentary parts and the valuing of each of The fundamental idea underlying the re- such parts for assessment purposes lators' contention as to the proper method though it were a separate and distinct item of local taxation of these properties is that of property having a location in a particthe fractional parts of the different rail. ular taxing jurisdiction. These properties way companies located in the city of Omaha have no market value when considered in consisting of the depot grounds, main track, fractional parts. Railroad properties are and side tracks, and the structures thereon, bought and sold as an entirety. The real have a fixed and natural situs, and that estate on which the right of way is located they are of themselves of special value cannot be valued in a commercial sense as greatly in excess of other portions of equal so many acres, or as lots and blocks, since length of the lines of which they are parts, its value in such cases is determined in a and that such values are separable from the large measure by reason of the use to which remainder; and therefore, to meet the re it is put, and the improvements thereon, quirements of the Constitution as to uni- and then only in connection with the other formity, and to the end that all property property of which it forms a part. The shall bear its just proportion of the burdens / legislature has declared that the property


of railroad companies required to be valued, and the complaint of discrimination is and assessed by the State Board of Equal groundless.” St. Louis, 1. M. & S. R. Co. ization should, for the purposes of levy. v. Worthen, 52 Ark. 529, 7 L. R. A. 374, ing and collecting taxes, be regarded as 13 S. W. 254. The Supreme Court of the personal property. If this legislative dec- United States, in Columbus Southern R. laration is to be given force, then the right Co. v. Wright, 151 U. S. 470, 38 L. ed. to enact and the validity of the enactment 238, 14 Sup. Ct. Rep. 396, has said: The providing for a distributive valuation on a roadway itself of a railroad depends for its mileage basis would necessarily follow. value upon the traffic of the company, and There will, we apprehend, be no serious con- not merely upon the narrow strip of land tention against the power of the legislature appropriated for the use of the road and to, by rule of law, fix the situs of all such the bars and cross-ties thereon. The value property (if it may be regarded as person of the roadway at any given time is not alty) for purposes of taxation. In Mis the original cost, nor, a fortiori, its ultisouri, K. & T. R. Co. v. Labette County, 9 mate cost after years of expenditure in reKan. App. 545, 59 Pac. 383, the Kansas pairs and improvements. On the other court of appeals says: “Under $ 6873, hand, its value cannot be determined by asGen. Stat. 1889,

all property used certaining the value of the land included in or held by a railway company for the pur- the roadway assessed at the market price pose of operating its railroad, including its of adjacent lands and adding the value of roadbed, right of way, etc., is to be ap- the cross-ties, rails, and spikes. The value praised and assessed as personal property. of land depends largely upon the use to The statute declaring such property person which it can be put and the character of al property for the purposes of assessing a the improvements upon it. The assessable tax against it, it follows that such tax value, for taxation, of a railroad track, can must be collected as a tax upon personal only be determined by looking at the eleproperty.

The legislature had the ments on which the financial condition of power to enact the statute declaring the the company depends, its traffic, as eviright of way, roadbed, and other property denced by the rolling stock and gross earnheld or used in the operation of the rail. ings, in connection with its capital stock. road to be personal property for the pur- No local estimate of the fraction in one poses of taxation.” In Ames v. People, 26 county of a railroad track running through Colo. 83, 56 Pac. 656, the court says: several counties can be based upon suffi"The whole argument, however, is based up. cient data to make it at all reliable, unless, on the proposition that the property is as indeed, the local assessors are furnished sessed not where it is physically situated, with the means of estimating the whole but all along the main track, each munic- road.” Again, it is said by the supreme ipal corporation being given for taxation court of Wisconsin in State ex rel. Milwauà value dependent, not upon the actual kee Steet R. Co. v. Anderson, 90 Wis. 550, value of the property therein physically lo- 63 N. W. 746: “The utter impracticabil. cated, but only such value of the entire ity, not to say impossibility, of treating it property of the corporation as the length as real estate for the purposes of taxation, of the main track in the municipality bears is illustrated not only from the results that to the total length of the line. This meth- might follow tax sales, but in attempting od of distribution is said to be contrary to to assess it as such under the provision that the rule that property must be taxed at ‘all real property not expressly exempt from its actual situs. But it is settled by it taxation shall be entered upon the assesslong line of decisions that this rule is mere

ment roll in the assessment district where ly the law of the state that recognizes it; it lies,'

and is well illustrated by hence, being a matter of legislation, it is the present case, where the property claimed entirely competent for the legislature, un

to be real estate has a physical location less restrained by the Constitution, to fix, in twenty-one assessment districts. How for the purposes of taxation, the situs of could it be entered on the rolls by lots and both real and personal property.” The Ar: blocks, or by reference to plat or deed, or kansas supreme court, regarding a similar how, otherwise, under $$1045 and 1046 question, states the principle as follows: [Rev. Stat. 1878]? It is part on and “The nature of the property justifies classi. part in the soil and part in the air. How fication and separation from the body of are the twenty-one assessors to assess and the real estate upon the grounds that justi. value the tracks, ties, poles, trolley wires, fy the separate classification of realty and etc., with certainty, and in an intelligible personalty. The requirement of an annual manner, in so many parcels? And are the assessment of railways affords, therefore, twenty-one assessments to be followed by no greater cause for complaint than does as many separate taxes and tax sales in the like requirement for personal property, case of nonpayment? It seems to us entire

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