Dissenting. As appears by the agreed case, the right of the State to recover in this action “depends entirely upon the legality of the exclusion by the State Assessors of the electric mileage and transportation receipts of the defendant company from its total mileage and transportation receipts.” That is the issue concisely stated; it is not disputed that the defendant is liable for an excise tax under R. S., Chap. 9; Sec. 26, to be assessed in the manner *63proscribed by the last sentence of R. S., Chap. 9, Sec. 27. The decision must depend upon the construction of that statute as applied to the facts of the case.
I am unable to find any warrant of law for the exclusion of that portion of the “gross transportation receipts” and a part of the mileage, of the defendant which was excluded by the Board of State Assessors in assessing the taxes in question.
The statute was first enacted in 1881, Chapter 91 of the laws of that year; the language applicable to the method of assessing the tax upon a corporation operating a railroad lying “partly within and partly without the state,” or which “is operated as a part of a line or system extending beyond the state” is the same in the statute in force today as in the original statute; it has remained unchanged— “The gross transportation receipts of such railroad, line or system, as the case may be, over its whole extent, within and without the state, shall be divided by the total number of miles operated” etc.
1 think that the words “railroad, line or system” are to be construed together in connection with the subject matter to which they relate, and that the phrase, ‘ ‘gross transportation receipts of such railroad, line or system, as the case may be, over its whole extent,” means precisely what the words would ordinarily imply, and would ordinarily be understood to mean—the gross receipts derived from transportation by rail over the whole extent of such railroad, line or system. This construction is in entire harmony with the opinion of this court in State v. Canadian Pacific Railway Company, 100 Maine, 202.
The language of the statute, under which the tax in question was assessed, unchanged since its first enactment, is broad and general enough to include any kind of railroad corporation. ‘ ‘Every corporation, person or association, operating any railroad in the state under lease or otherwise, shall pay” etc., is the language of Section 26. “When a railroad lies partly within and partly without the state, or is operated as a part of a line or system extending beyond the state,” is the language of Section 27. Clearly this language is comprehensive enough to include the railroad lines excluded by the State Assessors, unless a contrary intent clearly appears; the character of those lines, which will be considered later, emphasizes this conclusion.
'The learned Attorney General, however, contends that the Legislature has placed street railroad corporations in a class by themselves, and that this classification justifies the action of the Board of State Assessors in the instant case.
*64A'n examination of the history of Section 27 of Chapter 9 shows that it does not lend support to such conclusion, but, if it has any bearing on the question, rather negatives any authority for the action of the State Assessors. The original statute (Public Laws, 1883, Chapter 150) read, “Horse railroad corporations and associations are hereby made subject to the provisions of the act entitled 'An Act relating to the taxation of railroads,’ approved March seventeen, one thousand eight hundred and eighty-one, except” etc. It is obvious that the act had two purposes only in view, viz.: To remove any doubt which might exist as to the right to tax under the Act of 1881 the horse railroad corporations of that day which operated in the comparatively restricted areas of city streets, and to fix a rate of taxation which would be just towards corporations of that class. It was a statute of inclusion, not of exclusion. In 1901, with the substitution of electricity as the motive power for the cars of such, corporations, the law was amended (Public Laws, 1901, Chapter 156) so as to read in its present .form, “Street railroad corporations” etc., but nothing indicates any intended change in its scope. As the law now stands, corporations operating street railroads are completely subject to the provisions of Sections 25 to 31, both inclusive, of Chapter 9, except as to the rate; if a corporation operates a street railroad lying “partly within and partly without the state, or as a part of a line or system extending beyond the state,” it is taxed in the manner provided in the last part of Section 27 at the rate named in Section 32. There is no reference in the statute to the taxation of a corporation operating both classes of railroads. The corporation is taxed “for the privilege of exercising its franchises and the franchises of its leased roads in the state”; if it exercises a street railroad franchise in the State, it is taxed at the rate named in Section 32; if it exercises a general, or as sometimes called, commercial, railroad franchise, it is taxed at the rate named in Section 27; in both cases the basis of taxation is the “gross transportation receipts of such railroad, line or system as the case may be, over its whole extent, within and without the state” divided by “the total number of miles operated”; there is no mention of motive power. Here there is no authority for the exclusion of the receipts and mileage which were disregarded -in the instant case. This becomes apparent upon a study of the history and character of the lines whose receipts and mileage was excluded.
*65Those lines are not street railroads as the term is usually understood, but are inter-urban railroads, so called, transporting both persons aiid property, operated by legislative requirement in one case, and by legislative sanction in the other, as component parts of the Boston & Maine Railroad.
'The type is familiar, and the law will be found discussed in Diebold v. Kentucky Traction Company, 117 Ky., 146; 111 Amer. St. Rep., 230; 77 S. W., 674; construing a statute of Kentucky relating to so-called “trunk railways.” Other authorities may be found in 4 A. & E. Anno., Cas. 451, and 28 A. & E. Anno., Cas., 1913C, 583.
We are not concerned here with the perplexing question alluded to in the opinion, whether the franchises of corporations operating railroads of the type excluded in this case are taxable under Section 27 or under Section 32. The tax in question was assessed under the former section, not under the latter, and it is conceded that the defendant is liable to taxation under the former. Nor has the Legislature devised any scheme whereby interstate; railroad corporations operating both commercial railroads and street railroads, or railroads, like the lines excluded in this case, combining the characteristics of both, may be taxed upon the basis of the gross receipts and mileage of each class of road. The tax is to be based upon gross transportation receipts of the railroad, line or system over its whole extent divided by its total mileage.
The question is, whether there is any authority of law for the action of the Board of State Assessors in excluding the transportation receipts and mileage of the electrically-operated lines in question from the gross transportation receipts and total mileage of the Boston & Maine Railroad, when assessing a tax under Section 27 upon the defendant as operating an interstate railroad. The difference in motive power is not a factor. With the present day application of electricity to commercial railroads formerly operated wholly by steam such distinction is no longer, if ever, applicable.
Nor is the type of car a factor. Today on many steam operated railroads single or unit cars, generating their own motive power, are in use for transportation of persons and property in sparsely settled sections of country.
If the lines in question were being operated by the defendant corporation as component parts of its railroad, line or system during the years for which the tax v>as assessed, the question must be answered in the negative.
*66That the defendant corporation was legally operating the lines in question is not disputed, and abundantly appears from the agreed' statement. When the taxes in dispute were assessed, the lines in Concord and vicinity were operated by the defendant under a lease of the Concord & Montreal Railroad dated Juñe 29, 1895; the lines in Portsmouth and vicinity were in part constructed as extensions of the Portsmouth & Dover Railroad, at the time of such extensions leased to the defendant, and were completed by the defendant after the Portsmouth & Dover Railroad was merged with the defendant on January 1, 1900, and have been since owned and operated by the defendant.
That the excluded lines were component parts of the defendant’s railroad, line and system clearly appears from the printed case and the documents which are made part of the case.
1. The Concord Street Railway was incorporated by the Legislature of New Hampshire by Act of 1878, Chapter 118, as the Concord Horse Railroad; by Act approved March 25, 1891, its name was changed, and on November 30, 1903, it was merged with the Concord & Montreal Railroad under the authority of New Hampshire Laws of 1903, Chapter 195, approved January 29, 1903.
This act authorizing the acquisition of the Concord Street Railway provided: “If the Concord Street Railway shall be acquired by the Concord & Montreal Railroad, under the provisions of this act, said Concord Street Railway property shall be operated and managed as a part of the Concord & Manchester branch of the Concord & Montreal Railroad.”
The act further provided (Section 4) “that any railroad property, including the Concord Street Railway, or any property used in whole or in part for the production of electrical energy under the provisions of this, act, shall be treated as permanent additions or permanent improvements to the Concord & Montreal Railroad under the provisions of its lease to the Boston & Maine Railroad, dated June 29, 1895.”
In 1901, by petition to the Supreme Court of the State of New Hampshire, the Concord & Montreal Railroad asked for authority to “build an extension and branch or branches to its steam railroad, to be operated by electricity as the motive power,” and upon a report of the Board of Railroad Commissioners of New Hampshire dated March 13, 1901, was granted authority under the Public Laws of *67New Hampshire, Chapter 156, to extend its electric road from the intersection of Maine and Pleasant Streets in Concord, through Suncook Village and Hooksett Village, to and into the City of Manchester; this additional mileage was built in 1902, partly along the existing right of way of the Suncook Branch of the Concord & Montreal Railroad.
The agreed case further states:
“The Concord and Montreal Railroad at all times herein mentioned is and was leased to and operated by the Boston and Maine Railroad and in 1919 was merged with the Boston and Maine Railroad. The lessee, the Boston and Maine Railroad, in said lease agreed to pay all operating expenses, repairs, contract obligations, insurance, taxes upon said Concord and Montreal Railroad and roads owned and leased by the said Concord and Montreal Railroad, said lease being dated June 29, 1895, and being for a period of ninety-one (91) years and providing for the operation and maintenance of the property mileage of the said Concord and Montreal Railroad and all its owned and leased lines by the said Boston and Maine Railroad, and operated and maintained by the Boston and Maine Railroad, and the said electric mileage at all times herein mentioned was owned by the Concord and Montreal Railroad and is and was operated and maintained bjT the Boston and Maine Railroad under its lease until consolidation and thereafter as owner; and it is further agreed that there is not now and never has been any separate independent organization of said electric mileage other then as above stated, although for accounting purposes the revenues and disbursements received from and expended upon said mileage are kept separate upon the books of the Boston and Maine Railroad.”
It thus appears beyond question, aided by an examination of the map which is part of the case, that when the taxes in question were assessed the ‘defendant corporation was operating as a part of its railroad system, under lease from the Concord & Montreal Railroad, a line of railroad extending from the Village of Ponacook, through the city of Concord, and, by the way of Bow Junction in the town of Bow, through the town of Pembroke, the village of Suncook, and the town of Hooksett, to and into the city of Manchester, a main line mileage of 28.71 miles. ' This mileage, by express requirement of the Laws of New Hampshire (1903 Chap. 195, Sec. 3), was “operated and managed as a part of the Concord & Manchester branch of the Concord & Montreal Railroad.”
*682. As to the mileage in Portsmouth and vicinity. In 1898, upon petition to the Supreme Court of New Hampshire, representing that the public good required “that it build an extension and branches and additions to its steam railroad, to be operated by electricity as the motive power,” the Portsmouth & Dover Railroad was authorized to build a line, “beginning on Noble’s Island in said Portsmouth, at the end of the track of said Portsmouth & Dover Railroad where it connects with the track of the Eastern Railroad in New Hampshire,” thence running through certain named streets in the city of Portsmouth, and through a part of the town of Rye to a point near the Congregational meeting-house in Rye. Upon later petitions of the Portsmouth & Dover Railroad extensions of this electric road in Portsmouth and Rye were authorized. At the time all these proceedings were taken the Portsmouth & Dover Railroad was under lease to the defendant corporation, and on January 1, 1900, was merged therewith, under authority from the States of Maine, New Hampshire and Massachusetts. Later upon similar petition by the Boston & Maine Railroad this electrically-operated railroad was further extended (See B. & M. Railroad v. Mayor & Aldermen of Portsmouth, 71 N. H., 21) until at the time of the assessments in question the defendant was operating by electricity a railroad beginning as above stated, at the end of the Portsmouth & Dover track where it connects with the track of the Eastern Railroad, now the Boston & Maine Railroad, and thence running through the streets of the city of Portsmouth, and along the shore through the towns of Rye, North Hampton and Hampton, to the Boston & Maine station in North Hampton, and to a connection in the town of Hampton with an electric railroad to Newburyport; the total mileage, of main line track is 15.48 miles.
,The agreed statement further says:
, “As in the case of the other electric mileage, so in this case there is no independent company, corporation or association owning, operating or maintaining said mileage, although in all cases the receipts and disbursements are kept separate upon the books of the Boston & Maine Railroad.”
As to all the lines, of which the mileage and transportation receipts were excluded, the case states:
“In all cases the ownership is by virtue of legislative authority qnd in all cases the owning, operating and maintaining railroads are *69and were at the time of the assessment of the taxes in issue, owned, operated and controlled by the Boston & Maine Railroad, and in all cases their profit and loss account constitutes an integral factor in the valuation of the Boston and Maine Railroad stock. In all cases their construction, equipment, maintenance and operation were financed by the sale of stocks and bonds of the steam railroads which at the time of the assessment of the taxes in issue were owned, operated and controlled by the Boston and Maine Railroad.
“All of the electric mileage herein referred to is, and was during each and all of the years mentioned, of the ordinary type of electric railway construction, operated by electricity from overhead trolley wires, and used solely for transportation of persons and property by electrically operated cars.”
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“Some portions of said electric linos are on private rights of way, but the larger part of said electric lines follows and is located within the limits of the streets and highways of the cities and towns through which said electric lines operate.”
This extended examination of the statutes and records as to the acquisition, construction and operation of the excluded lines has seemed necessary that it may clearly appear that those lines are not railroads operating only in city streets, but are inter-urban lines operated by electricity; that the Concord lines are, by express enactment of the New Hampshire Legislature “operated and managed as a part of the Concord & Manchester branch of the Concord & Montreal Railroad,” leased to the defendant; that the Portsmouth lines were constructed, under provisions of New Hamsphire laws, as extensions of the Portsmouth & Dover Railroad and, with said Portsmouth & Dover Railroad, were, when said taxes were levied, parts of and merged with and owned by said defendant corporation; and that all these electrically-operated lines were, when the taxes were assessed, operated as parts of the Boston & Maine Railroad System, although, as the case states, there is no interchange of motive power or rolling stock between the steam operated and electrically-operated lines.
The facts clearly bring the Boston & Maine Railroad System within the provisions of Secs. 26 and 27 of Chap. 9 of the R. S.; that *70is conceded. But the State claims that the tax is to be based not upon the gross transportation receipts of such system “over its whole extent,” but upon a part only, excluding the receipts from electrically-operated lines; and that such part of the gross receipts is to be divided not “by the total number of miles operated” but by the mileage as ascertained by deducting the mileage of the electrically-operated lines.
I can find no authority of law in support of this proposition; on the contrary the case shows that the lines in question are component parts of the Boston & Maine Railroad.
I think that judgment should be entered for defendant.