dissenting.
I am unable to concur in the majority opinion for the following reasons: It was conceded on the trial that the elevators in question are situated upon the depot grounds and right of way proper of the railroad company; that is to say, within its 100 feet of right of way, and on its depot grounds. It was further conceded that the railroad company was not engaged in buying and selling grain, and did not use the elevators for that purpose; that the structures were built by the company for the accommodation of the public, and Avere leased to local grain dealers, who purchased and stored grain therein to be transported to market by the railroad company as a common carrier; that it received for the use of the elevators the nominal sum of 50 cents a month; that it had properly returned them along Avith its other taxable property to the auditor of public accounts for valuation and assessment by the state board of equalization; that they liad been so assessed, and that the company had paid its taxes thereon for the year in question; that, notwithstanding this fact, the local authorities had again taxed the property and the company had paid the taxes, amounting to about $20, under protest, and that this action Avas brought for the purpose of recovering the same.
Section 39, article I, chapter 77 of the old revenue law (Compiled Statutes, 1899), under which the assessment in question was made, reads as follows:
“The president, secretary, superintendent or other principal accounting officers within this state of eArery railroad or telegraph company, whether incorporated by any law *557of this state or not, when any portion of the property of said railroad or telegraph company is situated in more than one county, shall list' and return to the auditor of public acounts for assessment and taxation, verified by the oath or affirmation of the person so listing, all of the following described property belonging to such corporation on the first day of April of the year in which the assessment is made within this state', viz.: The number of miles of such railroad and telegraph line in each organized county in this state and the total number of miles in the state, including the road-bed, right of .way, and superstructures thereon, main and side tracks, depot buildings, and depot grounds, section and tool house's, rolling stock, and personal property necessary for the construction, repairs or successful operation of such railroad and telegraph lines; Provided, however, That all machine and repair shops, general office buildings, storehouses, and also all real and personal property, outside of said right of way and depot grounds as aforesaid, of and belonging to any such railroad and telegraph companies shall be listed for purposes of taxation by the principal officers or agents of such companies, with the precinct assessors of any precinct of the county where such real or personal property may be situated, in the manner provided by law for the listing and valuation of real and personal property.”
Section 40 provides, in substance, that as soon as practicable after the auditor has received the returns mentioned in the preceding section, or procured the information necessary therefor, a meeting of the state board of equalization shall be held for the purpose' of assessing the? property so returned; that after such assessment is made by the said board, the auditor shall certify to the county clerks of the several counties in which the? property returned is situated, the assessment per mile?, and the amount in each of said counties, and that “All such property shall, for the purpose of taxation, be' deemed ‘personal property,’ and be placed on the tax list as hereinafter provided.” Construing this law in the case of Chicago, *558B. & Q. R. Co. v. Hitchcock County, 40 Neb. 781, we used the following language:
“It is contended by the plaintiff that the character of the property and use for which it is designed, and not its precise location, is the test which should be applied in determining whether it is taxable by the state board or the local authorities, but we can not so construe the section mentioned without ignoring the plain language of the proviso, it would seem that the intention of the legislature was rather to provide a fixed and arbitrary rule for the taxation by the state board of the property of railroad and telegraph companies within their right of way and depot grounds, and all other property by the local authorities.”
The facts in this case bring it clearly within the rule above stated. The decision quoted from is supported by Red Willow County v. Chicago, B. & Q. R. Co., 26 Neb. 660; Burlington & M. R. R. Co. v. Lancaster County, 15 Neb. 251; Burlington & M. R. R. Co. v. Lancaster County, 7 Neb. 33, and in the opinion of the writer we should not overrule these decisions, and at 'this time adopt a new construction of the statutes.
Again, it clearly appears from the record that these elevators were built by the railroad company, and leased for merely a nominal sum for the purpose of enabling the lessees to collect and store grain therein to be shipped over its lines for gain or hire; and they may be fairly said to be structures proper and necessary for the successful opei’ation of the road, and especially is this true where, as in this case, there are no grain elevators at the stations in question owned by private persons or individuals which can be used for that purpose. They are, for that reason, exempt under the statute quoted, from taxation by the local authorities. Herter v. Chicago, M. & St. P. R. Co., 114 Ia. 330; Chicago, M. & St. P. R. Co. v. Board of Supervisors, 48 Wis. 666; Milwaukee & St. P. R. Co. v. City of Milwaukee, 34 Wis. 271, and Red Willow County v. Chicago, B. & Q. R. Co., supra.
For the foregoing reasons, together with the fact that *559the majority opinion herein results in subjecting the railroad company to double taxation, a thing which we should not sanction, the judgment of the district court should be affirmed.