delivered the opinion of the court.
The act of the legislature (Laws 1898, p. 23, c. 5, sec. 1) provides “that a privilege tax is levied as follows on the following *319industries carried on in this state, to-wit.” Section 66 provides :
“Railroads. Railroads are divided into four classes, first, second, third, and narrow-guage, and privilege taxes are levied on them as follows: On each railroad of the first-class per mile $20. On second-class, per mile, $15. On third-class, per mile, $10. On narrow-guage, per mile, $2. On each railroad claiming exemption from state supervision under maximum and minimum provisions in their charter, an additional privilege tax per mile, $10.
“Same. The railroad commission shall annually, on or before the first Monday of August, classify the several railroads according to such charter exemption claims and the gross earnings of each, and the privilege taxes thereon shall 'be paid on or before the first day of December, and the findings of the railroad commission shall be certified to the auditor of public accounts, and the chancery clerks of the counties through which each road runs.”
It must be noted that the acts of 1896 (Laws 1896, p. 44, c. 35) is identical with said section 66 of the act of 1898, except that the act of 1896 requires the railroad commission to classify the several railroads simply according to the gross earnings of each, whereas the act of 1898 requires the classification to be made “according to such charter exemption claims and the gross earnings of each.” This amendment plainly requires the railroad commission to look to two factors, in accordance with which the classification is to be made: First, such charter exemption claims: second, the gross earnings of each railroad. The declaration in these cases does not aver that a classification was made in accordance with the provisions of the act of 1898 in this respect.
After the most mature consideration' we are constrained to hold that it was a condition precedent to the right to collect the privilege taxes, here sued for, that the railroad commission *320should have made such classification, and should have certified such classification “the the auditor of public accounts and the chancery clerks of the counties through which each road runs.” And the failure to so classify is made the fourth ground of the demurrer to the declaration. There is no escape from the conclusion, made manifest by the amendment referred to, that the classification has to be made with reference as well to such charter exemption claims as to such gross earnings. If it bo conceded that the act levies the tax, it still remains true that something more was necessary, to wit, the classification referred to. The railroad commission, we think, should have classified the railroads into first, second, third, and narrow-guage railroads, and also described such railroads with reference to such charter exemptions, and to have certified which of the roads el aim the charter exemption referred to, so that their certification might manifest the amount of the privilege taxes to be collected from each railroad.
It is very strongly argued, upon the other side, that this tax could be collected whether there had been’ any classification or not, that the act itself levied the tax, that the railroad company was required to be the actor in securing its privilege license, and that the liability for these taxes was independent of any classification having reference to such charter exemption claims. But we are forbidden, it seems to us, to adopt this construction by the plain language of the act of 1898. It was very easy for the legislature, if it so intended, to have provided that railroads having charters granting immunity from state supervision should pay an additional privilege tax of $10 per mile, without requiring the railroad commission, in making its classification, to take as one of the factors in the classification such charter exemption claims. Had the law been so written, the liability of the railroad, so far as classification is concerned, would be clear. But the law is not so written. On the contrary, the legislature was not satisfied to allow the railroad *321commission to make tbe classification looking only to tbe gross earnings of each railroad, but tbe amendment of 1898 expressly added, as another factor necessarily to be taken into account by tbe railroad commission in making tbe classification, tbe claims made by tbe railroads to charter exemption from supervision. It is not possible, in view of this legislation and tbe plain language of tbe statute, to escape tbe conclusion that such classification was, as stated, a condition precedent to liability to these privilege taxes.
There are many other very interesting questions in tbe record but, in view of tbe fact that tbe point considered determines these suits, we. do not consider it proper to decide them at this time. '
The judgment is reversed, demurrer sustained, and suits dismissed. This decision disposes of both cases.