concurring. The facts of this ease are fully stated by Mr. Justice Field, and need not be repeated here. The questions presented are of the gravest character, and of the utmost importance to the people of California. While I concur, generally, in the conclusions, and in the line of argument adopted by my associate, I shall also state as briefly as I reasonably can, considering the gravity of the questions discussed, my conclusions upon the points involved.
1. In my judgment, the word “person,” in the clause of the fourteenth amendment to the national constitution, “No state shall * * *' deprive any person of life, liberty, or property without due process of law, nor deny to any person the equal protection of the law, ” includes a private corporation. It must, at least, through the corporation include the natural persons who compose the corporation, and who are the beneficial owners of all the property, the technical and legal title to which is in the corporation in trust for the corporators. The fact that the corporators are united into an ideal legal entity, called a corporation, does not prevent them from *758having a right of property in the assets of the corporation vmich is entitled to the protection of this clause of the constitution. Not does the intervention of this artificial being between the real beneficial owners and the state, for the simple purpose of convenient management of the business, enable the state, by acting directly upon the legal entity, to deprive the real parties beneficially interested of the protection of these important provisions. In tlie language of Mr. Pomeroy, one of the counsel, which I adopt:
“ Whatever be the legal nature of a corporation as an artficial, metaphysical being, separate and distinct from the individual members, and whatever distinctions the common law makes, in carrying out the technical legal conception, between property of the corporation and that of the individual members, still, in applying the fundamental guaranties of the constitution, and in thus protecting the rights of property, these metaphysical and technical notions must give way to the reality. The truth cannot be evaded that, for the purpose of protecting rights, the property of all business and trading corporations is the property of the individual corporators. A state act depriving a business corporation of its property without due process of law, does, in fact, deprive the individual corporators of their property. In this sense, and within the scope of these grand safeguards of private rights, there is no real distinction between artificial persons, or corporations, and natural persons.”
This principle is recognized, and the question settled for all time, in an early case by Chief Justice Marshall, in which he says:
“Aliens, or citizens of different states, are not less susceptible of these apprehensions, nor can they be supposed to be less the objects of constitutional provisions, because they are allowed to sue by a corporate name. That' name, indeed, cannot be an alien or a citizen; but the persons whom it represents may b'e the one or the other; and the controversy is, in fact and in the law, between those persons suing in their corporate character by their corporate name for a corporate right, and the individuals against whom the suit may be instituted. Substantially and essentially the parties in such a case, where the members of the corporation are aliens or citizens of a different state from the opposite party, come within the spirit and terms of the jurisdiction conferred by the constitution on the national tribunals.” Bank U. S. v. Devaux, 5 Cranch, 87.
It is upon this principle that the national courts have ever since entertained jurisdiction on the ground of citizenship of the corpora-tors in cases whqrein corporations are the parties to the record. The cases in the supreme court upon this point are numerous, and too familiar to require further citation.
In Society, etc., v. New Haven, 8 Wheat. 464-489, it was held that a corporation was protected under the sixth article of the treaty with *759England, of 1783, which reads: “There shall be no confiscations made, nor any prosecutions commenced against any person or persons for or by reason of the part which he or they may have taken in the present war, and that no person shall, on that account, suffer any future loss or damage, either in person, liberty, or property,” etc. The word “person” in the civil-rights act of congress of April 20, 1870, (17 St. 13,) was held on the circuit to include a corporation. N. W. Fert. Co. v. Hyde Park, 3 Biss. 481.
In Railroad Co. v. Richmond, 96 U. S. 529, the supreme court assumes that a corporation is included in the word “person,” as thus used in the fourteenth amendment.
The word “person” is, unquestionably, much broader in its signification than the word “citizen,” and the change from the word “citizen,” in the first clause of the section, to the word “person” of so much larger import, in the last, must have been well considered, and have been intended to extend the shield of the constitution to all cases which might require the protection of this wholesome and greatly-needed guaranty. There is nothing in the context to indicate a purpose to limit the meaning of the word “person” to a narrower sense than the word ordinarily and naturally imports, or to make the application of the provision partial only. To exclude corporations from its import, would be to leave, perhaps, at this day, the far larger portion of the vast capital of the country employed in great enterprises, either commercial, manufacturing, mining, or otherwise, beyond the pale of its protection. There is no good reason for excluding the property of corporations from the same protection extended to other property. It is subject to all the burdens, and it should be entitled to all the immunities, of other property. It is, at last, the property of natural persons. The provision is protective and remedial, not punitive in character, and should, therefore, be liberally, not strictly, construed. No restriction should be put upon the term not called for by the exigencies of the case, or by the public interest; and it must be manifest that the public interest requires that the broadest signification should be adopted.
Blackstone treats of corporations under the head of “Bights of Persons;” chapter 18 under this head being devoted to the subject. He says: “Persons, also, are divided by law into either natural persons or artificial;” giving a definition of each. Book 1, p. 123. So, also, does Kent, (2 Kent, 316.)
In U. S. v. Amedy, 11 Wheat. 412, wherein a person was indicted, under an act of congress, for destroying a vessel belonging to a cor*760poration, the supreme court held that a corporation is a person within the meaning of the act. The court, among other things, says: “The mischief intended to be reached by the "statute is the same, whether it respects private or corporate persons. That corporations are in law, for civil purposes, deemed persons is unquestionable. ” And the court in this case holds the same for criminal purposes also; and in criminal cases statutes are strictly construed. So, in regard to the provisions of the fourteenth amendment undér consideration, “the mischief intended to be reached” by the amendment, “is the same, whether it respects private or corporate persons.” See, also, cases cited in the opinion. The authorities to a similar effect are numerous. See, as examples, People v. Ins. Co. 15 Johns. 588; Planters’ Bank v. Andrews, 8 Porter, 404; Kyd Corp. 15; Douglas v. P. M. S. Co. 4 Cal. 304; State v. Nash. University, 4 Humph. 166. There are many other cases affording support, more or less direct, to this view.
In, Ins. Co. v. New Orleans, 1 Woods, 85, it was held on the circuit that a corporation is not embraced in the word “person,” as used in the amendment under consideration, and the supreme court of r California, upon the authority of that case, made a similar ruling in C. P. R. Co. v. State Bd. of Equalization, 8 Pac. Coast Law J. 1155. But notwithstanding their high character for ability, and my respect for the decisions of the judges taking that view, I am compelled to adopt a different conclusion. I think, both upon reason and authority, that the'other is the better view. Again, with respect to corporate property, I adopt the language of counsel, which expresses my view accurately and clearly:
“ The property of the corporation is in reality the property of its individua1 corporators. A state statute depriving a corporation of its property does deprive the individual corporators of their property.1' These clauses of the fifth and fourteenth amendments, and the similar clauses of the state constitution, apply, therefore, to private corporations, not alone because such corporations are ‘ persons,’ within the meaning of that word, but also because statutes violating their prohibitions, in dealing with corporations, must necessarily infringe upon the rights of natural persons. In applying and enforcing these constitutional guaranties, corporations cannot be separated from the natural persons who .compose them. ”
It is upon this principle that the decision in Dodge v. Woolsey, 18 How. 331, rests, which establishes the right of stockholders to maintain a suit against the directors of the corporation and state officers to restrain the payment by the one, and the collection by the other, ‘ of a tax illegally assessed against the corporation. See, also, Mar*761shall v. B. & O. R. Co. 16 How. 327. But a corporation itself is, in my judgment, a “person,” within the meaning of the constitutional provision in question. Such has been the ruling in all cases under statutes containing the word “person,” unless the context clearly indicated a more limited signification.
2. I shall not spend much time in discussing the question whether the fourteenth amendment applies only to the African race. Undoubtedly, the negro furnished the immediate occasion and motive for adoption of the amendment; but its benefits could not have been intended to be limited to the negro. The protection afforded is as important to others as to him, as is clearly shown by experience under this provision. A whole race, not African, large numbers • of whom came to our shores under the solemn guaranties of stipulations in a treaty suggested and sought, and in a great part framed, by ourselves, to promote our then supposed interests, were among the first to invoke this very provision of the fourteenth amendment to protect them, under the word “person,” in the right to earn an honest living, by honest labor; and its protecting power was not invoked in vain. Parrott’s Chinese Case, 6 Sawy. 349; In re Ah Chong, (Chinese Fisherman Case,) Id. 451. Who, in view of past experience, shall say there was no occasion to extend the signification of the word “person” beyond the negro ? And are all other races, including our own, -to be now withdrawn from its protecting power by so narrow and unnatural a construction. I apprehend not. If the line cannot be drawn at the negro, then no other can be adopted that will not embrace every human being in his individual character, or in his legal association with his fellows, for the more convenient administration of his property, and more successful pursuit of happiness. I apprehend that it would have struck the world with some astonishment, when this amendment -was proposed to the people of the United States for adoption, if it had read: “Nor shah any state deprive any person of the negro race of life, liberty, or property without due process of law; nor deny to any person of the negro race within its jurisdiction the equal protection of the laws.” Yet so it must, in effect, be read if its operation is to he limited to that race. The rights of the negro are, certainly, no more sacred or worthy of protection than the rights of the Caucasian or other races; and the security of the rights of corporations, and, through them, the rights of the real parties,—the corporators,—is as of great public importance as the security of any other private interests»
*7623. Does the assessment in question, made in strict pursuance of the provisions of the constitution of California, violate that clause of the fourteenth amendment of the national constitution which says that no state “shall deprive any person of life, liberty, or property without due process of law ? ”
The provision of the state constitution under which the assessment was made is as follows:
“ The franchise, road-way, road-bed, 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 roadway laid in such counties, cities and counties, cities, towns, townships, and districts.”
This is the only provision affecting this question.
To take one’s property by taxation is to take or deprive one of his property; and if not taken in pursuance of the law of the land—in some due and recognized course of proceedings, based upon well-recognized principles in force before and at the time this clause was first introduced into the various constitutions, and the legislation of the country—is to take it “without due process of law.” The signification of these words has been the subject of judicial consideration and discussion in a vast number of cases, and their import has been determined to be the same as that of equivalent phrases in Magna Charta, from which the principle adopted was derived.
I shall not attempt to give an accurate definition of the term “due process of law,” applicable to all cases. It is not necessary for the determination of this case to do so. It is enough to say that it has been settled by judicial decision, as I think, that whether the proceeding be judicial, administrative, or executive, if it affects life or liberty, or takes property directly, or imposes a charge which becomes the basis of taking property, some kind of notice, or opportunity to be heard on his own behalf, and to defend his rights, given to the person whose life or liberty is to be affected, or whose property is to be taken, or- burdened with the liability, is an indispensable element—an essential ingredient—of “due process of law.” No one, I apprehend, would for a moment contend that a man’s life, or his liberty, could be legally taken away without notice of the proceeding, or without being offered an opportunity to be heard; or that a proceeding whereby his life or liberty should be forfeited, or permanently *763affected, without notice or opportunity to be heard in his own defense, could, by any possibility, be by “due process of law.” In such cases there could be no just conception of “dne process of law” that would not embrace these elements of notice and opportunity to be heard. Any conception excluding these elements would he abhorrent to all our ideas of either law or justice. If these elements must enter into and constitute an essential part of due process of law, in respect to life and liberty, they must also constitute essential ingredients in due process of law, where property is to be taken; for the guaranty in the constitution is found in the same provision in the same connection, and in the identical language applicable to all. One meaning, therefore, cannot he attributed to the phrase with respect to property, and another with respect to life and liberty.
Having stated the principle, which I conceive to he established by an unbroken line of authorities, I shall refer to some of them. One of the latest and most instructive cases upon the subject was recently decided by the court of appeals of the state of New York, from which I shall extract a passage which I adopt as expressing my own views, and presenting the question in a very clear and satisfactory light. It involved the validity of an assessment for a public street improvement, and but one question, which was decisive of the case, was examined or determined. The question was as to the validity of the law under which the assessment was made. The court, by Mr. Justice Earl, says: “The latter assessment could be made without any notice to or hearing of any person. The law requires no notice, and a provision for notice cannot be implied. Upon the assumption that the law was valid, there was ample authority for the commissioners to make the assessment without any notice or hearing.” Stewart v. Palmer, 74 N. Y. 186. The judge proceeds:
“ I am of the opinion that the constitution sanctions no law imposing such an assessment without a notice to and a hearing, or an opportunity of a hearing, by the owners of the property to be assessed. It is not enough that the owners may by chance have notice, or that they may, as a matter of favor, nave a hearing. The law must require a notice to them, and give them a right to a hearing and an opportunity to be hoard. It matters not, upon the question of the constitutionality of such law, that the assessment has in fact been fairly apportioned. The constitutional validity of a law is to bo tested, not by what has been done under it, but what may by its authority be done. The legislature may prescribe the kind of notice and the mode in which it shall be given, but it cannot dispense with all notice. * * * ” Id. 188.
“ The legislature can no more arbitrarily impose an assessment for which property may he taken or sold, than it can render a judgment against a person without a hearing. It is a rule founded on the first principles of *764natural justice, older than written constitutions, that a citizen shall not he deprived of his life, liberty, or property without an opportunity to be heard in defense of his rights; and the constitutional pz’ovision that no pez-son shall be deprived of these without due process of law, has its foundation in this rule. This provision is the most important guaranty of personal rights to be found in the federal or state constitutions. It is a limitatipn upon arbitrary legislation. Ho citizen shall arbitrarily be deprived of his life, liberty, or property. This the legislature cannot do, nor' authorize to be done. ‘Due process of law’ is zzot confined to aizy judicial proceedings, but extends to every case which may deprive a citizen of his life, liberty, or property, whether the proceedings be judicial, administrative, or executive in its nature. This great guaraizty is always and everywhere present to protect the citizen agaizzst arbitrary interference with these sacred rights. * * *” Id. 190-
“Ho case, it is believed, cazi be found in which it was decided that the constitutional guaranty did not extend to. eases of assessmezzts, and yet we may infer frozn certain dicta of judges that their attention was not called to it, or that they lost sight of it in the eases which they were considering. It has sometimes been intimated that a citizen is not deprived of his property, within the meaning of this constitutional provision, by the imposition of an assessment. It might as well be said that he is not deprived of his property by a judgment entered against him. A judgment does not take property untií it is enforced, and then it takes the real or persozzal property of the debtor. So an assessznent may gezierally be enforced, not only against the real estate upon which it is a lien, but, as in this case, against the personal property of the owner also, and by it he may just as much be deprived of his property, and in the same sense, as the judgment debtor is deprived of his by the judgment.” Id. 195.
Much more is worth quoting, hut it would extend this opinion to an unreasonable length.
Thus, it is determined in the case cited that a party is not only entitled to notice and an opportunity to be heard, but that the law,, or constitution itself, must expressly provide foh notice. This decision vyas approved by the supreme court of California in October last, in Mulligan v. Smith, involving the validity of a tax. 8 Pac. Coast Law J. 499. Said McKinstry, J.: “In my opinion the statute provides no notice or process by means of which the property owners can be subjected to the judgment of the county court. The act is therefore void;” citing Stewart v. Palmer, supra; Cooley, Taxation, 266, and other cases; and McKee, J., in the same case said:
“It is a principle which uzzderlies all forms of government by laws that a citizen shall not be deprived of life, liberty, or property without due process of law. The legislature has no power to take away any man’s property, nor can it authorize its agents to do so, without first providing for personal notice to be given to him, and for a full opportunity of tizne, place, and tribunal to'be heard in defense of his rights. This constitutional guaraizty is not confined *765to judicial proceedings, but extends to every case in which a citizen may be deprived of life, liberty, or property, whether the proceeding be judicial, administrative, or executive in its nature.”
In Patten v. Green, 13 Cal. 329, Mr. Justice Baldwin, all the justices, including Mr. Justice Field, concurring in the opinion, said: “We think it would be a dangerous precedent to hold that an absolute power resides in the supervisors to tax land as they may choose, without giving any notice to the owner. It is a power liable to great abuse. The general principles of law applicable to such tribunals oppose the exercise of any such power.” The raising of the tax by the board of equalization was held void for want of notice. Mr. Webster, in the Dartmouth College Case, defined due process of law, or “the law of the land,” as “the general law, which hears before it'eondemns, which proceeds upon inquiry, and renders judgment only after trial.” He adds: “Everything which may pass under the form of an enactment is not ‘the law of the land.’”
In Cooper v. Board of Works, 108 Eng. C. L. R. 181, in which was in question the action of the board of public works, in pursuance of a statute which did not require notice, Wittes, J., said: “I apprehend that a tribunal, which is by law invested with power to affect the property of one of her majesty’s subjects, is bound to give such subject an opportunity of being heard before it proceeds; and that that rule is of universal application, and founded upon the plainest principles of justice.” In the samo case, Byles, J., said: “The judgment of Mr. Justice Forteseue, in Dr. Bentley's Case, is somewhat quaint, but it is very applicable, and has been the law from that time to the present.” He says: “The objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defense, if he has any. I remember to have heard it observed by a very learned man, upon such au occasion, that even God himself did not pass sentence upon Adam before he called upon him to make his defense. ‘Adam, where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldst-not eat ?’ ” See, also, Philadelphia v. Miller, 49 Pa. 448; Matter of Ford, 6 Lans. 92; Overing v. Foote, 65 N. Y. 263; Westervelt v. Gregg, 12 N. Y. 209; Cooley, Const. Lim. 355; Butler v. Sup’rs Saginaw, 26 Mich. 22, 29; Sedg. St. & Const. Constr. (Pomeroy’s Ed.) 474 et seq., and notes; Cooley, Taxation, 266, 267.
In Davidson v. New Orleans, 96 U. S. 97, it was not questioned, *766but assumed, that the party taxed must have an opportunity to be heard, and decided upon that theory.
In my judgment the authorities establish beyond all controversy that somewhere in the process of assessing a tax under a law, or a state constitution, at some point before the amount of the assessment becomes finally and irrevocably fixed, the statute or the state constititution must provide for notice to be given to the owner of the property taxed, and an opportunity to be afforded to make objections, and to be heard upon them. In some form or manner he must be afforded an opportunity to defend his interests. In this case the constitution makes no provision for notice or a hearing, and the answer alleges that there was none, which is admitted by the demurrer.
4;' On behalf of the plaintiff, /what purports to be a statute passed March 14,1881, (St. 1881, p. 83,) is cited, which, it is insisted, supplements the constitution, and provides for a notice and hearing upon a petition filed within five days after the assessment is made upon a railroad. But it is claimed that, although published in the volume of statutes for the year 1881 as a statute, the bill never constitutionally passed, and that it is consequently no law. Section 15 of article 4 of the constitution of California provides that “on the final passage of all bills they shall be by yeas and nays upon each bill separately, and shall be entered on the journals, and no bill shall become a law without the concurrence of a majority of the members elected to each house.” Under section 5 of the same article the house consists of 80 members,, of whom it would require 41 to constitute a majority of the members elected to the house. Upon reference to the published journals of the legislature it appears that the bill in question passed the house and was sent to the senate, where it was amended by adding a long provision, being the very provision, if any there is, which gives the owners of railroads of the class in question, dissatisfied with the assessment, a right to file a petition, “within five days after the assessment is made and entered of record on the books of the board,” to have the assessment corrected, and providing, for proceedings upon said petition. On March 4th the house considered the senate amendment, and upon a call of the yeas and nays, as required by the constitution, 39 members voted for the amendment and 82 against it, there being four paired and not voting. Thus the votes in favor of the amendment were two less than a majority of members elected to the house, and the bill failed. It does not appear that the bill was “read *767at length.” The speaker declared that this was not the final action of the house, and that the amendment concurred in by a vote of 39 ayes to 82 nays was adopted. An appeal having been taken from this decision of the chair, it was afterwards laid upon the table. Thereupon two members filed each a separate protest against the decision of the speaker, and the certificate that the bill had passed, on the expressed ground that it did not receive the vote of a majority of the members elected to the house. All this appears upon the journal. If this was not the final action of the house, then, as there was no further action, the act never finally passed, even by the numbers indicated. Assembly Journal, 24th Sess. pp. 472-475.
The bill, therefore, never was constitutionally passed, and never became a law. Whether the bill became a law is a question of law of which the court will take judicial notice. Sherman v. Storey, 30 Cal. 253; Ottawa v. Perkins, 94 U. S. 268; Gardner v. The Collector, 6 Wall. 509, 510; Post v. Sup’rs, 105 U. S. Under the decisions of the courts upon constitutional provisions in all respects similar to that in the present constitution of California, it is settled that the court, to inform itself, will look to the journals of the legislature. So the supreme court of the United States holds where it is so decided by the state courts in construing their own constitutions and laws. See cases last cited. I am not aware of any decision of the supreme court of California giving a different construction to the state constitution as it now stands. Unless this mode is adopted of resorting to the journals to ascertain whether a statute has been legally passed or not, experience, and the number of cases that have already arisen under similar constitutional provisions, demonstrate that the requirement of the constitution that the vote shall be taken by yeas and nays, and a majority of the members required to vote in the affirmative on the final passage of an act, would be of little avail.
While we think the case of Sherman v. Storey correctly decided under the constitution as, it then was, we are of the opinion that the change in the constitution requires a change in the rule. When California adopted from other states the provision now found in its constitution substantially as found in the constitution of Illinois, it must be deemed to have adopted with' the provision the settled construction put upon it by the courts of the state from which it was taken. The leading cases upon the point are Spangler v. Jacoby, 14 Ill. 278; Prescott v. Board of Trustees, etc., 19 Ill. 326; Osborn v. Staley, 5 W. Va. 89; and the cases cited in Sherman v. Storey, and *768in those from the United States supreme court. In this ease there is something more than an omission in the journals, for it affirmatively appears what the vote was, and that the bill did not pass by the vote required by the constitution.
Statutory provisions, also, have been adopted, which appear to be designed to give effect to this change in the constitution. Section 255 of the Political Code requires the minute clerks of the senate and assembly to “keep a correct record of the proceedings of their respective houses.” And sections 256 and 257 require the daily proceedings to be recorded in the journals, and that they “must be read by the secretary each day of meeting, and then be authenticated by the signatures of the president and speaker of the respective houses.” Section 1875, Code C. P., provides that “courts take judicial notice of the following facts: * * * Public and private official acts of the legislative, executive, and judicial, departments of this state, and of the United States,” etc. * * * “In all these cases the court may resort for its aid to appropriate books of documents of reference.” Section 1888 provides that “public writings are (1) the written acts or records of the acts of the sovereign authority of official bodies and tribunals, and of public officers, legislative, judicial, and executive, whether of this state or of the United States,” etc. And section 1918 provides that “official documents may be proved as follows: * * * (2) The proceedings of the legislature of this state, and of congress, by the journals of those bodies respectively, or either house thereof, or by published statutes or resolutions.” Thus the journals of the legislature are put upon the same footing as the statutes. We think there can be no doubt, under the constitution of the state and these statutes, that we may look to the journals to see what action was in fact had with respect to any apparent law as published in the volumes of the statutes of the state; and looking to the journals it affirmatively appears that the act upon the statute book in question never did become a law.
Even if the act had passed, it is at least extremely doubtful whether the notice, or time for filing the petition, is sufficiently definite to be of any effect. The assessment, under the provision, might be made, even if the party is bound to notice the state of the record on the first Monday of May, the five days might elapse, and the assessment be transmitted to the county, before the party assessed would know, under the law, that it had been made. All the acts of assessment may have transpired, and the assessment become final, before the first Monday of May. The board, however, is not required to make it before *769that day, although it might do so, and the party assessed can scarcely be expected to watch its proceedings, from day to day, before the time fixed by the law.
There being, then, no such statute as is relied on in existence, the validity of the assessment must rest alone upon the constitutional provision quoted, and the act of 1880, adding sections 3664 and 3665 to the Political Code; and neither provides for notice of any kind, or for an opportunity to be heard in any stage of the proceedings. It was therefore made without due process of law, as we understand the meaning of that provision as used in the fourteenth amendment in question.
Section 3664 of the Political Code, as adopted in 1880, requires the president, or some other designated officer of the class of corporations in question, to furnish the state board of equalization, on or before the first Monday of April in each year, a detailed statement of the whole number of miles of road operated, the number of cars, amount of rolling stock, and their value, the gross earnings, and various other particulars; and requires the said board, on or before the first Monday in May, to assess the franchise, road-way, road-bed, rails, and rolling stock. It is urged on the part of the plaintiff that this provision furnishes sufficient notice and opportunity to be heard, to constitute due process of law on this point, within the meaning of the constitutional provision. In our judgment, this position is clearly untenable. This is simply a mode adopted for obtaining information as to the amount and general value of the property of the corporation, as a basis in part, at least, for their future consideration and action in makjng the assessment. It is but a preliminary step and not the assessment, or any part of the assessment. The board is under no obligation to adopt either the statement as to what the property is, or its value. It may reject it altogether and adopt an entirely different basis.. The party interested is entitled, at some point of the proceeding, to know what action the board takes, or proposes to take; and to an opportunity to be heard, as to its propriety,-before the assessment becomes fixed and irrevocable. Other classes of property holders, also, are required to file a statement of their property under oath, yet in the scheme provided for their assessment an opportunity to be afterwards heard is provided for.
The constitutions of the state and nation provide that private property shall not be “taken for public use without just compensation.” When parties cannot agree, there must be some mode provided for *770ascertaining the value of property so proposed to he taken for public use under the sovereign right of eminent domain. Suppose a statute should provide a board, or even a court, to assess the value of property proposed to be taken under this power for railroad purposes, or other public use, and should give the owner of the property no notice or opportunity to be heard, other than to require him at some time, say a month anterior to the consideration and determination of the amount to be paid, to furnish such board or court a similar statement as to the description and value of the property to that required by section 3664, which the party might do or omit to do; would a subsequent ex parte determination of the value, by the board or court, be in pursuance of due process of law within the meaning of the constitution ? I apprehend that no court would sustain such a proceeding. I also think that a taking for the purposes of taxation under such an assessment, without notice or opportunity to be heard, would be equally without the protection of due process of law, and equally void.
The state supreme court has held the provision in the constitution of California, authorizing the state board of equalization to assess, finally, the railroads of the class in question, to be self-executing, requiring no legislation of any kind to carry it into full effect; also that the provision is mandatory, S. F. & N. P. R. Co. 8 Pac. Coast Law J. 1061.
It is insisted by defendant that, this being so, it is incompetent for the legislature to add to or take from the requirements found in the constitution, and that the additional provision of section 3664, as adopted in 1880, is void. The view already expressed, upon the section renders it unnecessary now to determine that question, although presented by the record and argued by counsel. It would seem, however, that there can be no constitutional objection to legislating upon details for the purpose of more effectually carrying out the scheme of the constitution, so far as the legislation is not inconsistent with any of its provisions. It is a general rule that a state legislature has all legislative power not inhibited by the constitution, state or national. S. P. R. Co. v. Orton, 6 Sawy. 186.
This being so, it would seem that the legislature might supplement the constitutional provision by statutory provisions intended to more perfectly protect the rights of the parties by other safeguards which are not inconsistent with the constitutional provision. But as this is a question more properly belonging to the state courts, we do not deem it desirable to finally determine it now.
*7715. Is the provision of the state constitution, under which the assessment in question was made, in conflict with the provision of the fourteenth amendment to the national constitution which provides that no state “shall deny to any person the equal protection of the law?” The circuit justice has discussed this question so fully and satisfactorily that I shall have little to add. The provision is:
“A mortgage, deed o£ trust, contract, or other obligation by which a debt is secured, shall lor 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 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 such 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 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 for the preceding year.”
Whatever the property, then, real or personal, mortgaged to secure a debt, the value of the debt so secured, in the case of everybody except “a railroad and other quasi public corporations,” is to be deducted from the value of the property mortgaged; and the value only of the property mortgaged, “less the value of such security, shall be assessed and taxed to the owner of the property, and the value of sueh security shall be assessed and taxed to the owner thereof;” that is to say, that, whatever the property, it shall be taxed to the real owner. But in the ease of “a railroad or other quasi public corporation,” there is to be no reduction of the value of the mortgaged property, and the whole is to be taxed to one party, whether he owns the whole or not. In one case, if property is mortgaged to the extent of half its value, the owner is assessed upon one-half the value, and the owner of the debt secured is taxed upon the other half. But in the other case the owner of the .legal title to the property is assessed and taxed upon the whole value of the property, and the other party, who is interested to the extent of one-half, upon none. A., a natural person, has $50,000 in cash—all the property he has—and purchases of B., another natural person, a piece of real estate for $100,000, *772that being its actual value, paying one-half down, and giving a mortgage for $50,000 to secure the balance of the purchase money. The constitution in effect says—and in this instance such is the real, actual state of facts—that A. and B. each has $50,000 in the property, one-half not having been paid for by A., and each shall be assessed and pay a tax upon his own interest in it, amounting to $50,000. A., in this instance, is worth only $50,000, and if. he pays taxes upon a larger amount he pays taxes upon property he does not own—upon property owned by somebody else. This seems to be a self-evident proposition.
C., “a railroad oj; other quasi public corporation,” also has $50,000 cash, and purchases of B., for its proper use, an adjoining piece of real estate for $100,000, which is also its actual value, paying $50,000, and giving a mortgage to secure the balance of the purchase money. In this case, as in the other, the actual interest of each in the property is $50,000. They stand upon precisely* the same footing in all particulars with reference to the property. G. has only $50,000 in the property,—it not having paid for the other half,—and B. the rest. But in this case the constitution says that G. shall, nevertheless, be assessed for, and pay taxes upon, the whole property, double the amount he owns, and B. shall not be required to pay-anything; that is to say, that C. shall not only pay the tax on its own property,but the tax upon B.’s property; that money, to the amount of the tax assessed upon $50,000 belonging to B., shall be taken by the state or county from G., and appropriated to the use and for the benefit of B., to liquidate B.’s share of the public burdens. This sum, being so much more than G.’s share of the public burdens, and being in fact B.’s share, the result of the operation is not only to take so much property from G. for public use without compensation, but also to arbitrarily take it from C., and apply it to the use and benefit of another private party, B., without compensation. The result would be the same whether the property of A., B., and C., thus situated and mortgaged is land, a railroad operated in one or more counties, or any other kind of property. Does a law which authorizes such proceedings—such discriminations—bear or press equally upon A. and C., or equally upon B. and C. ? Is C. equally protected in his rights of property with A., or equally protected with B. ? Although situated precisely alike with reference to their property, do they feel the pressure of the public burdens equally and alike? The question does not appear to me to admit of argument. Upon the very statement of the proposition it seems to me to be self-*773evident that a law authorizing and requiring such proceedings does not afford, but expressly denies, the equal protection of the law. The constitution in the one case says that “the mortgage, deed of trust, contract, or obligation” shall be “deemed and treated as an interest in the land affected thereby,” which, in the cases supposed, together with the debt secured, it undoubtedly in fact is; but in effect the constitution says it is not so in the other case. Different kinds of property may require to be taxed in different forms and modes, in order to be equally taxed; and classifications of property, for purposes of taxation, should have reference to the just equality of burdens, so far as that is practically attainable. Classification should have reference to the different character, situation, and circumstances of the property, making a different form or mode of taxation proper, if not absolutely necessary. It cannot be arbitrarily made with mere reference to the nationality, color, or character of the owners, whether natural or artificial persons, without any reference to a difference in the character, situation, or circumstances of the property. If the arbitrary discrimination, and classification found in this case can bo legally made under the constitution and the law of the land, then the constitution or the law can be so framed as to dispose of a man's rights in property of all kinds by arbitrary classification and definition, without regard to the real facts, circumstances, or condition of the property. A person maybe classified and defined out of the equal protection of the law; and if so with reference to this provision, he can also be classified and defined out of uniformity in the operation of the law in other particulars; out of the protection of duo process of law, and of the provision forbidding a law impairing the obligation of contracts, or taking property for public uso without just compensation; and, indeed, out of all the guaranties of the constitution, state or national. I am not arguing that property of all kinds may not be‘taxed whore it is found; but in this case there is a personal liability sought to be enforced against the defendant for taxes not imposed upon others in like circumstances, without any means provided for reimbursement, such as are applicable to others similarly situated, by the party who ought to pay the tax.
What constitutes the equal protection of the law is well stated in Ah Kow v. Nunan, 5 Sawy. 562; In re Ah Fong, 3 Sawy. 144; Pearson v. Portland, 69 Me. 278; Portland v. Bangor, 65 Me. 120; Missouri v. Lewis, 101 U. S. 22. See, also, Live Stock, etc., Ass’n, v. Crescent City Co. 1 Abb. 398; Parrott's Chinese Case, 6 Sawy. 377. That inequality and different principles of taxation of persons si mi*774larly situated, as in this case, is a violation of this provision seems to be already determined by the supreme court of the United States. The civil-rights act, as re-enacted in 1870, and again in the Eevised Statutes, provides that—
“All persons within the jurisdiction of the United States shall have the same right in every state and territory' * * * to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.” 16 St. p. 144, § 16; Rev. St. 1977.
The congress which passed this act embraced many of the members who were in the congress which framed and proposed the fourteenth amendment, and they may be supposed to be well informed as to the purpose and scope of that amendment. This act was passed in pursuance of the last clause of the amendment, as a part of the appropriate legislation to enforce its provisions. It is therefore a legislative construction as to the scope of the provision inhibiting the states from denying to any person the equal protection of the law. The United States supreme court gives the amendment a similar construction as to its scope. In Strauder v. West Virginia the court says that sections 1977 and 1978 of the Eevised Statutes “partially enumerate the rights and immunities intended to be granted by the constitution,” and after quoting section 1977, as above set out, adds: “ This act puts in the form of a statute what had been substantially ordained in the constitutional amendment. It was a step towards enforcing the constitutional provision.” 100 U. S. 811.
In Ex parte Virginia the court, referring to Tennessee v. Davis and Strauder v. West Virginia, said:
« We held that the fourteenth amendment secures, among other civil rights, to colored men, when charged with criminal offenses against a state, an impartial jury trial, by jurors indifferently selected, or chosen without discrimination against such jurors because of their color. We held that immunity from any such discrimination is one of the equal rights of all persons, and that any withholding it by a state is a denial of the equal protection of the laws, within the meaning of the amendment. We held that such an equal right to an impartial jury trial, and such an immunity from unfriendly discrimination, are placed by the amendment under the protection of the general government, and guarantied by it. We held, further, that this protection and this guaranty, as the fifth section of the amendment expressly ordains, may be enforced by congress by means of appropriate legislation.” 100 U. 8. 345.
*775If discrimination in fixing the qualifications of jurors inferentially violates the provisions of the fourteenth amendment, as denying the equal protection of the law, it is not easy to perceive why discriminations in the assessment and collection of taxes expressly made are not equally so.
Thus it appears that the supreme court regards the section quoted as within the scope of the fourteenth amendment, and the act provides that every person “shall he subject to like * * * taxes, licenses, and exactions of every kind, and to no other, ” as “white citizens;” and this is held to be appropriate legislation to enforce the amendment. We have already seen that this defendant is subjected to taxes and exactions other than and different from those imposed upon “white citizens.” We have already held that the word “person,” as to property rights, as used in the amendment in question, includes a corporation, and, as used in the provision of the statute cited, it includes a corporation by express definition of the statute itself, which says, in terms: “In determining the moaning of the Eevised Statutes * * * wor(j t person’ may extend and be applied to partnerships and corporations.” Page 1, tit. 1, c. 1, § 1.
The provision of the constitution of the state of California in question, therefore, violates the provision of the fourteenth amendment in denying to defendant the equal protection of the law. “An unconstitutional law is void, and is no law.” Ex parte Siebold, 100 U. S. 376. “The constitution and laws of the United States are the supreme law of the land, and to those every citizen of the United States owes obedience, whether in his individual or official capacity, -s * * The laws of the state, in so far as they are inconsistent with the laws of congress on the same subject, cease to have effect as laws.” Id. 392, 397.
6. It is further urged on the part of plaintiff that, under the state constitution, the legislature is authorized to alter or repeal the laws under which corporations are formed,—they cannot be properly called charters,—and that this mode of taxing corporations, in effect, operates as an amendment of the act authorizing the formation of corporations, and that corporations hold their franchises in subordination to that provision.
The proceeding in question is either taxation or something else; either an exercise of the sovereign right of taxation, or the exercise of some other power; either taxation or not taxation. The provision, in terms, purports on its face to provide for taxation. The convention that framed the article, and the people, when they adopted it, *776evidently must have supposed they were providing a scheme of taxation. The provision admits of no other construction.
The provision is found in the chapter entitled “Bevenue and Taxation, ” and the section says: “For the purpose of assessment and taxation,” etc. If the proceeding is taxation, then it provides, and can only provide, for taking from the defendant an amount of money equal to its just share of the public burden relieved by the taxation, and nothing more. Anything beyond that is taking private property for public use without condensation. If the proceeding is taxation, there is no necessity for resorting to any other provision of the con-" stitution. If it is not taxation,—if the amount demanded, or the principle adopted, is imposed as a condition of continued existence, or as a limitation of its rights to exercise its franchises,—then it is an annual bonus demanded for the franchise, or the privilege of existence, such as was formerly often demanded and paid by corporations for the special privileges given by special charters, when there were no restrictions upon the legislative power upon the subject, and is not taxation. If it is a bonus demanded and paid for this right, then, in addition, the corporation is subject to taxation upon its property; for under the constitution all property must be taxed. “All property in the state,” says the constitution, “not exempt under the laws of the United States, shall be taxed in proportion to its value, to be ascertained as provided by law.” Article 13, §§ 1, 6, says that “the power of taxation shall never be surrendered or suspended by any grant or contract to which the state shall be a party.” If, therefore, the provision of section d relative to “railroad or other quasi public corporations” is a term or condition of the contract upon which its existence and further exercise of its franchises depend, then it must still be liable to taxation on its property in the proper mode. By a contract authorizing certain persons to form a corporation and exercise its franchises, however valuable the consideration received, the state cannot, as we have seen, surrender or suspend its right to tax its property besides, as all other property is taxed. Other tax-payers are entitled to have the property of corporations properly taxed. Again, if the, submission to this mode of what is called taxation becomes a valid condition of the continuance of the further existence of the corporation, and the further exercise of its franchises, then a refusal to pay the tax is a violation of the conditions of its being, and the courts, upon a proceeding for the purpose by the state in the nature of a quo ivarranto, would probably adjudge the forfeiture of1 its charter and wind up its affairs. This would be the appropriate rem *777edy. I apprehend that no court would so adjudge under the present constitution on that ground. It is clear to me, therefore, from these considerations and the express terms theniselves of the constitution, that the provision in question attempts to provide only for exercising the sovereign power of taxation,—has no other end to accomplish, and accomplishes no other purpose,—and that the rights of the parties must be determined on that hypothesis alone. Again, the general act authorizing the formation of corporations confers upon those complying with its provisions certain rights, franchises, and privileges. It endows the parties as organized with certain faculties and capacities, the result being to give them in their united character, under a certain name, a capacity to do business and acquire property. A law merely authorizing the formation of a corporation gives the corporation formed no property. That must be acquired by the corporation for itself. The legislature, under the various guaranties of the constitution, state and national, can only take away, limit, enlarge, or modify that which it gave. And what is given in the creative act is, simply, its capacities; its legal faculties, including all such as are essential to its corporate existence; all those powers which are strictly corporate, being those powers which can only be given by legislative act; powers not possessed by natural persons or partnerships, acting in their natural, individual, or associate characters, independent of legislation. These strict corporate powers I attempted to define in Orton’s Case, 6 Sawy. 187. The powers thus given, essential or otherwise, and their future exercise, may be modified, or otherwise affected, by subsequent legislation. A corporation having been formed with capacity to acquire and hold property, the legislature may, doubtless, grant to it, as well as to natural persons capable of taking, property rights; but such rights of property, when once vested, can no more be withdrawn than the property acquired from other sources, or than property granted to, or acquired by, natural persons. The property acquired in the exercise of its corporate faculties, from whatever source derived, is the property of the metaphysical being called the corporation, held, however, in trust for the sole benefit of the corporators. As such, it is protected like all other property, and can only be taken by the law of the land, in some one of the modes not inhibited by the constitution. It cannot, in my judgment, be taken even as a further condition of corporate existence without the assent of the corporation or its corporators. There is no consent in this case to submit to any such conditions, and that is not the basis upon which the action is brought. There is no promise *778to pay a bonus set out in the complaint upon which an action can be maintained. I apprehend that a mere provision in the form of a statute, or a state constit’ution adopted after the formation of a corporation, that corporations under the laws should cease to exist unless they surrender to the state all the property theretofore acquired by the corporation, would be void. And power to demand a part, as a condition of existence, however small, is power to demand all. Such a statutory demand would be but a flimsy guise or pretext for evading all the guaranties of the constitution, which would not for a moment be tolerated. It would be to seek indirectly what could not be attained directly; the accomplishment of an unlawful end by what, at best, is but apparently lawful means. See, on this point, Parrott’s Chinese Case, 6 Sawy. 349; opinion of Hoffman, J. In that case I had occasion to say:
“ The end being unlawful and repugnant to the supreme law of the land, it is equally unlawful and equally in violation of constitution and treaty stipulations to use any means, however proper or within the power of the state for lawful purposes, for the attainment of that unlawful end, or accomplishment of that unlawful purpose. It cannot be otherwise than unlawful to use any means whatever to accomplish an unlawful purpose. This proposition would seem to be too plain to require argument or authority. Tet there is an abundance of authority on the point, although, perhaps, not stated in this particular form. Brown v. Maryland, 12 Wheat. 419; Ward v. Maryland, 12 Wall. 431; Woodruff v. Parham, 8 Wall. 130-140; Hinson v. Lott, Id. 152; Welton v. Missouri, 91 U. S. 279-282; Cook v. Pennsylvania, 97 U. S. 573.”
The observations of Mr. Justice Field in Cummings v. Missouri, 4 Wall. 325, are pertinent in this connection. He said:
“ The deprivation is effected with equal certainty in the one case as it would be in the other, but not with equal directness. The purpose of the law-maker in the case supposed would be openly avowed; in the case existing it is only 'disguised. The legal result must be the same; for what cannot be done directly cannot be done indirectly. The constitution deals with substance, not shadows. Its inhibition was leveled at the thing, not the name. It intended that the rights of the citizen should be secure against deprivation for past conduct by legislative enactment under any form, however disguised. If the inhibition can be evaded by the form of the enactment, its insertion in the fundamental law was a vain and futile proceeding.” See, also, Henderson v. Mayor of N. Y. 92 U. S. 268; Chy Lung v. Freeman, Id. 279; Railroad Co. v. Huson, 95 U. S. 472.
The foregoing observations apply equally well to any effort to obtain the property of corporations by irregular means not applicable to natural persons. It seems to me that under our general system •embodied in the constitution, providing for corporations, which for*779bids the granting of any special privileges not enjoyed by all other persons, it was intended to put corporations, with respect to their property and to all other matters, except what is in fact granted by the laws, in all particulars upon the same footing as natural persons.
In my judgment, the state constitutional provisions under consideration, and the laws passed to carry them out, violate the provision of the fourteenth amendment in question in two vital particulars: (1) They assess railroad and other quasi public corporations upon a different basis from' that adopted with respect to the natural persons similarly situated, in the particulars herein pointed out; (2) they provide, with respect to natural persons, notice and an opportunity to be heard in the course of the proceeding to assess their property before the assessment becomes fixed, while they afford no such notice or opportunity to be heard to railroads and other quasi public corporations ; and in both these particulars deny to the latter the equal protection of the law within the meaning of the fourteenth amendment to the national constitution.
Again, this suit is for a tax and nothing else. It proceeds upon that idea, and the idea alone, that a valid tax has been assessed against the defendant, which this action is brought under the statute to recover. The suit cannot be maintained upon a liability imposed under other and different provisions of the constitution. If it cannot be maintained as for a tax it must fail. The recovery, if any is had, must be upon the cause of action alleged.
We do not conceive that a provision for assessing railroads operated in more than one county, by the state board of equalization, while other local property is assessed by the local assessors, would be denying the equal protection of the law, provided the assessment in the former case is, in all respects, made upon the same basis, under the same rules, and upon the same principles as to value, notice, opportunity to be heard, etc., as in the latter. The presumption would be that all the officers would perform their duties justly under the law, and that the assessments so made upon property, differently circumstanced, would operate equally. Nor do we think that the assessment of the “franchise, road-way, road-bed, rails, and rolling stock of all railroads operated in more than one county in the state, ” “by the state board of equalization,” as a unit, and apportioning the amount of the assessed value to the several counties, etc., in proportion to the number of miles in each, is objectionable, on the ground that it denies the equal protection of the law to the owner of the road.
*780Indeed, this seems to be the only practicable way of assessing such a road. It is owned and operated as a unit, and cannot be otherwise usefully employed. Its income, expenses, and management, and all its operations, are as a unit. Its rolling stock is at one point at one moment, arid at another at a different point of time, but it is all working together as a unit to the accomplishment of one end. In fragments and isolated parts, the road would be comparatively valueless as property. It is only as a unit that it can be properly considered or properly taxed. To tax it otherwise would be to tax it upon principles materially different from those applicable to other property necessarily considered and used as a unit. The character and circumstances of the property are such as seem to justify a classification for this purpose. These points, also, seem to be determined in favor of the plaintiff in the State Railroad Tax Cases, 92 U. S. 575. The other points determined in this case are not involved in those cases.
Whatever public inconvenience may temporarily result from our decision,—and it must necessarily be great,—being satisfied, as we are, that the provisions of the state constitution now in question violate the inhibitions of the fourteenth amendment, our duty is plain, and we cannot, if we would, shrink from its performance. There must be judgment for the defendant.
Since the- argument in these cases commenced, apparently in anticipation of what must necessarily be the result, various means, more or less violent, have been suggested, through the public press and elsewhere, to prevent railroad corporations irom escaping the payment of their just share of the public burdens : such as taking away their franchises; seizing and appropriating their property first, and litigating the right afterwards; and punishing by the severest penalties the officers of all such corporations, in all cases where resistance to payment of a tax is made in the courts, however illegal the exaction or whatever the ground of complaint on their part may be. Violent counsels of this character usually result in constitutional and statutory provisions such as those we have been considering and held void, which render it necessary to seek the protection of our national magna charta. It would be idle—utterly futile—to insert a provision in the national constitution guarantying to every person within its jurisdiction his life, his liberty, and his property, if certain classes can be selected out in the subordinate legislation of the country to be visited with condign punishment if they even seek to invoke the protection of this beneficient guaranty against discriminating and wrong*781ful legislation. If a single individual can be deprived of tlie protection of this provision by such means, so can all. If such things can be, wherein does the protection of the 'guaranty consist ?
A far wiser and more statesmanlike proceeding would seem to he, to avoid all occasion for resistance to wrong in the guise of void laws, by coolly and calmly re-examining the subject in the light of past experience, and so amending our state constitution and statutes as to bring them into entire harmony with all the guaranties of the fourteenth amendment, “the crowning glory of our national constitution” —that noblest and best written constitution ever devised by the wisdom of man.
If tho life, liberty, property, and happiness of all the people are to he preserved, then it is of the utmost importance to every man, woman, and child of this broad land that every guaranty of our national constitution, whatever temporary inconvenience may be felt, be firmly and rigorously maintained at all timos and under all circumstances. In the language of the supreme court of the United States:
“ Tlie constitution of tho Uuited States is a law for rulers and people, equally in war and in peace, and covers with tlie shield of its protection all classes of men, at all times, and under all circumstances. Ab doctrine involving more pernicious consequences was ever invented by the wit of man, than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism.” Milligan’s Case, 4 Wall. 120.
I concur in the judgment ordered by the circuit justice.
OBDEB STATING PBOCEEDINGS.
As the questions we have considered are of tho greatest- importance, and their correct solution concerns not merely the railroad corporation, which is tho defendant, hut corporations of every kind, other than municipal, we shall order a stay in all the other cases (not decided to-day) now pending in this court involving the same questions, until these cases can be brought before the supreme court of the United States, and the questions involved shall have received by its judgment their final and authoritative determination. If tlie decision now reached be there sustained, the state will he obliged to order a now assessment, in making which the defendant will be allowed a deduction in the valuation of its property for the mortgage thereon, and also a hearing before the state hoard of equalization with respect to the assessment. If, on the other hand, the decision be reversed, *782the other cases can be at once disposed of. By taking out a writ of error- immediately on the judgment now rendered, it is possible that the case may be advanced on the calendar and be heard at the coming term.
NOTE.
Constitutional Law—Fourteenth Amendment. The fourteenth amendment to the federal constitution contains prohibitions which have exclusive reference to the action of the state government, (Virginia v. Rives, 100 U. S. 313; Ex parte Virginia, I.d. 339; U. S. v. Cruikshank, 92 U. S. 542,) and is a guaranty of protection against state action,' (Id.; Slaughter-house Cases, 16 Wall. 36.) It created no new righfi) but operated upon legal rights as it found them established and declared that such as they were, in each state, they should be enjoyed by all persons alike, (Ward v. Flood, 48 Cal. 36,) and furnished an additional guaranty against any encroachment by the states upon the fundamental rights which belong to every citizen, as a member of society, (U. S. v. Cruikshank, 92 U. S. 543; Virginia v. Rives, 100 U. S. 313; Van Valkenburg v. Brown, 43 Cal. 43; U. S. v. Hall, 13 Int. Rev. Rec. 181,) by preventing states from doing that which will deprive the person of property, and not from regulating the use of property, (Munn v. Illinois, 94 U. S. 134.) The object of the constitution is justness and fairness. Wisconsin Cent. R. Co. v. Taylor Co. 52 Wis. 43. The amendment was designed to secure equal rights to all persons, (Ex parte Virginia, 100 U. S. 339;) and it applies to all persons, whether native or foreign, while within the jurisdiction of the United States, (Ex parte Ah Fong, 3 Sawy. 144.)
Equal Protection of the Laws. The provision as to equal protection of the laws contemplates the protection of persons and classes of persons against unjust discrimination by a state, (Missouri v. Lewis, 101 U. S. 22,) but it does, not relate to territorial or municipal arrangements made for different portions of the state, (Id.;) for a state may establish one system of law-in one portion of its territory and another system in another portion, provided it does not abridge the privileges and immunities of citizens of the United States, nor deprive a person of his rights without due process of law, nor deny any person within its jurisdiction an equal protection of the law, (Id.) Equal protection of the law implies not only equal accessibility to courts for the protection or redress of wrongs and the enforcement of rights, but equal exemption with others of the same class from all charges and burdens of every kind. Ex parte Ah Fong, 3 Sawy. 144. A law which declares that one class of persons shall have no redress, which redress is given to all by the general statutes, is in conflict with this amendment. Pearson v. City of Portland, 69 Me. 281. While the general statute remains in force for the protection of one class of persons within the jurisdiction of the state, it must remain in force for the protection of all others similarly situated. Id. A state constitution is a law in so far that it cannot violate the provisions of the federal constitution ; so held as to the provision relating to the impairment of the obligations of contracts. Dodge v. Woolsey, 18 How. 331; Groves v. Slaughter, 15 Pet. 449; Railroad v. McClure, 10 Wall. 511; Delmas v. Ins. Co. 14 Wall. 667; Gunn v. Barry, 15 Wall. 610; 8 N. B. R. 1; Moultrie Co. v. Savings Bank, 92 *783U. S. 632; In re McLean, 2 N. B. R. 173; Marsh v. Burroughs, 1 Woods, 463; Osborn v. Nicholson, 1 Dill. 235; Hawkins v. Filkins, 24 Ark. 286; Jacoway v. Denton, 25 Ark. 625; McNealy v. Gregory, 13 Fla. 417; Homestead Cases, 23 Grat. 266; Furman v. Nichol, 8 Wall. 44; Moore v. Ill. Cent. R. Co. 4 Chi. Leg. News, 123; Edwards v. Jager, 19 Ind. 407; Logwood v. Planters’ Bank, 1 Minor, 23; Chicago v. Rumsey, 87 Ill. 348; Ex parte Lee’s Bank, 21 N. Y. 9; Rutland v. Copes, 15 Rich. 84; Hazen v. Union Bank, 1 Sneed, 115; Keith v. Clark, 2 South. Law Rev. 24; Union Bank v. State, 9 Yerg. 490; Jones v. Brandon, 48 Ga. 593; Chambliss v. Jor dan, 50 Ga. 81. And so of a constitutional amendment, (Pacific R. Co. v. McGuire, 20 Wall. 36; Keith v. Clark, 97 U. S. 454;) or a change in a state constitution, (Dodge v. Woolsey, 18 How. 331; Matheny v. Golden, 5 Ohio St. 361.)
Due Process of Law. The principle is universal that no man’s property can be taken from him without his consent, express or implied, except by due course of law. Blackman v. Lehman, 63 Ala. 547. “ Due process of law ” means such an exertion of the powers of government as the settled maxims of the law permit and sanction. Bertholf v. O’Reilley, 18 Am. Law Reg. (N. S.) 119; Ex parte Ah Fook, 49 Cal. 402. It means law in its regular course of administration through courts of justice, (Barker v. Kelly, 11 Minn. 480; Rowan v. State, 30 Wis. 129; State v. Becht, 23 Minn. 413;) the law of the land, (Matter of Meador, 1 Abb. U. S. 331; Murray v. Hoboken, etc., Co. 18 How. 472; James v. Reynolds, 2 Tex. 251;) a present existing rule, and not an ex post facto law, (Hoke v. Henderson, 4 Dev. 15; Taylor v. Porter, 4 Hill, 146; Wynehamer v. People, 13 N. Y. 393; Norman v. Horst, 5 Watts & S. 171;) a law existing at the time of vesting of rights, (Wilkinson v. Leland, 2 Pet. 658; Osborn v. Nicholson, 13 Wall. 662.)
The fourteenth amendment does not employ the phrase “ due process of law ” in any new sense but as employed in the state constitution. Murni v. Illinois, 94 U. S. 118. The term, when applied to judicial procedure, moans a course of legal procedure according to those rules and principles established by our jurisprudence for the protection and enforcement of private rights, (Pennoyer v. Neff, 95 U.S. 714,) and generally implies and includes parties, judge, regular allegations, and a trial according to some settled course of judicial proceedings, (Murray v. Hoboken, etc., Co. 18 How. 272; Huber v. Reily, 53 Pa. St. 112; Rees v. Watertown, 19 Wall. 122; Westervelt v. Greg, 12 N. Y. 202;) a timely and regular proceeding to judgment and execution, (Dwight v. Williams, 4 McLean, 586;) a legal proceeding under direction of a court (Newcomb v. Smith, 1 Chand. 71) intended to secure the right of trial according to the forms of law,' (Parsons v. Russell, 11 Mich. 113.)
The phrase “ due process of law ” does not in all cases necessarily require judicial proceedings, (McMillan v. Anderson, 95 U. S. 37; see, to same effect, Pearson v. Yewdall, Id. 294; Murray v. Hoboken, etc., Co. 18 How. 272; Davidson v. New Orleans, 96 U. S. 897; Greene v. Briggs, 1 Curt. 311; Murray v. Hoboken, etc., Co. 18 How. 272; Hoke v. Henderson, 4 Dev. 15; Taylor v. Porter, 4 Hill, 146; Van Zandt v. Waddel, 2 Yerg. 260; State Bank v. Cooper, 2 Yerg. 599; Jones v. Perry, 10 Yerg. 59.) and does not necessarily import a trial by jury, (Ex parte Meador, 1 Abb. U. S. 317; Petition of McMahon, 22 N. Y. Daily Reg. 881;) but includes summary remedies, (Martin v. Mott, 12 *784Wheat. 19; U. S. v. Ferreira, 13 How. 40; Murray v. Hoboken, etc., Co. 18 How. 272.) A summary seizure of lauds for non-payment may be authorized by state lawsj and this is not a violation of the provision as to due process of law. McMillan v. Anderson, 95 U. S. 37. It simply requires that a person should be brought into court and have an opportunity to prove any fact for his protection. People v. Essex Co. 70 N. Y. 229. It implies the right of the person affected thereby to be present before the tribunal which pronounces judgment, to he heard by testimony or otherwise, and to have the right to controvert by proof any material facts which bear on the question of right; and if any question of fact or liability is conclusively presumed against him, it is not due process of law. Zeigler v. S. & N. R. Co. 58 Ala. 594; Wilburn v. McCalley, 63 Ala. 436. There must be a competent tribunal, and the party affected must be brought within the jurisdiction. Pennoyer v. Neff, 95 U. S. 714. It is a fundamental principle that before a person can be deprived of a right, even by judicial suit, he must have notice and reasonable opportunity to be heard in defense of his rights. Gilmore v. Sapp, 100 Ill. 297.
Although differing from proceedings in courts of justice the general system of procedure for the levy and collections of taxes, established in this country, is, within-the meaning of the constitution, due process of law. Kelly v. Pittsburgh, 104 U. S. 78. The revenue laws of a state may be in harmony with the fourteenth amendment, which declares that no state shall deprive any person of life, liberty, or property without due process of law, although they do not provide that a person shall have an opportunity to be present when a tax is assessed against him, or that the tax shall be collected by suit. McMillen v. Anderson, 95 U. S. 37. A statute which gives a person against whom taxes are assessed a right to enjoin their collection, and have their validity judicially determined, is due process of law, notwithstanding he is required, as in other'injunction cases, to give security in advance. Id. An act which makes ample provision for judicial inquiry in matters therein mentioned, is due process of law. Pearson v. Yewdall, 95 U. S. 294. A party is not deprived of his property without due process of law by the enforced collection of taxes, merely because they, in individual cases, work hardships or impose unequal burdens. Kelly v. Pittsburgh, 104 U. S. 78. It is a difficult attempt to give an authoritative definition of what it is for a state to deprive a person of his life, liberty, or property without due process of law, within the meaning of this amendment. The enunciation of the principles which govern each case as it arises is the better mode of arriving at a sound definition. Davidson v. New Orleans, 96 U. S. 97. Neither the unlimited power of a state to tax, nor any of its large police power, can be exercised to such ail extent as to work a practical assumption of the power conferred by the constitution upon congress. Railroad Co. v. Husen, 95 U. S. 465.
Privileges and Immunities of Citizens. The first clause of the first section of the fourteenth amendment applies to the colored race, and its purpose is to establish the citizenship of the negro, and secure to the colored race the benefit of the freedom previously accorded to them. Slaughter-house Cases, 16 Wall. 36. The second clause protects from hostile legislation of the states the privileges and immunities of citizens of the United States, as distinguished from the privileges and immunities of citizens of the state. Slaughter*785house Cases, 16 Wall. 36; Frasher v. State, 3 Tex. Ct. App. 267. Whether the amendment had other, and if so, what purposes, not decided. Straunder v. West Virginia, 100 U. S. 303. A corporation created by and doing business in a particular state is to be deemed to all intents and purposes a person, although an artificial person, an inhabitant o£ the state, for the purposes of its incorporation, capable of being treated as a citizen of that state, as much as a natural person. Louisville, etc., R. Co. v. Letson, 2 How. 497. This decision put an end to the controversy on that point, and also put an end to what has long been felt, by the profession as well as the bench, to be an anomaly in our jurisprudence, (see Greely v. Smith, 3 Story, 76,) and is accepted as a precedent, (Marshall v. Balt, & Ohio R. Co. 16 How. 314; compare Northern Ind. R. Co. v. Mich. Cent. R. Co. 15 How. 223; Lafayette Ins. Co. v. French, 18 How. 404;) and as to a corporation being a citizen, it lias been ever since adhered to, (Covington Draw-bridge Co. v. Shephard, 20 How. 227.) A corporation is deemed a “person” within the penal statutes as well as for civil purposes, (U. S. v. Amedy, 11 Wheat. 392;) within the statute of usury, (Thornton v. Bank of Washington, 3 Pet. 36;) within the treaty clause against confiscation and prosecution, (Society for Prop. of Gosp. v. New Haven, 8 Wheat. 464.)
So a corporation is deemed.a citizen for the purposes of jurisdiction in the courts of tlie United States,—see Desty, Fed. Proc. (2d Ed.) § 629,—and as to the right of removal of a cause into the federal court, see Desty, Kern. Causes, § 10/c. When the legislature provides for taxing the property of individuals, the constitution requires it to tax the property of corporations for pecuniary-profit to the same extent and for the same purposes. Mayor, etc., of Mobile v. Stonewall Ins. Co. 53 Ala. 570; City of Davenport v. C. I. & P. R. Co. 38 Iowa, 633.
State Power of Taxation. The power of taxation is an attribute of sovereignty of every government. Transportation Co. v. Wheeling, 99 U. S. 281. The power of the state to tax is an inherent and indispensa,hie incident to sovereignty, (Western U. Tel. Co. v. Mayer, 28 Ohio St. 53; Dobbins v. Com’rs, 16 Pet. 435;) and exists independent of the constitution of the United States, (McCulloch v. Maryland, 4 Wheat. 316; Lane Co. v. Oregon, 9 Wall. 77; Railroad Co. v. Peniston, 18 Wall. 29; Nathan v. Louisiana, 8 How. 73; People v. Coleman, 4 Cal. 46.) l?y the revolution the powers of government devolved upon the people of the United States. McCulloch v. Maryland, 4 Wheat. 316; Dartmouth College v. Woodward, 4 Wheat. 518; Green v. Biddle, 8 Wheat. 1; Ogden v. Saunders, 12 Wheat. 213; Cherokee Nation v. Georgia, 3 Wall. 585. The power is supreme unless the subject be beyond the borders of the state, or t he property within the state has been ceded to the United States, and within its separate and exclusive jurisdiction; and this supremacy cannot be questioned by the judiciary. See Desty, Fed. Const. 59, and cases cited. The power to tax all property within the jurisdiction, does not include public property; the word “all” in the state constitution applies only to private property. People v. Doe C. 36 Cal. 220. Except as restricted by the constitution, the state lias full power of taxation over all subjects, (Id. note 5;) and to every object of value, except as restricted by the constitutional provisions as to the means and instrumentalities for carrying out the powers of government, and such as are noces*786sarily implied as falling within the category of such means and instruments, (Day v. Buffington, 3 Cliff. 387; Transportation Co. v. Wheeling, 99 U. S. 279; Savings Society v. Coite, 6 Wall. 604; State Tonnage Tax Cases, 12 Wall. 204;) such as national banks; (McCulloch v. Maryland, 4 Wheat. 316; Osborn v. Bank, 9 Wheat. 860; National Coml. Bank v. Mobile, 62 Ala. 284; Hills v. Nat. Alb. Exch. Bank, 12 Fed. Rep. 95; Evansville Nat. Bank v. Britton, 25 Alb. L. J. 432; Bank Tax Case, 2 Wall. 200; Farmers’ Nat. Bank v. Dearing, 91 U. S. 29;) or United States bonds; (Bank of Commerce v. New York, 2 Black, 620; Bank Tax Case, 2 Wall. 200; Chicago v. Lamb, 52 Ill. 414; Bank of Kentucky v. Com’rs, 9 Bush, 46; Op. Just. 53 N. H. 634;) or treasury notes or other government securities; (The Banks v. Mayor, 7 Wall. 16; Bank v. Sup’rs, Id. 28; Montgomery Co. v. Elston, 32 Ind. 27; State v. Haight, 37 N. J. Law, 128; Desty, Fed. Const. 63;) or government revenue stamps; (Palfrey v. Boston, 101 Mass. 329;) or money in the treasury; or precious metals in the mint; or the lots, structures, ships, materials of war, or other property devoted to the public purposes of the United States, (City v. Churchill, 33 N. Y. 693; S. C. 43 Barb. 550,) situated within its limits, (Anon. 9 Op. Atty. Gen. 291.) These exemptions depend upon the effect of the tax,— whether it will hinder the efficient exercise of the powers of the government, (Railroad Co. v. Peniston, 18 Wall. 5; Nat. Bank v. Com’r, 9 Wall. 353; Dobbins v. Com’rs, 16 Pet. 435; Waite v. Dowley, 9 Chi. Leg. News, 263;) but do not apply where a tax only remotely affects its exercise, (Railroad Co. v. Peniston, 18 Wall. 5;) so a railroad company was held not exempt from state taxation, as being a means or instrument employed by the national government for the transportation of the mails, arms, and munitions of war of the United States. Huntington v. Cent. Pac: R. Co. 2 Sawy. 503. See State Bank Tax Cases, 92 U. S. 595.
Equality and Uniformity of Taxation. The provision of the constitution of the United States, art. 1, § 8, subd. 1, was designed to secure uni- ' formity as between the states, not as between different kinds of property; in the language of Judge Story, “to cut off all undue preferences of one state over another in the regulation of subjects affecting their common interests.” And the object of the state constitutions was to secure the same equality as between different kinds of taxable property that the other designed to secure as between the states. And this can only be attained by a uniform rule. State v. Winnebago Lake & F. R. P. Co. 11 Wis. 42; Exchange Bank v. Hines, 3 Ohio St. 1. See Western Union Tel. Co. v. Mayer, 28 Ohio St. 592; Waring v. Savannah, 60 Ga. 93; Marsh v. Clark Co. 42 Wis. 502. The object of such constitutional provisions is to regulate the powers of taxation by such limitations and restrictions as will protect against unjust or arbitrary action. West. U. Tel. Co. v. Mayer, 28 Ohio St. 533. See McCulloch v. Maryland, 4 Wheat. 316; Providence Bank v. Billings, 4 Pet. 519; North. M. R. R. v. McGuire, 20 Wall. 46. To be uniform, taxation need not be universal. Certain objects may be made its subjects’and others be exempted, but as between subjects of the same class there must be equality. New Orleans v. Fourchy, 30 La. Ann. 910; State v. Poydras, 9 La. Ann. 165. The legislature has the power to prescribe not only the property to be taxed, but the rule by *787■which it must he taxed, and the only limitation oí that power is that the rule shall he uniform. Wisconsin Cent. R. Co. v. Taylor Co. 52 Wis. 37, 43, and cases cited. Uniformity means that all kinds of property not absolutely oxempt must be taxed alike by the same standard of valuation equally with other taxable property, and co-extensively with the territory to which it applies. Gilman v. Sheboygan, 2 Black, 510. They must he uniform in respect to persons and property within the jurisdiction of the body imposing the same, (Hanscom v. Omaha, 11 Neb. 37,) and all property of any particular class must he taxed alike. Wisconsin Cent. R. Go. v. Taylor Go. 52 Wis. 43, and cases cited; Home Ins. Co. v. Augusta, 50 Ga. 543. It is uniform when it is equal upon all persons belonging to the described class upon which it is imposed. Gatlin v. Town of Tarboro, 78 N. C. 119. To render taxes uniform it is essential that the tax district should coniine itself to objects of taxation within its limits, hut this with the understanding that the situs of personal property may he the domicile of the owner. Barton v. Kalloch, 56 Cal. 95; People v. Townsend, 56 Cal. 633; People v. Placerville, 34 Cal. 656.
The constitutions of some of the states, in terms or by necessary implication, require all private property to be taxed in proportion to its value. O’Kane v. Treat, 25 Ill. 557; Mobile v. Dargan, 45 Ala. 310; Mobile v. Street Ry. Co. Id. 322; Washington v. State, 13 Ark. 752; McGehee v. Mathis, 24 Ark. 40. The constitution of Kansas differs from the constitution of other states, requiring only a uniform “ rale” of taxation and not requiring all property except that which is exempt to be taxed by a uniform rule; hence railroad property in that state may be assessed in one manner and other property in a different manner, and personal property he assessed on different rules, and still all the assessments be held valid. Com’rs of Ottawa v. Nelson, 19 Kan. 238; Gulf R. Co. v. Morris, 7 Kan. 210. Tho constitution of California, art. 13, § 1, providing that all property in the state, not exempted under the laws of the United States, shall be taxed in proportion to its value, to be ascertained as provided by law, requires that the assessor shall proceed to ascertain such value in the manner provided by law. Hyatt v. Allen, 54 Cal. 353. And the provisions requiring that all taxes shall be uniform on the same class of subjects within the territorial authority levying the tax, is merely declaratory of the law before the adoption of the new constitution. Kitty Roup’s Case, 81* Pa. St. 211. Where the constitution requires that tho valuation must he uniform, and in all cases alike and equal, and tho legislature prescribes a different rule, the act is a departure from the constitution and void. Knowlton v. Sup’rs Rock Co. 9 Wis. 410. Equality of taxation means apportioning the contributions of each person towards the expenses of government so that he shall feel neither more nor less inconvenience from his share of tho payment than every other person experiences. Kirby v. Shaw, 19 Pa. St. 258. Perfectly equal taxation is perhaps unattainable, (Grim v. School-dist. 57 Pa. St. 433;) it can never be but approximation, (Allen v. Drew, 44 Vt. 174;) as from the nature of the case there can be no uniform rule for making the assessments, (Coite v. Soc. for Savings, 32 Conn. 173;) and for that reason equality of taxation is not enforced by the hill of rights, (Kirby v. Shaw, 19 Pa. St. 258;) but where a moral obligation exists the legislature may give it legal effect, (Lycoming v. Union, 15 Pa. St. 166.)
*788Unjust Discriminations. The principle of equality running through our constitutional system does not admit of discrimination in behalf of one citizen to the detriment of another. Mason v. Trustees, 4 Bush, 408. Taxes should be regulated by fixed general rules, and be apportioned by law according to a uniform ratio of equality, (Sutton v. Louisville, 5 Dana, 28; Woodbridge v. Detroit, 8 Mich. 274; Grim v. School-dist. 57 Pa. St. 433; Knowlton v. Rock County, 9 Wis. 410;) the object being protection of the tax-payer against discriminating exactions, (Lexington v. McQuillan, 9 Dana, 513.) The constitution of Illinois precludes discrimination against classes of persons or property, (Primm v. Belleville, 59 Ill. 142,) and against railroad property, (Bureau County v. Chicago, etc., R. Co. 44 Ill. 229; Chicago, etc., R. Co. v. Boone County, Id. 240.) Restrictions may be necessary to prevent abuses which may not amount to a violation of the rule of uniformity. There may be uniform abuses of the taxing power by reckless and improvident management on the part of local authorities, and the provisions of the constitution requiring the legislature, in establishing municipal corporations, to restrict their powers of taxation so as to prevent abuses, etc., is designed to give further protection in addition to that furnished by the rule of uniformity. Weeks v. Milwaukee, 10 Wis. 242. . When the inequality of valuation is the result of a statute of the state, designed to discriminate injuriously against any classes oí persons or species of property, the court will grant appropriate relief. People v. Weaver, 100 U. S. 539; Fulton v. National Bank, 101 U. S. 143; Cumming v. National Bank, Id. 153; National Bank v. Kimball, 2 Morr. Trans. 463. A statute in derogation of the rights of property, or which takes away the estate of the citizen, must be strictly construed, (Sharp v. Spier, 4 Hill, 76; Bloom v. Burdick, 1 Hill, 130;) but courts will not interfere on the ground that the tax is unfair or unjust, unless the fundamental law of the land has been violated. Linton v. Mayor of Athens, 53 Ga. 588; Cleghorn v. Postlewaite, 43 Ill. 428; Darling v. Gunn, 50 Ill. 424. See Second Nat. Bank v. Caldwell, ante, 429, and note. Where a law is unconstitutional courts will hold it void, but upon no other ground can it be disregarded. P., C. & St. L. Ry. Co. v. Brown, 77 Ind. 45. So, where statutes impose taxes on false and unjust principles, or operate to produce gross inequality, courts may interpose and declare such enactments void. Com. v. Savings Bank, 5 Allen, 428. See Lowell v. Oliver, 8 Allen, 247; Ould v. Richmond, 23 Grat. 464; Howell v. Bristol, 8 Bush, 493. But they cannot afford relief from the enforcement of laws prescribing modes and subjects of taxation if they neither trench upon the federal authority nor violate any right secured by the constitution.- Kirtland v. Hotchkiss, 100 U. S. 491. Courts ought not to declare a law void without a strong and earnest conviction, divested of all reasonable doubt, of its invalidity. Chicago, D. & V. R. Co. v. Smith, 62 Ill. 268; Lane v. Dotman, 4 Ill. 238; People v. Marshall, 6 Ill. 672.
An act which fixes absolute liability in a corporation, and which does not provide “due process of law,” is in violation of the bill of rights. Zeigler v. S.&N. R. Co. 58 Ala. 594. See Plumer v. Marathon County, 46 Wis. 163. A statute which atteknpts to make an assessment conclusive evidence of the amount due for taxes is invalid. Plumer v. Marathon Co. 46 Wis. 163. Where a statute establishes a rule for the estimation of the value of railroad *789property for taxation which is in contravention of the constitution, the assessment of taxes made in obedience thereto is invalid. Board of Assessors v. Ala. Cent. R. Co. 59 Ala. 551. A statute which permits deductions for indebtedness to be made from the assessed value of property does not operate to render taxation unequal. Wetmore v. Multnomah Co. 6 Or. 463. Where debts existed which ought to have been deducted, but were not deducted, the as- : essuxeut was held voidable but not void, the assessors being entitled to notice of the existence of debts which lie was entitled to have deducted. Supervisors v. Stanley, 12 Fed. Rep. 82. That they are totally void, see samo case, dissenting opinion of Bradley, J., p. 91. An act of the legislature which refuses to the shareholders of a national bank the same deduction for debts due by him from his shares of stock that it allows to others who have moneyed capital otherwise invested, is in conflict with the act of congress permitting shares of national banks to bo taxed. Williams v. Weaver, 100 U. S. 539; and see Ruggles v. Fond du Lac, 53 Wis. 436; People v. Weaver, 100 U. S. 539; People v. Dolan, 36 N. Y. 59; Ankeny v. Multnomah Co. 4 Or. 271; S. C. 3 Or. 386; Pelton v. National Bank, 101 U. S. 143. That a suit to enjoin the collection of a tax under such an act may be enjoined, see Hills v. Nat. Alb. Exch. Bank, 12 Fed. Rep. 93; and see Second Nat. Bank v. Caldwell, ante, 429, and note.
Journals of tiie Legislature as Evidence. By the provisions of the state constitution a bill must bo read at length on three separate days in each house, unless, in case of urgency, two-thirds of the house, by a vote taken by yeas and nays, dispense with the provisions either as to the manner of reading or the reading on separate days. Weill v. Kenfield, 54 Cal. 111. That the journals of the legislature may be examined to ascertain that a bill was constitutionally passed, see Walnut v. Wade, 103 U. S. 683; Perry County v. Railroad Co. 58 Ala. 546; Harrison v. Goody, 57 Ala. 49; Walker v. Griffith, 60 Ala. 361.—[Ed.