concurring. The discussion in this opinion, though applicable to all the cases tried, will have special reference to the facts in the case of Santa Clara county, No. 3,074.
This case is similar, in the main features, to that of San Mateo Co. v. Southern Pac. R. Co., decided by this court last year. 8 Sawy. 281; [S. C. 18 Fed. Rep. 147, 722.]
The questions involved require for their solution a construction of two clauses in the first section of the fourteenth amendment to the constitution of the United States, which declares that no state shall “deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. ” Poes the requirement of due process of law extend to the taking of property by taxation; and does equality of pro-*416teetion by tbe laws secure a person, whatever bis association with others in business, from the imposition of greater burdens by taxation than such as are equally imposed upon others under like circumstances'? Or, are persons excepted from the protection of these provisions when their property is taken for the support of government, or when they are associated with others in a corporation for the more convenient transaction of their business ?
1. As to the meaning of the phrase “due process of law,” found in the fourteenth amendment, I used this language in the San Mateo Case:
“ 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 he heard; or that a proceeding whereby his life or liberty should be forfeited, or permanently affected, without notice, or opportunity to be heard in his own defense, could, by any possibility, be by ‘due process of law.’ In sueh cases there could be no just conception of 1 due processpf law,’ that would not embrace these elements of notice, and opportunity to be heard. Any conception excluding these elements would be 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 be attributed to the phrase with respect to property, and another with respect to life and liberty.” 8 Sawy. 288; [13 Fed. Rep. 762, 763.]
It was then argued that the same construction must be given to the same language, when used in the same relation with reference to property, that is given when used with reference to life and liberty; and therefore that due process of law, whereby a party is to be deprived of his property, as one element or ingredient, must include an opportunity to be heard; and it was said that this principle was conceived to be established by an unbroken line of authorities. On the trial of this case counsel have vehemently assailed this doctrine, accompanied with the confident assertion that it has not the sanction of any authority, and that the only authority upon the point is against it, and was not referred to by the court, or by counsel, in the San Mateo Case. It may be well, therefore; to give some further consideration to the position thus asserted.
No counsel has yet appeared who has endeavored to maintain the -proposition that; if a man’s life is taken, or he is permanently deprived of his liberty, by some secret tribunal or body of men, without having notice or an opportunity to be heard in his own defense, he has had the benefit of >“due process of law.” If there is anything that was settled under the principles of the common and the constitutional law of England before the severance of the colonies from the mother country, and the establishment of our national constitution, it is that no man can be deprived of his life or his liberty without a trial by his peers — without an opportunity to be heard in his own *417defense. The law of the land — due process of law — vouchsafed to him this right or privilege. A man deprived of life, without enjoying the right of an opportunity to be heard, is simply assassinated or murdered; and the man permanently immured in a dungeon for an imputed offense, upon the order of any man or body of men, without an opportunity to be heard against the charge made, is arbitrarily and despotically deprived of his liberty without authority of law,— without “due process of law,” — or in direct violation of “the law of the land.” So, also, I have understood it to he equally well established, as a part of the common and constitutional law of England, as a general rule, that no man’s properly can bo lawfully taken from him against his will without an opportunity of being heard.
These rights of life, liberty, and property are all fundamental personal rights of the same grade or character. They are treated as such in the amendment to the constitution in question, and placed upon precisely the same legal footing, in the same sentence; the identical words, without even a repetition, covering them all: nor “shall deprive any person of life, liberty, or property without due process of law. ” No one has attempted to maintain the proposition that a person can be lawfully deprived of his life or liberty without an opportunity to be heard; nor has any ono, so far as I am aware, endeavored to show that “duo process of law,” as a general rule, respecting notice, and an opportunity to be be heard, means one thing with reference to depriving one of life and liberty, and something else with reference to depriving him of property. It is only sought by counsel to maintain that “due process of law” does not universally require an opportunity to be heard, as a condition of lawfully depriving one of his property, without considering the other branch of the proposition at all. It devolves upon those who maintain that there is a difference in the signification of this clause, as a general rule, as applied to life and liberty, and to property, to clearly establish it; and if there is an exception to the universality of the rule, to point it out, and show that the case under consideration is within tho exception.
The counsel, in combating the principle stated, insists that the language used by the court is altogether too broad; that there are cases,— peculiar cases, — as shown by the authority cited by him, to which it is inapplicable. If this were so, it would only show that there may be exceptions to the general rule, depending upon special circumstances and long-established usage. But it would, then, bo necessary to show that the case in hand is within some recognized exception, and this has not been done. ■
In the San Mateo Case we disclaimed any attempt to give an accurate definition of the term, “due process of law,” that should be “applicable to all casos,” as it was not deemed “necessary for the determination of this ease to do so.” This disclaimer loft room for exceptions founded upon long-recognized and well-established usage. *418We there said that “to take one’s property by taxation is to deprive one of bis 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'doctrine was recognized that those forms and courses of proceeding based upon well-recognized principles in force before and at the time of the adoption of our national constitution, would be “due process of law.” The case of Murray’s Lessee v. Hoboken Land & Imp. Co. 18 How. 274, upon which counsel rely, is a case of the kind, — an exception to the ordinary rule of law depending upon the peculiar character, conditions, and circumstances of the case.
The mode of proceeding in this particular class of eases had the sanction of long-established usage in England before and down to the settlement of our country; and Mr. Justice Curtis’ whole opinion, is a labored effort to show that the case he was discussing was an exception to the ordinary rule of law, dependent alone upon long-established and exceptional usage. The case was that of a defaulting public officer, who had collected a large amount of public revenue of the United States, and appropriated it to his own use. The act of congress provided a summary mode of proceeding to collect the money from him. It provided, among other things, for an auditing of the defaulting official’s accounts, and certifying the amount due by the proper officers of the treasury, (the accounts are made up from the returns of the officer himself, and are matters of record in the treasury department;) that, when so audited and certified, it should become a lien on the property of the defaulting officer, which should be enforced by seizure and sale under a distress warrant issued by the solicitors of the treasury. The constitution having invested the judicial power in the courts mentioned in it, and declared that the judicial power shall extend to controversies to which the United States are a party, the questions were whether these acts under the statute of 1820 were an exercise of judicial power vested solely in the courts; and, if not an exercise of judicial power, whether such a seizure, under the warrant, without the action of the judicial power, did not deprive the party of his property “without due process’of law,” in violation of the provisions of the constitution on that point. Or, as stated by Mr. Justice Curtis himself, the questions were, whether “a collector of customs, from whom a balance of account has been found to be due by accounting officers of the treasury, designated for that purpose by law, can be deprived of his liberty or property in order to enforce payment of that balance, without the exercise of the judicial power of the United States, and yet by ‘due process of law,’ within the meaning of those terms in the constitution; and if so, then, secondly, whether the warrant in question was such due process of law?” He discusses the question as to what is meant by “due process of law,” *419and concludes that a distress warrant, so far as the warrant itself is considered, is due process of law, provided there was no judicial action necessary as a basis for the warrant; for congress can prescribe any kind of process, so far as the form and mode of issue is concerned. He then discusses the question as to whether the action of the treasury department, in auditing and certifying the account, constituted a sufficient basis for the warrant to make the proceeding due process of law. There being nothing in the constitution to expressly authorize the proceeding, he “looked to the usages and modes of proceeding existing in the common and statute laws of England before the emigration of our ancestors from England, and which are not shown to hayo been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.” He found in regard to certain debtors of the king — defaulting receivers of the revenue in particular — that a summary remedy existed, and a writ of extent might be levied upon their goods and lands; but “to authorize a writ of extent, however, the debt must be matter of record in the king’s exchequer.” Thus the debt was already ascertained by matter of record. “In regard to debts duo upon simple contracts, other than those due from collectors of the revenue, and other accountants of the crown, the practice from very ancient times has been to issue a commission to inquire as to the nature of the debt”— a proceeding of a strictly judicial nature, and, therefore, due process of law. These proceedings were bad under various acts of parliament — that omnipotent legislative body which could repeal Magna Charla itself.
Justice Cubits proceeds:
“ This brief sketch of the modes of proceeding to ascertain and enforce payment oí balances due from receivers of the revenue in England, is sufficient to show that the methods of ascertaining the existence and amount of such debts, and compelling their payment, have varied widely from the usual course of the common law on other snlyeets; and that, as respects such debts due from such officers, the law of the land authorized the-employment of auditors, and an inquisition without notice, and a species of execution, bearing a very close resemblance to what is termed a warrant of distress in the act of 1820, now in question. * * * It is certain that this diversity in the law of the land, between public defaulters and ordinary debtors, was understood in this country, and entered into the legislation of the colonies and provinces, and more especially of the states, after the declaration of independence, and before the formation of the constitution of the United States.”
As thus seen, this mode of enforcing the payment of balances was limited to defaulting collectors, and “receivers of the public revenues of England, and where the debts were of record in the king’s exchequer.” And it shows that the methods of ascertaining the existence and amount of such debts and compelling their payment have varied widely from the usual course of the common law on, other subjects; “and as respects such debts due from such officers ‘the law of the land’ authorized” a summary process similar to that of the law of 1820; *420and “this diversity in the ‘ law of the land ’ between public defaulters and ordinary debtors was understood in this country;” Thus, this mode of proceeding was an exception to the general rule as to what is “the law of the land,” or “due process of law,” made in favor of the In'ng against those who accepted office from him, under and subject to laws burdened at the time with peculiar and stringent remedies, and then violated their duties and trusts by. appropriating the public revenues collected, instead of putting them into the treasury, and whose indebtedness was “matter of record in the king’s exchequer.” This exception is recognized by the court, but as an exception, and the decision is put upon the ground that it is an exception and not the rule. “For,” says Mr. Justice Curtis, “though ‘due process of law’ generally implies actor, reas, judex, regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceedings, — 2 Inst. 47, 50; Hoke v. Henderson, 4 Dev. (N. C.) 15; Taylor v. Porter, 4 Hill, 146; Vanzant v. Waddel, 2 Yerg. 260; State Bank v. Cooper, Id. 599; Jones' Heirs v. Perry, 10 Yerg. 59; Greene v. Briggs, 1 Curt. 811; — yet this is not universally true.” An exception, then, is found in cases against defaulting public officers, whose'debts are of record. And such was the case in Murray's Lessee v. Hoboken Land & hnp. Co. The court, in speaking of such defaulting officers, further says congress has power to levy and collect taxes, etc.:
“What officers should be appointed to collect the revenue thus authorized to he raised, and to disburse it in payment of the debts of the United States; what duties should be required of them; when and how and to whom they should account, and what security they should furnish, and to what remedies they should be subjected to enforce the proper discharge of their duties, — congress was to determine. In the exercise of their powers they have required collectors of customs to be appointed; made it incumbent on them to account, from time to time, with certain officers of the treasury department, and to furnish sureties by bond for the payment of all balances of the public money which may become due from them. And by the act of 1820, now in question, they havb undertaken to provide summary means to compel these officers — and, in case of their default, their sureties — to pay such balances of the public money as may be in their hands.”
Whatever may have been tbe grounds of tbe distinction originally made between defaulters among public revenue officers and other citizens, the case of such defaulting officers is clearly shown to be an exception to the general rule, resting upon very special circumstances; and the Hoboken Land Co. Case, cited by counsel, affords a striking illustration of the maxim that “the exception proves the rule.”
But again, under the statute of 1820, (3 St. 595,) by express provisions of section 4, tbe party did in fact have an opportunity to be beard before be could be deprived of his property. That section provided “that if any person should consider himself aggrieved by any warrant issued under this act, be may prefer a bill of complaint to any district judge of tbe United States, setting forth the nature and *421extent of the injury of which he complains,” and have a hearing. It is true that there was a determination of his liability, and process issued, that would become .final and conclusive if he did not ask for a hearing, and Mr. Justice Curtis observes upon this section: “The act of 1820 makes such a provision for reviewing the decision of the accounting officers of the treasury; but until it is reviewed it is final and binding.” And in all cases of taxes under the constitution of California, except where the assessment is made by the state board of equalization, the assessment is first made by the assessor, and the tax-payer may afterwards, on a proper petition, have the action of the assessor reviewed by the board of equalization, and thus have an opportunity to be heard before his property is finally appropriated * yet, if he does not apply for such review, the tax levy becomes final and conclusive, and will be collected in the ordinary way by seizure and sale, or such other means as may be provided.
Both the ordinary tax-payer, under the laws of California, and the defaulting officers, under the act of 1820, therefore, have an opportunity to be heard before their property can be finally appropriated in a similar sense, and at a corresponding stage of the proceeding. If the opportunity thus afforded the tax-payer is in accordance with due process of law within the general rule, it is not apparent why the opportunity afforded the defaulting officer by the act of 1820 is not, also. They both stand upon the same footing as to the time when an opportunity to be heard is given, — the first determination before a hearing being only provisional; the accounting and seizure under the act of 1820 being something in the nature of an attachment to secure a lien, with an opportunity to be afterwards heard if the amount claimed by the government is not, in fact, due.
In our judgment, this case in no sense or particular conflicts with the point decided by us as to the general rule, — and the rule applicable to that case, — in the San Mateo County Case; on the contrary, we think it a strong case to support the rule. It was cited by counsel and considered by us in the San Mateo Case, but we did not think it militated against our decision, and we did not deem it necessary to extend the discussion by noticing it in the opinions delivered.
But after carefully reviewing the case, in consequence of its being so confidently relied on, and the only one relied on, as being directly inconsistent with our decision on this point, we think it may well be cite,d by us as a strong authority in support of our judgment. These tax cases certainly are not within the exception recognized in that case. The case is the only authority cited — unless the Illinois Railroad Tax Cases, 92 U. S. 575, were so regarded by counsel — claimed to be in direct conflict with our decision on this point, and the Hobo-ken Land Case had no relation at all to what is necessary to constitute a valid levy of a public tax. No authority was cited'to show that a tax levy upon property to be assessed upon evidence of its value is one of the exceptions to the general rule, that an opportunity to be *422beard before propérty can be taken from its owner, and appropriated to public use, is an essential element of “due process of law.”
In the Illinois Railroad Tax Gases, referred to by counsel, the points discussed and relied on were that the act under which the tax was levied and equalized was void, as being in contravention of the constitution of that state; and that the bills in chancery filed presented no case for an injunction, for the reason that there had been no payment or'tender of so much of the tax as was conceded ought to be paid. The court rested its decision mainly upon the latter ground, but also held that, as the supreme court of Illinois had decided the act not to be’in contravention of the state constitution, that decision would control the action of the courts of the United States. The court, however, expressed its concurrence with the views of the state supreme court, on that point.
In the course of the opinion delivered it was said that the state board of equalization of Illinois, in equalizing the taxes of the several counties, — the equalization being by classes and counties, — need give no notice to individual tax-payers, other than such as the law afforded; but, as I understand the decision, this was said with reference to the point whether^ the statute was valid under the state constitution. There does not appear to have been any point argued or relied on as to what constitutes “due process of law;” and the court, in its decision, does not decide, discuss, or even allude to the question as to what are the necessary elements in “due process of law,” with reference to taxation, or otherwise, within the meaning of the fourteenth amendment to the national constitution. That question was, evidently, not decided or considered by the court, or argued by counsel. We therefore do not regard the observations made in the course of the opinion upon statutory notice in its relation to the equalization >of taxes, on the question bf the validity of the statute under the state constitution, or other casual remarks upon points not argued or well considered, as authoritative upon the point now under consideration.
This case, as well as the San Mateo Case, has been laboriously prepared and elaborately argued by many eminent counsel, and if the industry of the attorney general, and the large number of attorneys and special counsel -for the numerous counties interested in the question, has failed to find any recognition of the principle they were endeavoring to maintain, either in the practice of the several states, in the text-books, or,decisions, or even dicta of the courts, we think it will be safe to presume that none can' be found. The assertion of counsel — which, for its positiveness, is extraordinary — that the court “finds no warrant whatever in the books” for the views expressed in the San Mateo Case, that an opportunity to be heard before property can be compulsorily taken from a person in the form of a general tax upon property, is an essential element in “due process of law,” may be attributed to the zeal of the advocate. This assertion is not based on the pretense that the language quoted from the various cases cited *423is not found in the decisions, but on tho ground that in some of the cases the decision did not turn upon the precise point whether such an opportunity is an essential element of “due process of law,” and in the other cases on the ground that the question arose in relation to local assessments for street improvements and the like,and notin assessments for taxes for general revenue under laws providing revenue for the ordinary general expenses of the state, county, or city.
As to the first class of cases, one of the counsel of the defendant well says, and his language is adopted as a clear, general statement of a principio often acted upon by the courts:
“ The existence of doctrines and rules of law is often shown and established by a continuous and uniform series of judicial dieta, incorporated into their opinions by judges arguendo, although, perhaps, the actual facts of the cases under discussion did not absolutely require the statement of such doctrines or rules. And here you will discriminate. * * * Those expressions of judicial opinion may be correct, or may not be correct. They maybe expressions of well-settled rules, of well-settled and established principles,- — principles the statement of which is not absolutely necessary to the final decision, — and yet a continuous and uniform series of such judicial statements is often very high, in fact the highest, evidence of the existence of the rule of law which they do set out. One simple dietum may not be of much weight, or it might have much weight, depending largely upon the ability, the character, and authority of the judge. .But a uniform concensus of such judicial expressions of opinions, even when they are dieta of different judges in various courts, especially when they have been accepted by able text writers and not contradicted by a single direct decision, is as high evidence of a doctrine or rule as can' be found.” "
In all the cases of this class cited by the court, even if the decision did not turn upon this point of constitutional law, the discussion was cognate to the case, and the judges clearly and distinctly stated the right to an opportunity to be heard as a constitutional right. Some of these declarations can scarcely be called dicta, and they relate both to general taxation and local assessments. While such assertions of the principle of law may not be of so controlling a character as a decision of a court of acknowledged authority, directly determining the point in issue, upon mature consideration, they are certainly of some authority as being the deliberately expressed opinions of eminent judges, and entitled to great weight. So, also, so distinguished a jurist and text writer as Chief Justice Cooley, gives it as his deliberate opinion, and not merely the supposed result of the authorities so cited, as well as the rule drawn from the authorities cited by him, as is claimed, that notice of the proceedings and opportunities to be heard are essential. His language is:
“ Wo should say that notice of proceedings in such cases, and an opportunity for a hearing of some description, were matters of constitutional right. It has been customary to provide for them as a part of what is ‘ due process of law ’ for these cases, and it is not to be assumed that constitutional provisions, carefully framed for the protection of property, were intended or could be on-strued to sanction legislation under which officers might secretly assess -me for any amount in their discretion, without giving him an opportunity to con*424test-the justice of the assessment. It has often been pointedly and emphatically declared that it is contrary to the first principles of justice that one should be condemned unheard; and it has also been justly observed of taxing officers that ‘it would be a dangerous precedent to hold that any absolute power resides in them to tax as they may'choose without giving any notice to the owner. It is a power liable to great abuse;’ and, it might safely have been added, it is a power that, under such circumstances, would be certain to be abused. * * * The general principles of law applicable to such tribunals oppose the exercise of any such power.”
In the other class of cases arising out of local assessments, the point was directly in issue, and the point in the case upon which the decision turned, and in no case was there any distinction drawn between taxation for special local purposes and general taxation. There can be no difference. In either case, whether general taxation, or local assessment for special purposes, the tax or assessment is levied and collected under and by virtue of the sovereign power of taxation] There is no difference in the power or principle exercised. The only difference recognized is the difference in the mode of ascertaining the proper amount to be paid by each. Both are assessed and collected for a public purpose as the party’s share of the public burden, but the local assessment is distributed over a smaller number of persons and a more limited territory, and is usually assessed upon that part of the property supposed to be especially benefited. It is not always, and perhaps not usually, assessed according to the value of the property, but according to benefits, or according to the square foot, or front foot, or number of acres, or on some such principle of apportionment. It is as necessary to apportion it according to some fixed, uni-fofm rule, requiring action of a judicial nature, as in the case of general taxation. This rule is the only distinction recognized — both systems of assessment and collection resting ultimately upon the sovereign power of taxation. Emery v. San Francisco Gas Co. 28 Cal. 349, and People v. Mayor of Brooklyn, 4 N. Y. 420, well illustrate the only distinctions between general taxation and local assessments, and none affect the point under discussion. In both it is necessary to ascertain the amount, extent, and character of the property which forms the basis of the public charge, and on account of which it is to be collected, in order to properly apportion to each owner his proper share of the public burden. There is as great necessity for him to have an opportunity to be heard before the tax, in the case of general taxation, becomes final, as there is in the case of an assessment for local purposes, as street improvements, which is also technically and legally a tax — as much necessity for an opportunity to be heard in the one case as in the other.
The levy and collection of taxes for general purposes, under laws providing for general taxation, are just as clearly a depriving of the owner of his property as the levy and collection of a street or other assessment for local purposes. It is impossible to distinguish them on this point, and no distinction is made' in the books. A decision *425oí the point as to notice and opportunity to be heard, in a case of a street assessment, is just as clearly an authority directly in point on the question at issue as though made in a case of general taxation, and it would be equally controlling. The authorities arising upon the assessments cited, therefore, are, in our judgment, authorities directly and fully in point.
Again, so far as we are advised, — and such is the statement in the books, which has not been controverted, — it has been the usual practice in the legislation of all the states, at some point in the proceedings, to levy and collect a tax based upon property, where it is necessary to ascertain its amount, character, and value before the liability becomes finally and irrevocably fixed, to give to the owner or tax-payer an opportunity to be heard. Such has always been and is now the case under the constitution of California, except as to railroads operated in more than one county; and where there has been a departure from the rule, and the validity of such statutes litigated, on the ground of want of due process of law, as we have seen, the statutes have been overthrown. The fact of Such general practice in legislation is very persuasive evidence that, in the estimation of the legislators and people of the several states, an opportunity to be heard in such cases is an important element in “due process of law.” This is of itself authority entitled to serious consideration. As the case stands, then, no decision of any court, no dichm of any respectable judge, — other than so far as the cases cited may be so regarded, — no passage from any text writer, has been brought to our notice which is in direct conflict with the law and principles as stated in the citations made by us on this point in the San Mateo Case.
In view of the numerous dicta — conceding them to be properly dicta —of able judges in one class of cases cited; of the able decisions directly in point in the other class, arising under local assessment laws; of the assumption of the existence of the rule by the United States supreme court in Davidson v. Neio Orleans, 96 U. S. 97; of the adoption and laying down of the rule by text writers of the highest eminence and judicially recognized authority; in view of the general legislation of the states upon the subject, from the beginning, recognizing and practically acting upon the principle; and in view of the further fact that no decision of a judge, or statement of the rule by text writers; to the contrary, has been brought to our notice, — we think that the court was fully justified, in the San Mateo Case, in expressing the belief that the authorities established, beyond all controversy, that somewhere in the proceeding of assessing a tax upon property, where it is necessary to ascertain its amount, character, and value, as a means of apportionment under a law or state constitution, — at some point, before the amount of the assessment becomes finally and irrevocably fixed, — the statute or state constitution must provide for notice to be given to the owner of the property taxed, and an opportunity be afforded to make objections and be heard upon them. If *426this defendant, on its large amount of property, can he lawfully taxed unheard, then it is competent for the state to abolish all right, to he heard, and every person can be taxed unheard at the arbitrary will of the taxing officers.
We have never contended that some species of taxes, as a poll tax, license tax upon occupations, trades, etc., where the tax is specific, and not ad valorem, and does not depend upon the amount of the business done, and the like, may not be levied without an opportunity to be heard. Taxes of these and like kinds operate upon all alike, and a hearing would be of no possible avail. The law itself fixes the amount. It is a legislative act, wherein the-objects of taxation are indicated, and amount fixed alike for all, leaving nothing of a judicial nature to inquire into or determine. But where the tax is based upon the amount, character, condition, and Value of property, the amount of business, income, ete.,< and it is necessary to inquire into, examine, hear evidence, and decide upon these matters, in order to assign to each individual his proper share of the public burden, he is entitled to notice of some kind, and an opportunity to be heard, before the extent of his liability is finally and irrevocably fixed. The notice may not be required to be personal to each individual, or anything other than statutory, but the statute- should fix some time within and place at which he may appear, and must give to the tax-payer a right and some opportunity to appear and be heard upon the matter. He may not succeed in reducing his tax, but the law affording an opportunity presumes that justice will be done upon a proper hearing and proofs by the officers charged with the duty of doing justice in these matters. The same observation applies to the suggestion that a party is as much entitled to be heard upon the fixing of the rate of taxation as to ascertaining the kind, amount, and value of the property. Fixing the rate is a matter of legislative discretion, and a legislative ,act. An estimate of the amount of revenue required, the probable total amount of property upon which it must be imposed being made, the rate is fixed upon that basis, making the allowance suggested by experience for inability to collect the whole tax. But, when fixed, it operates equally upon all. It is only when it is necessary to ascertain the kind, amount, condition, and value of each man’s property for the purpose of apportioning his proper share of the public burden, that it is necessary to act judicially, and to give an opportunity to be heard before the amount shall be finally and irrevocably fixed.
2. We are of the opinion, expressed in the Sam Mateo Case, that the statement required by section 3664 of the Political Code, as adopted in 1880, does not afford notice and an opportunity to be heard sufficient to constitute “due process of law,” within the meaning of the constitutional'provision, for the reasons there stated. 8 Sawy. 296; [S. C. 13 Fed. Rep. 147, 722.] In this, case the assessment was largely in excess of the valuation furnished by the railroad *427officials, in pursuance of section 8664. As to the supposed statute of 3 881, published as a statute in the Laws of 1881, at page 841, considered in the San Mateo Case, in 8 Sawy. 292 et seq., [S. _C. 13 Led. Rep.147, 722,] an error in the printed journal appears, which was not called to our attention at the hearing of that case. Upon counting the names of those appearing among the ayes in the printed journal (Jour. Ass. 24th Sess. p. 472) there are found to be 41 names, which constitute just a majority, although they are footed up as 39, and the announcement by the speaker was that there were 39 ayes and 32 noes; the speaker declaring “that this was not the final action on the bill and that the house had concurred in senate amendments to assembly bill No. 475, by a vote of 89 ayes to 32 noes.” Id. 473. Mr. Paulk appealed from the decision of the chair, “on the ground that 41 votes were required for concurrence.” On motion of Mr. Hoitt this appeal was laid on the table. Mr. Hale filed a protest, the ground being “that on the vote taken on the motion to concur in the said senate amendments, and the only action taken by this assembly on said bill, as amended in the senate, whereby if was passed by the assembly, there was less than a majority of the members of the assembly voting therefor; and therefore said bill, having upon such final vote received less than a constitutional majority of the assembly, I protest, as aforesaid, that said bill should have been declared lost.” Id. 475. The speaker, then, again “stated that the action on senate amendments to the bill was not a final action on the bill, and consequently concurrence or nonconenrrence in the amendments required a majority vote only.” Id. 475. Mr. Griffith thereupon said:
“ The decision of the speaker and the house to the effect that less than a • majority of the whole can concur in an amendment which may take all the virtue out of a bill, I regard as dangerous. * * * Wherefore, I desire to enter my solemn protest against such proceedings.” Id. 475.
And Mr. Kellogg said:
“I desire to have my protest entered upon the journal of this assembly against tlio decision of the speaker, in declaring that the assembly had concurred in the senate amendments to the bill, * * * for the reason that the journal' shows that forty-one members did not vote aye in concurring with said amendments.”
This was the last action of the house on the bill. It will be seen, then, that while counting up the ayes in the printed journal 41 names are found, yet they were footed up and carried out as 39; the vote was announced by the speaker as 39, and the whole subsequent action of the house was upon the assumption that there were but 39. Upon comparing the printed journal with the original written journal, however, on file in the office of the secretary of state, it is conceded, on all sides, that they do not agree in the names voting aye; the original written journal containing only forty names, one of the names in the printed journal not appearing in the written journal. We are of opin*428ion that the written journal is the authentic official record, and that it corresponds with, and is sustained by, all the other parts of the printed journal, and with the announcement of the speaker, and all the action of the house, and that it must control. It therefore affirmatively appears that the act never passed, and never became a law of the state of California. Besides, it was officially announced by the speaker at the time, and so recorded, and afterwards repeated, that this was not the final passage of the hill, and that it was on this ground that the amendments were concurred in by a vote less than the number required by the constitution on the final passage of a bill. There was no appeal from this decision, and it does not appear to have been revoked. No other vote appears to have been had, or other announcement by the speaker made, in regard to this bill. No other action was had by the house, except on March 4th, being the last act before adjournment sine die; the bill was reported as correctly enrolled, and as having been presented to the governor for approval. No action was taken on this report, and the bill does .not appear to have been reported to the house as having been approved. At the time of the adjournment of the legislature, therefore, there was an appeal pending, lying on the table, liable to be called up at any time, from the very decision of the chair declaring the amendment to be concurred in. Thus there had been no final action on this question, unless the report of the committee on enrollment, without further action thereon, can be so regarded, and the whole matter was still in the control of the house, and unfinished business, when the legislature was dissolved by adjournment and lapse of time.
At the time the assessment in question was made, then, neither the constitution, nor any statute of California, gave the defendant any right, or afforded it any legal notice of the proceeding, or opportunity, to be heard as to the correctness or propriety of the assessment. The assessment was an arbitrary exercise of power by the state board of equalization, according to its own will and pleasure. It is true that in some of the eases, though not in this case, an agent of defendant did appear before the board, after the assessment was made, and sought to get the assessment reduced, and the board, after hearing the application, refused to reduce the assessment, but upon what grounds it does not appear. The defendant offered to §how, by the testimony of members of the board, upon what ground the refusal was made, but the evidence was ruled out, on the objection of the plaintiff that it was incompetent. As there was no law authorizing such an application or hearing, or authorizing a modification of the assessment by the board upon such application, and the listening to the application was a mere matter of grace, it is the legal presumption that the board acted in conformity with the law, and put its refusal on that ground — that it would be unlawful to reduce the amount on such application. But whether it did or not can make no difference.
If such a right and opportunity to be heard is an essential element *429of "cine process of law,” the law must provide for it as a right. The party is not required to accept the boon by the favor or good nature of the officers; and as the proceeding would be wholly without the pale of the law, it will not be presumed that the board would act with that nice regard to judicial fairness, or that proper sense of judicial responsibility, that -would characterize their proceedings when acting wholly within the limits of their official duties, as imposed upon them by the law.
• 3.. The next question is whether the provision of the state constitution under which the assessment in question was made is in conflict with tho clause of the fourteenth amendment to the national constitution, which provides that no state “shall deny to any person within its jurisdiction the equal protection of the laws.” In order that my views on this point may be presented in a connected, unbroken order, I shall adopt the reasoning contained in the discussion of the fifth point of my opinion in the San Mateo Case, with such additional observations, incorporated at the proper places, as occur to me, illustrative of the views entertained. In the forcible and accurate language of Mr. Edmunds, which I cannot improve, the—
“Fourteenth amendment was a new Magna Charta, that was in fact, in form, and in effect a fundamental security to every person in the state in respect of every private right that could be invaded, and an absolute affirmation of equality of civil rights to all persons before the law. The first clause forbids the state to touch life, liberty, or property without due process of law; and the second forbids that even with due process of law any person shall be denied the equal protection of tho laws. This is-the plain letter of tho amendment. It is its intrinsic and benefleieut spirit, and it was its purpose. * * *
“What, then, is equality of protection? A civil right under a government is a distinct thing from a political right in it. Tims a state may deny to females the right to vote, but it cannot deny to them the right to sue in courts, or impose on their property all the burdens of the community. To hold otherwise would lead to the affirmation of tho right of the state to make race, or color, or religion, or ago, or stature the criterion of civil rights, and to exert the absolute right of confiscation by classes or descriptions; for in such a case every person of that class or description would stand on ail equality with his fellow-victims.
It is not denied that a state may classify the persons who are to perform certain public duties, or bear certain public burdens, based upon personal peculiarities of either sex or calling, etc., as to require military service only from males, or to exempt females from a poll-tax and impose a license tax upon certain trades, or tax all franchises of corporations and their special privileges; but it could not impose a poll-tax on one-lialf its male or female citizens that it did not impose on the rest in like degree. And when we come to the ease of property, as property, to be affected by a tax, or any other imposition imposed upon it as a thing of value, a distinction cannot be made to depend upon character, or occupation, or quality, or any individual characteristic of the citizen. To hold otherwise would be to set up the very essence of tyranny and arbitrary power.
“ ‘Equal protection’ is the same protection under the same circumstances; all are to stand alike in like intrinsic conditions. Holding property as property is certainly a like intrinsic condition. In the administration of justice, if the criterion of a right to sue be value, all must have the same right when *430the same value is concerned; or, if the criterion be the nature of the controversy, all must have the same right whose cases are of the same nature. This appears to be too clear for discussion.
“ So, too, in the matter of taxation, if the tax, as in this case, be laid upon' the values of property, all persons must stand on the same footing, according to the value of their respective property, as to the proportionate burden they are to bear in respect to the value.
' “ The farmer must be assessed at the same rate for the value of his laud as the lawyer for the value of his land, and he must have the same right of notice and hearing, etc., as his fellow-citizens of other callings: and if deductions are provided' to be made from values on account of debts (which is only a method of reaching effective value) of one class of citizens, they must be made from those of other classes, without reference to what particular characteristics as citizens or persons they may have, as sex, or race, or age, or quality, or calling.
“The basis of the imposition being property as such, the fact that certain property is owned by a corporation, or a white man, or man of bad character, or a clergyman, cannot be made the ground of a levy that, both in form, in fact, and in result, is unequal and injurious. Any other doctrine necessarily implies that the state may carry such unequal exactions to the end of complete confiscation by edict of all the property of any class or man, who, during the passion of the hour, may not .be in the sunshine of popularity.”
It is insisted that the constitutional provision under which the tax in question is levied does not deny to the defendant the equal protection» of the laws, an,d it is sought to maintain the validity of the provision on the ground that it is a proper exercise of the principle of classification; — that the property is classified according, to its condition and use, — and on that ground properly taxed upon a basis different from that applied to other property. The provision to be considered is as follows: :
“A mortgage, deed of trust, contract, or other obligation by which a debt is secured, shall, for the purposes of assessment and taxation, be deemed and treated as an interest in the property affected thereby. JSxcept 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 indebtednesss 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, or however used, the value of the debt so secured, in the case of everybody, “except a railroad and other quasi public corporation, ” 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 as*431sessed and taxed to the owner of the property, and the value of such security shall be assessed and taxed to the owner thereof.” That is to say, that the property is to be divided between the parties according to the value of their respective interests, and whatever the nature or extent of the interest of each in the property may be, it shall be taxed to the real owner. But in the case of “a railroad or other quasi public corporation, ” there is to be no reduction of the value of the mortgaged property, — no division according to the interests of each, — and the whole is to be taxed to one party, although he, in reality, does not oten the whole. In one case, if property is mortgaged to the extent of half its value, the owner is taxed upon one-half the value, and the owner of the debt secured, or the mortgagee, 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 tho property, and the other party, who is interested to the extent of one-half, upon none. A., a natural person, or'even a corporation other than one of the excepted class, 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, that being its actual value, paying one-half down, and giving a mortgage for $50,000 to secure tho balance of the purchase money. The constitution, in effect, says — and in this instance such is the real, substantial 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 really own — upon property owned by somebody else. This seems to be a self-evident proposition. 0., “a railroad or 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 soeure 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 precisely upon the same footing in all particulars with reference to the property. O. has only $50,000 in the property, — it not having paid for the other half, — and B. the rest. But in this case tho constitution says that C. shall, nevertheless, be assessed for and pay taxes upon the whole property, double the amount he really owns, and B. shall not be required to pay anything. That is to say, that O. 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 C., 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 C.for public use, without compensation, but also to arbitrarily take it from G. and apply it to the *432■use”and benefit of another private party, B., without compensation. The result would be the same whether the property of A., B.,and G.,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 discrimina-tions — hear or press equally upon A. and G., or equally upon B. and C. ? Is C. equally protected in its rights of property with A., or equally protected with B., or equally with all other natural persons; or all corporations other than railroad or other quasi public corporations? 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 fery statement of the proposition, it seems to me to be self-evident that a law authorizing and requiring such proceedings does not afford, but expressly denies, the equal protection of the laws. 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 eases 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 or-. der 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. Should second mortgagees foreclose a mortgage on a railroad or other property of a “railroad or other quasi public corporation,” and a natural person become the purchaser of the road, or other property subject to the prior mortgage, at the next annual assessment the amount of the first-mortgage bonds, or indebtedness secured, would be deducted from the value of the road or other property, and the amount of the bonds or other indebtedness assessed to the mortgagees. Such, also, would be the result in the case before supposed, if C. — a railroad or other quasi public corporation — should convey its land to a natural person- subject to the mortgage to B.; and although there would be no change in the condition, circumstances, use, or value of the property, — the change being only in the owner, — O.’s grantee would only be required to pay one-half the amount of taxes which C. had been compelled to pay, and B., who before .paid nothing, would be required to pay the other ;half. Should the Southend Pacific Railroad and its lands pass into the hands-of a natural person, upon a foreclosure and sale under a *433second mortgage, subject to the mortgage now on them, the value of this very security would be deducted from the value of the property at the next annual assessment. Thus, although the property would in all respects be the same, and similarly situated, and applied to the same uses, — for natural persons, as well as corporations, may own and operate railroads, — a mere change in the ownership would require and effect an entire change in the mode and basis of the assessment, and the amount of taxes levied on the owner. Nothing, it seems to me, could more clearly demonstrate the unsoundness of the proposition that only an admissible classification of property for the purposes of taxation is involved in the different schemes provided for taxing the property of “railroad and other quasi public corporations,” and the property of natural persons, and of other corporations. Railroad and other quasi public corporations are not even put upon the same footing with other corporations, the latter being placed upon an equality with natural persons. A mere change of ownership, under the provision in question, largely affects- the amount of taxes paid by the owner upon the same property, without any change in the character, condition, value, use, or circumstances of the property itself. A provision that a black man shall pay double the amount of taxes paid by a white man on the same kind of property similarly situated and used, or upon the identical property, in consequence of a mere change of ownership from a white man to a black man, might with as good reason be sustained on the principle of classification invoked. The classification in this case is clearly by ownership, and not by condition or use.
That natural persons may own and operate a railroad in this state, as well as corporations, is manifest from the fact that this road is mortgaged under the authority of the laws of the state, and this of itself necessarily involves the power to sell and convey, in ease the occasion arises, under a decree of foreclosure, to any party who is willing to pay the highest price for the road. It also appears, as a fact in this case, that a natural person purchased a railroad operated in more than one county, extending from Marysville, in the county of Yuba, to Oroville, in the county of Butte, under a decree foreclosing a mortgage, received his conveyance therefor, and that he has been operating it and been assessed and has paid taxes upon it for more than two years past. So, also, numerous statutes of the state were introduced in evidence, granting the right to natural persons, not incorporated, to build and operate railroads. “An act to provide for the construction of a railroad from Mokelumne City to Woodbridge, in the county of San Joaquin,” (St. 1862, p. 97,) and an act authorizing the building of a railroad from the Embarcadero on the bay to Petaluma, in Sonoma county, (Id. 295,) are examples-of numerous acts of a similar character found scattered through the volumes of the statutes from that time to the present. Thus private *434parties owning and operating railroads covered by mortgages, and situated in all respects precisely as railroad corporations are situated with respect to the same kind of property, would only be required to pay taxes upon the excess of the value of the road or other property over the value of the security; while the holder of the security would be assessed for and pay the taxes on the value of the security. The personal liability of each would only extend to the tax on his own interest, and, in many instances, the value of the security would equal the whole value of the property, thereby relieving the mortgagor of all taxes on the property. This is not classification, therefore, by its condition or use for the purposes of taxation at all, but by ownership.
There is no difference in the rate imposed; it is taxed according to its value, like all other property; no more and no less tax, in the aggregate, is levied. It is, therefore, taxed upon the same principle as other property; no more and no less revenue is raised by the classification. The state is not benefited. The burden is simply taken from the owner and thrown upon one who does not own the property taxed. It is not taxed to, and made a personal charge upon, the owner, as other property is under like circumstances.4 This is the only difference, and that does not affect the principle of the taxation. Unless it is competent to class the property of Jones, whether land or railroad or other property, when mortgaged, as belonging to Smith, and compel Smith to pay the taxes, as a personal charge or liability imposed upon him, on the property of Jones, who is not to be taxed or charged upon the property at all, when the same thing is not done as to other property of other owners of like kind and similarly situated, then this provision of the state constitution cannot be maintained on the principle of classification, or any other. The interests of the mortgagor and mortgagee are not the same, — not identical. The estate of one begins where the estate of the other ends. They both together, under that clause which makes the mortgage in all cases; as it does in terms, an interest in the land for the purpose of taxation, make up the whole, so far as classification for the purpose of taxation is concerned.
Suppose the position of the parties, the mortgagor and mortgagee, in this case, in regard to the imposition and payment of the tax, had been reversed, and the constitution had imposed the tax upon the whole, as a personal charge upon, and compelled payment by, the mortgagee, the holder of the security, instead of upon the mortgagor, the mortgagor not being taxed at all, would such a provision have been valid upon the principle of classification or any other ? Would the mortgagee stand upon the same footing with other mortgagees ? I apprehend that such a provision would not stand for a moment in the presence of the provision of the national constitution assuring to all the equal protection of the laws. Such a provision would not operate equally upon the two parties interested in the property, nor *435upon the mortgagee thus taxed, and other parties in like circumstances, where the mortgagors are natural persons, or other corporations, who are only compelled to pay taxes upon the interests in property which they actually own. If the holder of the security could not be taxed for the interest held by the owner of the railroad, land, or other property mortgaged, no sound reason is apparent for holding that the mortgagor can be taxed for the whole, and especially where, as in this particular instance, the value of the security is greater than the value of the estate of the other party. There cannot be one law for one person, and a different and more onerous, law for another, similarity situated, and both enjoy the equal protection of the laws in the particulars wherein such laws differ.
Conceding the fourteenth amendment to apply to taxation, as it undoubtedly does, I think I hazard little in saying that nc possible reasoning can'justify such classification or discrimination under it; that classification upon such principles is arbitrary, tyrannical, and unjustifiable.
There can be no valid classification of property, under the state constitution, for purposes of taxation, based upon the uses to which it is applied, except so far as the use may give additional value to the property; and the principle under the constitutional provision requiring all property to be taxed at its value, would only authorize the increase or modification of the assessment by adding the increased value so arising from the use. One owner may pasture his land; another raise wheat, cotton, or sugar-cane; another plant a vineyard for the production of wine, or an orange grove; another erect buildings upon his land, and enjoy the rents arising therefrom; another devote his to the construction and operation of a railroad. If any of these uses give additional value to the land, or other property, it must still be taxed at its actual value, be it greater or less. But, under the constitutional provision requiring all property to be taxed at its actual value, it cannot be classified by its uses for the purpose of applying other principles of taxation than value as a basis; or for the purpose of taxing it according to ownership, so as to make one class of owners, as such, pay more than another; or orie class of oivners pay the taxes that ought to be assessed against and paid by another class. The state constitution does not profess to classify upon the basis of the uses to which property is applied. It recognizes no such principle in terms or by implication. It says nothing about uses, but classifies, in terms, by ownership, and includes all of the property of the same owners in its class for non-deduction of the value of the security, — lands and other property held for sale, as well as property used for operating railroads, or other corporate uses of quasi public corporations, — without making any reference whatever to its uses. The only rule by which any property is authorized to be assessed is according to its value. The constitution arbitrarily provides, as to a particular class, that they shall pay the taxes upon the interest, ac*436cording to the constitutional definition of property, in the property held by another class of owners, who are allowed to escape taxation altogether, and in this particular the laws do not bear upon or protect the former equally with the latter. It provides that railroads and other quasi public corporations shall pay taxes upon property they do not own — shall pay other people’s taxes. This discrimination against such corporations is not a taxation, but a confiscation of their property, not for the benefit of the public, for there are no more taxes collected in the aggregate, but for the benefit of other property owners, ioho thereby escape their share of the public burdens. If the arbitrary discrimination and classification found in this case can be legally made under the national constitution and the law of the land, then the subordinate state constitution or 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 may, by such subordinate statutory provisions, be classified and defined out of the equal protection of the laws guarantied by the national constitution; and if so with reference to this provision, he can also be classified and defined out of uniformity in the operation of the laws in other particulars, — out of the protection of due process of law, and of the provision forbidding a law impairing the obligation of contracts, or taking property for public use without just compensation, and, indeéd, out of all the guaranties of the constitution, state or national. I am not arguing that property of all kinds may not be taxed where it is found, provided all owners are put upon the same footing; 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.
For authorities, including decisions of the United States supreme court illustrating the point, reference is made to the San Mateo Case, 8 Sawy. 302-304; [S. C. 13 Fed. Rep. 147, 722.]
It is argued that the taxing of the whole value of mortgaged property of railroads and other quasi public corporations to the corporation owning it, subject to the mortgage, while the same thing is not done with respect to the property of natural persons, or other corporations, similarly situated, is valid as being simply a franchise tax, — a tax for the privilege of being a corporation, “ a tax imposed as a return for privileges and powers not possessed by individuals.” It is further said that it is not material by what standard a franchise tax is measured, —whether the tax is in gross, or measured by receipts, the amount of property acquired, or by any other standard; and cases are cited from some of the states, where a franchise tax is claimed to have been sustained on such principles. But this view wholly ignores the. provisions of the state constitution itself on the subject. This is *437not, and does not purport to bo, in any sense a franchise tax. A franchise tax is otherwise, in express terms, provided for. The constitution itself prescribes how a franchise tax shall be assessed; and that is, like all other property, “in proportion to its value.” “All property * * shall be taxed in proportion toils value, to be ascertained as provided by law.” Article 13, § 1. “The word ‘property,’ as used in this article and section, is hereby declared to include money, credits, * * franchises, and all other matters and things * * * capable of private ownership.” Id. Again: “The franchise, roadway, etc., 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.” Id. § 10. Thus the franchises of the defendant, under the constitution of California, can only be assessed like other property, according to “their actual value,” be that more or less. Their franchises have, therefore, already been otherwise assessed at their value, — all the constitution will allow, — and this discrimination is not, and cannot be, under the constitution of California, a franchise tax. It has no reference to the franchise. It is simply in law, what it is in fact, an arbitrary, and unjustifiable discrimination against railroad and other quasi public corporations, that cannot be maintained under the fourteenth amendment to the national constitution, guarantying to every person the equal protections of the laws.
Great stress was laid in the arguments of plaintiffs’ counsel upon the growing and overweening power and greed of corporations; and it was vehemently asserted that this is a struggle between the people and the corporations for supremacy; that corporations by corrupt means, and through their large and wide-spread influence, have obtained, and they are obtaining, control of legislatures, etc. If this be so, then it is of the utmost importance to every natural person in the United States that these guaranties of the fourteenth amendment to the national constitution should be maintained in all their length and breadth. They are the only means of protection left to the people. If these unequal taxes can be imposed upon the class of corporations named in the constitution, the position of the parties can be reversed, and the unequal lax ■now throicn upon the corporations may hereafter be imposed upon the other parties. If these, can be taxed loithout a hearing, then all or any class of persons cam be taxed ivithout a hearing; and if there is good ground for the alarm manifested by the counsel, of the plaintiff, such corporations, when they acquire the deprecated power and control indicated, will not be likely to be slow in shifting the unequal burden to the other side. There is, therefore, upon that hypothesis, no safety to the people, except in most rigidly maintaining the guaranties of the fourteenth amendment in their broadest scope.
4. Upon the point as to whether the provision of the state constitution under which the tax in question was levied is valid by virtue oí the power of the state over corporations under the authority re*438served to the state under the constitution, to 'amend, alter, or repeal the laws under which they were organized, or otherwise, I refer to the quite full discussion of the point under the sixth head in my opinion in the San Mateo Case, 8 Sawy. 304; [S. C. 13 Fed. Rep. 147, 722.] I shall, however, make some additional observations.
In order to sustain the validity of the tax on that ground, the constitutional provision must operate as an amendment to the general statute of California, by which it imposes upon railroad and other quasi public corporations under the amended statute, as a condition of their continued existence, a liability to be taxed otherwise than as natural persons and other corporations are taxed. It is not pretended by .anybody that any express intention to amend the act relating to corporations is found in the new constitution, or that any reference is anywhere made to the act. The operation of the amendment of the statute is sought to be worked out by implications, and the necessities of the case which require the tax to be sustained on that ground, as there is no other on which it can rest. But repeals or amendments of statutes by implication never were favored; and under our constitution, limiting the power of the legislature to the passage of acts embracing but a single subject, which must be expressed in the title of the act, and forbidding an amendment, otherwise than by re-enacting the whole section as amended, would seem to render the rule still more restrictive in its operation. No reference to this matter of taxation is made in any part of the chapter devoted to corporations. The provision is found in the chapter providing for taxation, and which deals with taxation, and only taxation, as taxation. It is manifest that the idea of amending the act relating to corporations was never contemplated by the convention in framing, or the people in adopting, the constitution. We are satisfied that the charge must be sustained, if sustained at all, only as a tax, without reference to the power of the state to impose further conditions upon corporations not imposed at their creation, by. amendment to the general laws under which they became incorporated.
But if the state, under its power to amend the laws under which corporations are formed, is entitled to impose this charge, not imposed upon natural persons and other corporations under like circumstances, as a condition of its continued future existence, the corporation is not bound to accept the condition and go on. No charter can be forced upon an association of natural persons, and no new or more onerous conditions can be forced upon a corporation already formed. It may elect to dissolve and retire from the field of enterprise occupied rather than accept the new conditions; and such conditions might be imposed as would compel that course. But until accepted they form no part of the charter, and impose no new valid obligations. An acceptance of the new conditions cannot be presumed while the corporation is protesting that none have been imposed; or, if attempted to be imposed, is insisting that they are invalid, *439void, and of no effect; and in every way, and by all means in its power, is resisting the attempt of the state to give effect to this assumed change in its rights and obligations, while it is still denying the power of the state to make the change. Till the corporation elects to accept the new conditions imposed, or gives some evidence of such election, rather than dissolve, there is no implied promise or obligation to assume the additional burdens laid upon it, or, as in this instance, to pay the additional tax thus imposed in invitum, upon which an action can be maintained. This corporation, like every other person against whom a right is claimed, certainly is entitled to litigate the question whether any new valid obligations or conditions have been imposed upon it, before it can be called upon to determine whether it will dissolve and retire, or accept the conditions and proceed. A refusal to accept, surely, can give no right of action, which depends upon acceptance. If there is any remedy in behalf of the state against a corporation declining to accept, but still continuing to exercise its functions in violation of the existing law, it is by some proceeding in the courts, in the nature of an information, to dissolve the corporation and wind up its affairs; and this, it appears to me, is the remedy in this case, if there is an amendment to the act under which the defendant is incorporated, imposing the liability of this unequal and unjust tax upon it, as a condition of its continued existence, and the corporation refuses to accept it or to submit to it.
The doctrine asserted and sought to be maintained, that because a corporation owes its origin and existence to the state, — is a creature of the state, — it and all its belongings are under the arbitrary power and control, and at the absolute mercy, of the state, is monstrous. The state, through general laws applicable to all similar corporations, may abolish corporations, may take away their faculties, may enlarge or restrict their powders and functions for the future; but it cannot lay its hand upon their lawful acquisitions or property, otherwise than as upon the acquisitions and property of natural persons. Although the title and management of these are vested in the ideal being called a corporation, the ultimate property is in the corporators, and their rights in the property and acquisitions are as sacred in their corporate as in any other of their relations to society, or to the state.
Had the state constitution provided that the property of corporations might be taken for public use without any compensation, and without a trial or hearing of any kind, such as for the sites of public buildings, public streets or squares, or for the use of railways, and the corporations had denied and resisted the validity of such provision, I apprehend that no court would hold that because it did not immediately dissolve and retire from business, upon the adoption of such a provision, that it had been accepted, and thenceforth become one of the conditions of the future continued existence of the corporation, and, in consequence of the fact, that its property might thenceforth be arbitrarily taken and appropriated to public use without any *440bearing or compensation. Yet such a provision would be no more-monstrous than the doctrine sought to be maintained. Indeed, it ÍS' the necessary logical sequence of the doctrine.
From these considerations,, and those expressed upon this point in the San Mateo Case, and from the expressed terms of the constitution itself, it is clear to me 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,— that is to say, the hypothesis that this charge is a tax merely, without any reference to a change of the fundamental conditions upon whieh-the corporation is to continue in existence. If not, then that the new conditions have not been accepted, and there is no ground upon which this action can be maintained. ' The suit is simply one at law for a, tax, and nothing else, and the plaintiff must recover on that theory, and on the case made, or not at all. If this tax can be imposed upon the defendant simply because it is a corporation, when it could not be imposed upon natural persons holding, owning, and using its property under like conditions in all other respects, then it would be difficult to point out what rights are left to corporations, or natural persons in their corporate relations, which the state, under the fourteenth amendment, or otherwise, is bound to respect.
5. At the time of the assessment and levy of the tax in question there was a deed of trust in existence, and operative, to secure a large indebtedness, executed by defendant to D. 0. Mills and Lloyd Tevis before the adoption of the present constitution of the state of California, which covered the Southern Pacific Railroad, its track, depots, rolling stock, and all appurtenances, — the road aggregating 1,150 miles in length, of which over 700 are completed and in operation. It also covered all the lands granted by the United States to aid in the construction of said railroad, aggregating, as estimated, 10,000,-000 acres, after excluding reserved lands embraced in the statutory description. This Meed of trust or mortgage was duly recorded in the several counties' of the state through which the road extended and in which the lands were situated. •
’ A portion of the road and lands mortgaged is situated in the county of Santa Clara. The mortgage was for $46,000 per mile, of •which amount bonds have been issued to tlje amount of $39,000 per mile. The lands mortgaged, so far as they had been patented, including the lands in Santa Clara, had been taxed to defendant in the several counties in which they were situated, at their full value, and without any reduction on account of the mortgage, and the taxes duly paid. So, also, no reduction in the amount of the assessed value of the road, rolling stock, etc., was made in consequence.- Thus, all the property embraced in the mortgage was taxed to the defendant at its full value, without any reduction in the amount on account of the. mortgage. ■ The trust deed contains the. following covenant:
*441“And the said party of the first part hereby agrees and covenants to and with the said parties of the second part, and their successors in trust, that it will pay all ordinary and extraordinary taxes, assessments, and other public burdens and charges which may be imposed up on the property herein described, and hereby mortgaged, and every part thereof; and the said parties of the second part, the survivor of them or their successors in said trust, or any one or more of the holders of said bonds, may, in case of default of the said party of the first part in this behalf, pay and discharge the same, and other lien or incumbrance upon said property which may in any way, either in law or equity, be or become, in effect, a charge or lien thereon prior to these presents, or to which this mortgage may be subject or subordinate, and for all payments thus made the parties so making the same shall be allowed interest thereon at the rate of 7 per centum per annum, and such payments, with the interest thereon, shall bo, and are hereby, secured to them by these presents, and declared to be payable and collectible in the same sort of currency or money wherein they shall have been paid, and the same shall be payable by said party of the first part to said parties of the second part, upon demand, in trust for the party or parties paying the same, and may be paid out of the proceeds of the sale of said property and franchises hereinbefore provided.”
It is gravely and earnestly insisted bere that under this covenant the defendant had bound itself to the trustees to pay the whole taxes assessed upon the property covered by the mortgage; that if the tax should be assessed upon defendant, and there should be a recovery in this case and payment of the judgment, the defendant would pay no mpre than it is bound to pay under the covenant in the trust deed, and could not be injured; therefore, the tax is valid and a recovery should he had in this action, even though the tax, as levied against the defendant, is unauthorized by any valid law, or was levied without the authority of any law. It would seem to be only necessary to state the proposition to make manifest its fallacy. The proposition in substance is that, if a valid tax bad been levied, the defendant had bound itself by a contract to protect a third party with whom the plaintiff is not in privity against it, by payment, or allowing such third party to pay it, and make it a secured charge against defendant. And since this is so, although it is not authorized by any valid law, it would not injure the defendant to levy the tax against it, and compel it to pay the whole amount of tax that ought to have been properly levied on somebody on account of the property; therefore, the plaintiff ought to recover, although there is no valid tax levied against him or anybody else, — no tax for which anybody is now legally liable. Somebody, ought to have been made personally liable to pay this tax by a proper and legal assessment of it; and if anybody had been made liable, defendant would have been bound to pay it under its covenant; but there was no valid assessment, mither against the defendant or anybody else, yet the defendant is personally liable and plaintiff ought to recover. Such is, in effect, the reasoning, though not expressed in that language, presented to us.
This tax as levied is either valid, as properly levied under the *442law, or it is void, and its validity must depend upon the law. It cannot depend upon the fact that private parties, by an anterior contract, with which the state and county are not in privity, had a stipulation as to which should pay any tax properly levied. If valid as against defendant, so as to make it personally responsible, then the plaintiff is entitled to recover, whether it would be injured or not, and there is no need to invoke the principle that defendant cannot be injured by doing what it is insisted it in good morals ought to do. If the tax, as levied, is not valid, and a legal personal charge upon the defendant, under the law', without regard to any contract between private parties as to who shall pay a valid tax upon the land when levied, then there is no valid tax or personal charge against anybody, for no tax purports to have been levied against the trustees in the trust deed, or against the holders of the security: There is no tax upon which the covenant can operate. This action is not based upon moral equities, or even upon equities recognized and enforced by courts of equity. It is a dry action at law to recover what is alleged to be a sum of money legally due, and for which the defendant is legally, personally, liable by reason of a valid levy of a tax against it. That is the cq,use of action alleged, and upon that a recovery must be had, if at all, and according to the allegata of the complaint. This is not a suit in equity to enforce a lien for a tax. It is not an application for an injunction against the collection of the tax, in which, possibly, the court might consider whether there were any equities which should call upon it to deny the injunction or relief affirmatively sought. It is not a case for the exercise of discretion. It is an action resting upon a strictly legal personal liability. It is not enough that a valid tax, to some extent, might have been levied. There must be such á tax as throws a legal liability upon the defendant to pay to the plaintiff the sum claimed, or there can be no recovery: But had there been a valid tax levied against the covenantee or mortgagee on account of the property, this would not have authorized a recovery against defendant by reason of the covenant alone. The covenant cannot affect the case. The covenant was between the defendant and the trustees, for the benefit of the latter, or rather the bondholders secured, and not for the benefit of the plaintiff. The plaintiff is not in privity with them. But suppose the covenant had been between defendant, upon a due consideration, and the trustees, expressly made for the benefit of the plaintiff, in such form, if such could be, as to give plaintiff a right of action on the covenant. It would be necessary to set out the contract on which the right of action rested, and make it the basis or ground of action. Nothing of the kind has been done. The theory of this action is that a valid tax has been legally assessed against defendant, for which it is personily liable under the constitution, and a recovery is sought on that ground in the complaint, and upon no other; and it can be had upon no other.
*443There were two kinds of covenants in use in mortgages and trust deeds at the time the trust deed in question was executed; one a covenant that the mortgagor would pay all taxes that might be assessed on the mortgaged property, and in default of payment that the mortgagee might pay it himself for the protection of his security, and trpon such payment that the taxes so paid should be added to the debt and draw like interest. This was simply to protect his security against other parties who might subsequently acquire liens, and to convert his advances into principal and fix the rate of interest. The purpose of this covenant was not to render the mortgagor liable to pay a tax which he was not already liable to pay, but it was to enable the mortgagee to pay it for his own protection, in case the mortgagor did not, and take away the voluntary character of the payment, so that he could convert it into a secured debt, drawing interest as a part of the principal. The other was that the mortgagor would pay not only all taxes levied on the mortgaged property, but also all taxes that should be levied upon the moneys loaned and secured. This was an indirect way of increasing the interest paid on the loan, and imposed an additional burden upon the mortgagor. This last covenant is now forbidden and rendered void under the new constitution.
The covenant in the mortgage in this case is clearly of the first kind. It only required the mortgagor to pay the taxes or liens which it toas at that time hound to pay without the covenant, and in no way extended its liability. A law or constitutional provision which should compel him to pay the taxes assessed upon the property of the mortgagee would enlarge his liability beyond that covered by his covenant, and be void. This covenant only extended to taxes for which the defendant was already liable. Besides, if no valid tax has been levied, then the case is not within the covenant, for the defendant cannot be called upon under the covenant to pay a tax absolutely void.
Again, suppose the covenant had been in a mortgage or trust deed between two natural persons, made at the same time, the sum secured being the whole value of the property. Under the constitutional provision in question, the value of the security, which, in the case supposed, is the whole value of the property, must be assessed to the holder of the security, and made a personal charge on him alone. It could not be asssessed to the mortgagor, and made a personal charge or liability on him, and enforced by a suit for a personal judgment, because there is no statute or constitutional provision purporting to authorize such a proceeding. Yet he has covenanted with the holder of the security, in the same sense as in the trust deed in question, to pay the whole tax levied on the land, and he would not be injured, according to the theory of the plaintiff, if the whole tax should be assessed and recovered against him. If such assessment should be made against the mortgagor instead of the mortgagee, *444without any law for it, or even purporting to authorize it, and a suit be brought to recover a personal judgment for the amount, I apprehend that no counsel would be found bold enough to urge that the utter invalidity of the tax is no defense against the suit, for the reason that if a proper tax had been levied against the proper party, he would be bound by his covenant with that party, for the protection of that party’s interest alone, to pay the tax, and therefore he is not injured. If such an action, under such circumstances, could not be maintained against the mortgagor, then it cannot be maintained against the mortgagor in this case; otherwise there is one law for this defendant, and another law for natural persons, occupying in all respects, with reference to their property, precisely the same situation; and there is a manifest denial of the equal protection of the laws in this particular, as well as in others. They are not equal before the laws. If the constitutional provision in question is void, then there is no law under which this tax could be levied against defendant, and it is utterly void and cannot form the basis for a recovery.
In my judgment the provisions or the state constitution upon which the validity of this tax and the right to recover alone rest, violate the provisions of the fourteenth amendment in question in four vital „ particulars:
(1) They assess railroad and other Quasi public corporations upon a different basis from that adopted with respect to natural persons and other corporations similarly situated with respect to their property in the particulars in these opinions, and in the opinions in the San Mateo Case pointed out.
(2) They provide, with respect to all property other than railroads operated in more than one county, an opportunity to be heard in the course of the proceeding to assess their property before the assessment becomes irrevocably fixed, while they afford no such notice or opportunity to be heard with reference to railroads operated in more than one county, and in both these particulars deny to the defendant the equal protection of thelaws, within the meaning of the fourteenth amendment to the national constitution.
(3) In not affording notice and an opportunity to be heard before the tax becomes finally and irrevocably fixed, they deprive the defendant of its property without due process of law.
(4) In assessing a tax, and enforcing it as a personal liability against defendant upon property which it does not own, but which is owned by other parties, who pay no tax upon it, the defendant’s property, to the extent of the amount taken beyond his proper share of the public burden, is taken for public use, both without due process of law and without compensation.
As there must be judgment for defendant upon the points arising under the national constitution, it is unnecessary for us to extend these opinions by examining the questions arising alone under the state laws and constitution, over which we would have had no jurisdiction but for the fact that the questions already discussed are in the case. Those are questions more properly belonging to the state courts. We have found the facts in the case, however, and if it should turn out that we are in error upon the points decided, the supreme court will. *445bo called upon to decide those questions also. If we are not in error, then those questions will, doubtless, be left to the state courts, where they properly belong.
For the reasons herein, and in the opinion of the presiding justice stated, in addition to those given in the several opinions delivered in the San Mateo Case, I think judgment should be rendered for defendant as directed.
LxjiitatioN ON Right to Tax. In the American system of taxation there are limitations upon the right.1 Neither the unlimited powers of á state to tax, nor any of its large police powers, can bo oxereised to such an extent as to work a practical assumption of the powers conferred by the constitution upon congress.2 The attempt to use such power is an abuse, because it is the usurpation of a power which the people of a single state cannot give.3 The means and instruments of one power are not taxable by another power.4 The sovereignty of the state extends to everything which exists by its own authority or is introduced by its permission, but not to those means which are employed to carry into execution powers conferred on the general government by the people of the United States.5 And this prohibition is not derived from tlie power of congress to regulate commerce.6 The doctrine which exempts the instrumentalities of the federal government from the influence of state legislation is not founded on any express provision of the constitution, but upon the implied necessity for the use of such instruments by the federal government.7
MEANS AN» InstruMeotaI/Ttebb of Government. The means necessary and proper to carry into effect the powers of government are vested by the United States constitution in congress.8 They must boar some relation to the fitness of things, and to the end to be accomplished.9 There must be some relation between the means and the end,10 though the relationship need not be direct and immediate.11 The word “necessary” does not mean absolutely necessary, nor does it imply the use of only direct means;12 “ necessary ” and “proper” are synonymous,13 and require that the means should be appropriate.14 The word, as used in this connection, means suitable and proper for carrying out the powers granted.15 States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control the operation of *446the constitutional law vested in the general government.1 Congress may exempt from state taxation the means employed by government in the' exercise of its powers.2 States cannot tax the instrumentalities of the federal government employed in the performance of its proper function.3 The right of exemption is limited by the principle that state legislation, which does not impair the usefulness or capability of such instruments to serve the government, is not within the rule of prohibition;4 nor are taxes which only remotely affect the efficient exercise of the powers of government.5
PbopeRtt and Appliances oe Government. Property used as the means and appliances of government, either state or national, is not within the reach of the taxing power of the other;6 but the property of the agent of the general government may be subjected to state taxation.7 Corporations owning railroads can claim no exemption from taxation based on an implication that they are means and appliances essential to the operations of the government ;8 but where a railroad is chartered by congress, and the government has important interests, with some power of control, the states have no power to tax.9 Private railroad companies are entitled to no exemptions as being means and instrument's of the operations of the general government.10 The property of a railroad company is not exempt from state taxation, though the railroad was part of a system of roads constructed under the direction and authority of the United States, and largely for the purposes of the general governnient.11 When congress has not interposed to protect the property of persons and corporations employed in government service from taxation, state taxation is not obnoxious.12 So the right to tax a railroad company is not affected by the fact that its property is mortgaged to the United States.13
Exemption of Railroad Property by Charter. The property of a railroad company may be by its charter exempted from taxation, and when all the property of a railroad company is exempt its franchise is also, and such charter is a contract, the obligation of which is inviolable;14 and if the stock is by law exempt the property is also, as the capital stock is but a representative of the property.15 The exemption from taxation for county purposes will not necessarily exempt from taxation for municipal, school, or other purposes.16 *447A legislative act, exempting shares of stock in railroad companies from assessment, lias reference to railroads worked by steam.1 A railroad exempted by a lirst act from taxation is not liable as against first bondholders, although made liable by a second act, which authorized the issue of second bonds on condition of a release of such exemption.2 Where the board of railroad assessors, acting under appointment by the state, was proceeding under an imperative statute to assess the property of several railroad companies whose road extended through a number of counties and towns, and whose charters contained exemptions of property from taxation, the companies were entitled to a temporary injunction until the questions could bo heard and determined.3 The provisions of the statute providing for taxation of the property of railroads, are not invalid by reason of the fact that lands improved by having a railroad built on them are nob made taxable until they have been so improved 10 years.4 Where there is no provision reserving the right to repeal or amend the charter, and the exemption from taxation therein granted, it is within the protection of the constitution of the United States and is beyond the power of a subsequent legislature to repeal or impair.5 The general purpose of the general corporation and railroad laws is to confer certain powers and privileges, and impose certain duties and liabilities, in the absence of any stipulations or provisions contained in special charters subsequently granted. Where inconsistencies occur, it must be understood that previous restrictions were intended to be removed.6 The effect of the statute for the taxation of railroads, is to subject the property of all railroad corporations of a character to be benefited by local improvements to special assessment for the costs of such improvements.7 The charter of a railroad company providing “that no other tax or impost shall be levied or assessed upon said company,” does not include special levies for internal improvements.8
Reservation of Power to Alter or Amend. Grants of immunity from taxation must always be construed most favorably.to the state, and where the power over them is reserved to the legislature, it cannot be said that they constitute a contract protected by the constitution of the United States from being altered or repealed by the legislature.9 When the power to alter or amend is reserved in the state constitution, or in genera,! laws on the subject, or in the special act of incorporation, its exercise does not impair the contract of which it forms a part.10 It may repeal a clause in a charter exempting from taxation,11 or may impose a tax different from that stipulated in the charter.12 When a charter itself or a general statute provides that the charter is subject *448to repeal or u^odiflcation by tbe legislature, the legislature has the right to exercise its power summarily and at will, and its action, being a legislative and not a judicial act, cannot be reviewed by the courts, unless it violates the principles of natural justice.1 A special law, granting to a corporation a certain privilege or franchise, and which contains no express repealing clause, does not restrict or impair the operation of a general law which reserves to the legislature the power to revoke the franchise.2
PoweR OVER Private Corporations. The legislature has the same right of general control over corporations that it has oyer natural persons,3 and any privileges which may exempt a corporation from burdens common to individuals do not flow necessarily from the charter, but must be expressed in it, or they do not exist.4 If the right is reserved to alter the charter, the right to tax is conferred,5 or the right to repeal a temporary rate and impose another and higher rate.6 Where the charter reserves power in the legislature to alter, amend, or repeal the charter, it cannot exempt property from taxation beyond the power of another legislature.7 Although a power of alteration and repeal may be reserved in a charter, yet a provision exempting the corporation from all other taxes than the one specified in the charter, is not affected by a subsequent general tax act declaring all lands liable to taxation, and repealing all acts and parts of acts inconsistent with its provisons.8 A statute which declares that all charters of corporations granted after its passage may be altered, amended, or repealed, does not necessarily apply to supplements to an existing charter, though enacted subsequently to the statute.9 The right of amendment, alteration, or repeal, reserved in the charter, affects the entire relation between the state and the corporation, and places under legislative control all the rights, privileges, and immunities derived by charter directly from the state;10 but the alterations must be reasonable, must be made in good faith, and be consistent with the object and scope of the incorporation.11 The amendment of a charter of a corporation, by changing it from a canal comp'any to a railroad company, did .not affect the exemption in the original charter.12 A charter with a guaranty against repeal and alteration, but with no grant of immunity from taxation, is not an exemption from taxation under a subsequent tax law.13 Where the general statutes provide that every act of incorporation shall be subject to amendment, alteration, or repeal, at the pleasure of the legislature, the charter of a street railroad company may he repealed and its franchise transferred to another.14
*449UNIFORMITY in Mode of Assessment. Uniformity in taxing implies equality in the burden of taxation, and this equality of burden, cannot exist without uniformity in the mode of assessment, as well as in the rate of taxation.1 The rule of uniformity extends to taxation by cities, towns, and counties, as well as to taxes levied by the state;2 but local taxes may be levied on different systems in different districts, even where they are for the benefit of the whole state.3
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 duo course of law.4 The phrase “due process of law” does not in all cases necessarily require judicial proceedings.5 It is intended to secure the right of trial according to the forms of law.6 “ Due process of law ” means such an exertion of the powers of government as the settled maxims of the law permit and sanction;7 a law existing at the time of vesting of rights;8 a present existing rule, and not an ex post facto law.9 It means law in its regular course of administration through courts of justice;10 a legal proceeding under direction of a court;11 a timely regular proceeding to judgment and execution ;12 and generally implies and includes parties, judge, regular allegations, and a trial according to some settled course of judicial proceedings.13 The term, when applied to judicial procedure, means a course of legal procedure according to those rules and principles established by our jurisprudence for the protection and enforcement of private rights.14 There must be a competent tribunal, and the party affected must be brought within the jurisdiction,15 and does not .necessarily import a trial by jury.16 In proceedings under the statute the parties are not entitled to a jury trial of any issue except of the payment of the tax or the exemption of the property from taxation.17 The tax-payer has no right to have a constitutional jury impaneled for the purpose of determining the rate of the levy and the assessable value of his property for the purpose of taxation.18 To pursue every delinquent liable to pay taxes through the forms of process and a jury trial would materially impede, if not wholly obstruct, the collection of the revenue.19 Although'differing from proceedings in courts of justice, the general system of procedure for the levy and collection of taxes which is established in this country, is, within the *450meaning of the constitution, due process of law.1 It simply requires that a person should be brought into court and have an opportunity to prove any fact for his protection.2 It implies the right of the person affected thereby to be present before the tribunal which pronounces judgment, to be 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.3 The revenue laws of a state may he 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.4 It includes summary remedies.5 Administrative process of the customary sort is as much due process of law as judicial process.6 The owner of the property so distrained and sold is not thereby deprived of it without due process of law-.7 Where ample provision is made for inquiry as to damages before a competent court, and for a review of the proceedings of the court of original jurisdiction, upon appeal to the highest court of the state, it is due process of law.8 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, though lie be required, as in other injunction cases, to give security in advance.9 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.10 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.11 The fourteenth amendment does not employ the phrase “due process of law ” in any new sense, but as employed in the state constitution.12 The provisions in the state constitution that no one shall be deprived of any of the rights or privileges, etc., unless by the law of the land, etc., and that no person shall be deprived of property without due process of law, are not limitations upon the taxing power vested in the legislature. The imposition of a tax or of an assessment as a tax does not deprive the citizen of any rights or properly,within the true intent and meaning of such provision.13 The constitutional inhibition against taking private property for public use without compensation to the owner, has reference solely to the taking of private property for public use under the right of eminent domain.14 Where private property is taken under the taxing power, the tax-payer receives just compensation in the protection afforded him by government.15 Statutes which violate the constitutional provision, that property cannot be taken “ without due process of law,” cannot have the effect to validate tax sales made under a prior statute.16
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, but it does nob relate to territorial *451or municipal arrangements made for different portions of the state, for a state may establish one system of law in one portion of its territory and another system in another portion, provided it ddes 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.1 The provision in a state constitution requiring the property of railroad companies operated in more than one county to be assessed by the state board of equalization, is not in conflict with the provision of the fourteenth amendment which provides that “no state shall deny to any person the equal protection of the laws.” The provision is self-executing, and the power may be executed without any statute.2 The fact that the value of one kind of property is to be ascertained by one officer or board, and the value of another by another, each clothed with the duty and responsibility of ascertaining the actual value, does not operate to deprive the owners of either kind of property of legal protection;3 but a system of taxation prescribing different modes of assessing the value of property of natural persons and the property of railroad corporations as the basis of taxation, is a departure from the rule of equality and uniformity.4 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.5 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. 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.6 The fourteenth amendment imposes a limitation on the taxing power of the state as to “equal protection of the laws,” which forbids inequality in exactions of every kind, and among them that of unequal taxation.7 The equal protection of the laws to any one implies not only that he has a right to resort, on the same terms with others, to the courts of the country for the security of his person and property, and the prevention and redress of wrongs and the enforcement of contracts, but also that he is exempt from any greater burdens or charges than such as are equally imposed upon all others under like circumstances. It forbids unequal exactions of any kind, and among them that of unequal taxation.8 This provision of the constitution is not in conflict with the fourteenth amendment, providing that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” This provision applies to natural persons only, and not to corporations or artificial persons.9
Eight to a HbariNG. 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.10 A tribunal invested by law with power to affect the property of a subject is bound to give such subject an opportunity of being heard before it proceeds.- The rule is of universal application, and is founded on the plainest principles of justice.11 The power to tax is plenary, but taxation implies public interest, and also that the proceedings are in pais, in some of which the tax-payers have a right to a *452hearing; and any attempt to levy the burden in disregard of those principles must be inoperative.1 No person can be deprived of his property without a hearing, and this constitutional provision may apply to the assessment of taxes for the support of government.2 If,a party is illegally deprived of opportunity for a hearing in opposition to the assessment, the-defect is jurisdictional, and cannot be cured.3 No statute should be so construed, if such construction can be avoided, as to leave it possible for any man to forfeit or lose his property without'ever having the opportunity of testing by suit the legality of the proceedings by which it is proposed to divest him thereof.4 Opportunity to be heard must be afforded at the time and place fixed by law.5 Although the statute empowers to act without giving notice to the persons to be injuriously affected by its action, yet such notice must be given, since no person should be deprived of his property without an opportunity to be heard. The injustice of doing this counterbalances the inconvenience of giving the notice.6 After the assessment is completed, no increase in valuation can legally be made without notice, actual or constructive, to the tax-payer, and opportunity to be heard;7 but a party’s right to be heard in abatement may be-made to depend on his furnishing a list of his property for taxation, as a penalty for the neglect.8 The revenue laws of a state may be in harmony, 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.9
NOTICE Essential. Taxing officers have no absolute power to tax as they may choose without giving any notice to the owner of the property taxed; the general principles of law oppose the exercise of such a power.10 If a law provides for an opportunity for the tax-payer to be heard in respect to his assessment, and for notice of the time and place, the failure to give the notice is not a mere irregularity, but is fatal.11 Provisions of the statute as to notice of time and place of meetings of the board are compulsory, and compliance is a condition precedent to the validity of the tax.12 A compliance with all the provisions of the statute, including the giving of notice to the tax-payer, must be regarded as compulsory, and as conditions precedent to further action to charge him with a tax.13 It is requh-ed as a condition to a valid assessment.14 Notice, or the means of knowledge, is an essential element of every just pro*453ceeding "which affects rights of persons or property.1 Whore notice is to be given both personally and by publication, a failure m either is fatal;2 and notice by publication cannot bo received as a substitute for a notice to be personally delivered to tlio party;3 it must be made to him personally or to his agent, or be left at his dwelling-house.4 Where the statute provides that the collector shall notify thp tax-payer at least 10 days before the time of the meeting of the commissioners of appeal, a service upon the tenant is not sufficient.5 A non-resident is not chargeable with constructive notice of the action of the assessors, and is under no obligation to appear before them.6 Where the statute expressly authorizes service by publication of notice to all parties interested, such service must be held sufficient to sustain the jurisdiction.7 An assessment of a tax to be paid by a corporation is not void because made without notice, where a subsequent notice was given according to statute, and an appeal was provided for.8 After a person has listed all his personal property subject to taxation, it would be illegal for any person, without notice to the property owner, to increase his list or the amount of his assessment.9 After property is listed for taxation the valuation shall not be increased without notice.10 The tax-payer must take notice of the general law fixing the time and place of hearing.11 A law imposing an assessment for a local improvement without notice to, and a hearing, or an opportunity to be heard, on the part of the owner of the property to be assessed, has the effect to deprive him of his property without “ due process of law,” and is unconstitutional.12 Notice to the parties to be affected involves moro than a semblance of benefit.13
Passage of Eevenue Laws. Any law which provides for the assessment and collection of a tax to defray the expenses of the government is a revenue law.14 They are those laws only whose principal object Is the raising of revenue, and not those under which revenue may incidentally arise.15 Courts will look behind the printed statute to the legislative records to ascertain whether it was in fact passed in accordance with the forms and in the manner prescribed by the constitution.16 A journal is a public record of which courts may take judicial notice.17 The copies of journals certified by the secretary of state, and the printed journals published in obedience to law, are both competent evidence of the proceeding of the legislature; and, by virtue of statute, the copies of the daily journals kept by the clerks of the two houses, and made by persons employed for the purpose, though not sworn public officers, in bound volumes, furnished by the secretary of state, and afterwards deposited and kept in his office, are official records in his custody, copies of'which certified *454bv him, are admissible upon settled rules of evidence.1 The word “ hereafter ” in a statute includes the year of the passage of the act.2
TasatioN of Railroads — California. The legislature may tax railroad property and telegraph lines within its limits.3 Under the statutes of California a railroad must be taxed as real estate, and the portion situate in each county must be assessed in said county a$ so much land, like the adjoining lands, without reference to its connections, or the uses to which it is put; and must be assessed at its “ cash value,” which is the amount at which the property would be appraised if taken in payment of a just debt, due from a solvent debtor.4 The land and improvements thereon must be assessed separately, like other real estate, and an assessment not made in the mode and on the principles stated is void.5 The road-bed is the foundation on which the superstructure of a roadway rests; the roadway is the right of way, which is property liable to taxation; the rails in place constitute the superstructure. An assessment of these items separately does not constitute double taxation.6 A description of the “ roadway,” by giving the termini, courses, and distances, is sufficient.7 Under the state constitution, the property of railroads and other quasi public corporations is subject to assessment and taxation, without deduction of the amount of any mortgage or like lien thereon.8 The provision of the constitution that railroads operated in more than one county shall.be assessed by the state board of equalization is clearly self-executing, and the power thus conferred may be exercised without the aid of any statute.9 Railroad property must be assessed in the manner prescribed by the constitution; that is, by the state board, without the aid of statute.10 An assessment made in strict accordance with the constitution, relating to assessment of railroad property, which violates the provisions of the fourteenth amendment to the constitution of-the United States, is void.11 ' The provision of the constitution requiring the property of railroad companies operated in more than one county to be assessed by the state board of equalization, is not in conflict with the provision Of the fourteenth amendment of the United States constitution, that “no state shall deny to any person the equal protection of the laws.”12 The state board has not the power to increase or lower an individual assessment.13 The constitution of the state, so far as it relates to the state board of equalization, has reference to equalization between counties ; and the same is true of the Political Code.14 The constitution does not in terms require that the assessed value of each item should be separately apportioned, and that the Political Code does not contemplate such separate distribution is apparent.15 The word “person,” as used in section 9 of article 13 of the state constitution, relating to equalization of county assessment rolls, has no relation to assessments of property of railroad corporations operated in more than one county.16 „ Boards of supervisors of the several counties *455through which run railroads, operated in more than one county, have no jurisdiction to raise or lower the assessments placed upon the property of such roads by the state board of equalization.1 All property of a railroad, other than that mentioned in the constitution, must be assessed by local assessors In the manner prescribed by statute.2 The constitution does not require the assessment to cities and towns, and to counties, to be one act.3 The sworn statement required of the president of a railroad corporation is not binding upon the board, and may be disregarded by it in the assessment.4 The franchise of the Central Pacific Railroad Company is property subject to taxation, and is not exempt by reason of its being a means or instrumentality employed by congress to carry into operation the powers of the general government.5
DeduotioNS or Mortgage Interest. Under the state constitution the property of railroads and other quasi public corporations is subject to assessment and taxation without deduction of the amount of any mortgage or like lien thereon.6 Under section 4, art. 13, of the constitution of 1879, although the mortgaged property is liable, it is the duty of the mortgagee, and not of the mortgagor, to pay the taxes levied on the money, the payment of which is secured by the mortgage.7 The tax is the debt of the mortgagee, and not of the mortgagor.8 Courts have no authority to declare that solvent debts are not taxable, because to tax them might amount to double taxation. The mode and manner of assessing solvent debts is a matter of legislative discretion.9 — [Ed.
Dobbins v. Erie Co. 16 Pet. 435.
Railroad Co. v. Husen, 95 U. S. 465.
Andrews v. Auditor, 28 Grat. 123; Weston v. Charleston, 2 Pet. 467
Dobbins v. Com’rs of Erie, 16 Pet. 435; Andrews v. Auditor, 28 Grat. 127.
Luehrman v. Taxing Dist. 2 Lea. 438; Memphis v. Memphis W. W. 5 Heisk. 529; Hope v. Deaderick, 8 Humph. 9; Bell v. Bank of Nashville, Peck, 269; Knoxville & O. R. Co v. Hicks. 1 Tenn. Leg. Rep. 338; Pollard v. State, 65 Ala. 631; Appeal Tax Ct. v.Patterson, 50 Md. 369; Howell v. State, 3 Gill. 14; Weston v. Charleston, 2 Pet 467; Andrews v. Auditor. 28 Grat. 123; Transp. Co. v. Wheeling, 99 U. S. 279; Savings Soc. v. Coite, 6 Wall. 601; Providence Bank v. Billings, 4 Pet. 563; McCulloch v. Maryland, 4 Wheat. 429; Transp. Co. v. Wheeling, 99 U. S. 277; State Ton. Tax Cases, 12 Wall. 204; Day v. Buffington, 3 Cliff. 387.
Transp. Co. v. Wheeling, 99 U. S. 282; Gibbons v. Ogden, 9 Wheat. 201.
Dobbins v. Erie Co. 16 Pet. 435.
Fisher v. Blight, 2 Cranch, 396; McCulloch v. Maryland, 4 Wheat. 316; Gibbons v. Ogden, 9 Wheat. 73; Metropolitan Bank v. Van Dyck, 27 N. Y. 400; U. S. v. Marigold, 9 How. 560; Lick v. Faulkner, 25 Cal. 404.
Legal-tender Cases, 12 Wall. 457.
Legal-tender Cases, 12 Wall. 457. But see U. S. v. Bailey. 1 McLean, 234.
McCulloch v. Maryland, 4 Wheat. 316; U.S. v. Fisher, 2 Cranch, 358; Metropolitan Bank v. Van Dyck, 27 N. Y. 400; Com. v. Lewis, 6 Bin. 270.
Metropolitan Bank v. Van Dyck. 27 N.Y. 400.
McCulloch v. Maryland, 4 Wheat. 316; U. S. v. Rhodes, 1 Abb. (U. S.) 49.
United N. J. R., etc., Co. v. Binninger, 42 N. J. Law, 529; New Jersey R. & T. Co. v. Hancock, 35 N. J. Law, 537.
Farmers’ Nat. Bank v. Dearing, 91 U.S. 29; National Com. Bank v. Mobile, 62 Ala. 284; Railroad Co. v. Peniston, 18 Wall. 34; Pollard v. State, 65 Ala. 631; Transp. Co. v. Wheeling, 99 U. S. 279; Nathan v. Louisiana, 8 How. 73; Brown v. Maryland, 12 Wheat. 419; Weston v. Charles ton, 2 Pet. 449; McCulloch v. Maryland, 4 Wheat. 429; Savings Soc. v. Coite, 6 Wall. 604; State Ton. Tax Cases, 12 Wall. 204; Andrews v. Auditor, 28 Grat. 124; Day v. Buffington, 3 Cliff. 387; Osborn v. Bank of U. S. 9 Wheat. 738.
Weston v. Charleston, 2 Pet. 449; Thomson v. Pacific R. Co. 9 Wall. 579; Bank of Commerce v. Tax Com’rs, 2 Black, 620.
Fagan v. Chicago, 84 Ill. 233; McCulloch v. Maryland, 4 Wheat. 316; Osborn v. Bank of U.S. 9 Wheat. 738; Day v. Buffington, 3 Cliff. 387; Transp. Co. v. Wheeling, 99 U. S. 282.
People v. Com’rs of Taxes, 76 N. Y. 76; Nat. Bank v. Com. 9 Wall. 353; Railroad Co. v. Peniston, 18 Wall. 15; Waite v. Dowley, 9 Chi. Leg. News, 263; Dobbins v. Erie Co. 16 Pet. 435.
Railroad Co. v. Peniston. 18 Wall. 5.
U.S. v. Railroad Co 17 Wall. 322; Crandall v. Nevada, 6 Wall. 35; McCulloch v. Maryland, 4 Wheat. 316; Collector v Day, 11 Wall. 113; Weston v. Charleston, 2 Pet. 449,
Railroad Co. v. Peniston, 18 Wall. 34; McCulloch v. Maryland, 4 Wheat. 316; Osborn v. Bank of U. S. 9 Wheat. 738.
Thomson v. Pacific R. Co. 9 Wall. 579. See People v. Cent. Pac. R. Co. 43 Cal. 398; Huntington v. Cent. Pac. R. Co. 2 Sawy. 503; Inhab. of Worcester v. Western R. Corp. 4 Metc. 568; Boston & Me. R. R. v. Cambridge, 8 Cush. 237.
U. P. R. Co. v. Peniston, 18 Wall. 5.
Thomson v. Pacific R. R. 9 Wall. 579; Huntington v. Cent. Pac. R Co. 2 Sawy. 503; People v. Cent. Pac. R. Co. 43 Cal. 398; Worcester v. Worcester R. Corp. 4 Metc. 568; Boston & M. R. Co. v. Cambridge, 8 Cush. 237
Railroad Co. v. Peniston, 18 Wall. 32; Thomson v. U. P. R. Co. 9 Wall. 579.
Lane Co. v. Oregon, 7 Wall. 77; Nat. Bank v. Com. 9 Wall. 353; Thomson v. Pacific R. Co. 9 Wall. 591.
Thomson v. Pacific R. Co. 9 Wall. 579,
Wilmington R. Co. v. Reid, 13 Wall. 264.
Scotland Co. v. Missouri, Iowa & N. R. Co. 65 Mo. 123.
Moore v. Holliday, 4 Dill. 52; State v. Hannibal & St. J. R. Co. 37 Mo. 265; Livingston Co. v. Hannibal & St. J. R. Co. 60 Mo. 616; Bailey v. Magwire, 22 Wall. 215.
Baltimore v. Baltimore City P. R. Co. 57 Md. 31.
Hand v. Savannah & C. R. Co. 17 S. C. 221; Hand v. Same, 12 S. C. 814, explained.
Memphis & C. R. Co. v. Gaines, 3 Tenn. Ch. 478.
Wells v. Cent. Vt. R. Co. 14 Blatchf. 427.
State v. Balt. & Ohio R. Co. 48 Md. 71 ; State v. North. Cent. R. Co. 44 Md. 162; Miller v. State, 15 Wall. 488.
Scotland Co. v. Missouri, Iowa & N. R. Co. 65 Mo. 123.
N. J. Midland R. Co. v. Jersey City, 42 N. J. Law, 97.
id.
Delaware Railroad Case, 18 Wall. 225; Tucker v. Ferguson, 22 Wall. 575; Erie R. Co. v. Pennsylvania, 21 Wall. 498; Appeal Tax Court v. Rice, 50 Md. 302; Railroad Co. v. Marion Co. 7 Lea. 665; Wilson v. Gaines, 2 Tenn. Leg. Rep. 28; Railroad Co. v. Loflin, 105 U. S. 261; Bailey v. Magwire, 22 Wall. 215; Theological Sem. v. People, 101 Ill. 580; Hoge v. Railroad Co. 99 U. S. 349; Louisville & N. R. Co. v. Gaines, 2 Flippin, 621; Appeal Tax Court v. Balt. Acad. of Visitation, 50 Md. 416; Tomlinson v. Jessup, 15 Wall. 459; Miller v. State, Id. 478; Pennsylvania Coll. Cases, 13 Wall. 190; West Wis. R. Co. v Sup’rs, 93 U. S. 585.
Miller v. State, 15 Wall. 478; Holyoke Co. v. Lyman, Id. 522; Pennsylvania Coll. Cases, 13 Wall. 214; Com. v. Fayette Co. R. Co. 55 Pa. St. 452; English v. N. H. & N. Co. 32 Conn. 243; and see Fletcher v. Peck, 6 Cranch, 87.
Tomlinson v. Jessup, 15 Wall. 434; West Wis. R. Co. v. Sup’rs, 93 U. S. 595; 35 Wis. 257; Hewitt v. N. Y., etc., R. Co. 12 Blatchf. 452; C. R. & R. Co. v. State, 54 Ga. 401; A. & C. R. Co v. State, 55 Ga. 312; City v. Metrop. Bank. 27 La. Ann. 648; Iron City Bank v. Pittsburgh, 37 Pa. St, 310; State v. Miller, 31 N. J Law, 521; State v. Mayor, Id. 575; Com. v. Fayette Co. R. Co. 55 Pa. St. 452; Union Improve. Co. v. Com. 69 Pa. St. 140.
Iron City Bank v. Pittsburgh, 37 Pa. St. 340.
New Orleans v. St. Anna’s Asylum, 31 La. Ann. 296; Lothrop v. Stedman, 42 Conn. 583; Suydam v. Moore, 8 Barb. 362; Oliver Lee & Co.’s Bank, 21 N. Y. 9; Hyatt v. Whipple, 37 Barb. 595; Com. v. Fayette Co. R. Co. 55 Pa. St. 452; Bangor, etc., R. Co. v. Smith, 47 Me. 34; West Wis. R. Co. v Sup’rs, 35 Wis. 257.
New Orleans v. St. Anna’s Asylum, 31 La. Ann. 294; Guillotte v. New Orleans, 12 La. Ann. 434; Palfrey v. Paulding, 7 La. Ann. 363; Miller v. State, 15 Wall. 488; Holyoke Co. v. Lyman, 15 Wall. 511; Tomlinson v. Branch, 15 Wall. 469; Railroad Co. v. Maine, 96 U. S. 510
Benson v. N. Y. 10 Barb. 223; Galena, etc., R. Co. v. Loomis, 13 Ill. 548; Ohio, etc., R. Co. v. McClelland, 25 Ill. 140; N. W. Fert. Co v. Hyde Park, 70 Ill. 634; New Albany, etc., R. Co. v. Tilton, 12 Ind. 3; Gorman v. Pacific R. R. 26 Mo. 441; Boston, etc., R. R. v. State, 32 N. H. 215; State v. Matthews, 3 Jones. (N. C.) Law, 451; Nelson v. Vermont, etc., R. R. 26 Vt. 717; Thorpe v. R. & B. R. Co. 27 Vt. 140.
Bank v. Hamilton Co. 21 Ill. 53; Peters v. Railroad Co. 23 Mo. 107; Thorpe v. R. & B. R. Co. 27 Vt. 140.
Union Imp. Co. v. Com 69 Pa. St. 140; Com. v. Fayette Co. R. R. 53 Pa. St. 452; Iron City Bank v. Pittsburgh, 37 Pa. St. 340; Hewitt v. N. Y., etc., R. Co. 12 Blatchf. 467.
St. Joseph v. Hannibal & St. J. R. Co. 39 Mo. 476.
State v. Northern C. Ry. Co. 44 Md. 131.
Morris & Essex R. Co. v. Minton, 23 N. J. Law, 529; Morris & Essex R. Co. v. Haight, 35 N. J. Law, 40; Morris & Essex R. Co. v. Com’r, 37 N. J. Law, 229.
New Jersey v. Yard, 95 U. S. 104.
Sinking-fund Cases, 99 U. S. 720; Tomlinson v. Jessup, 15 Wall. 459; Railroad Co. v . Maine, 96 U. S. 510.
Shields v. Ohio, 95 U. S. 324.
Nichols v. New Haven & N. Co. 42 Conn. 105.
St. Louis v. Boatman’s Ins. & T. Co. 47 Mo. 155.
Greenwood v. Union F. R. Co. 105 U. S. 13.
Railroad Tax Cases, 13 Fed. Rep. 735; S. C. 8 Sawy. 238; Exch. Bank of Columbus v. Hines, 3 Ohio St. 1,
State v. Hannibal, etc., R. Co. 75 Mo. 212; Knowlton v. Sup'rs, 9 Wis. 410; Hale v. Kenosha, 29 Wis. 599.
People v. Cent. Pac. R. Co. 43 Cal. 398; Bright v. McCullough, 27 Ind. 223; Merrick v. Amherst, 12 Allen. 500; Com’rs v. Alleghany Co. 20 Md. 457.
Blackman v. Lehman, 63 Ala. 547.
McMillen v. Anderson, 95 U. S. 37. See. to same eifeot, Pearson v. Yewdall. Id. 294; Murray’s Lessee v. Hoboken, etc., Co. 18 How. 272; Davidson v. New Orleans, 96 U. S. 897; Greene v. Briggs, 1 Curt. 311; Hoke v. Henderson, 4 Dev. Law, 15; Taylor v Porter, 4 Hill, 146; Van Zandt v. Waddel, 2 Yerg. 260; State Bank v. Cooper, Id. 599; Jones v. Perry, 10 Yerg. 59.
Parsons v. Russell, 11 Mich 113.
Bertholf v. O’Reilley, 18 Am. Law Reg. (N. S.) 149; Ex parte Ah Fook, 49 Cal 402.
Wilkinson v. Leland, 2 Pet. 658; Osborn v. Nicholson. 13 Wall. 662.
Hoke v. Henderson, 4 Dev. Law, 15; Taylor v. Porter, 4 Hill, 146; Wynehamer v. People, 13 N. Y. 393; Norman v. Heist. 5 Watts & S 171.
Baker v. Kelley, 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’s Lessee v. Hoboken, etc., Co. 18 How. 472; Janes v. Reynolds. 2 Tex. 251.
Newcomb v. Smith, 1 Chand. (Wis.) 71.
Dwight v. Williams, 4 McLean, 586.
Murray’s Lessee v. Hoboken, etc., Co. 18 How. 272; Huber v. Reily, 53 Pa. St. 112; Rees v. Watertown, 19 Wall. 122; Westervelt v. Gregg, 12 N. Y. 202.
Pennoyer v. Neff, 95 U. S. 714.
Id.
Ex parte Meador, 1 Abb. (U. S.) 317; Petition of McMahon, 22 N. Y. Daily Reg 881.
Mille Lacs Co. v. Morrison, 22 Minn. 178.
Davis v. Clinton City, 55 Iowa, 549; S. C. 8 N. W. Rep. 423; McCarroll’s Lessee v. Weeks, 5 Hayw. 246; Cowles v. Brittain, 2 Hawks, (N. C.) 204; New Town Cut v. Seabrook, 2 Strobh. 560; Co. Com’rs v. Morrison, 22 Minn. 178.
Cowles v. Brittain, 2 Hawks, 207; Hagar v. Sup’rs, 47 Cal. 233.
Kelly v. Pittsburgh, 104 U. S. 78; Railroad Tax Cases, 13 Fed. Rep. 722, and note, 782.
People v. Essex Co. 70 N. Y. 229.
Zeigler v. S. & N. A. R. Co. 58 Ala. 594; Wilburn v. McCalley, 63 Ala. 436.
McMillen v. Anderson, 95 U. S. 37.
Martin v. Mott, 12 Wheat. 19; U. S. v. Ferreira, 13 How. 40; Murray’s Lessee v. Hoboken, etc., Co. 18 How. 272.
Weimer v. Bunbury, 30 Mich. 212.
Springer v. U. S. 102 U. S. 586.
Kent v. Kentland, 62 Ind. 291; Pearson v. Yewdall, 95 U. S. 296.
McMillen v. Anderson, 95 U. S. 37.
Davidson v. New Orleans, 96 U. S. 97.
Kelly v. Pittsburgh, 104 U. S. 78.
Munn v. Illinois, 94 U. S. 118.
Astor v. New York City, 37 N. Y. Super. 561.
Norris v. Waco City, 57 Tex. 635.
Id.
Harper v. Rowe, 53 Cal. 233.
Missouri v. Lewis, 101 U. S. 22.
San Francisco & N. P. R. Co. v. Board of Equalization, 60 Cal. 12.
Id.
Railroad Tax Cases. (San Mateo Co. v. Southern Pac. R. Co.) 8 Sawy. 238; S. C. 13 Fed. Rep. 722.
In re Ah Fong, 3 Sawy. 144.
Pearson v. Portland City, 69 Me. 281,
Railroad Tax Cases, (San Mateo Co. v. Southern Pac. R. Co.) 8 Sawy. 238; S. C. 13 Fed. Rep. 722.
Id.
Id.
Gilmore v. Sapp, 100 Ill. 297.
Railroad Tax Cases, 13 Fed. Rep. 765; Philadelphia v. Miller, 49 Pa. St. 448; Overing v. Foote, 65 N. Y. 263; Westervelt v. Gregg, 12 N. Y. 209; Butler v. Saginaw Co. 26 Mich. 29; Davidson v. New Orleans, 96 U. S. 97.
Butler v. Saginaw Co. 26 Mich. 22; Cleghorn v. Postlewaite, 43 Ill. 428; Philadelphia v. Miller, 49 Pa. St. 440.
Lehman v. Robinson, 59 Ala. 244; Darling v. Gunn, 50 Ill. 424.
Marsh v. Chestnut, 14 Ill. 223; Billings v. Detton, 15 Ill. 218.
Jones v. Randle, 68 Ala. 258; Eldridge v. Kuehl, 27 Iowa, 160; Henderson v. Oliver, 28 Iowa, 20; McCready v. Sexton, 29 Iowa, 356; Thomas v. Stickle, 32 Iowa, 71; Brown v. Painter, 38 Iowa, 456; Baker v. Kelley, 11 Minn. 480.
Sioux City, etc., R. Co. v. Washington Co. 3 Neb. 30.
State v. Lindell Hotel Co. 9 Mo. App. 455; Patten v. Green, 13 Cal. 325.
Patten v. Green, 13 Cal. 325; Cleghorn v. Postlewaite, 43 Ill. 428; Darling v. Gunn, 50 Ill. 424; Leavenworth Co. v. Lang, 8 Kan. 284; Kansas Pac. R. Co. v. Russell, Id. 558; Griswold v. School-dist. 24 Mich. 262; Sioux City, etc., R. Co. v. Washington Co. 3 Neb. 30; Matheson v. Mazomanie, 20 Wis. 191; Phillips v. Stevens Point, 25 Wis. 594; State v. Utter, 33 N. J. Law, 183.
Lott v. Hubbard, 44 Ala. 593; Winnisimmet Co. v. Chelsea, 6 Cush. 477; Lincoln v. Worcester, 8 Cush. 55 ; Porter v. Co. Com’rs, 5 Gray, 365; Otis Co. v. Inhab. of Ware, 8 Gray, 509; Sharp v. Apgar, 31 N. J. Law, 358; Young v. Parker, 33 N. J. Law, 192.
McMillen v. Anderson. 95 U. S. 37.
Patten v. Green, 13 Cal. 329; Cleghorn v. Postlewaite, 43 Ill. 428.
Matter of Smith, 52 N. Y. 526; Moulton v. Blaisdell, 24 Me. 283; Lagroue v. Rains, 48 Mo. 536; Dool v. Cassopolis, 4 N. W. Rep. 265.
Lehman v. Robinson, 59 Ala. 219; Hambleton v. Dempsey, 20 Ohio 173; Thomas v. Gain, 35 Mich. 164; Philadelphia v. Miller, 49 Pa. St. 440; Paulison v. Taylor, 35 N. J. Law, 188; Perrine v. Parker, 34 N. J. Law, 352; Nixon v. Ruple, 30 N. J. Law, 60; Patten v. Green, 13 Cal. 325; State Railroad Tax Cases, 92 U. S. 609; Jewell v. Van Steenburgh, 58 N. Y. 89.
Thames Manuf’g Co. v. Lathrop, 7 Conn. 555; Lowell v. Wentworth, 6 Cush. 221; Kansas Pac. R. Co. v. Russell, 8 Kan. 558.
Lyon Co. v. Sergeant, 24 Kan. 572; Leavenworth Co. v. Lang, 8 Kan. 284.
Philadelphia v. Miller, 49 Pa. St. 448.
Appeal of Powers, 29 Mich. 501.
Moulton v. Blaisdell, 21 Me. 283; Lovejoy v. Lunt, 48 Me. 377. See Lagroue v. Rains, 48 Mo. 536.
Schushard v. Drake, 33 N. J. Law, 194.
Id.
St. Paul v. Merritt, 7 Minn. 258.
Pritchard v. Madren, 21 Kan. 492; Gulf R. Co. v. Shepard, 9 Kan. 647; Fudge v. Fudge, 23 Kan. 416.
Com. v. Runk, 26 Pa. St. 235.
Griffith v. Watson, 19 Kan. 27; Leavenworth Co. v. Lang, 8 Kan. 284; Kansas Pac. R. Co. v. Russell, Id. 564; Same v. Wyandotte Co. 16 Kan. 587.
Relfe v. Columbia L. Ins. Co. 11 Mo. App. 374; Pacific R. Co. v. Cass Co. 53 Mo. 30.
Methodist Prot. Church v. Baltimore, 6 Gill. 391; O’Neal v. Bridge Co. 18 Md. 26.
Stuart v. Palmer, 74 N. Y. 183.
Astor v. New York, 37 N. Y. Super. 556; Sharp v. Spier, 4 Hill, 76; Sharp v. Johnson, Id. 96; Matter of Douglass, 16 N. Y. 42; In re Smith, 52 N. Y. 526.
Peyton v Bliss, 1 Woolw. 173.
The Nashville, 4 Biss. 188.
Worthen v. Badgett, 32 Ark. 496; Burr v. Ross, 19 Ark. 250; English v. Oliver, 28 Ark. 321. Vinsant v. Knox, 27 Ark. 278; State v. Little Rock, etc., Co. 31 Ark. 716; Jones v. Hutchinson, 43 Ala. 723; Sup’rs v. Heenan, 2 Minn. 399 ; Smithee v. Garth, 33 Ark. 17.
Brown v. Nash, 1 Wyo. 85. See Railroad Tax Cases, 13 Fed. Rep. 722.
Amoskeag Nat. Bank v. Ottawa, 105 U. S. 667.
People v. N. Y. Floating Dry-dock Co. 63 How. Pr. 451.
People v. Central Pac. R. Co. 43 Cal. 398; Thomson v. Pac. R. Co. 9 Wall. 579.
Huntington v. Cent. Pac. R. Co. 2 Sawy. 503. See Albany & S. R. Co. v. Osborn, 12 Barb. 225; A. & W. R. Co. v. Canaan, 16 Barb. 244; S. & M. R. Co. 14 Ill. 163; Tax Cases, 12 Gill. & J. 117; Mohawk & Hudson Riv. R. Co. v. Clute, 4 Paige, 384.
Huntington v. Cent. Pac. R. Co. 2 Sawy. 503.
San. Fran. & N. P. R. Co. v. Board of Equalization, 60 Cal. 12. See Appeal of N. B. & M. R. Co. 32 Cal. 499.
San Francisco & North. Pac. R. Co. v. State Board, 60 Cal. 12.
Central Pac. R. Co. v. State Board of Equal. 60 Cal. 35.
S. F. & North. Pac. R. Co. v. State Board, 60 Cal. 12.
Railroad Tax Cases, 13 Fed. Rep. 749; People v. Sacramento Co. 8 Pac. C. Law J. 103.
Sonoma Co. Tax Case, 13 Fed. Rep. 789.
San Francisco & North. Pac. R. Co. v. State Board, 60 Cal. 12,
Id.
Id.
Id.
Central Pac. R. Co. v. State Board, 60 Cal. 35.
People v Sacramento Co. 59 Cal. 321.
Railroad Tax Cases, 13 Fed. Rep 749; People v. Sacramento Co. 8 Pac. C. Law J. 103.
San Francisco & N. P. R. Co. v. State Board, 60 Cal. 12.
Id.
Huntington v. Cent. Pac. R. Co. 2 Sawy. 503. Sec State v. Cent. Pac. R. Co. 10 Nev. 47.
Cent. Pac. R. Co. v. State Board, 60 Cal. 35.
Blythe v. Luning, 7 Sawy. 504.
Id.
Savings & Loan. Soci. v. Austin, 46 Cal. 415.