with whom concurred
Mr. Justice Brown, dissenting.The statute of Indiana of March 6, 1891, as construed by the Supreme Court of that State, authorized the State Board of Tax Commissioners, in assessing the “railroad track” and “ rolling stock ” of the company in the State, to ascertain the market value of its property and interests of every kind, Within and without the State, including capital stock, bonds, earnings, franchise, equipment, etc.; and, that being done, to take as the value of the company’s track and rolling stock in Indiana for taxation such proportion of that aggregate amount as the number of miles of its road in that State bore to the aggregate miles of its road or roads within and Without the State. And by this rule of valuation the State Board of Tax Commissioners seems to have been governed. In the official report by the board of its proceedings for 1891, showing the basis on which the values of the railroads and parts of roads within the State had been fixed, it is said that, “ in arriving at the basis for the estimate of said values the board has considered the cost of the construction and equipment of said roads, the market value of the stocks and bonds, and the gross and net earnings of each of said roads, and all other matters appertaining thereto that would assist the board in arriving at a true cash value of the same.” The forms of printed returns supplied to railroad companies show that they were required to report such values and earnings in respect of all their property of every kind, wherever situated. Under the mode of assessment pursued, property was taxed in Indiana that had no situs there, which was used in interstate commerce outside of Indiana, and could not properly be included in the company’s railroad track and rolling stock in that State. I am of opinion that the statute as construed and *438enforced by the State imposed illegal burdens upon interstate commerce under the guise of a valuation for purposes of taxation of property within the State. The board had no authority to impart to the value of railroad track and rolling stock, within the State, any part of the value of the company’s various interests and property without the State.
There was some contention at the bar as to whether the state board, in fact, proceeded according to the rule of valuation to which I have referred. If I am in error in saying that it appears, affirmatively, from the record, that the board applied that rule, there can be no doubt that the state court construed the statute as authorizing the adoption of such a rule. It is equally clear that evidence to prove that the board acted upon that rule was offered and excluded, and' that a proper exception was taken. Such action upon the part of the court was itself sufficient to raise the question whether the statute, as interpreted by the state court, and as administered by the state authorities, was not obnoxious to the objection that it permitted illegal burdens to be imposed, under the guise of local taxation, upon interstate commerce, and the taxation of property not within the jurisdiction of Indiana.
Without referring to other grounds discussed at the bar, I dissent from the opinion and judgment in this case upon the grounds above stated.
I am authorized by Mr. Justice Brown to say that he also dissents. Mr. Justice Jackson did not hear the argument in this case, or take any part in its decision.