THE TAXATION 
 
 OP 
 
 Property of Railroad Companies in California 
 
 AS AFFECTED BY THE 
 
 Fourteenth Amendment of the Federal Constitution. 
 
 OPINIONS 
 
 OF 
 
 JUSTICE FIELD and JUDGE SAWYER, 
 
 DELIVERED IN THE 
 
 U. S. CIRCUIT COURT AT SAN FRANCISCO, 
 September 17th, 1883. 
 
 [Printed from a Revised and Official Copy.] 
 
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 IN THE 
 
 ift*. United «f tife, 
 
 NINTH CIRCUIT, 
 
 DISTRICT OF CALIFORNIA . 
 
 COUNTY OF SANTA CLARA 
 
 vs. 
 
 SOUTHERN PACIFIC RAILROAD COMPANY. 
 
 COUNTY OF SACRAMENTO 
 vs. 
 
 CENTRAL PACIFIC RAILROAD COMPANY, 
 
 And other similar Tax Cases. 
 
 SYLLABUS. 
 
 1. The property and franchises of the Southern Pacific Eailroad Com- 
 pany and of the Central Pacific Railroad Company, corporations created 
 under the laws of California, though the companies are employed by the 
 General Government for postal and military purposes, and were aided by 
 land grants and loans in the construction of their roads, are not exempt 
 from State taxation in the absence of Congressional legislation declaring 
 such exemption. It is competent for Congress to exempt any agencies it 
 may employ for services to the General Government from such taxation 
 as will, in its judgment, impede or prevent their performance. 
 
 2. The Fourteenth Amendment of the Constitution, in declaring that 
 no State shall deny to any person within its jurisdiction the “ equal pro- 
 tection of the laws,” imposes a limitation upon the exercise of all the 
 powers of the State which can touch the individual or his property, in- 
 cluding that of taxation. 
 
 3. The “ equal protection of the laws ” to any one implies not only that 
 the means for the security of his private rights shall be accessible to him 
 on the same terms with others, but also that he shall be exempt from 
 any greater burdens or charges than such as are equally imposed upon 
 all others under like circumstances. This equal protection forbids un- 
 equal exactions of any kind, and among them that of unequal taxation. 
 
4 
 
 4. Uniformity in taxation requires uniformity in the mode of assess- 
 ment, as well as in the rate of percentage charged. 
 
 5. The thirteenth article of the Constitution of California declares that 
 “ 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,” and that, 
 “ except as to railroad and other quasi public corporations,” the value of 
 the property affected, less the value of the security, shall he assessed 
 and taxed to its owner, and that the value of the security shall he 
 assessed and taxed to its holder, and that the taxes so levied shall 
 he a lien upon the property and security, and may he paid hy either 
 party to the security ; that if paid hy the owner of the security, the 
 tax levied upon the property affected thereby shall become a part of 
 the debt secured ; and if the owner of the property shall pay the tax 
 levied on the security, it shall constitute a payment thereon, and 
 to the extent of such payment a full discharge thereof. In the assess- 
 ment of property of the defendants — railroad companies — the mortgages 
 thereon were not deducted, hut the whole value of the property, notwith- 
 standing the mortgages thereon, was assessed and the property taxed ac- 
 cording to such assessment, to those companies; Held (1), treating the 
 mortgages as transferring a taxable interest in the property, that in as- 
 sessing against the company the interests with which they had at the 
 time parted by their mortgages, and taxing them upon that assessment, 
 was a proceeding to take the property of the companies without due pro- 
 cess of law; and (2) treating the mortgages as a lien or incumbrance 
 upon the property, that by not deducting their amount in the assessment 
 of the value of the property of the railroad companies for taxation, as is 
 done in the valuation of property of natural persons, when subject to a 
 mortgage, there was a discrimination against the companies, which re- 
 sulted in imposing a greater burden upon their property than is imposed 
 upon the property of natural persons. 
 
 6. Persons do not lose their right to equal protection guaranteed by 
 the Fourteenth Amendment to the Federal Constitution when they form 
 themselves into a corporation under the laws of California. 
 
 7. The State possesses no power to withdraw corporations from the 
 guaranties of the Federal Constitution. Whatever property a corporation 
 lawfully acquires is held under the same guaranties which protect the 
 property of natural persons from spoliation. 
 
 8. Under the reserved power to amend, alter, or repeal the laws under 
 which private corporations are formed, the State cannot exercise any con- 
 trol over the property of a corporation, except such as may be exercised 
 through control over its franchise, and over like property of natural per- 
 sons engaged in similar business. 
 
 9. The proceeding for the assessment of property — that is, the ascer- 
 tainment of its value upon evidence taken — is judicial in its character; 
 and to its validity the law authorizing it must provide some kind of no- 
 tice,, and an opportunity to be heard respecting it, before the proceeding 
 
b 
 
 becomes final ; or it will want the essential ingredient of due process of 
 law. The notice may be given by personal citation or by statute. It is 
 usually given by a statute prescribing a time and place where parties 
 may be heard before boards appointed for the correction of errors in as- 
 sessment. 
 
 10. The Constitution of California (section 15, article IY.) provides that 
 “ on the final passage of all bills they shall be read at length, and the 
 vote shall be by yeas and nays upon each bill separately, and shall be 
 entered on the journal, and no bill shall become a law without the con- 
 currence of a majority of the members elected to each house.” Under 
 this provision, the Court, to inform itself, will look to the journals of the 
 Legislature, and if it appears therefrom that the bill did not pass by the 
 constitutional maj ority , then it will not be regarded as a law. Sawyer, J. 
 
 11. The journals of the Legislature show that the Act of March 14, 
 1881, mentioned in the opinion, never became a law. Sawyer, J. 
 
 12. Where the original written journals on file in the office of the Sec- 
 retary of State differ in any material particular from the printed journals, 
 the original written journals are the authentic official records, and must 
 control. Sawyer, J. 
 
 Counsel for Plaintiffs : — 
 
 E. C. Marshall, Att’y-Gen. of California, 
 
 D. M. Delmas, 
 
 D. S. Terry, 
 
 A. L. Rhodes, 
 
 W. T. Baggett, 
 
 J. H. Campbell, List. Att’y of Santa Clara Co., 
 
 J. T. Carey, Dist. Att’y of Sacramento Co., and 
 J. M. Lesser, List. Att’y of Santa Cruz Co. 
 
 Counsel for Defendants : — 
 
 S. W. Sanderson, 
 
 J. N. Pomeroy, 
 
 T. I. Bergin, 
 
 H. S. Brown, 
 
 S. C. Denson, and 
 P. D. Wiggington. 
 
Digitized by the Internet Archive 
 in 2016 
 
 
 
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OPINION OF THE COURT. 
 
 By the Court: Field, Circuit Justice: 
 
 These are actions for the recovery of unpaid State and 
 County Taxes levied upon certain property of the several 
 defendants, either for the fiscal year of 1881 or of 1882, 
 and alleged to be due to the plaintiffs, with an addi- 
 tional five per cent., as a penalty for their non-payment, 
 and interest. The defendants are corporations formed un- 
 der the laws of California, and the taxes claimed were 
 levied on the franchise, roadway, roadbed, rails and rolling- 
 stock of each of them as an unit, without separation or dis- 
 tinction in the valuation of the different parts composing 
 the whole. To two of the corporations, the Southern Pa- 
 cific Railroad Company and the Central Pacific Railroad 
 Company, privileges and powers, other than those acquired 
 under the laws of the State, were conferred by grant of 
 the General Government; and for them obligations and 
 burdens were assumed not contemplated nor possible under 
 their original organization. 
 
 It is contended that Congress has selected these corpo- 
 rations as the special agents and instruments of the nation 
 for public purposes, and to that end has clothed them with 
 faculties, powers and privileges to enable them to construct 
 and maintain their roads as postal and military roads of 
 the Government; that the State by an act of its Legisla- 
 ture has assented to the acceptance of these faculties, 
 powers and privileges, and that the companies in consid- 
 eration thereof have assumed obligations to the General 
 
8 
 
 Government with the discharge of which the State can- 
 not interfere; that the power to tax their franchises 
 involves the power to destroy the companies and thus 
 deprive the General Government of the benefit of the 
 roads, for the construction and maintenance of which its 
 grants were made; that the existence and exercise of the 
 power on the part of the State are therefore incompatible 
 with the duties devolved upon and assumed by the compa- 
 nies to the United States. Hence it is claimed by counsel 
 that the tax levied upon the franchises of the defendants 
 is illegal and void; and they refer to numerous decisions 
 of the Supreme Court which hold, in general language,that 
 an agency of the United States, an instrumentality by 
 which the Federal Government discharges its obligations 
 to the people of the country, cannot be taxed by any State 
 or subordinate authority. Certainly no State can impede 
 or embarrass the Federal Government in its operations, as 
 might be done if it could impose a tax upon the necessary 
 means adopted for their execution; nor can the Federal 
 Government impede or embarrass the operations of the 
 State governments, as it might do, if it could impose a tax 
 upon the necessary means adopted by them in the exercise 
 of their powers. 
 
 The two governments have supreme authority within 
 their respective spheres, and within them neither can inter 
 fere with the other. On this principle it was held by the 
 Supreme Court that the State could not levy a tax upon the 
 salary or emoluments of an officer of the United States; 
 nor could the United States impose a tax upon the salary 
 of a State Judge. ( Dobbins vs. Commissioners of Erie 
 County , 16 Peters, 435; Collector vs. Day , 11 Wall., 113.) 
 Both officers were necessary agents, instrumentalities for 
 exercising the powers of their respective governments, 
 and to tax the salary of either was to impair the means 
 by which he could exist and maintain his office. In both 
 cases, as observed by Mr. Justice Nelson, the exemption 
 from taxation was “ upheld by the great law of self-preser- 
 
9 
 
 vation, as any government whose means employed in 
 conducting its operations is subject to the control of 
 another, can exist only at the mercy of that govern- 
 ment.” 
 
 The correctness of this general principle is not contro- 
 verted, and cannot be in the face of the numerous deci- 
 sions of the Supreme Court, when applied to the means 
 or instrumentalities created by the Federal Government, 
 or existing under its laws, for the exercise of its powers, . 
 such as officers of its Courts in the administration of 
 justice, or fiscal agents in the collection, custody, or 
 distribution of its funds. But we are unable to accede 
 to the position tliat every agent or instrument which 
 the United States may see fit to employ, is thereby ex- 
 empted from the common burdens of the State in 
 which it may be found or used, in the absence of spe- 
 cific Congressional legislation declaring such exemp- 
 tion. The coach employed to carry the mail, or the 
 ferry-boat to convey it across a navigable stream, 
 would hardly, by reason of this employment alone as an 
 instrumentality of the General Government, be considered 
 as withdrawn from the taxing power of the State. As well 
 observed by Chief Justice Chase, with reference to the ex- 
 emption from State taxation claimed by the Kansas Divi- 
 sion of the Pacific Railroad Company for its property, no 
 limits can be perceived to the principle of exemption 
 which the companies thus seek to establish. “ Every cor- 
 poration,” he added, “ engaged in the transportation of 
 mails, or of Government property of any description, by 
 land or water, or in supplying materials for the use of the 
 Government, or in performing any service of whatever 
 kind, might claim the benefit of the exemption. The 
 amount of property now held by such corporations, and 
 having relations more or less, direct to the National Govern- 
 ment and its service, is very great. And this amount is 
 continually increasing; so that it may admit of question 
 whether the whole income of the property which will 
 2 
 
10 
 
 remain liable to State taxation, if the principle contended 
 for is admitted and applied in its fullest extent, may not 
 ultimately be found inadequate to the support of the 
 State governments.” ( Thomson vs. Pacific Railroad , 9 
 Wall., 579, 591.) 
 
 It is true, that in the case from which this citation is 
 made, exemption from taxation was claimed only for the 
 property, the road and rolling-stock of the Company. 
 
 4 Here the exemption claimed is of the franchises of the 
 corporations, their right to exist and maintain their roads. 
 But it is not perceived that this difference between the 
 cases can affect the rule which was the^ laid down, that 
 unless Congress interposes and creates the exemption, the 
 taxing power of the State is not restrained; for if the 
 roads and rolling-stock can be taxed, and, if the taxes are 
 not paid, can be sold, the ability of the companies to dis- 
 charge their obligations as agents of the Government, 
 would be as effectually destroyed, as by the taxation and 
 sale of their franchises. The possession of the roads and 
 rolling-stock is as essential as the possession of the fran- 
 chises. 
 
 The objection presented by counsel is not free from 
 difficulty. At one time I thought that it was tenable, and 
 so expressed myself by joining in the dissent in Railroad 
 Company vs. Peniston , reported in 18 Wallace; but on 
 further consideration, I have come to the conclusion that 
 the rule laid dowm in Thomson’s Case is the true and 
 sound rule. The State, it is conceded, cannot use its tax- 
 ing power so as to defeat or burden the operations of the 
 General Government; and when that Government has 
 itself created the instrumentality used, its exemption from 
 State taxation necessarily follows. But we are of opinion, 
 yielding to the decision cited, that when the instrumentality 
 is the creation of the State — a corporation formed under its 
 laws — and is employed or adopted by the General Govern- 
 ment for its convenience, although to enlarge its use and 
 render it more available additional privileges and benefits 
 
11 
 
 are conferred by that Government upon the corporation, it 
 remains subject to the taxing power of the State, unless 
 Congress declares it to be exempt from such power. Con- 
 gress can undoubtedly exempt any agencies it may employ 
 for services to the General Government from such taxation 
 as will in its judgment impede or prevent their perform- 
 ance. Occasions may arise hereafter, especially in time of 
 war, where the necessities of the Federal Government 
 will require such exemption of the roads of the companies 
 and of their franchises and appurtenances to be declared 
 and enforced, the exemption to continue until the necessi- 
 ties calling for it shall cease. But as yet Congress has not 
 declared any such exemption either of their property or 
 of their franchises; and we therefore think that none 
 exists. 
 
 Of the other defences interposed to the claim of the 
 plaintiffs, some are founded upon an alleged neglect of the 
 assessing officers to comply with the requirements of the 
 laws of the State, and some upon the alleged conflict of 
 provisions of the State Constitution, under which they 
 acted, with requirements of the Federal Constitution. Of 
 the former are objections to what is termed the lumping 
 character of the assessment, that is, the blending of the 
 different items composing the whole into one valuation, 
 namely, the value of the franchise, roadway, roadbed, rails 
 and rolling-stock, without any designation of the value of 
 each distinct part; and to the including in the roadway of 
 property not properly appertaining to it, such as fences on 
 its sides belonging to adjoining proprietors; and, so far as 
 the roadway of the Central Pacific Company is concerned, 
 to the including in the estimate of its length the four miles 
 of the bay between the road in the county of San Fran- 
 cisco and the wharf in Alameda County. The value of 
 the fences is included in the valuation of the roadway of 
 each company. The distance across the bay of San Fran- 
 cisco is added to the length of the road assessed to the Cen- 
 tral Pacific Company, and is assessed as of equal value per 
 
12 
 
 mile with the rest of the road. It is also contended that 
 the land composing the roadway, and the rails laid thereon, 
 should have been separately assessed; the latter as improve- 
 ments under the Constitution of the State, which requires 
 “ land and improvements thereon ” to be separately as- 
 sessed. An objection is also taken to those cases in which 
 the people of the State are plaintiffs, that the statute un- 
 der which they w T ere brought was repealed in 1880, and 
 that after that period actions for unpaid taxes could be 
 brought only in the name of the county. We do not, 
 however, deem it important to pass upon these and other 
 objections to the assessment, arising from an alleged disre- 
 gard of the laws of the State. We shall confine ourselves 
 to the defences made to the assessment and tax from the 
 alleged conflict of the provisions, under which they were 
 levied, with the requirements of the Fourteenth Amend- 
 ment to the Constitution of the United States, which de- 
 clares 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.” The railroad companies contend that both in- 
 hibitions of this amendment were violated in the assess- 
 ment and taxation of their property. 
 
 The Constitution of California provides for taxes on 
 property, on incomes, and on polls. The taxation on prop- 
 erty, with which alone we are concerned in this case, is to 
 be in proportion to its value. There is no provision for 
 levying a specific tax upon any article or kind of property. 
 It declares that all property, not exempt under the laws of 
 the United States, shall, with some exceptions, be taxed 
 according to its value, to be ascertained as prescribed by 
 law; and that the word “ property ” shall “ include moneys, 
 credits, bonds, stocks, dues, franchises, and all other matters 
 and things, real, personal, and mixed, capable of private 
 ownership.” 
 
 It also declares that a “ mortgage, deed of trust, con- 
 tract, or other obligation by which a debt is secured, shall , 
 
13 
 
 for the purposes of assessment and taxation , be deemed and 
 treated as an interest in the property affected thereby .” And 
 that, “ except as to railroads 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 ob- 
 ligation, less the value of such security, shall be assessed 
 and taxed to the owner of the property, and the value of 
 such security shall be assessed and taxed to the owner 
 thereof.” It also provides that “ 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 
 the 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.” 
 
 By the Constitution not only is the ad valorem, rule estab- 
 lished for the taxation of property, but provision is also 
 made for its assessment. The franchise, roadway, road- 
 bed, rails, and rolling-stock of railroads operated in more 
 than one county are to be assessed by a special board, 
 termed the State Board of Equalization. All other prop- 
 erty is to be assessed in the county in which it is situated. 
 The Supervisors of each county are constituted a Board of 
 Equalization of such taxable property, and must act upon 
 prescribed rules of notice to its owners. The State Board 
 is authorized to act not only as assessor of the franchise, 
 roadway, roadbed, rails, and rolling-stock of the railroads 
 mentioned, hut as a Board of Equalization of the taxable 
 property in the several counties, so that equality may be 
 secured between the tax-payers of different localities. Its 
 action in this latter character must also be upon prescribed 
 rules of notice. But though the officers by whom the 
 assessment of these properties is to he made be different, 
 the properties are subject to the same rule of taxation; 
 that is, they are to be taxed in proportion to their value. 
 In fixing, however, the liabilities of parties to pay the tax 
 
14 
 
 assessed and levied upon properties subject to a mortgage, 
 and in estimating the value of such properties as the 
 foundation for the tax, a discrimination is made between the 
 property held by railroad and quasi public corporations, and 
 that held by natural persons and other corporations. A 
 mortgage, as seen by the provisions of the Constitution 
 quoted above, is deemed and treated, for the purposes of 
 assessment and taxation, as an interest in the property 
 affected. At common law a mortgage of property is a 
 conveyance of the title, subject to a condition that if the 
 debt secured be paid as stipulated the conveyance is to 
 become inoperative. Until the debt secured is paid, the 
 title is in the mortgagee. By the Constitution, a mort- 
 gage, for the purposes of assessment and taxation, operates 
 in like manner to transfer the mortgagor’s interest to the 
 extent represented by the amount secured. If such amount 
 be half the value of the property, the taxable interest of 
 the mortgagee is an undivided half interest in the property; 
 if the amount equal or exceed the whole value of the prop- 
 erty, the taxable interest of the mortgagee embraces the 
 entire property. The value of the security can never ex- 
 ceed the value of the property mortgaged; it may be less, 
 and is so if the amount secured be less than such value. 
 
 How, under the Constitution, when, by the execution 
 of a mortgage, a taxable interest in the property held by 
 natural persons or by corporations other than railroad or 
 quasi public, is transferred by the owner to another party, 
 or the whole taxable interest is vested in him, the holder 
 alone of such interest is taxed for it. It is assessed against 
 him as the owner of it, and against him alone could it be 
 justly assessed. But when, by a mortgage on the property 
 of a railroad or a quasi public corporation, a taxable interest 
 in such property is transferred by the corporation to 
 another, or the whole interest is vested in him, the holder 
 of such interest is exempted from taxation for it, and the 
 corporation is assessed and taxed for it, notwithstanding 
 the transfer. Ho account is taken of the transfer of the 
 
15 
 
 taxable interest in the estimate of the value of the prop- 
 erty. It is still assessed and taxed to the original holder. 
 
 The discrimination thus made will more clearly appear 
 by an illustration of the practical operation of the pro- 
 visions. If, for example, A, owning property worth $20,- 
 000, should execute a mortgage thereof to the Nevada 
 Bank, in San Francisco, to secure $10,000, the bank 
 would hold a taxable interest in that property to the 
 amount of an undivided half. Its liability for taxation 
 would be precisely as though an absolute conveyance of an 
 undivided half interest had been made to it. And the 
 Constitution, as seen above, requires that each owner 
 shall pay the tax on his separate interest; and if he pay 
 the tax chargeable on the interest of the other, he shall 
 be allowed for it, either by an addition to the mortgage 
 debt, or a discharge of a portion of that debt according 
 as he is the one or the other party to the security. No 
 one would pretend that the mortgagor should pay with- 
 out such allowance the tax chargeable to the bank, nor 
 that the bank should pay the tax chargeable to the 
 mortgagor, except upon like condition. It would be diffi- 
 cult to state any principle which would justify the exac- 
 tion from one of a tax leviable on the interest of the 
 other. No power in any State has ever been asserted 
 going to that extent, except the power to confiscate. 
 The exaction would not be the taking of property by 
 due process of law, even upon the theories as to what 
 constitutes such process asserted in this case; it would 
 be sheer spoliation by arbitrary power. 
 
 If, however, a railroad corporation should execute its 
 mortgage to the Nevada Bank to secure a loan equal 
 to half or the whole of the value of its property, and' 
 thus transfer to the bank a portion or the whole of its 
 taxable interest in the property, that which is thus con- 
 demned as sheer spoliation would be enforced, if effect 
 be given to the Constitution as it is written. The tax- 
 able interest in that case held by the bank would not be 
 
16 
 
 assessed nor taxed to the bank. If the mortgage should 
 he for half of the value of the property, the railroad 
 company would still have to p&v the tax on the interest 
 transferred, and would not be allowed any credit on the 
 mortgage for the amount paid. If the mortgage should 
 be equal to or exceed the whole value of the property, the 
 railroad company, which would not in such a case hold 
 any taxable interest in the property — no more than if it had 
 been previously transferred by an absolute conveyance — 
 would still be required to pay the tax upon it, and with- 
 out any credit for the payment. On what principle, or 
 by what species of reasoning a tax upon property can be 
 upheld and enforced against a party, be the party a 
 natural or an artificial person, when the taxable interest 
 in it had, at the time of the levy of the tax, been trans- 
 ferred to another, I am at a loss to understand. This posi- 
 tion of the case was suggested to counsel on more than 
 one occasion during the argument; but no answer was 
 made to it. To every other position an answer was 
 attempted, but to this one none; and, as we think, for the 
 best of reasons, because none was possible, unless indeed it 
 be held that the Constitution does not mean what in 
 express language it declares, that a mortgage “ shall for 
 the purposes of assessment and taxation he deemed and treated 
 as an interest in the property affected thereby .” 
 
 Under the provisions of the Constitution cited, the 
 property of the several railroad companies, defendants 
 in these cases, was assessed and taxed; and in such assess- 
 ment and taxation, all the injurious discriminations men- 
 tioned were applied against the companies, as will ap- 
 pear by a statement of the proceedings. In considering 
 them, it will tend to clearness and brevity, if we confine 
 what we have to say principally to the case of Santa 
 Clara County against the Southern Pacific Railroad Com- 
 pany. The circumstances distinguishing the other cases 
 from it do not affect the questions involved. 
 
 The Southern Pacific Railroad Company operates a rail- 
 
17 
 
 road through several counties. The entire length of the 
 road is somewhat over 711 miles, of which 59 miles 
 and three-tenths of a mile are in the county of Santa 
 Clara. The principal place of business of the company is 
 in the city of San Francisco. Its stockholders are citizens 
 of the United States, some of whom reside in California 
 and some in other States. On the 1st of April, 1875, it 
 was indebted to divers persons in large sums of money 
 advanced for the construction and equipment of its road; 
 and to secure this indebtedness and to complete the con- 
 struction and equipment, it executed and delivered to 
 certain parties, D. 0. Mills and Lloyd Tevis, of the city 
 and county of San Francisco, a mortgage upon its road, 
 franchises, rolling-stock and appurtenances, and upon a 
 large number of tracts of land, situated in different 
 counties, aggregating over 11,000,000 acres, which were 
 the property of the company. The indebtedness amounted 
 to the sum of $32,520,000, and consisted of various bonds 
 of the company. A portion of these bonds, amounting to 
 about $1,632,000, has been paid; and so has the accruing 
 interest on all of them. The balance of the bonds, amount- 
 ing to about $30,898,000, remains a subsisting indebted- 
 ness. This mortgage was soon afterwards placed on record 
 in the office of the Recorder of Deeds in the several 
 counties of the State in which the property is situated. 
 
 The State Board of Equalization assessed the franchise, 
 roadway, roadbed, rails, and rolling-stock of that portion 
 of the road which is designated as its Main Branch, being 
 160 r Vo- miles in length, at $2,412,600, making $15,000 a 
 mile, and apportioned to the county of Santa Clara $889,- 
 500. Upon this amount thus assessed and apportioned, 
 the taxes were levied for which the action of that county 
 is brought. Another portion of the road, designated as 
 the Southern Division, w 7 as assessed in a similar manner, 
 and the amount apportioned to the different counties 
 through which the road passed. In making the assess- 
 ment of the different portions, no deduction was allowed 
 
18 
 
 for the mortgage thereon. No account was taken of the 
 mortgage; it was not treated as an interest in the property, 
 nor as affecting in any way the liability of the mortgagor 
 for the tax. If a natural person had executed the mort- 
 gage, it being for an amount exceeding the value of the 
 property, the whole taxable interest would have been 
 treated as in the mortgagees, and they alone would have 
 been assessed and taxed; they alone.would have been held 
 amenable to a personal action for the taxes. If the mort- 
 gagor had paid the taxes to prevent a sale of the property, 
 the amount paid would have been credited on the mort- 
 gage. It can hardly require further illustration to show 
 the discrimination against railroad companies in the 
 matter of taxation, where property is subject to a mort- 
 gage. Hot only is the company taxed in such a case for 
 interests it does not possess, but it is not allowed any credit 
 by those who do possess the interests for the amount 
 exacted. 
 
 The same discrimination will appear against railroad 
 companies in the taxation of their property, if we treat 
 mortgages thereon, not as interests in the property, which the 
 Constitution declares they shall be deemed and treated to 
 be, but as mere liens or incumbrances thereon. The basis of 
 all ad valorem taxation is necessarily the assessment of the 
 property, that is, the estimate of its value. Whatever af- 
 fects the value necessarily increases or diminishes the tax 
 proportionately. If, therefore, any element which is taken 
 into consideration in the valuation of the property of one 
 party be omitted in the valuation of the property of an- 
 other, a discrimination is made against the one and in favor 
 of the other, which destroys the uniformity so essential to all 
 just and equal taxation. Such an element exists where in 
 the assessment of property subject to a mortgage, the value 
 of the mortgage is deducted if the property be owned by a 
 natural person', and is not deducted if owned by a railroad 
 corporation. And the Constitution of the State declares that 
 in the ascertainment of values as the basis of taxation such 
 
19 
 
 deduction shall be allowed in the one case and denied in 
 the other. Instances of every-day occurrence will show 
 the effect of this discrimination in a clear light. A nat- 
 ural person and a railroad company own together a parcel 
 of property in equal proportions subject to a mortgage. 
 In estimating the value of the undivided half belonging 
 to the natural person, half of the amount of the mortgage 
 is deducted. In estimating the value of the undivided 
 half belonging to the railroad company, no part of the 
 mortgage is deducted. The discrimination is made against 
 the company, for no other reason than its ownership. Take 
 another instance: a natural person and a railroad company 
 own tracts of land adjoining each other, of the same quan- 
 tity and of equal fertility and richness, both being subject 
 to a mortgage. In the estimate of the value of the prop- 
 erty belonging to the natural person the amount of the 
 mortgage is deducted; in the estimate of the value of the 
 property belonging to the railroad company the mortgage 
 is not deducted. Of course, the valuation of the latter, 
 and consequent tax is proportionately increased; and this 
 discrimination is made solely because of the ownership of 
 the property. Should these two owners exchange their 
 lands, the valuation made would change with the owner- 
 ship. Should the railroad company sell its tract to an in- 
 dividual, the assessing officers would at once be bound to 
 return a different valuation of the property as a basis for 
 taxation. Every one sees that the valuation has not in 
 fact changed with the ownership, and, therefore, that the 
 discrimination is made solely because a rule is adopted in 
 the assessment of the property of one party different from 
 that applied in the assessment of the property of the other, 
 purely on account of its ownership. A corresponding dif- 
 ference in the tax which the different owners must pay 
 follows the assessment. Thus, if two adjoining tracts are 
 subject to a mortgage each for half its value, the natural 
 person owning one of them pays a tax on the other half, 
 while the corporation must pay a tax on the whole of its 
 
‘20 
 
 tract, that is, double the tax of the individual. Thus, if 
 each tract be worth $100,000, subject to a mortgage of 
 $50,000, and the rate of taxation be two per cent., the tax 
 of the individual will be $1,000; the tax of the corpora- 
 tion will be $2,000. If, then, these owners should ex- 
 change their lands, the property which this year is thus 
 taxed at $1,000, will next year be tgxed at double the 
 amount; and the other tract, this year taxed at $2,000, 
 will next year be taxed at one-half that sum. The prop- 
 erty which is now half exempt will then be subject to tax- 
 ation to its full value; and that which is now taxable at 
 its full value will then be half exempt; and all this change 
 in valuation without any change in the character or use 
 of the property, but solely on account of the change in 
 its ownership. 
 
 The principle which sanctions the elimination of one 
 element in assessing the value of property held by one 
 party, and takes it into consideration in assessing the value 
 of property held by another party, would sanction the 
 assessment of the property of one at less than its value— 
 at a half or a quarter of it — and the property of another at 
 more than its value — at double or treble of it — according 
 to the will or caprice of the State. To-day, railroad com- 
 panies are under its ban, and the discrimination is against 
 their property. To-morrow, it may he that other institu- 
 tions will incur its displeasure. If the property of rail- 
 road companies may be thus sought out and subjected to 
 discriminating taxation, so, at the will of the State by a 
 change of its Constitution, may the property of churches, 
 of universities, of asylums, of savings banks, of insurance 
 companies, of rolling and flouring mill companies, of 
 mining companies, indeed of any corporate companies ex- 
 isting in the State. The principle which justifies such a 
 discrimination in assessment and taxation, where one of 
 the owners is a railroad corporation and the other a natu- 
 ral person, would also sustain it where both owners are 
 natural persons. A mere change in the State Constitution 
 would effect this if the Federal Constitution does not for- 
 
21 
 
 Bid it. Any difference between the owners, whether of 
 age, color, or race, or sex, which the State might designate 
 would be a sufficient reason for the discrimination. It would 
 be a singular comment upon the weakness and character of 
 our republican institutions, if the valuation and consequent 
 taxation of property could vary according as the owner is 
 white, or black, or yellow, or old, or young, or male, or 
 female. A classification of values for taxation upon any 
 such ground would be abhorrent to all notions of equality 
 of right among men. Strangely indeed would the law 
 sound in case it read that in the assessment and taxation of 
 property, a deduction should be made for mortgages 
 thereon if the property be owned by white men or by old 
 men, and not deducted if owned by black men or by young 
 men; deducted if owned by landsmen, not deducted if 
 owned by sailors; deducted if owned by married men, not 
 deducted if owned by bachelors; deducted if owned by men 
 doing business alone, not deducted if owned by men do- 
 ing business in partnerships or other associations; deducted 
 if owned by trading corporations, not deducted if owned 
 by churches or universities; and so on, making a discrim- 
 ination whenever there was any difference in the charac- 
 ter, or pursuit, or condition of the owner. To levy taxes 
 upon a valuation of property thus made is of the very 
 essence of tyranny, and has never been done except by 
 bad governments in evil times, exercising arbitrary and 
 despotic power. 
 
 Until the adoption of the Fourteenth Amendment, there 
 was no restraint to be found in the Constitution of the 
 United States against the exercise of such power by the 
 States. In many particulars the States were previously 
 limited; their sovereignty was a restricted one. They 
 could not declare war, nor make treaties of peace. They 
 could not enter into compacts with each other. They 
 could not pass a bill of attainder, nor an ex post facto law, 
 nor a law impairing the obligation of contracts. They 
 could not interfere with the exercise of the powers, nor 
 
22 
 
 obstruct the laws of the Federal Government. But in 
 many other particulars the power of the States was su- 
 preme, subject to no control by the Constitution of the 
 United States. The original amendments were only lim- 
 itations upon the Federal Government, and did not affect 
 the States. Among the powers still held by the States 
 was the power of taxation. When not interfering with 
 any power or purpose or agent of the Federal Govern- 
 ment, there was no limitation upon its exercise. Except 
 as restrained by their own Constitutions, the States might 
 impose taxes upon any property within their jurisdiction, 
 and, as said in the Delaioare Tax Case (18 Wall., 231), the 
 manner in which its value was assessed and the rate of 
 taxation, however arbitrary or capricious, were mere mat- 
 ters of legislative discretion • and it was not for the Court to 
 suggest in any case that a more equitable mode of assess- 
 ment or rate of taxation might be adopted than the one 
 prescribed by the Legislature of the State. 
 
 The first section of the Fourteenth Amendment places 
 a limit upon all the powers of the State, including among 
 others that of taxation. After stating that all persons 
 born or naturalized in the United States, and subject to 
 the jurisdiction thereof, are citizens of the United States 
 and of the State in which they reside, it declares that 
 “ no State shall make or enforce any law which shall 
 abridge the privileges or immunities of citizens of the 
 United States; nor shall any State deprive any person 
 (dropping the designation citizen) of life, liberty, or prop- 
 erty without due process of law, nor deny to any person 
 within its jurisdiction the equal protection of the laws.” 
 The amendment was adopted soon after the close of the 
 civil war, and undoubtedly had its origin in a purpose to 
 secure the newly made citizens in the full enjoyment of 
 their freedom. But it is in no respect limited in its ope- 
 ration to them. , It is universal in its application, extend- 
 ing its protective force over all men of every race and 
 color, within the jurisdiction of the States throughout the 
 
23 
 
 broad domain of the Republic. A constitutional pro- 
 vision is not to be restricted in its application because 
 designed originally to prevent an existing wrong. Such 
 a restricted interpretation was urged in the Dartmouth 
 College Case , to prevent the application of the provision 
 prohibiting legislation by States impairing the obligation 
 of contracts to the charter of the college, it being con- 
 tended that the charter was not such a contract as the pro- 
 hibition contemplated. Chief Justice Marshall, however, 
 after observing that it was more than possible that the pres- 
 ervation of rights of that description was not particularly 
 in view of the framers of the Constitution when that clause 
 was introduced, said: “ It is not enough to say that this 
 particular case was not in the mind of the convention 
 when the article was framed, nor of the American people 
 when it was adopted. It is necessary to go further, and 
 to say that, had this particular case been suggested, the 
 language would have been so varied as to exclude it, or it 
 would have been made a special exception. The case 
 being within the words of the rule, must be within its op- 
 eration likewise, unless there he something in the literal 
 construction so obviously absurd or mischievous, or repug- 
 nant to the general spirit of the instrument, as to justify 
 those who expound the Constitution in making it an ex- 
 ception.” (4 Wheat., 494.) All history shows that a par- 
 ticular grievance suffered by an individual or a class, from 
 a defective or oppressive law, or the absence of any law 
 touching the matter, is often the occasion and cause for 
 enactments, constitutional or legislative, general in their 
 character, designed to cover cases not merely of the same, 
 but all cases of a similar nature. The wrongs which were 
 supposed to be inflicted upon or threatened to citizens of 
 the enfranchised race, by special legislation directed 
 against them, moved the framers of the amendment to 
 place in the fundamental law of the nation provisions not 
 merely for the security of those citizens, but to insure to all 
 men, at all times and at all places, due process of law, and 
 
 
24 
 
 the equal protection of the laws. Oppression of the per- 
 son and spoliation of property by any State were thus for- 
 bidden, and equality before the law was secured to all. In 
 the argument of the San Mateo Case in the Supreme Court, 
 Mr. Edmunds, who was a member of the Senate when the 
 amendment was discussed and adopted by that body, 
 speaking of its broad and catholic spirit, said: “ There is 
 no word in it that did not undergo the completest scrutiny. 
 There is no word in it that was not scanned, and intended 
 to mean the full and beneficial thing that it seems to 
 mean. There was no discussion omitted; there was no 
 conceivable posture of affairs to the people who had it in 
 hand,” which was not considered. And the purpose of 
 this long and anxious consideration was that protection 
 against injustice and oppression should be made forever 
 secure — to use his language — secure, not according to 
 the passion of Vermont, or of Rhode Island, or of Califor- 
 nia, depending upon their local tribunals for its efficient 
 exercise — but secure as the right of a Roman was secure, 
 in every province and in every place, and secure by the 
 judicial power, the legislative power, and the executive 
 power of the whole body of the States and the whole body 
 of the people.” 
 
 With the adoption of the amendment the power of the 
 States to oppress any one under any pretence, or in any 
 form, was forever ended; and henceforth all persons within 
 their jurisdiction could claim equal protection under the 
 laws. And by equal protection is meant equal security 
 to every one in his private rights — in his right to life, to 
 liberty, to property, and to the pursuit of happiness. It 
 implies not only that the means which the laws afford for 
 such security shall be equally accessible to him, but that 
 no one shall be subject to any greater burdens or char- 
 ges than such as are imposed upon all others under 
 like circumstances. This protection attends every one 
 everywhere, whatever be his position in society or his as- 
 sociation with others, either for profit, improvement, or 
 
 
pleasure. It does not leave him because of any social or 
 official position which he may hold, nor because he may 
 belong to a political body, or to a religious society, or be 
 a member of a commercial, manufacturing, or transporta- 
 tion company. It is the shield which the arm of our blessed 
 Government holds at all times over every one, man, 
 woman, and child, in all its broad domain, wherever they 
 may go and in whatever relations they may be placed. 
 ~No State — such is the sovereign command of the whole 
 people of the United States — no State shall touch the life, 
 the liberty, or the property of any person, however hum- 
 ble his lot or exalted his station, without due process of 
 law; and no State, even with due process of law, shall 
 deny to any one within its jurisdiction the equal protec- 
 tion of the laws. 
 
 Unequal taxation, so far as it can be prevented, is, 
 therefore, with other unequal burdens, prohibited by 
 the amendment. There undoubtedly are, and always will 
 be, more or less inequalities in the operation of all gen- 
 eral legislation, arising from the different conditions of 
 persons, from their means, business, or position in life, 
 against which no foresight can guard. But this is a very 
 different thing, both in purpose and effect, from a carefully 
 devised scheme to produce such inequality; or a scheme, 
 if not so devised, necessarily producing that result. Abso- 
 lute equality may not be attainable, but gross and designed 
 departures from it will necessarily bring the legislation 
 authorizing it within the prohibition. The amendment is 
 aimed against the perpetration of injustice, and the exer- 
 cise of arbitrary power to that end. The position that 
 unequal taxation is not within the scope of its prohibitory 
 clause would give to it a singular meaning. It is a matter 
 of history that unequal and discriminating taxation levelled 
 against special classes, has been the fruitful means of op- 
 pressions, and the cause of more commotions and disturb- 
 ance in society, of insurrections and revolutions, than any 
 other cause in the world. It would, indeed, as counsel in 
 8 
 
26 
 
 the San Mateo Case ironically observed, be a charming 
 spectacle to present to the civilized world, if the amend- 
 ment were to read as contended it does in law — Nor shall 
 any State deprive any person of his property without due 
 process of law, except it be in the form of taxation — nor deny 
 to any person within its jurisdiction the equal protection 
 of the laws, except it be by taxation ” No such limitation 
 can be thus engrafted by implication upon the broad and 
 comprehensive language used. The power of oppression 
 by taxation without due process of law is not thus per- 
 mitted; nor the power by taxation to deprive any person 
 of the equal protection of the laws. 
 
 Soon after the adoption of the amendment, Congress 
 recognized by its legislation the application of the prohi- 
 bition to unequal taxation. The original Civil Rights Act, 
 previously passed, made persons of the emancipated race 
 citizens, and declared that all citizens of the United States 
 of every race or color should have the same rights in 
 every State and Territory to make and enforce contracts, 
 to sue, be parties, and give evidence; to inherit, purchase, 
 lease, sell, own, and convey real and personal property, 
 and to the benefit of all laws and proceedings for the se- 
 curity of persons and property, as was enjoyed by white 
 citizens, and should be subject to like punishments, pains 
 and penalties, and to none other. After the adoption of the 
 amendment the act was re-enacted, and to the clause that 
 all persons should enjoy the same rights as white citizens, 
 and be subject to like punishments, pains and penalties, it 
 added and subject only to like “ taxes , licenses , and exactions 
 of every kind , and to no other.” The Congress which re-en- 
 acted the Civil Rights Act with this addition was largely 
 composed of those who had voted for the amendment; and 
 it is well known that oppressions by unequal taxation were 
 the subject of consideration before the Committee of the 
 two Houses Under whose direction the amendment was 
 proposed. But were this otherwise, and were the wrong of 
 such unequal taxation not prominently in the minds of the 
 
27 
 
 framers, it being within the language, it must be held to 
 be within the operation of the prohibition. As truly and 
 eloquently said by Mr. Conkling, in the argument of the 
 San Mateo Case : “If it be true that new needs have come, 
 if it be true that wrongs have arisen or shall arise which 
 the framers in their forebodings never saw; wrongs which 
 shall be righted by the words they established; then all the 
 more will those words be sanctified and consecrated to hu- 
 manity and progress.” 
 
 The fact to which counsel allude, that certain property 
 is often exempted from taxation by the States, does not 
 at all militate against this view of the operation of the 
 Fourteenth Amendment in forbidding the imposition of 
 unequal burdens. Undoubtedly since the adoption of 
 that amendment the power of exemption is much more 
 restricted than formerly — but that it may be extended 
 to property used for objects of a public nature, is not 
 questioned — that is, where the property is used for the 
 promotion of the public well-being, and not for any 
 private end. Thus property used for public instruction, 
 for schools, colleges, and universities, which are open to 
 all applicants on similar conditions, may properly be ex- 
 empted. The public benefit is the equivalent to the 
 State for the tax which would otherwise be exacted. If 
 buildings, used as churches for public worship, are also 
 sometimes exempted, it must be because, apart from relig- 
 ious considerations, churches are regarded as institutions 
 established to inculcate principles of sound morality, lead- 
 ing citizens to a more ready obedience to the laws. 
 Whatever the exemption, it can only be sustained for the 
 public service or benefit received. The equality of protec 
 tion which the Fourteenth Amendment declares that no 
 State shall deny to any one is not thus invaded. That 
 amendment requires that exactions upon property for the 
 public shall be levied according to some common ratio to 
 its value, so that each owner may contribute only his just 
 proportion to the general fund. When such exaction is 
 
28* 
 
 made without reference to a common ratio, it is not a tax, 
 whatever else it may be termed; it is rather a forced con- 
 tribution, amounting in fact to simple confiscation. As 
 justly said by the Supreme Court of Kentucky, in the cel- 
 ebrated case of Lexington vs. McQuillan’s Heirs , when- 
 ever the property of a citizen is taken from him by the 
 sovereign will and appropriated without his consent to the 
 benefit of the public, the exaction should not be consid- 
 ered as a tax unless similar contributions be exacted by 
 the same public will from such members of the same com- 
 munity as own the same kind of property; and, although 
 there may be a discrimination in the subjects of taxation, 
 still persons of the same class and property of the same 
 kind must generally he subjected alike to the same com- 
 mon burden. (9 Dana, Ky., 513.) 
 
 The cases of People vs. Weaver (100 TJ. S., 539), and of 
 Evansville Bank vs. Britton (105 id., 322), will illustrate 
 the character of the discrimination of which the defend- 
 ants complain. By an Act of Congress passed in 1864 
 and re-enacted in the Revised Statutes, the shares in na- 
 tional banks are allowed to be included in the valuation 
 of the personal property of the owner in the assessment of 
 taxes imposed by authority of the State in which the 
 banks are located, subject to two restrictions; that the tax- 
 ation shall not be at a greater rate than is assessed upon 
 other moneyed capital in the hands of individual citizens 
 of the State, and that the shares owned by non-residents 
 of the State shall be taxed at the place where the bank is 
 located. (R. S., sec. 5219.) In People vs. Weaver 100 
 U. S., 539,) the meaning of these restrictions upon the 
 State was considered by the Supreme Court, and it was 
 held: 
 
 1st. That the restriction against discrimination has ref- 
 erence to the entire process of assessment, and includes 
 the valuation of the shares as well as the rate of percen- 
 tage charged thereon; 
 
 2d. That a statute of New York, which established a 
 
29 
 
 mode of assessment by which such shares were valued 
 higher in proportion to their real value than other mon- 
 eyed capital, was in conflict with the restriction, although 
 no greater percentage was levied on such valuation than 
 on other moneyed capital; and, 
 
 3d. That a statute which permitted a party to deduct 
 his just debts from the valuation of his personal property, 
 except so much as consisted of those shares, taxed them 
 at a greater rate than other moneyed capital, and was 
 therefore void as to them. 
 
 The discrimination there condemned, by which an in- 
 creased value was given to the shares of the national 
 banks beyond what was given to other moneyed capital, 
 is a discrimination similar to that made by the elimina- 
 tion of mortgages in estimating the value of railroad prop- 
 erty in the cases before us. In Evansville Bank vs. Britton , 
 the doctrine of this case is approved, and it was held that 
 the taxation of shares in the national banks, under a stat- 
 ute of Indiana, without permitting the owner to deduct 
 from their assessed value the amount of his bona-fide in- 
 debtedness, as he was permitted to do in the case of other 
 investments of moneyed capital, was a discrimination for- 
 bidden by the act of Congress. 
 
 That the proceeding, by which the taxes claimed in 
 these several actions were levied against the railroad com- 
 panies on taxable interests with which they had parted, 
 was not due process of law, seems to me so obviously true 
 as to require no further illustration. Any additional ar- 
 gument would rather tend to obscure a truth which should 
 be evident upon its simple statement. And if we assume 
 that the mortgage in each case was a mere lien or incum- 
 brance on the property affected, and not an interest in it, 
 as the Constitution declares it is, then also is it clear that 
 its elimination as an element in. the valuation of the prop- 
 erty of the defendants for taxation, while it was consid- 
 ered in the valuation of the property of natural persons, 
 was a discrimination against the former, and led to un- 
 
30 
 
 equal taxation against them. In neither view, therefore 
 was the assessment valid, and the taxation levied upon it 
 cannot be sustained. 
 
 To justify these discriminating provisions and main- 
 tain the action in face of them, the plaintiffs have taken 
 positions involving doctrines which sound strangely to 
 those who have always supposed that the constitutional 
 guaranties extend to all persons, whatever their rela- 
 tions, and protect from spoliation all property, by whom- 
 soever held. These positions are substantially as follows: 
 That persons cease to be within the protection 6f the 
 Fourteenth Amendment, and as such entitled to the 
 equal protection of the laws, when they become mem- 
 bers of a corporation; that property when held by per- 
 sons associated together in a corporation is subject to 
 any disposition which the State may, at its will, see fit 
 to make; that, in any view, the properfy, upon which the 
 taxes claimed were levied, was classified by its use, taken 
 out of its general character as real and personal property 
 and thus lawfully subjected to special taxation; and that 
 the power of the State cannot be questioned by the South- 
 ern Pacific Railroad Company by reason of the covenant 
 in its mortgage. These positions are not advanced by 
 counsel in this language nor with the baldness here given; 
 but they mean exactly what is here stated, or they mean 
 nothing, as will clearly appear when we analyze the lan- 
 guage in which they are presented. 
 
 Private corporations— and under this head, with the 
 exception of sole corporations, with which we are not 
 now dealing, all corporations other than those which are 
 public are included — private corporations consist of an 
 association of individuals united for some lawful purpose, 
 and permitted to use a common name in their business, 
 and have succession of membership without dissolution.' 
 As said by Chief Justice Marshall, “ The great object of 
 an incorporation is to bestow the character and prop- 
 erties of individuality on a collective and changing body 
 
31 
 
 of men.” ( Providence Bank vs. Billings, 4 Pet., 514, 562.) 
 
 In this State they are formed under, general laws. By 
 complying with certain prescribed forms any five persons 
 may thus associate themselves. In that sense corpora- 
 tions are creatures of the State; they could not exist in- 
 dependently of the law, and the law may, of course, pre- 
 scribe any conditions, not prohibited by the Constitution 
 of the United States, upon which they may be formed 
 and continued. But the members do not, because of such 
 association, lose their rights to protection, and equality of 
 protection. They continue, notwithstanding, to possess 
 the same right to life and liberty as before, and also to 
 their property, except as they may have stipulated other- 
 wise. As members of the association— of the artificial 
 body — the intangible thing called by a name given by 
 themselves— their interests, it is true, are undivided, and 
 constitute only a right during the continuance of the cor- 
 poration to participate in its dividends, and, on its disso- 
 lution, to a proportionate share of its assets; but it is 
 property nevertheless, and the courts will protect, it, as 
 they will any other property, from injury or spoliation. 
 
 ■Whatever affects the property of the corporation, that 
 is, of all the members united by the common name, nec- 
 essarily affects their interests. If all the members of the 
 corporation die or withdraw from the association, the cor- 
 poration is dead; it lives and can live only through its 
 members. When they disappear the corporation disap- 
 pears. Whatever confiscates or imposes burdens on its 
 property, confiscates or imposes burdens on their prop- 
 erty; otherwise nobody would be injured by the proceed- 
 ing. ' Whatever advances the prosperity or wealth of the 
 corporation, advances proportionately the prosperity and 
 business of the corporators; otherwise no one would be 
 benefited. It is impossible to conceive of a corporation 
 suffering an injury or reaping a benefit except through its 
 members. The legal entity, the metaphysical being that 
 is called a corporation, cannot feel either. So, therefore, 
 
32 
 
 whenever a provision of the Constitution or of a law guar- 
 antees to persons protection in their property or affords to 
 them the means for its protection, or prohibits injurious 
 legislation affecting it, the benefits of the provision or law 
 are extended to corporations, not to the name under which 
 different persons are united, but to the individuals com- 
 posing the union. The courts will always look through 
 the name to see and protect those whom the name repre- 
 sents. Thus, inasmuch as the Constitution extended the 
 judicial power of the United States to controversies be- 
 tween citizens of a State and aliens, and between citizens 
 of different States, because its framers apprehended that 
 State tribunals in such controversies might be swayed by 
 local feelings, prejudices, or attachments, Chief Justice 
 Marshal, speaking for the whole Supreme Court, held that 
 corporations were within the provision. “ Aliens, or citi- 
 zens of different States,” said that great judge, “ are not 
 less susceptible of these apprehensions, nor can they be 
 supposed to be less the objects of constitutional provision, 
 because they are allowed to sue by a corporate name. 
 That name, indeed, cannot be an alien or a citizen, but 
 the persons whom it represents may be the one or the 
 other; and the controversy is, in fact and in law, between 
 these persons suing in their corporate character, by their 
 corporate name, for a corporate right, and the individual 
 against whom the suit may be instituted. Substantially 
 and essentially, the parties in such a case, where the mem- 
 bers of the corporation are aliens or citizens of a differ- 
 ent State from the opposite party, come within the spirit 
 and terms of the jurisdiction conferred by the Constitution 
 on the national tribunals. Such has been the universal 
 understanding on the subject.” ( The United States vs. De- 
 vauXj 5 Cranch, 61, 87.) 
 
 Similar was the construction given by that court to a 
 clause in the treaty of peace of 1783 between the United 
 States and Great Britain. The sixth article provided that 
 there should be “ no future confiscation made nor any 
 
83 
 
 prosecutions commenced against any person or persons 
 for or by reason of the part which he or they may 
 have taken in the present war, and that no person shall 
 on that account suffer any future loss or damage, either 
 in his person, liberty or property.” The State of Ver- 
 mont undertook to confiscate the property of an English 
 corporation and give it away. The corporation claimed 
 the benefit of the article, and recovered the property 
 against the objection that the treaty applied only to natu- 
 ral persons, and could not embrace corporations, because 
 they were not persons who could have taken part in the 
 war, or be considered British subjects. Much stronger 
 is that case than the one now before us; but the Supreme 
 Court looked with undimmed vision through the legal en- 
 tity, the artificial creation of the State, and saw the living hu- 
 man beings whom it represented, and protected them under 
 their corporate name. ( Society for the Propagation of the Gos- 
 pel in Foreign Parts vs. Town of New Haven , 8 Wheat., 464.) 
 
 The Fifth Amendment to the Constitution declares that 
 no person shall “ be deprived of life, liberty, or property, 
 without due process of law.” This is a limitation upon 
 the Federal Government similar to that which exists in the 
 Constitution of several of the States against their own 
 legislative bodies; and the term person thus used has al- 
 ways been held, either by tacit assent or express adjudica- 
 tion, whenever the question has arisen, to extend, so far as 
 property is concerned, to corporations; because to protect 
 them from spoliation is to protect the corporators also. 
 
 Now, the Fourteenth Amendment extends in this re- 
 spect the same prohibition to the States that the Fifth 
 Amendment did to the Federal Government — “ Nor shall 
 any State deprive any person of life, liberty, or property 
 without due process of law ” — and it adds to the inhibi- 
 tion, “ nor deny to any person within its jurisdiction the 
 equal protection of the laws.” By every canon of con- 
 struction known to the jurisprudence of the country, the 
 same meaning must be given to the term person in the 
 
34 
 
 latter provision as in the former. Surely these great 
 constitutional provisions, which have been, not inaptly, 
 termed a new Magna Charta , cannot be made to read, as 
 counsel contend; “ X or shall any State deprive any per- 
 son of life, liberty, or property without due process of 
 law, unless he be associated with others in a corporation , nor 
 deny to any person within its jurisdiction the equal pro- 
 tection of the laws, unless he be a member of a corpora- 
 tion How petty and narrow would provisions thus 
 limited appear in the fundamental law of a great people ! 
 
 The constitutional guaranties of due process of law and 
 of equality before the law would be dwarfed into compara- 
 tive insignificance, and almost emasculated of their pro- 
 tective force, if restricted in their meaning and operation, 
 as contended by counsel. A large proportion of our peo- 
 ple are members of some corporation — religious, educa- 
 tional, scientific, trading, manufacturing, or commercial — 
 and the amount of property held by them embraces the 
 greater part of the wealth of the country. According to 
 the report of the Commissioner of Railroads, made to the 
 Secretary of the Interior, for the year ending June 30, 
 1882, the railroad companies operated that year 104,813 
 miles of railway, and transported 350 million tons of 
 freight, of the estimated value of 12,000 million dollars. 
 The value of these roads alone was 2,600 million dollars, 
 and they employed that year 1,200,000 persons in operat- 
 ing the roads, besides 400,000 in construction— a total of 
 1,600,000 persons — about one thirty-third part of our 
 population estimated at 53,000,000. * 
 
 The value of the property of manufacturing companies 
 is over 1,000 million dollars; of national banks, over 700 
 millions; of insurance companies, over 600 millions; of 
 mining companies, over 300 millions; and of telegraph 
 companies and shipping companies, each over 100 million 
 
 * These figures are taken by the Commissioner from the estimate of 
 Henry Y. Poor, a compiler of railroad statistics. 
 
35 
 
 dollars. Indeed, the aggregate wealth of all the trading, 
 commercial, manufacturing, mining, shipping, transporta- 
 tion and other companies engaged in business, or formed 
 for religious,' educational, or scientific purposes, amounts 
 to billions upon billions of dollars — and yet all this vast 
 property, which keeps our industries flourishing, and fur- 
 nishes employment, comforts, and luxuries to all classes, 
 and thus promotes civilization and progress, is lifted, ac- 
 cording to the argument of counsel, out of the protection 
 of the constitutional guaranties, by reason of the incorpo- 
 ration of the companies — that is, because the persons com- 
 posing them, amounting in the aggregate to nearly half 
 the entire population of the country, have united them- 
 selves in that form under the law for the convenience of 
 business. If the property for that reason is exempted from 
 the protection of one constitutional guaranty, it must be 
 from all such guaranties. If because of it, the property 
 can be subjected to unequal and arbitrary impositions, it 
 may for the same reason be taken from its owners without 
 due process of law, and taken by the State for public use 
 without just compensation. If the position be sound, it 
 follows that corporations hold all their property and the 
 right to its use and enjoyment at the will of the State; 
 that it may be invaded, seized, and the companies de- 
 spoiled at the State’s pleasure. It need hardly be said 
 that there would be little security in the possession of 
 property held by such a tenure, and of course little in- 
 centive to its acquisition and improvement. 
 
 But in truth the State possesses no such arbitrary power 
 over the property of corporations. When allowed to ac- 
 quire and own property, they must be treated as owners, 
 with all the rights incident to ownership. They have 
 a constitutional right to be so treated. Whatever power 
 the State may possess in granting or in amending their 
 charters, it cannot withdraw their property from the guar- 
 anties of the Federal Constitution. As was said in the 
 San Mateo Case: “It cannot impose the condition that 
 
36 
 
 they shall not resort to the Courts of law for the redress 
 of injuries or the protection of their property; that they 
 shall make no complaint if their goods are plundered and 
 their premises invaded; that they shall ask no indemnity 
 if their lands be seized for public use, or be taken with- 
 out due process of law; or that they shall submit without 
 objection to unequal and oppressive burdens arbitrarily 
 imposed upon them; that, in other words, over them and 
 their property the State may exercise unlimited and irre- 
 sponsible power. Whatever the State may do, even with 
 the creations of its own will, it must do in subordination 
 to the inhibitions of the Federal Constitution.” 
 
 The doctrine of unlimited power of the State over cor- 
 porations, their franchises and property, simply because 
 they are created by the State, so frequently and positively 
 affirmed by counsel, has no foundation whatever in the 
 law of the country. By the decision of the Supreme Court 
 of the United States in the Dartmouth College Case , it was 
 settled, after great consideration, that the charter of a cor- 
 poration under which its franchise — its capacity to do 
 business and hold property — is conferred, is a contract be- 
 tween the corporators and the State, and, therefore, within 
 the protection of the Federal Constitution prohibiting leg- 
 islation impairing the obligation of contracts. So far from 
 the State having unlimited control over the franchises and 
 property of corporations, because of its paternity to them, 
 it has under that decision only such as it possesses over 
 the contracts and property of individuals. It cannot, from 
 that fact alone, alter, lessen, or revoke their franchises, 
 although they be a free gift. It cannot, from that fact 
 alone, interfere with or impose any burdens upon their 
 property, except as it can interfere with and impose bur- 
 dens upon the property of individuals. Such is the doc- 
 trine not only of the Dartmouth College Case , but of an 
 unbroken line of decisions of the Supreme Court of the 
 United States, and of the Supreme Courts of the sev- 
 eral States, since that case. To avoid that limitation upon 
 
their power, most of the States., in charters since granted, 
 have reserved a right to repeal, amend, or alter them, or 
 have inserted in their constitutions clauses reserving a right 
 to their legislatures to repeal, alter, or amend the charters, 
 or to repeal, alter, or amend general laws under which cor- 
 porations are permitted to be formed. This reservation, 
 in whatever form expressed, applies only to the contract of 
 incorporation, without which it would be beyond revo- 
 cation or change by the State. It removes any im- 
 pediment which would otherwise exist to legislation 
 affecting that contract. It leaves the corporation in 
 the same position it would have occupied had the Supreme 
 Court held in the Dartmouth College Case that charters are 
 not contracts, and that laws repealing or modifying them 
 do not impair the obligation of contracts. It accom- 
 plishes nothing more; therefore, the legislation author- 
 ized by it must relate to the contract embodied in the 
 charter, amending, altering, or abrogating its provisions. 
 Legislation touching any other subject is not affected by 
 it — neither authorized nor forbidden. Its whole scope 
 and purpose is to enable the state to pass laws with re- 
 spect to the charter — the contract of incorporation — which 
 would otherwise be in conflict with the prohibition of the 
 Federal Constitution. Legislation dealing with the cor- 
 poration in any other particular must, therefore, depend 
 for its validity upon the same conditions which determine 
 the validity of like legislation affecting natural persons. 
 
 The State may, of course, accompany its grant with 
 such conditions as it may deem proper for the manage- 
 ment of the affairs of the corporation which do not im- 
 pinge upon any provision of the Federal Constitution; 
 and by the reservation clause it will retain control over 
 the grant and may withdraw it or modify it at pleasure. 
 It is on this ground that the State has asserted a right to 
 regulate the charges — the fares and freights — of corpora- 
 tions. But it is a novel doctrine that it can on that ground 
 also control their property, appropriate it, burden it, and 
 
35 
 
 despoil them of it, as it may choose, unrestrained by any 
 constitutional inhibitions. That doctrine has no standing 
 as yet in the law of this country. The property acquired 
 by corporations is held independently of any reserved 
 power in their charters. By force of the reservation the 
 State may alter, amend, or revoke what it grants; nothing 
 more. It does not grant the tangible and visible prop- 
 erty of the companies, their roads, their roadways, road- 
 beds, rails, or rolling-stock. These are their creation or 
 acquisition. Over them it can exercise only such power 
 as may be exercised through its control of the franchises 
 of the companies, and such as may be exercised over 
 the property of natural persons engaged in similar busi- 
 ness. 
 
 As justly said by the Supreme Court of Michigan, speak- 
 ing by Mr. Justice Cooley: “ It cannot be necessary at 
 this day to enter upon a discussion in denial of the right 
 of the Government to take from either individuals or cor- 
 porations any property which they may rightfully have 
 acquired. In the most abitrary times such an act was 
 recognized as pure tyranny, and it has been forbidden in 
 England ever since Magna Charta , and in this country 
 always. It is immaterial in what way the property was 
 lawfully acquired, whether by labor in the ordinary voca- 
 tions of life, by gift or descent, or by making profitable 
 use of a franchise granted by the State, it is enough that 
 it has become private property, and it is then protected 
 by the law of the land.” ( Detroit vs. Detroit and Howell 
 Plank Road Company, 43 Mich., 146-7.) 
 
 But it is urged that, even with an admission of these 
 positions, property may be divided into classes and sub- 
 jected to different rates; that such classification may be 
 made from inherent differences in the nature of different 
 parcels of property, and also from the different uses to 
 which the same property may be applied; and it is sought 
 to place the tax levied in these cases under one of these 
 heads. As already mentioned, the Constitution of the 
 
89 
 
 State provides with respect to property that it shall be 
 taxed in proportion to its value; it provides for no specific 
 tax upon any article. The classification of property, either 
 from its distinctive character or its peculiar use, must be 
 made within the rule prescribing taxation according to 
 value. Real and personal property differing essentially in 
 their nature may undoubtedly be subjected to different 
 rates; real property may be taxed at one rate, personal 
 property at another. But in both cases the tax must bear 
 a definite proportion to the value of the property. So, also, 
 if use be the ground of classification, for which a different 
 rate of taxation is prescribed, the rate must still bear a 
 definite proportion to the value. Now, there is no differ- 
 ence in the rate of taxation prescribed by the law of the 
 State for the property of railroad corporations and that 
 prescribed for the property of individuals. There is only 
 one rate prescribed for all property. There is, therefore, as 
 said in the San Mateo suit, no case presented for the appli- 
 cation of the doctrine of classification either from the pe- 
 culiar character of railroad property or its use. 
 
 The ground of complaint is not that any different rate 
 of taxation is adopted — for there is none — but that a dif- 
 ferent rule is followed in ascertaining the value of the 
 property of. railroad corporations, as a basis for taxation, 
 from that followed in ascertaining the value of property 
 held by natural persons. In estimating the value in one 
 case certain elements are considered by which the value 
 as a basis for taxation is lessened; in estimating the value 
 in another case those elements are omitted by which the 
 valuation is proportionately increased. All property of 
 railroad corporations, whether used in connection with the 
 operation of their roads or entirely distinct from any such 
 use, is estimated without regard to any mortgages thereon, 
 while the property of natural persons is Valued with a de- 
 duction of such mortgages. 
 
 Of the property of the railroad company — the South- 
 ern Pacific — several million acres of farming lands are 
 
 O 
 
40 
 
 included in the same mortgage which covers the road- 
 way, roadbed, rails, and rolling-stock of the company. 
 2s T o distinction is made in the assessment of the value of 
 any of this property because of the use of it. The whole 
 is assessed in the same manner without regard to the mort- 
 gage thereon; and the taxes on the whole of it thus as- 
 sessed, with the exception of the taxes on the roadbed, 
 roadway, rails, and rolling-stock, have been paid by the 
 companies, or parties to whom since the levy certain par- 
 cels have been sold. The discrimination between the rail- 
 road companies and individual proprietors, in the esti- 
 mate of the value of their property, is made because of 
 its ownership, and not from any specific differences in the 
 character of the property, or in the specific uses to which 
 it is applied. 
 
 The farming lands held by the company are not differ- 
 ent in character from adjoining farming lands held by 
 natural persons, yet they are assessed under the sys- 
 tem established by the Constitution of the State upon 
 different principles. The roadbed, roadway, rails, and 
 rolling-stock of the railroad companies, are not different 
 in their nature or use from the roadbed, roadway, rails, 
 and rolling-stock owned in many cases by natural persons, 
 yet they are subject to a different rule of assessment. 
 It is not classifying property to make a distinction of that 
 character in estimating its value as a basis for taxation. 
 It is making the amount of taxation depend, not upon the na- 
 ture of the property or its use, but upon its ownership. And 
 if this can be done, there is no protection against unequal 
 and oppressive taxation. As justly observed by Mr. Ed- 
 munds in the San Mateo Case: “ If you once concede the 
 point that you may classify different rates upon the values 
 of things, or may put up your values on different princi- 
 ples, as values by deduction or otherwise — which is the 
 same thing stated in another way — then there is no check 
 upon the exercise of arbitrary power. The mob or com- 
 mune that can get pessession of the State Legislature for 
 
41 
 
 one term may despoil every one of the citizens whom it 
 chooses to despoil, and the liberty and the security of the 
 Constitution of the United States, secured through pain- 
 ful exertion and great consideration, crystallized in unmis- 
 takable language — historic indeed, and beneficent as it is 
 historic, securing national intrinsic rights everywhere 
 and to everybody — will turn out to be an utter sham and 
 delusion.” 
 
 If to the position of counsel, that property may be classi- 
 fied simply because owned by a corporation, and thus 
 differently assessed, we add the further position that the 
 owner of the property assessed has no constitutional right 
 to have notice of the assessment, or to be heard respecting 
 it, though it be double or treble the value of the property — 
 though the property be assessed at thousands, when worth 
 only hundreds — we have a system established with a power 
 of oppression under which no free man should ever be 
 contented to live. 
 
 In the argument of counsel, the distinction between taxes 
 for licenses and franchises, and taxation upon values, seems 
 to have been overlooked; and because no notice is required 
 in the former case, and no opportunity* given to be heard, 
 therefore it is contended that the rule is not sound, that 
 notice is necessary, and an opportunity of being heard in 
 the latter case where an assessment is made upon property 
 and values are found upon evidence; yet the distinc- 
 tion is plain and everywhere recognized. A license tax 
 paid by an insurance company of another State, in order 
 to exercise its corporate powers in this State, is the con- 
 sideration given for a privilege which the company may 
 or may not take; if taken, the fee must be paid. Of course, 
 no notice there is necessary. If a person wishes a license 
 to do business at a particular place, or of a particular kind, 
 such as selling liquors, cigars, clothes, or keeping a restau- 
 rant or hotel in a city, he is only to pay what the law re- 
 quires and go into the business. Notice in such cases 
 would be of no service to him, and no hearing could change 
 4 
 
42 
 
 the result. And the state may exact the payment of a 
 particular sum — such as it deems proper — as a condition 
 of the grant of corporate powers, or for their continuance, 
 and may reserve the right to alter this condition as it may 
 choose; or rather, the State might have exercised such 
 power and made such exaction had she not by her constitu- 
 tion declared that franchises should be assessed and taxed 
 as property, according to their value. But for this pro- 
 vision no notice could be required of the amount de- 
 manded for the privilege granted, nor opportunity of being 
 heard respecting it; for notice or hearing could be of no 
 service to the company. Here we are not considering of 
 the compensation to be paid for franchises or privileges of 
 any kind, whether designated as taxes or license fees, but 
 of taxation upon values. Where these are to be ascertained, 
 and evidence is to be taken for that purpose, and a de- 
 termination is to be made which is judicial in its character, 
 there the owner must in some form — in some tribunal — 
 have an opportunity afforded him to be heard respecting 
 the proceeding under which his property may be taken 
 before such proceeding becomes final and the valuation is 
 irrevocably fixed. And in such cases there can be no 
 valid deprivation of his property without it. 
 
 The notice to which we refer need not be a personal 
 citation; it is sufficient if it be given by a law designating 
 the time and place where parties may contest the justice 
 of the valuation. As a general rule only a statutory 
 notice is given. The State may designate the kind of 
 notice and the manner in which it shall be given. All 
 that we assert, or have asserted, is that there must be 
 a notice of some kind which will call the attention of the 
 parties to the subject, and inform them when and where 
 they will be permitted to expose any alleged wrong in the 
 valuation of which they may complain. 
 
 It was with' reference to the class of cases, where values 
 are to be found upon evidence, that we said in the San 
 Mateo suit, that notice and opportunity to be heard were 
 
43 
 
 essential to the validity of the assessment, and without 
 which the proceeding b} 7 which the tax-payer’s property 
 was taken from him, would not be due process of law. 
 We have heard nothing in the argument of the present 
 cases or in the criticism of the authorities, which in the 
 slightest degree affects the accuracy of the statement. In 
 Stuart vs. Palmer , (74 Y. Y., 191,) the Court of Appeals of 
 Yew York, in an elaborate opinion, speaking by Mr. Justice 
 Earl, said: “It is difficult to define with precision the exact 
 meaning and scope of the phrase e due process of law.’ 
 Any definition which could be given would probably fail 
 to comprehend all the cases to which it would apply. It 
 is probably better, as recently stated by Mr. Justice Mil- 
 ler, of the United States Supreme Court, ‘ to leave the 
 meaning to be evolved by the gradual process of judicial 
 inclusion and exclusion, as the cases presented for decision 
 shall require, with the reasoning on which such decisions 
 may be founded.’ (Davidson vs. New Orleans, 96 U. S., 
 104.) It may, however, be stated generally, that due pro- 
 cess of law requires an orderly proceeding, adapted to the 
 nature of the case, in which the citizen has an opportunity 
 to be heard, and to defend, enforce, and protect his rights. 
 A hearing or an opportunity to be heard is absolutely es- 
 sential. We cannot conceive of due process of law without 
 this.” And, again, “ It has always been the general rule 
 in this country, in every system of assessment and taxa- 
 tion, to give the person to be assessed an opportunity to 
 be heard at some stage of the proceedings. That due pro- 
 cess of law requires this has been quite uniformly recog- 
 nized.” 
 
 Numerous other authorities might be cited to the same 
 purport, and the language of Judge Cooley, in his Treatise 
 on Taxation, which exhibits a thoughtful consideration of 
 the subject, and a careful examination of the adjudged 
 cases, expresses the established law. Speaking of tax 
 cases he says: “ We should say that notice of proceedings 
 in such cases, and an opportunity for a hearing of some 
 
44 
 
 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 construed to sanction legislation under which officers 
 might secretly assess one for any amount in their dis- 
 cretion, without giving him an opportunity to contest 
 the justice of the assessment. It has often been very 
 pointedly and emphatically declared that it is contrary 
 to the first principles of justice that one should be con- 
 demned unheard, and it has also been justly observed 
 of taxing officers, that ‘ it would he 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 cir- 
 cumstances would be certain to be abused. ‘The general 
 principles of law applicable to such tribunals oppose the 
 exercise of any such power.’ ” ( Cooley on Taxation, 266. ) 
 
 The suggestion of counsel that there is a difference in 
 the law as to notice and opportunity of being heard, where 
 an assessment is made for local purposes and where it is 
 made under a statute providing revenue for the State, is 
 without foundation. Taxation for local improvements, or 
 for city, county, or town purposes, involves the exercise of 
 the same power which is exerted in taxation for State 
 or general purposes. It is the sovereign power of the 
 State in both cases which authorizes the tax, whether that 
 power be exerted directly by an act of the Legislature, or 
 by a municipal body as an instrumentality of the State. 
 “ That these assessments,” says Cooley, speaking of such 
 as are special, “ are an exercise of the taxing power has 
 over and over again been affirmed, until the controversy 
 may be regarded as closed.” And this statement is sup- 
 ported in a note to his treatise, by a reference to numerous 
 adjudged cases, (p. 430.) 
 
45 
 
 The object both of taxation for general purposes and 
 of assessments for local purposes is to raise money. In 
 both cases property is valued and a certain proportion of 
 the valuation taken for the designated purpose. Whether 
 that purpose be general or local, it in no respect changes 
 the essential character of the proceeding. The property 
 from which the exaction is to be made is less extensive in 
 the one case than in the other; but in both there must 
 be evidence of its value and a judicial determination re- 
 specting it. And the fact that in cases of local improve- 
 ments there is sometimes a consideration also of the bene- 
 fits to be received, takes nothing from the judicial charac- 
 ter of the proceeding. 
 
 The clause of the Constitution which forbids depriva- 
 tion of property without due process of law, places liberty 
 under the same guaranty, and no one can be deprived of 
 either — property or liberty — under the name of taxation, 
 any more than under any other name, by officers of the 
 State, without some notice of their proceedings and a 
 right to be heard respecting their determination before it 
 is executed. 
 
 The covenant in the mortgage of the Southern Pacific 
 Railroad Company cannot affect one way or the other the 
 right of the plaintiff to recover against that company. 
 The power of the State is not enlarged nor diminished by 
 it. It is not made with the State and could not be en- 
 forced by it. So far as the power or action of the State 
 is concerned, it cannot possibly have any influence. It 
 is a matter which concerns only the parties. They can by 
 arrangement vary it any day; they may enlarge it, qualify 
 it, or release it whenever they choose. It would be 
 strange, indeed, if the State’s power of taxation depended 
 in any way upon the stipulation of third parties, or the 
 validity of a tax could be affected by it. The covenant 
 reads as follows: “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 said trust, that 
 
46 
 
 it will pay all ordinary and extraordinary taxes, assess- 
 ments, and other public burdens and charges which shall 
 or may be imposed upon the property herein described and 
 hereby mortgaged, and every part thereof.” Then follows a 
 provision that the mortgagees or any bondholder may, in 
 case of default by the mortgagor, pay and discharge the 
 taxes and any lien or incumbrance upon the property prior 
 to the mortgage, and that for such payments the party 
 making them shall be allowed interest and be secured by 
 the mortgage. 
 
 The covenant is necessarily limited to such taxes as may 
 he lawfully levied on the mortgaged property, such as the 
 mortgagor is personally bound to the State to pay, and to 
 such other liens as may arise from his previous contract 
 with respect to the property. The mortgagor could not 
 be required to pay any other taxes or discharge any other 
 liens, and should the mortgagees pay or discharge any 
 other, they could neither hold the mortgage as security 
 for the amount, nor the mortgagor liable. The covenant 
 cannot he construed to extend to any taxes levied in 
 disregard of the Constitution or laws, nor to such liens 
 as may arise from a tax on other than the mortgaged 
 property, nor from any act of the mortgagees, nor any 
 judgment against them. Should a judgment, for instance, 
 against them become a lien upon all their interests in real 
 property, and, among others, on that conferred by the 
 mortgage, it would not be embraced by the covenant. 
 That does not cover taxes levied or leviable on the mort- 
 gage, nor on the bonds secured; they are not within its 
 terms, and the State cannot enlarge its meaning. 
 
 At the time the mortgage was given, there had been 
 conflicting decisions of the Supreme Court of the State 
 as to the liability of mortgages to taxation. It must be 
 supposed that the parties were well acquainted with these 
 rulings, and, though the last decision then rendered was 
 against their taxation, it was the subject of popular com- 
 ment and discontent; and counsel inform us, was one of 
 
47 
 
 the most potent causes which led to the calling of a 
 convention to change the Constitution. If the parties, 
 therefore, had intended to enter into a covenant that should 
 bind the mortgagor to pay any taxes which might thereaf- 
 ter be levied on the mortgage, it would have been the 
 natural and easy way to say so. Not having said so, we 
 cannot impute to the language used anything beyond its 
 plain meaning — and that is, that the mortgagor would 
 pay such taxes and discharge such liens on the property 
 as should be legally chargeable to him; not such as 
 the law might afterwards impose upon the mort- 
 gagees. In fact, the covenant creates no greater liability 
 on the part of the mortgagor than would have existed 
 without it; and it was inserted only out of abundant 
 caution. Every mortgagor is bound to pay the taxes 
 lawfully levied on the property mortgaged, and to dis- 
 charge any liens created by his previous act; and if at 
 any time the mortgagee is compelled to pay the taxes 
 and discharge such liens to preserve the security, he can 
 collect the amount from the mortgagor. So the question 
 comes back to the original point in the case — were the 
 taxes for which the present action was brought lawfully 
 levied ? If so, they can be enforced, whatever may be 
 the private relations or stipulations between the par- 
 ties to the security. If not lawfully levied, if the law 
 or State Constitution, under which they were imposed, is 
 in conflict with the inhibitions of the Federal Constitu- 
 tion, if the taxes were laid upon interests "with which 
 the mortgagor had parted, they cannot be enforced, what- 
 ever may be the pledges of the parties to each other. The 
 argument of the plaintiff amounts to this — if the taxes 
 had been lawfully levied on the mortgage, the mortgagor 
 would have been obliged to pay them under its covenant; 
 therefore it is not injured by the illegality of the levy, and 
 not being injured by it, should not be heard to complain of 
 it, but be compelled to pay the taxes. The answer to this 
 specious reasoning is obvious. If the taxes are not lawfully 
 
48 
 
 levied, there are none for the payment of which the cove- 
 nant can be invoked even by the mortgagees. The plain- 
 tiff must show that there rests upon the mortgagor a legal 
 obligation to the State to pay the taxes, arising upon its 
 constitution or laws, not from any stipulation the parties 
 may have made with each other, with which the State has 
 no concern. The action is not to enforce a lien upon the 
 property; it is for a personal demand, and a personal lia- 
 bility to the State must be shown. No other liability of 
 any kind to any party can aid a recovery. 
 
 The covenant we have been considering is not contained 
 in the mortgage on the lands of the Central Pacific Com- 
 pany; and for such lands in California, amounting to up- 
 wards of six hundred and fiftjr thousand acres, that com- 
 pany is assessed and taxed without any deduction of the 
 mortgage from their value, just as the Southern Pacific 
 Company is taxed for its lands. The amount due on the 
 land mortgage is over five and a half million dollars. 
 
 I have thus gone over, so far as I deem it necessary or 
 important, the several positions of counsel for the plaintiffs, 
 and in none of them do I find any sufficient answer to the 
 objection of the defendants. This opinion might, there- 
 fore, close with a simple order directing judgment for the 
 defendants. But owing to misapprehensions that have 
 largely prevailed in the community since the trial of the 
 San Mateo Case , which involved similar questions, as to 
 the effect of a decision against the State upon its right to 
 subject railroad property to its just proportion of the pub- 
 lic burdens, I will venture to make some suggestions as to 
 the manner in which all such demands of the State may 
 be enforced without infringing any principle of Constitu- 
 tional law. I am profoundly sensible of the irritation which 
 a supposed desire to escape from the just burdens of gov- 
 ernment naturally creates. The more powerful, the more 
 wealthy the party, the more intense the feeling; and it 
 finds expression in words of bitter complaint, not merely 
 against the party, but sometimes also against any adminis- 
 
49 
 
 tration of justice which tolerates such supposed evasion. 
 It is sometimes forgotten that the Courts cannot supply 
 the defects of the law, nor always correct the mistakes of 
 public officers, nor the errors even of learned counsel. 
 Certainly no member of this Court would countenance 
 the escape of anybody from his just obligations; hut it 
 cannot, with any seeming justice, declare that one party 
 shall discharge an obligation which the law, properly ad- 
 ministered, would impose upon another. Its duty is to 
 administer the law as it finds it, not to make it, never for- 
 getting that its administration must always be in subordi- 
 nation to those great principles for the protection of pri- 
 vate rights, which are embodied in our National Constitu- 
 tion, and which are of priceless value to every one in the 
 State. 
 
 The railroad companies in California are taxed yearly 
 to an amount exceeding $600,000. Their property is 
 heavily encumbered with mortgages, amounting to much 
 more than its actual value. Why should they not be al- 
 lowed by law, if they pay this sum, a credit for it on their 
 mortgages, as any natural person paying it would be al- 
 lowed ? Why should this unjust discrimination be made 
 against them ? Why should they by law be denied a 
 credit for this more than $600,000 a year ? Is there any 
 justice in this denial? There is no difficulty in assessing 
 and taxing the mortgages, if the words “ except as to rail- 
 road and other quasi public corporations ” be eliminated 
 from the Constitution as invalid. The imaginary diffi- 
 culty has arisen from the supposed necessity of taxing the 
 debts, which the bonds secured. As these are held in dif- 
 ferent parts of the country, some out of the State, it would 
 be impossible, it is said, to reach them. But the answer 
 is that the taxes should be placed upon the mortgages, 
 which for purposes of assessment and taxation, are to be 
 treated as interests in the property mortgaged, as much so 
 as if it had been unconditionally conveyed to the mortga- 
 gees. The records of the different counties show the mortga- 
 5 
 
50 
 
 \ 
 
 ges. The assessors can return to the Board of Equalization 
 the value of the property covered by the mortgages in their 
 respective counties, under section 3678 of the Political Code. 
 The Board would then have the value of the property of the 
 companies and the amount of the mortgages before them. 
 The mortgage of the Southern Pacific Company being 
 greater than the value of the entire mortgaged property, 
 it would be assessed at such value. It could never, as a 
 mortgage, be worth more than the property. If necessary 
 or convenient, the assessment of the mortgage on the 
 roadway, roadbed, rails, and rolling-stack could be stated 
 separately from the value of the mortgage on other prop- 
 erty of the company, and apportioned to the different 
 counties as at present. The value of the mortgage on 
 other property could also be apportioned as required by 
 the Political Code. Why then should not this system be 
 pursued ? The State would thus collect all the taxes which 
 it ought to collect. The tax being a lien upon the prop- 
 erty, could be enforced by a sale of the property, just as 
 though it was levied on the property, and not upon the 
 mortgages. If the companies should then pay the tax, 
 they could by the law claim credit for it on their mort- 
 gages; and it would be deducted in the payment of the 
 interest or principal of their bonds. Then justice would 
 be done to the corporations as it is done to individuals. 
 The same proceeding could be pursued with the first mort- 
 gage on the property of the Central Pacific Company. 
 That also being greater than the value of the property, the 
 State would be able to collect as large a revenue as by 
 taxation on the property itself, and the Company would 
 have the benefit of the payment by a credit on its mort- 
 gage. 
 
 It follows from the views expressed, that findings must 
 be had for the defendants, and judgment in their favor 
 entered thereon. 
 
51 
 
 CONCURRING OPINION. 
 
 Sawyer, Circuit Judge : 
 
 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 vs. The Southern Pacific 
 Railroad Company. This case is similar in its main feat- 
 ures to that of San Mateo vs. Southern Pacific Railroad 
 Company, decided by this court last year. ( 8 Sawyer, 281. ) 
 
 The questions involved require for their solution a con- 
 struction of two clauses in the first section of the Four- 
 teenth Amendment to the Constitution of the United 
 States, which declare 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.” Does the requirement of 
 due process of law extend to the taking of property by 
 taxation, and does equality of protection by the laws se- 
 cure a person, whatever his association with others in busi- 
 ness, 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 pro- 
 tection of these provisions when their property is taken 
 for the support of government, or when they are asso- 
 ciated with others in a corporation for the more conveni- 
 ent transaction of their business. 
 
 First. As to the meaning of the phrase, “ due process 
 of law,” in the amendment, I used this language in 
 the San Mateo Case: “No one, I apprehend, would for 
 
52 
 
 a moment contend that a man’s life, or his liberty, could 
 be legally taken away without notice of the proceeding, 
 or without being offered an opportunity to be heard; or 
 that a proceeding whereby his life or liberty should be 
 forfeited, or permanently affected, without notice or op- 
 portunity to be heard in his own defence, could, by any 
 possibility, be by c due process of law.’ In such cases 
 there could be no just conception of ‘ due process of law,’ 
 that would not embrace these elements of notice and op- 
 portunity 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 consti- 
 tute an essential part of due process of law in respect to 
 life and liberty, they must also constitute essential ingre- 
 dients 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, can- 
 not be attributed to the phrase with respect to property, 
 and another with respect to life and liberty.” (Ib., 288.) 
 
 And it was argued that the same construction must be 
 given to the same language when used in the same rela- 
 tion with reference to property, which is given to it 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. 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 a 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 asserted. 
 
 Ho counsel has yet appeared who has endeavored to 
 maintain the proposition that, if a man’s life is taken, or 
 
53 
 
 he is permanently deprived of his liberty, by some secret 
 tribunal or body of men, without having notice or an op- 
 portunity to be heard in his own defence, 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 de- 
 prived of his life or his liberty without being afforded 
 an opportunity to be heard in his own defence. The law 
 of the land — due process of law — vouchsafes to him this 
 right or privilege. A man deprived of life without having 
 an opportunity to be heard, is simply assassinated, or mur- 
 dered; and the man permanently immured in a dungeon 
 for an imputed offence, 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,” and in direct violation of “ the law of the 
 land.” So, also, I have understood it to be equally well 
 established, as apart of the common and constitutional law 
 of England, as a general rule, that no man’s property can 
 be lawfully taken from him against his will without an 
 opportunity of being heard. 
 
 The rights of life, liberty, and property are all funda- 
 mental, personal rights of the same grade or character. 
 They are treated as such in the amendment to the Con- 
 stitution 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 one, so far as I am aware, endeavored to show 
 that “ due process of law,” as a general rule, respecting 
 notice, and an opportunity to be heard, means one thing 
 
54 
 
 with reference to depriving one of life and liberty, and 
 something else, with reference to depriving him of prop- 
 erty. Counsel only seek 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. It devolves upon those who maintain that 
 there is a difference in the signification of this clause, as a 
 general rule, when applied to life and liberty and when 
 applied 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 the 
 exception. 
 
 In combating the principle stated it is insisted that the 
 language used by the court is too broad; that there are 
 cases — peculiar cases — as shown by the authority cited, to 
 which it is inapplicable. If this were so, it would only 
 appear that there may be exceptions to the general rule, 
 depending upon special circumstances and long established 
 usage. It would then be 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,” which should be “ applicable to all cases,” as it was not 
 deemed “ necessary for the determination of that case.” 
 This disclaimer left room for exceptions founded upon 
 long recognized and well-established usage. We there 
 said that “ to take one’s property by taxation is to de- 
 prive one of his property; and if not taken in pursuance 
 of the law of the land , in some due and recognized 
 course of proceedings based upon well recognized principles 
 in force before and at the time this clause was first introduced 
 into the various constitutions and the legislation of the country — 
 is to take it without due process of law.” The doctrine 
 was recognized that those forms and courses of proceed- 
 ing based upon well-recognized principles in force before 
 
55 
 
 and at the time of the adoption of our National Constitu- 
 tion, would be “ due process of law.” The case of Murray's 
 Lessee et al. vs. Hoboken Lund and Improvement Company, 
 (18 How., 274,) 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 cases 
 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 appro- 
 priated 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 certi- 
 fying 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 Treas- 
 ury 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, un- 
 der a distress warrant, issued by the solicitors of the Treas- 
 ury. The Constitution having invested the judicial 
 power in the courts, and declared that the judicial powder 
 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 war- 
 rant, without the action of the judicial power, did not de- 
 prive 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, 
 
56 
 
 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 6 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,” and concludes, that a distress war- 
 rant, so far as the warrant itself is concerned, is due pro- 
 cess of law, provided there is no judicial action neces- 
 sary as a basis for it; 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 audit- 
 ing 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 ex- 
 pressly authorize the proceeding, he “ looked to the usages 
 and modes of proceedings existing in the common and 
 statute laws of England, before the emigration of our an- 
 cestors from England, and which are not shown to have 
 been unsuited to their civil and political condition by hav- 
 ing been acted on by them after the settlement of this 
 country.” He found in regard to 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 due 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 
 
57 
 
 nature of the debt” — a proceeding of a strictly judicial 
 nature and, therefore, due process of law. These proceed- 
 ings were had under various acts of Parliament — that 
 omnipotent legislative body which could repeal Magna 
 Charta itself. 
 
 Justice Curtis proceeds: “This brief sketch of the 
 modes of proceeding to ascertain and enforce payment of 
 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 subjects ; and that as respects such 
 debts, due from such officers, the law of the land, author- 
 ized the employment of auditors, and an inquisition with- 
 out 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 Constitu- 
 tion of the United States.” 
 
 As thus seen, this mode of enforcing the payment of 
 balances was limited to defaulting collectors, and “ receiv- 
 ers 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; and “this diversity in 
 the i law of the land ’ between public defaulters and ordi- 
 nary 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 
 
58 
 
 law,” made in favor of the King against those who ac- 
 cepted 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 , reus, judex, regular allegations, 
 opportunity to answer, and a trial according to some settled 
 course of judicial proceedings (2 Inst., 47, 50; Hoke vs. Hen- 
 derson, 4 Dev., H. C., 15; Taylor vs. Porter, 4 Hill, 146; 
 Van Zant vs. Waddell, 2 Yerg.,260; State Bank vs. Cooper, 
 id., 599; Jones' Heirs vs. Perry, 10 id., 59; Green vs. Briggs, 
 1 Curtis, 311), yet this is not universally true.” An excep- 
 tion, then, is found in cases against defaulting public officers 
 ic hose debts are of record. And such was the case of Mur- 
 ray's Lessee vs. Hoboken Land and Improvement Company. 
 
 The Court, in speaking of duties levied, and of defaulting 
 officers, further says: “ What officers should be appointed to 
 collect the revenue thus authorized to be raised, and to dis- 
 burse 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 deter- 
 mine. 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 have 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.” 
 
59 
 
 Whatever may have been the grounds of the distinc- 
 tion originally made between defaulters of the public 
 revenue and other citizens, the case of such default- 
 ing officers is clearly shown to be an exception to the gen- 
 eral rule, resting upon very special circumstances, and the 
 case cited and relied on is a striking illustration of the maxim 
 that u the exception proves the rule” 
 
 But, again, under the statute of 1820, (8 Stat. IT. S., 
 595,) by the provisions of section 4, the party did in 
 fact have an opportunity to be heard before he could be 
 deprived of his property. That section provided “ that 
 if any person should consider himself aggrieved by any 
 warrant issued under this act, he may prefer a hill of com- 
 plaint to any District Judge of the United States, setting 
 forth the nature and extent of the injury of which he com- 
 plains,” and have a hearing. It is true that there was a 
 determination of his liability, and process issued, which 
 would become final and conclusive if he did not ask for a 
 hearing, and Mr. Justice Curtis observes upon this sec- 
 tion: “ The act of 1820 makes such a provision for re- 
 viewing the decision of the accounting officers of the 
 Treasury. But until it is reviewed it is final and binding.” 
 So in all cases of taxes under the Constitution of Cali- 
 fornia, except where the assessment is 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 Califor- 
 nia and the defaulting officers under the act of 1820, there^ 
 fore, have an opportunity to be heard before their prop- 
 erty can be finally appropriated, in a similar sense, and at 
 
60 
 
 a corresponding stage of the proceeding. If the oppor- 
 tunity thus afforded the tax-payer is in accordance with 
 due process of law within the general rule, it is not appar- 
 ent 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 con- 
 sidered by us in the Sa ?2 Mateo Case , but we did not think 
 it militated against our decision, and we did not deem it nec- 
 essary to extend the discussion by noticing it in the opinions 
 delivered. But after carefully reviewing the case, in conse- 
 quence of its being so confidently relied on, and the only 
 one relied on, as being inconsistent with our decision on 
 this point, we think it may well be cited 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 Illi- 
 nois Railroad Tax Cases (92 U. S., 575) were so regarded 
 by counsel — claimed to be in conflict with our deci- 
 sion on this point, and the Hoboken Land Case cited 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 heard before property can be taken 
 from its owner and appropriated to public use, is an 
 essential element of “ due process of law.” 
 
61 
 
 In the Illinois Railroad Tax Cases, referred to by coun- 
 sel, 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 Illinois; 
 and that the bills in chancery tiled presented no case for 
 an injunction, for the reason that there had been no pay- 
 ment 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 he in contra- 
 vention of the State Constitution, that decision would con- 
 trol 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 de- 
 cide, discuss, or even allude to the question, as to what are 
 the necessary elements of “ due process of law,” with ref- 
 erence to taxation, or otherwise, within the meaning of 
 the Fourteenth Amendment to the National Constitution. 
 That question was, evidently, not considered. We, there- 
 fore, 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 of 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 was the San Mateo Case , has been labor- 
 iously prepared, and elaborately argued by many eminent 
 
 r 
 
62 
 
 counsel^ and if the industry of the Attorney-General, and of 
 a large number of attorneys and special counsel for the 
 numerous counties interested 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 is extraordinary 
 for the positiveness with which it is made, 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 attrib- 
 uted to the zeal of the advocate. It is not founded 
 upon any pretense that the language quoted from the 
 various cases cited, is not found in the decisions, but 
 on the ground that in some of the cases the decision 
 did not turn upon the precise point, whether such an op- 
 portunity is an essential element of “due process of law,” 
 and that in other cases the question arose in relation to 
 local assessments for street improvements and the like, 
 and not on assessments for taxes for general revenue un- 
 der laws providing for the ordinary general expenses of 
 the State, county, or city. 
 
 As to the first class of cases, one of the counsel of the 
 defendants well says, and his language is adopted as a 
 clear general statement of a principle 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 dicta, incorporated into their opinions by 
 judges arguendo, although, perhaps, the actual facts of the 
 cases under discussion did not absolutely require the state- 
 ment of such doctrines or rules. And here you will dis- 
 criminate. .... These expressions of judicial opin- 
 ion may be correct, or may not be correct. They may be 
 expressions of well-settled rules, of well-settled and es- 
 
63 
 
 tablished 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 ex- 
 istence of the rule of law which they do set out. One 
 simple dictum 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 opinion, even 
 when they are dicta 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 constitu- 
 tional law, the discussion was cognate to it, and the Judges 
 clearly and distinctly stated the right to an opportunity to 
 be heard, as a constitutional right. Some of these declara- 
 tions can scarcely be called dicta , and they relate both to 
 general taxation and local assessments. While such asser- 
 tions of the principle of law may not be of so controlling 
 a character as a decision of a court of acknowledged au- 
 thority, directly determining the point in issue upon mature 
 consideration, they are, certainly, of some authority, as be- 
 ing the deliberately expressed opinions of eminent Judges, 
 and entitled to great weight. So, also, so distinguished a jur- 
 ist and text-writer as Chief Justice Cooley, gives it as his 
 deliberate opinion — as well as states it as a rule drawn from 
 the authorities cited by him — that notice of the proceedings 
 and opportunity to be heard are essential. His language is: 
 “We should say that notice of proceedings in such cases and 
 an opportunity for a hearing of some description were mat- 
 ters of constitutional right. It has been customary to provide 
 for them, as a part of what is ‘ due process of law 5 for these 
 cases, and it is not to be assumed that constitutional provi- 
 sions, carefully framed for the protection of property > were 
 intended, or could be construed to sanction legislation under 
 
64 
 
 which officers might secretely assess one for any amount 
 in their discretion, without giving him an opportunity to 
 contest 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 assess- 
 ments 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 spe- 
 cial 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 sover- 
 eign power of taxation. There is no difference in the 
 power or principle exercised. The only difference recog- 
 nized 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 sup- 
 posed 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 or of apportionment. It is as necessary to ap 
 portion it according to some fixed, uniform rule, requiring 
 action of a judicial nature, as in the case of general taxa- 
 
65 
 
 tion. This rule is the only distinction recognized — both 
 systems of assessment and collection resting ultimately 
 upon the sovereign power of taxation. Emory vs. The 
 City of San Francisco , 28 Cal., 349, and People vs. Mayor 
 of Brooklyn , 4 Com., 420, well illustrate the only distinc- 
 tion between general taxation and local assessments, and 
 none affect the point under discussion. In both it is nec- 
 essary 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 improve- 
 ments. The levying and collection of taxes for general pur- 
 poses, 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 deci- 
 sion of the point, as to notice and opportunity to be heard 
 in a case of a street assessment, is just as clearly an au- 
 thority 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 assessment 
 cited, therefore, are, in our judgment, authorities directly 
 and fully in point. 
 
 Again, so far as we are advised — and such is the state- 
 ment in the books, which has not been controverted — it 
 has been the usual practice in the legislation of all the 
 States, at some point ip the proceedings, to levy and col- 
 lect a tax based upon property, where it is necessary to 
 ascertain its amount, character, and value, before the lia- 
 bility 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 
 6 
 
66 
 
 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 gen- 
 eral 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 dictum 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 vs. New Orleans; of 
 the adoption and laying down of the rule by text-writers 
 of the highest eminence and judicially recognized author- 
 ity; in view of the general legislation of the States upon 
 the subject, from the beginning recognizing, and, practi- 
 cally, 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 authori- 
 ties established beyond all controversy, that somewhere 
 in the proceeding of assessing a tax upon propert} 7 , 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 
 
67 
 
 statute, or State Constitution, must provide for notice to 
 be given to the owner of the property taxed, and an oppor- 
 tunity be afforded to make objections and be heard upon 
 them. If this defendant , on its large amount of property, can 
 be lawfully taxed unheard , then it is competent for the State to 
 abolish all right to be heard , and every person can be taxed un- 
 heard 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 tbe 
 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 prop r 
 erty, the amount of business, income, etc., and it is neces- 
 sary 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, be- 
 fore 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 afford- 
 ing an opportunity presumes that justice will be done 
 upon proper hearing and proofs, by the officers charged 
 with the duty of doing justice in these matters. 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, it is sufficient 
 
68 
 
 to observe that 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 by the Legislature upon that basis, making the allow- 
 ance, suggested by experience, for inability to collect the 
 whole tax. 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 pur- 
 pose of apportioning his proper share of the burden, that 
 it is necessary to act judicially, and to give an opportunity 
 to be heard before the amount shall be finally and irrevo- 
 cably fixed. 
 
 Second. We are of the opinion, expressed in the San 
 Mateo Case , that the statement required by section 3,664 
 of the Political Code, as adopted in 1880, does not afford 
 notice and an opportunity to be heard sufficient to con- 
 stitute “ due process of law,” within the meaning of the 
 constitutional provision, for the reasons there stated. (8 
 Sawyer, 296.) In this case, the assessment was , largely, 
 in excess of the valuation furnished by the railroad offi- 
 cials, in pursuance of section 3,664. As to the supposed 
 Statutes of 1881, an error in the printed journal appears, 
 which was not called to our attention at the hearing 
 of the San Mateo case. Upon counting the names of 
 those appearing among the ayes in the printed journal 
 (Jour. Ass., 24th session, page 472) there are found to be 
 forty-one names, which constitute just a majority, although 
 they are footed up as thirty-nine, and the announcement 
 by the Speaker was, that there were thirty-nine ayes, and 
 thirty -two noes. The Speaker declared “that this was 
 not the final action on the bill, and that the House had 
 concurred in Senate amendments to Assembly Bill Ho. 
 475, by a vote of thirty-nine ayes, to thirty-two noes.” (Id., 
 473.) Mr. Paulk appealed from the decision of the Chair, 
 “ on the ground that forty-one votes were required for 
 concurrence.” On motion of Mr. Hoitt, this appeal was 
 
69 
 
 laid on the table. Mr. Hale filed a protest, the ground be- 
 ing “ that on 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 
 it was passed by the Assembly, there was less than a ma- 
 jority of the members of the Assembly voting therefor; 
 and, therefore, said bill, having upon such final vote re- 
 ceived less than a constitutional majority of the Assembly, 
 I protest, as aforesaid, that said bill should have been de- 
 clared 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 
 non-concurrence 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 the de- 
 cision 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 mem- 
 bers did not vote aye in concurring with said amendments.” 
 This was the last action of the House on this bill. It will 
 be seen, then, that, while upon counting yip the ayes in the 
 printed journal forty-one names are found, yet that they 
 were footed up and carried out as thirty -nine; the vote 
 was announced by the Speaker as thirty-nine, and the 
 whole subsequent action of the House was upon the as- 
 sumption that there were but thirty-nine. Upon com- 
 paring the printed journal with the original xoritten 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 
 
70 
 
 not appearing in the. written journal. We are of opinion 
 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 announce- 
 ment 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, that this was not the final passage 
 of the bill , and that it was on this ground that the amend- 
 ments 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. Ho other vote appears to 
 have been had, or other announcement by the Speaker 
 made in regard to this bill. Ho 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 en- 
 rolled, and as having been presented to the Governor for 
 approval. Ho 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 amendments 
 to be concurred in. Thus, there bad been no final action 
 on this question, unless the report of the Committee on 
 Enrollment, without further action thereon, can be so re- 
 garded, 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 no- 
 tice of the proceeding, or opportunity to be heard as to 
 the correctness or propriety of the assessment. The as- 
 
71 
 
 sessment 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 cases, 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 show, 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 in- 
 competent. 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 con- 
 formity with the law and put its refusal on that ground — 
 that it would be unlawful to reduce the amount. But 
 whether it did or not can make no difference. 
 
 If such a right and opportunity to be heard is an essen- 
 tial element of “ due 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 law. 
 
 Third. The next question is whether the provision of 
 the State Constitution, under which the assessment in ques- 
 tion was made, is in conflict with the clause of the Four- 
 teenth 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 con- 
 nected, unbroken order, I shall adopt the reasoning con- 
 
72 
 
 tained in the discussion of the fifth nninf ^ . . 
 
 “ "?„T 1 M /' I can ,0 “4ZT 
 
 ■ that „„ TC. fn m ZT’"‘, *«“" «*«*> 
 
 security to everv r>Pr • ^ u m e ^ ect a fundamental 
 private^ rfo-ht tW ? the State in res P ect of every 
 
 firmation tf equa^^^ “ “ af " 
 
 the law -g . ^ 7 1 n&tlts t0 a d persons before 
 
 , m . What ’ then > 1S equality of protection ? A civil rie-ht 
 
 & 5S ^ S £*£ 
 
 *“ •;* ‘r,' h ° c “™ 
 
 y- nold otherwise would Ipnr? tn 
 of the rio-ht of thp H* n +« + 7 d to the affir mation 
 
 w«i d zzt* p *t ° f ,h ** ci “ » aW 
 
 “It is n i , d ? f n eqnallt -> 7 with hi * fellow-victims ” 
 
 ^ -*-7— oir; 
 
 &to»rSSHs: 
 
 hsse^s 
 
 case ot property, as property, to 
 
73 
 
 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 other- 
 wise would be to set up the very essence of tyranny and 
 arbitrary power.” 
 
 “ c Equal protection ’ is the same protection under the 
 same circumstances; all are to stand alike in like intrin- 
 sic conditions. Holding property as 'property is certainly 
 a like intrinsic condition. In the administration of jus- 
 tice, if the criterion of a right to sue be value, all must 
 have the same right when the same value is con- 
 cerned; or if the criterion be the nature of the contro- 
 versy, all must have the same right whose cases are of 
 the same nature. This appears to be too clear for dis- 
 cussion.” 
 
 “ 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 land 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 de- 
 ductions 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, can- 
 not 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 
 
74 
 
 unequal exactions to the end of complete confiscation by 
 edict of all the property of any class, or man, who, dur- 
 ing 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, and 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 obliga- 
 tion 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. Except as to 
 railroad and other quasi public corporations , in case of 
 debts so secured, the value of the property affected by 
 such mortgage, deed of trust, contract or obligation, less 
 the value of such security, shall be assessed to the owner 
 of the property, and the value of such security shall be 
 assessed and taxed to the owner thereof, in the county, 
 city, or district in which the property affected thereby is 
 situate. The taxes so levied shall be a lien upon the prop- 
 erty 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 con- 
 stitute a payment thereon, and to the extent of such pay- 
 ment a full discharge thereof: Provided , that if any such 
 security or indebtedness shall be paid by any such debtor 
 or debtors, after assessment and before the tax levy, the 
 amount of such levy may likewise be retained by such 
 debtor or debtors, and shall be computed according to the 
 tax levy for the preceding year.” 
 
75 
 
 Whatever the property, then, real or personal, mortgaged 
 to secure a debt, the value of the debt so secured, in the 
 case of everybody, “ except a railroad and other quasi public 
 corporation ,” is to be deducted from the value of the prop- 
 erty mortgaged, and the value only of the property mort- 
 = o-aa-ed, “ less the value of such security, shall be assessed 
 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 ot their 
 respective interests, and whatever the nature or extent o 
 the interest of each in the property may be, it shall be 
 taxed to the real owner. But in the case of “ a rai roa 
 or other quasi public corporation,” there is to be no reduc- 
 tion 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 own 
 the whole. In one case, if property is mortgaged to the 
 extent of half its value, the owner is taxed upon one-halt 
 the value, and the owner of the debt secured, or the mort- 
 gagee, is taxed upon the other half. But in the other case, 
 the owner of the legal title to the property is assessed and 
 taxed upon the whole value of the property, and the other 
 party, who is interested to the extent of one-half, upon 
 none. A, a natural person, or even a corporation other 
 than one of the excepted class, has $50,000 in cash a 
 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 mort- 
 gage for $50,000 to secure the balance of the purchase- 
 money. The Constitution in effect says— and in this in- 
 stance such is the real substantial state of facts— that A 
 and B each has $50,000 in the property, one-half not hav- 
 ing 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 
 
76 
 
 property he does not ronllv nx 
 
 ter** el,e - mi> “«»* £Z2gsz ;z d . 
 
 has ^^oTasC aS h puSi 5 b f C °T rati0n ’” als0 
 
 secure the balai ofYe 2? ^ing a ^ tgage to 
 as in the other, the actual ilS^T ^ ? **' Case > 
 is $50,000. They stand precisely ur.nn ll “ ‘ ^ p, '° pert ->' 
 m all particulars with referenced the ^ Same footin S 
 only $50,000 in the property J? n l t Property. C has 
 
 other half— and B, the rest. But i f vm o Paid for the 
 
 tution says that C shall neverthel " ^ ° aSe the Consti - 
 pay taxes upon the whole pronerfw’ m aSS6SSed for and 
 really owns, and B shall not be reauiredZ he 
 
 18 to s ay, that C shall not only ly If ^ That 
 Property, but the tax unon R>f 17 ™ tax 0,1 lts own 
 the amount of the tax asses ,) P ro P ert ^ > t!| at money, to 
 
 B,.h,n b« t,k,7bv th X'. „ ” IK " ,M ’ m ’ t. 
 
 r™«d lh „ „„ c i s :z z:zZb? ? “ a , 
 
 • h ’ r * '•< th « P»Wio burdons. Til B '> 
 
 more than C’s share of the nnhhe n ’ b “ S 80 muoh 
 fact B’s share, the result nf nZ ■ Uldens > and being in 
 
 much property from C fo/vM^^-t’ ^ t0 take so 
 
 also to arbitrarily take ’it from C U ^ WlthouUom P ensati °n, but 
 benefit of another private parti/ b the «** 
 
 result would be the same whether ’Zf com P en ^tion. The 
 thus situated and mortaaaed ill 1 pr0perty ° f A > B and C, 
 
 *— *• « 
 
 equally upon B and C? Is Ceaaalt 7 T" A . a “ d or 
 of property with A or eonall ^ Z protected in its rights 
 
 xoith all other natural person? orZllT^ ^ B ’ W Cqmlly 
 railroad or other ams Z ’Zl C ° rp ° ratl0ns oth er than 
 
77 
 
 do they feel the pressure of the public burdens equally and 
 alike ? The question does not appear to me to admit of 
 argument. Upon the very statement of the proposition, 
 it seems to me to be self-evident that a law authorizing 
 and requiring such proceedings does not afford, but ex- 
 pressly denies, the equal protection of the laws. The Con- 
 stitution, in the one case, says that “ the mortgage, deed of 
 trust, contract, or obligation ” shall be “ deemed and 
 treated as an interest in the land affected thereby,” which, 
 in the cases supposed, together with the debt secured, it 
 undoubtedly, in fact, is; but, in effect, the Constitution 
 says it is not so in the other case. Different kinds of 
 property may require to be taxed in different forms and 
 modes, in order to be equally taxed. And classifications 
 of property for purposes of taxation should have reference 
 to the just equality of burdens, so far as that is practically 
 attainable. Classification should have reference to the 
 different character, situation, and circumstances of the 
 property, making a different form or mode of taxation 
 proper, if not absolutely necessary. It cannot be arbi- 
 trarily 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 char- 
 acter, 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 cor- 
 poration,” 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 mort- 
 gage 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 cor- 
 poration — should convey its land to a natural person, sub- 
 ject 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 — C’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 Southern Pacific Railroad and its lands 
 pass into the hands of a natural person upon a foreclosure 
 and sale, under a second mortgage, subject to the mortgage 
 now on them, the value of this very security would be de- 
 ducted from the value of the property at the next annual 
 assessment. Thus, although the property would in all re- 
 spects be the same, and similarly situated, and applied to 
 the same uses — for natural persons as well as corpo- 
 rations 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 un- 
 soundness 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 corpora- 
 tions,” and the property of natural persons and of other 
 corporations. Railroad and other quasi public corpora- 
 tions are not even put upon the same footing with 
 other corporations, the latter being placed upon an equal- 
 ity with natural persons. A mere change of ownership 
 under the provisions in question largely affects the amount 
 of taxes paid by the owner upon the same property, with- 
 out 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 situ- 
 ated and used, or upon the identical property, in conse- 
 quence 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 classifica- 
 tion in this case is clearly by ownership, and not by con- 
 dition 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 in- 
 volves the power to sell and convey, in case the occasion 
 arises, under a decree of foreclosure, to any party who is 
 willing to pay the highest price for the road. It also ap- 
 pears 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 mort- 
 gage, 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 States were introduced in evidence, grant- 
 ing the right to natural persons, not incorporated, to build 
 and operate railroads. a An act to provide for the con- 
 struction of a railroad from Mokelumne City to Wood- 
 bridge, in the county of San Joaquin,” (Statutes 1862, 
 page 97,) and an act authorizing the building of a rail- 
 road from the Embarcadero, on the bay of 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 pri- 
 vate parties owning and operating railroads covered by 
 mortgages, and situated in all respects precisely as rail- 
 road 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 prop- 
 erty 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 mort- 
 gagor of all taxes on the property. This is not classifica- 
 tion, therefore, by its condition or use, for the purposes of 
 taxation at all, but by ownership. 
 
80 
 
 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, there- 
 fore, taxed upon the same principle as other property ; 
 no more and no less revenue is raised by the classifica- 
 tion. 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. 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 mort- 
 gaged, 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 like kind and simi- 
 larly situated, then this provision of the State Constitu- 
 tion cannot be maintained on the principle of classifica- 
 tion 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 mort- 
 gage 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 con- 
 cerned. 
 
 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 Constitu- 
 tion 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 mort- 
 gagor, the mortgagor not being taxed at all, would such 
 a provision have been valid upon the principle of classi- 
 fication, or any other ? Would the mortgagee stand upon 
 
81 
 
 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 Constitu- 
 tion 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 upon 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, similarly 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 no possible reasoning can justify such 
 classification or discrimination under it. That classifica- 
 tion, upon such principles, is arbitrary, tyrannical, and un- 
 justifiable. 
 
 There can be no valid classification of property, under 
 the State Constitution , for the 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, 
 7 
 
82 
 
 i 
 
 and enjoy the rents arising thorefrom; and 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 prin- 
 ciples 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 one class 
 of owners 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 — land and other 
 property held for sale as well as property used for ope- 
 rating railroads, or other corporate uses of quasi public 
 corporations, without making any reference whatever to 
 its uses. The only rule hy which any property is author- 
 ized to be assessed, is according to its value. The Con- 
 stitution arbitrarily provides, as to a particular class, that 
 they shall pay the taxes upon the interest — according 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 corpora- 
 tions 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 , icho thereby escape their share of the 
 public burdens. If the arbitrary discrimination and classi- 
 
83 
 
 * 
 
 fication 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 guaranteed 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, indeed, out of all the 
 guaranties of the Constitution, State or national. I am 
 not arguing that property of all kinds may not he 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 this point, reference is made 
 to the San Mateo Case , 8 Saw., 302-4. 
 
 It is argued that the taxing of the whole value of mort- 
 gaged property of railroads and other quasi public corpo- 
 rations to the corporation owning it, subject to the mort- 
 gage, 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 in- 
 dividuals.” It is further said that it is not material by 
 what standard a franchise tax is measured — whether the 
 
84 
 
 tax is in gross or measured by receints , „ 
 
 property acquired, or by any other s l d ard T ° f 
 are cited from some of the qf n + n * da d; aild cases 
 claimed to have“l„\ S ! * * franchise tax * 
 
 .*» *. v„,„e,. .. Si'Xir' p T rtj '’ :r,r?r“ 
 
 (ArtSlL, ?e?® i a /“1’ The “ ' d fa “^ as provided '*» 
 article and ection is hi. T P ‘'°P er ^ aS USed in this 
 credits ’ V ® y red t0 indude mone ^ 
 
 things . ‘ ‘ /„“n Awe f ,a “ d aH othur matters and 
 
 Ao-ain ^ cabbie of pnvate ownership.” (ft) 
 
 ' A&aiu > the franchise, roadway etc of oil „ •/ y 
 operated in more thon , . etc *? ot a11 laill *oads 
 
 assessed by the State BoqrW’V" m T . thl . s State be 
 mte.” (Ib. sec. 10 } Th °+i q J. m izahon at their actual 
 ant, under the Constitution of ° f ^ defend ' 
 
 teeing 1^- ,t “? °" 8,, ‘" tio ". *■»"»- 
 
 amt etreefC ui LT 1 ” M ” ° f '*"• 
 
 counsel upon the ornwi arguments of plaintiffs’ 
 
85 
 
 and through their large and widespread influence, have 
 obtained, and they are obtaining, control of Legislatures, 
 etc., etc. 
 
 If this he 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 Con- 
 stitution , the position of the parties can be reversed , and the un- 
 equal tax now thrown upon the corporations may hereafter be 
 imposed upon the other parties. If these can be taxed without 
 a hearing , then all or any class of persons can be taxed with- 
 out a hearing ; and if there is good ground for the alarm mani- 
 fested 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. 
 
 Fourth. Upon the point as to whether the provision of 
 the State Constitution under which the tax in question 
 was levied, is valid by virtue of the power of the State 
 over corporations, under the authority reserved 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 Saw., 
 304. 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 corpora- 
 tions, 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 
 
86 
 
 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 neces- 
 sities 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 embrac- 
 ing 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 opera- 
 tion. 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 he 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 amend- 
 ment to the general laws under which they became in- 
 corporated. 
 
 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 cor- 
 porations, 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 corpora- 
 tion 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 
 
87 
 
 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, void and of no effect — and in every 
 way, and by all means in its power, is resisting the at- 
 tempt 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 and refusing 
 to acquiesce in it. Till the corporation elects to ac- 
 cept the new conditions imposed, or gives some evidence 
 of such election, rather than dissolve, there is no im- 
 plied 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 en- 
 titled to litigate the question, whether any new valid obli- 
 gations 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 continu- 
 ing 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 
 
88 
 
 belongings are under the arbitrary power and control 
 The State, throug^ge^raMavra ^apphcatde ^to^ll” imOar 
 
 S»SJ “ d P~P«W of natural p.„J 
 
 p opei ty is in the corporators, and their rights in the 
 pi opei ty and acquisitions are as sacred in their corporate 
 «... .»3- other of their r.latioa. eeeietp, „rT £ 
 
 S,M * Constitution provided that the prop, 
 e.ty of corporations might be taken for public use 
 thou any compensation, and without a trial or hearing 
 of any kind, such as for the sites of public building p U b° 
 be streets or squares, or for the>o 'of railwa^nd the' 
 corporations had denied and resisted the validity of such 
 provision I apprehend that no Court would Told 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 £ 
 poiation, and in consequence of the fact that 
 f'ii’ht ihuuceforth he arbitrarily^k^^^ appropriated 
 
 “ “P h *”'« » ~»pe«,S TO 
 
 such a provision would be no more monstrous than the 
 
 * he - 
 
 mg the sovereign power of taxation— has norther end 
 accomplish and accomplishes no other purpose; and 
 
89 
 
 that the rights of the parties must be determined on that 
 hypothesis alone— that is to say, the hypothesis that it 
 is a tax merely, without any reference to a change of 
 the fundamental conditions upon which 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 he imposed upon the 
 defendant, simply because it is a corporation,, when it 
 could not be imposed upon natural persons holding, own- 
 ing, 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 re- 
 
 ^ Fifth. 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 de- 
 fendant to I). 0. Mills and Lloyd Tevis, before the adop- 
 tion of the present Constitution of the State of California, 
 which covered the Southern Pacific Railroad, its tracks, 
 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 statu- 
 tory description. This deed 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 of the lands mortgaged, was 
 
 situated in the county of Santa Clara. The mortgage was 
 for |46,000 per mile, of which amount bonds have been 
 
90 
 
 issued to the amount of f 39, 000 per mile. The land, 
 
 '»« patented, including 
 
 fLdan^t the T'" °° Unty ’ had bee “ ^d to det 
 
 tendant m the several counties in which they were situ- 
 
 count^f tT U 1 V f aIUe ’ a “ d without an ^ reduction on ac- 
 count of the mortgage, and the taxes duly paid So 
 
 o?the 0 road "‘Sr “ ° f the assessed 'value 
 
 Thu^all tt g ' St + ° ’ 6tC -’ ^ made in consequence, 
 thus all the property embraced in the morto^e was 
 
 “‘I “Jte « «' « value, wlthSi™ 
 
 ° ' “ “ the amount °« account of the mortgage. The 
 said nartv oTth^fi^ ^ f ° Uowin S covenant: “And the 
 
 to and with th h<3 m Pa ' -t hel ' eby a » rees and covenants 
 to an d with the sa,d parties of the second part, and their 
 
 successors in trust, that it will pay all ordinary and extrT 
 
 oidinary taxes, assessments, and other public burdens and 
 
 described ^ ^ may be impost upon the property herein 
 escribed and hereby mortgaged, and every part thereof • 
 
 Zi jZr Pai ' tieS ° f the SeC ° nd " b e survtr of 
 
 nf “ °, r tbeU accessors in said trust, or any one or more 
 
 said Lrt of S th f b0 " dS7 maJ,in ° aSe of defau U of the 
 said party of the first part in this behalf, pay and dis- 
 
 c aige the same, and any other lien or incumbrance upon 
 
 elity P T r o 7 : hiCh ^ iD a ' ly inZIZ 
 
 equity, he oi become in effect a charge or lien thereon 
 pnor to these presents, or to which this mortgage may be 
 ubject or subordinate, and for all payments thus ride 
 
 Z oT;;Z m fj theS ^ ShaU be alI ° Wed “Merest 
 eieon at the rate of seven per centum per annum- and 
 
 sue payments, with the interest thereon, shall be and 
 
 2e lt’ SeC ^ t0 ! h6m by th6Se ^ - d Se- 
 aled to be payable and collectable in the same sort of 
 
 currency or money wherein they shall have bTe„ paid 
 
 nirt t 16 - S ? me * ha * b<5 pa - vable sai d party of the first 
 partf^partiesof the second part uponiemand in 
 
 be paid out of r 7 ° r P T Paylng the same > and “ a y 
 
 ot paid out of the proceeds of the sale of said property 
 and franchises hereinbefore provided.” P P ty 
 
91 
 
 It is gravely and earnestly insisted here that under this 
 covenant the defendant has hound itself to the trustees to 
 pay the whole taxes assessed upon the property coveie 
 /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 jay no 
 more than it is bound to pay under the covenant m t 
 trust deed, and could not be injured; thereto e the tax is 
 valid and a recovery should be had in tin sac ion, ejn 
 though the tax, as levied against the defendant, is urn 
 thorized by any valid law, or was levied without the au- 
 thority of any law. It would seem to be only necessary 
 to state the proposition to make manifest its fallacy rh 
 proposition in substance is, that if a valid tax had bee 
 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 paity 
 to pay it and make it a secured charge against defendant 
 Ami since this is so, although it is not authorized by an} 
 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 P lalntlfl g 
 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 pei- 
 sonally liable to pay this tax by a proper and legal assess- 
 ment of it; and if anybody had been made liable defend- 
 ant would have been bound to pay it under its covenant, 
 but there was no valid assessment, either against the de- 
 fendant or anybody else, yet the defendant is personally 
 liable and plaintiff ought to recover. Such is the reason- 
 
 ins: presented to us. , . , 
 
 This tax, as levied, is either valid, as properly levied 
 under the law, or it is void and its validity must depend 
 upon the law. It cannot depend upon the tact that 
 private parties by an anterior contract, with which the 
 
92 
 
 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 per- 
 sonal charge upon the defendant under the law, without 
 regard to any contract between private parties as to w T ho 
 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 trus- 
 tees 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 cause 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 a tax as throws a legal liabil- 
 ity 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 autho- 
 rized a recovery against defendant by reason of the cove - 
 
93 
 
 nant alone. The covenant cannot affect the case. The 
 covenant was between the defendant and the trustees, for 
 Z Zlit of ft. latter, or r.th.r ft, W-hold,~ 
 cured and not for the benefit of the plaintiff. The plain- 
 tiff 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 bene, 
 plaintiff, in such form, if such could be, as to gi v cp lal "- 
 tiff a right of action on the covenant. It would be nec- 
 essary to set out the contract on which the right of ac ion 
 rested, and make it the basis or ground of action. Nothing 
 of the kind has been done. The theory of this action , 
 that a valid tax has been legally assessed against defen- 
 dant for which it is personally liable under the Constitu- 
 Z L . recovery is seegh, on ft.. g™»d » 
 plaint, and upon no other; and it can be had upon no 
 
 0t There 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 moi gage P P 
 erty, and in default of payment, that the mortgagee mi B 
 pay it himself for the protection of his security, and upon 
 such payment that the taxes so paid should be added to 
 the debt, and draw like interest. This was simply to pio- 
 tect his security against other parties who might subse- 
 quently 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 protec- 
 tion, in case the mortgagor did not, and take away the 
 voluntary character of the payment, so that he could con- 
 vert it into a secured debt, drawing interest as a part ot 
 the principal. The other was that the mortgagor would 
 pay not only all taxes levied on the mortgaged property, 
 hut also all taxes that should be levied upon the monejs 
 
94 
 
 loaned and secured. This was an indirect way of increas- 
 ing the interest paid on the loan, and imposed an addi- 
 tional burden upon the mortgagor. This last covenant is 
 now forbidden and rendered void under the new Constitu- 
 tion. 
 
 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 was at that time bound 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 with- 
 in 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 hol- 
 der of the security , and made a personal charge on him 
 alone. It could not be assessed 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 ques- 
 tion, to pay the whole tax levied on the land, and he 
 would not he injured according to the theory of the plain- 
 tiff, if the whole tax should be assessed and recovered 
 against him. If such assessment should be made against 
 the mortgagor instead of the mortgagee without any law 
 for it, or even purporting to authorize it, and a suit be 
 brought to recover a personal judgment for the amount, I 
 
95 
 
 apprehend that no counsel would be found bold enough 
 to urge that the utter invalidity of the tax is no defence 
 against the suit, for the reason, that if a proper tax had 
 been levied againsffthe 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 ref- 
 erence 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 the others. They 
 are not equal before the laws. If the constitutional pro- 
 vision 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 of the State Constitution, upon 
 which the validity of this tax and the right to recover 
 alone rest, violate the provisions of the Fourteenth Amend- 
 ment in question, in four vital particulars. 
 
 1. They assess railroad and other quasi public corpora- 
 tions upon a different basis from that adopted with respect 
 to natural persons, and other corporations similarly situa- 
 ted 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 opportu- 
 nity 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 de- 
 fendant the equal protection of the laws, within the mean- 
 ing of the Fourteenth Amendment to the National Con- 
 stitution . 
 
96 
 
 061936974 
 
 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 lia- 
 bility 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 bur- 
 den, 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 un- 
 necessary 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 jurisdic- 
 tion, but for the fact that the questions already discussed 
 are in the case. Those are questions more properly be- 
 longing 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 be 
 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 pre- 
 siding Justice stated, in addition to those given in the sev- 
 eral opinions delivered in the San Mateo Case , I think 
 judgment should be rendered for defendant as directed. 
 
 September 17, 1883.