Smith, C. J.,
delivered the opinion of the court.
This is an attachment in chancery by the state revenue agent against the Chicago, Rock Island & Pacific Railroad Company, a corporation chartered under the laws of the states .of Illinois and Iowa, as the principal defendant, and hereinafter designated as the company, and the Illinois Central Railroad Company and the Alabama & Vicksburg Railway Company as garnishees; the bill alleging that they are indebted to the principal defendant or have property belonging to it in their possession. The recovery sought is for taxes alleged to be due the state of Mississippi bjyi the company for the year 1912 under the provisions of chapter 1131, Laws of 1912, the parts of which that are here material are as follows:
“Section 1. Every person or persons, joint-stock association or corporation, wherever organized or incorporated, engaged in the business of operating cars, or engaged in the business of furnishing or leasing cars not otherwise listed for taxation in Mississippi, for the transportation of freight (whether such cars be owned by such company or any other person or company) over any railroad line or lines, in whole or in part, within this state, such line or lines not being owned, leased or operated by such company, whether such cars be termed box, flat, coal, ore, tank, stock, gondola, furniture, or refrigerator oars, or by some other name, shall be deemed a freight line company.”
Section 2 provides that such companies shall on or before the 1st day of May in each year file with the state auditor a statement setting forth, among other things:
“The total number of cars used and. the whole length, of the lines of railway over which the company runs its cars, and the length of so much of such lines1 as is without and is within the state of Mississippi. ”
[419]*419“Sec. 3. For the purpose of taxation, all cars used exclusively within this state, or used partially within and without the state, are hereby declared to have a situs in the state, and the value of such property for the purpose of taxation is to be determined as provided by section four (4) and five (5) of the act.
“Sec. 4. Every freight line company as hereinbefore defined (1) shall annually, between the first (1st) day of January and the first (1st) day of February, . . . make and file with the state auditor 'of this a statement showing the total gross earnings received from all sources by such freight line company, within the state, for the year ending December 31st next preceding.
“Sec. 5. The term ‘the total gross earnings received from all sources by such freight line companies within this state, as used in section four (4) of this act, is hereby declared and shall be construed to mean all earnings on business beginning and ending within the state, and a proportion, based upon the proportion of mileage over which such business is done, of earnings of all interstate business done, of earnings on all interstate business passing through or into or out of the state; and all such freight line companies shall, on or before the first day of February in each year, pay to the state treasurer of the state of Mississippi, a sum of money equal to three (3%) per centum upon the gross earnings of such company for the year ending on the last day of December next preceding, the same to be a tax on its property and in lieu of all other taxes upon the same.”
Other sections provide for the collection of the tax, the method by which the auditor shall ascertain the gross earnings of a freight line company failing to make a report thereof to him and imposing a penalty of five hundred dollars on each freight line company failing to make such report.
The bill of complaint alleges that the company did a freight line business in Mississippi during the- year [420]*4201912, but failed to make a report thereof to the auditor, and prays for a discovery of the gross amount earned by the company in such business for the year 1912, for a decree against it for three per cent, thereof and for the five hundred-dollar penalty imposed by the statute for the failure to malee thle report required of it.
The cause was heard on bill and answers, from which it appears that the company is, and was during the year 1912, a common carrier operating railroads in several states, none of which are in Mississippi, and which connect with other railroads making its railroads a part of the railway transportation system of the United States; that pursuant to the orders of the Interstate Commerce Commission, to which it is subject, it delivers its cars when loaded with commodities destined for points beyond its own lines to connecting and intervening carriers, by which they.are moved to the destination of such commodities. Prom which it results that some of its cars move into and out of the state of Mississippi, and while being so moved and until returned to it the company receives from the carrier in whose possession the cars are “a per diem rental” therefor, such cars being the only ones owned by the company that come into the state of Mississippi at any time. The discoverv prayed for was not made. The court below rendered a decree directina1 the companv to pay to the complainant the five hundred dollar-penalty and to make the discovery of its gross eaminers praved for, from which decree the company praved for and was granted an appeal to this court to settle the principles of the case.
Among the many questions raised, bv counsel for tlhe appellant company, and. the one on which our judgment-will turn, is the power vel non of the legislature to enact a statute of the character of chanter 313!, Laws of 1932. If the tax here sought to be collected is imposed directly on the complanyis gross earnings as “such, they [421]*421being derived partly, if not wholly, from interstate commerce, it is a burden on such commerce and consequently void. But if the gross earnings of the company’s are simply taken as the measure of the value of the cars owned by the company that come into the state of Mississippi, and the amount of the tax is not in excess of what would be legitimate as an ordinary tax on the cars with reference to their use as a part of" a going concern, it does not in fact restrain or burden such commerce, and will.be valid if permitted by the state Constitution. Cudahy Packing Co. v. State of Minn., 246 U. S. 450, 38 Sup. Ct. 373, 62 L. Ed. 827.
The contention of counsel for the company therefore is, and sections 3 and 4 of the statute so declare, that the tax is. on the cars of the company that are used partially within and without the state; the aggregate amount of the rentals received therefor by the company being simply taken as the measure of their value. The validity of the statute, then, assuming that the tax imposed amounts to no more than would be legitimate as an ordinary tax on the cars, will depend on whether or not it violates section 112 of our- state Constitution, which is as follows:
“Taxation shall be uniform and equal throughout the state. Property shall be taxed in proportion to its value. The legislature may, however, impose a tax per capita upon such domestic animials as from their nature and habits are destructive of other property. Property shall be assessed for taxes under general laws, and by uniform rules, according to its true value.
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Smith, C. J.,
delivered the opinion of the court.
This is an attachment in chancery by the state revenue agent against the Chicago, Rock Island & Pacific Railroad Company, a corporation chartered under the laws of the states .of Illinois and Iowa, as the principal defendant, and hereinafter designated as the company, and the Illinois Central Railroad Company and the Alabama & Vicksburg Railway Company as garnishees; the bill alleging that they are indebted to the principal defendant or have property belonging to it in their possession. The recovery sought is for taxes alleged to be due the state of Mississippi bjyi the company for the year 1912 under the provisions of chapter 1131, Laws of 1912, the parts of which that are here material are as follows:
“Section 1. Every person or persons, joint-stock association or corporation, wherever organized or incorporated, engaged in the business of operating cars, or engaged in the business of furnishing or leasing cars not otherwise listed for taxation in Mississippi, for the transportation of freight (whether such cars be owned by such company or any other person or company) over any railroad line or lines, in whole or in part, within this state, such line or lines not being owned, leased or operated by such company, whether such cars be termed box, flat, coal, ore, tank, stock, gondola, furniture, or refrigerator oars, or by some other name, shall be deemed a freight line company.”
Section 2 provides that such companies shall on or before the 1st day of May in each year file with the state auditor a statement setting forth, among other things:
“The total number of cars used and. the whole length, of the lines of railway over which the company runs its cars, and the length of so much of such lines1 as is without and is within the state of Mississippi. ”
[419]*419“Sec. 3. For the purpose of taxation, all cars used exclusively within this state, or used partially within and without the state, are hereby declared to have a situs in the state, and the value of such property for the purpose of taxation is to be determined as provided by section four (4) and five (5) of the act.
“Sec. 4. Every freight line company as hereinbefore defined (1) shall annually, between the first (1st) day of January and the first (1st) day of February, . . . make and file with the state auditor 'of this a statement showing the total gross earnings received from all sources by such freight line company, within the state, for the year ending December 31st next preceding.
“Sec. 5. The term ‘the total gross earnings received from all sources by such freight line companies within this state, as used in section four (4) of this act, is hereby declared and shall be construed to mean all earnings on business beginning and ending within the state, and a proportion, based upon the proportion of mileage over which such business is done, of earnings of all interstate business done, of earnings on all interstate business passing through or into or out of the state; and all such freight line companies shall, on or before the first day of February in each year, pay to the state treasurer of the state of Mississippi, a sum of money equal to three (3%) per centum upon the gross earnings of such company for the year ending on the last day of December next preceding, the same to be a tax on its property and in lieu of all other taxes upon the same.”
Other sections provide for the collection of the tax, the method by which the auditor shall ascertain the gross earnings of a freight line company failing to make a report thereof to him and imposing a penalty of five hundred dollars on each freight line company failing to make such report.
The bill of complaint alleges that the company did a freight line business in Mississippi during the- year [420]*4201912, but failed to make a report thereof to the auditor, and prays for a discovery of the gross amount earned by the company in such business for the year 1912, for a decree against it for three per cent, thereof and for the five hundred-dollar penalty imposed by the statute for the failure to malee thle report required of it.
The cause was heard on bill and answers, from which it appears that the company is, and was during the year 1912, a common carrier operating railroads in several states, none of which are in Mississippi, and which connect with other railroads making its railroads a part of the railway transportation system of the United States; that pursuant to the orders of the Interstate Commerce Commission, to which it is subject, it delivers its cars when loaded with commodities destined for points beyond its own lines to connecting and intervening carriers, by which they.are moved to the destination of such commodities. Prom which it results that some of its cars move into and out of the state of Mississippi, and while being so moved and until returned to it the company receives from the carrier in whose possession the cars are “a per diem rental” therefor, such cars being the only ones owned by the company that come into the state of Mississippi at any time. The discoverv prayed for was not made. The court below rendered a decree directina1 the companv to pay to the complainant the five hundred dollar-penalty and to make the discovery of its gross eaminers praved for, from which decree the company praved for and was granted an appeal to this court to settle the principles of the case.
Among the many questions raised, bv counsel for tlhe appellant company, and. the one on which our judgment-will turn, is the power vel non of the legislature to enact a statute of the character of chanter 313!, Laws of 1932. If the tax here sought to be collected is imposed directly on the complanyis gross earnings as “such, they [421]*421being derived partly, if not wholly, from interstate commerce, it is a burden on such commerce and consequently void. But if the gross earnings of the company’s are simply taken as the measure of the value of the cars owned by the company that come into the state of Mississippi, and the amount of the tax is not in excess of what would be legitimate as an ordinary tax on the cars with reference to their use as a part of" a going concern, it does not in fact restrain or burden such commerce, and will.be valid if permitted by the state Constitution. Cudahy Packing Co. v. State of Minn., 246 U. S. 450, 38 Sup. Ct. 373, 62 L. Ed. 827.
The contention of counsel for the company therefore is, and sections 3 and 4 of the statute so declare, that the tax is. on the cars of the company that are used partially within and without the state; the aggregate amount of the rentals received therefor by the company being simply taken as the measure of their value. The validity of the statute, then, assuming that the tax imposed amounts to no more than would be legitimate as an ordinary tax on the cars, will depend on whether or not it violates section 112 of our- state Constitution, which is as follows:
“Taxation shall be uniform and equal throughout the state. Property shall be taxed in proportion to its value. The legislature may, however, impose a tax per capita upon such domestic animials as from their nature and habits are destructive of other property. Property shall be assessed for taxes under general laws, and by uniform rules, according to its true value. But the legislature may provide for a special mode of valuation and assessment' for railroads, and railroad and other corporate property, or for particular species of property belonging to persons, corporations, or associations not situated wholly in one county. But all such property shall be assessed at its true value, and no county shall be denied the right to levy county and special taxes [422]*422upon such assessment as in other cases of property situated and assessed in the county.”
This section, as it appears in section 20, art. 12, of the Constitution of 1869, is as follows:
“Taxation shall be equal and uniform throughout the state. All property shall be taxed in proportion to its value, to be ascertained as directed by law.
While that Constitution was in force, the legislature, with the approval of this court (Vicksburg Bank v. Worrell, 67 Miss. 47, 7 So. 219; Telegraph Co. v. Adams, 71 Miss. 555, 14 So. 36), was accustomed to impose privilege taxes on certain characters of business in lieu of an ad valorem tax on the property used therein. But the convention of 1890, evidently for the purpose of insuring equality of taxation by preventing such discriminations in the methods of valuation, as was pointed out in Adams v. Miss. State Bank, 75 Miss. 701, 23 So. 395, and Adams v. Bank of Oxford, 78 Miss. 532, 29 So. 402, rewrote the section, and among other things provided that property shall be assessed for taxes at its “true value;” this requirement being twice set forth therein. In order that the equality of taxation contemplated by this section may exist, not only must all property be assessed at its true value, no substitute therefor being permissible (Thompson v. Kreutzer, 112 Miss. 165, 72 So. 891), but there must be no discrimination in rates between different species of property. All property must be taxed at the sarnie rate on its true value. Neither of these requirements are here present, for gross earnings from the cars sought to be taxed are substituted for their true value, and the rate of taxation, three per cent., is different from that imposed on other property; the rate on other property for the year 1912 being six mills on the dollar. Chapter 87, Laws of 1912.
That the legislature may have been of opinion that the amount of taxes that would be paid by freight line companies under this statute would be a just equivalent [423]*423for the taxes they would pay on the true value of their property conferred upon it no power to enact the statute, for the Constitution as now written forbids the substitution of any other nuethod of taxing property for the one therein prescribed. The question here under consideration is one of power, and not of economics. Owensboro National Bank v. Owensboro, 173, U. S. 664, 19 Sup. Ct. 537, 43 L. Ed. 850; Home Savings Bank v. Des Moines, 205 U. S. 503, 27 Sup. Ct. 571, 51 L. Ed. 901. This section of the Constitution was so contraed by this court in 1898 in Adams v. State Bank, 75 Miss. 701, 23 So. 395, wherein it was said that:
“Property must be assessed at its ‘’true value.’ This must be done in order to prevent unjust discrimination by selecting different modes of valuation, as had occurred under the Constitution of 1869. The Constitution of 1890 manifestly intended that stocks, bonds, and all other property should be assessed at what it was really worth, and not valued by any arbitrary rule; no discretion, as to violation, being left to the legislature, as the courts had held was done by section 20, art. 12, of the Constitution of 1869!. ’ ’
In 37 Cyc. 760, it is said that: “A constitutional requirement that all property shall be taxed in proportion or according to its value is mandatory upon the legislature, and imposes a rale for its assessment which cannot be varied, as to such taxes as are within the application of the provision. In particular, it forbids the levy of specific taxes and requires that they shall be imposed ad valorem. Such a provision is also generally taken as prohibiting the commutation of taxes, in so far as that is involved in imposing a fixed charge on receipts, amount of business, or output in lieu of all taxes on property owned, and as prohibiting a classification of property and taxation of the different classes at different rates.”
[424]*424We are not here concerned with the power vel non of the legislature to exempt property from- taxation, or to impose privilege and income taxes; for the intention of the legislature in enacting the statute here in question, as clearly expressed therein, was not to exempt the property of freight line companies from taxation, hut to tax it in a manner different from that provided by the Constitution. The scheme here provided for valuation and assessing the property of freight line companies is not authorized by the provision of section 112 of the Constitution that “the legislature may provide for a special mode of valuation and assessment . . . for particular species of property . . . not situated wholly in one county,” for the section further expressly provides, as was pointed out in Railroad v. Adams, 81 Miss. at page 103, 32. So. at page 942, that “all such property shall be assessed at its true value.”
Another objection to the statute by counsel for the company is that it also violates the provision of the Constitution that — “No county shall be denied the right to levy county and special taxes upon such assessment as in other cases of property situated and assessed in the county.”
But we will express no opinion thereon, since we must hold the statute void for the reasons (hereinbefore set forth. The case of Cudahy Packing Co. v. Stovall, 112 Miss 106, 72 So. 870, being in conflict herewith, is overruled.
Reversed, and judgment here dismissing the bill of complaint.
Reversed.
Stevens, J., dissents.