State Board of Assessors v. Central Railroad

4 A. 578, 48 N.J.L. 146, 1886 N.J. LEXIS 38

• Court: Supreme Court of New Jersey
• Decided: March 15, 1886
• Status: Published

Opinions

The Chancellok.

The judgments of the Supreme Court which are brought up for review by the proceedings in these cases set aside and annul, as being entirely void, the assessment and tax levied upon the respective defendants under the act “for the taxation of railroad and canal property,” approved April 10th, 1884. Pamph. L., p. 142. The ground upon which those judgments are based is that the act is in contravention of the constitutional requirement, adopted in the amendments of 1875, that “property shall be assessed for taxes under general laws and by uniform rules, according to its true value.” The act, after providing that all the property of any railroad or canal company, not used for railroad or canal purposes, shall be assessed and taxed by the same assessors, and in the same manner, and at the same rate as the taxable property of other owners in the same municipal division or taxing district, creates a state board of assessors to assess all the property of railroad and canal companies used for railroad or canal purposes, including their franchises, and directs that the board shall ascertain the true value of such property, and that in so doing they shall ascertain separately, first, the length and value of the main stem of each railroad, and of the water-way of each canal and the length of such main stem and wáter-way in each taxing district; second, the value of the other real estate used for railroad or canal purposes in each taxing district, including the road-bed (other than main stem) water-ways, reservoirs) tracks, buildings, water-tanks, riparian rights, docks, wharves and piers, and all other real estate except lands not used for railroad or canal purposes; third, the value of all the tangible personal property of each railroad and of each canal company ; and fourth, the value of the franchise. It then declares that the term “ main stem ” is to be held to include the road-bed not exceeding one hundred feet in width, with its rails and sleepers and the passenger depots; and that the term “ water-way ” is to be held to include the towing path and berme bank. It defines also the terms “ taxing district ” and “ tangible personal property ” as used in the act. It provides that the state board of assessors shall be governed by the valuation of the local assessors, if lower than theirs, in ascertaining the value of the real estate used for railroad or canal purposes not included in the main stem or water-way, and that the local assessors shall certify to the board a description of the property of any railroad or canal company within their taxing district, both that which is not used for railroad or canal purposes and that used for such purposes, excepting the main stem and water-way as defined by the act; also their valuation of those properties and the local rate of taxation for county and municipal purposes. If in any taxing district there should be several branch lines of railroads belonging to or controlled by one company, or operated under one management, the assessors are to designate one of them as main stem, and the others are to be treated as “ other real estate used for railroad purposes.” The board are to compute the tax upon the entire assessed valuation of each railroad and canal company as ascertained by them, and the taxation is to be as follows: the company is to pay upon the valuation, to the state for state purposes, one-half of one per cent, annually, and, in addition thereto, the local rate for county and municipal purposes on the valuation of the real estate other than main stem or water-way that is used for railroad or canal purposes in the taxing district; but such local rate is not to exceed one per cent, of such last-mentioned valuation. The act provides that the sum of the estimates or computations for each company shall constitute the tax to be paid by it, and that if upon complaint the board shall find that the amount of the state tax and local rate as limited in the act, combined, exceed the amount which the company would have to pay if assessed at and required to pay full local rates alone, then they shall reduce the whole tax to the amount which the company would be required to pay at the last-mentioned rate ' and in order to ascertain that amount (but for no other purpose) they may apportion the value of the franchise among the local taxing districts. Of the taxes assessed under the act, the one-half of one per cent, is to be appropriated to state purposes, and the money received for tax upon property separately assessed-in the different taxing districts is to be allotted to those.districts, giving to each the amount derived from the property of each railroad or canal company therein. The foregoing are all the provisions of the act which it is necessary or important to state for the consideration of the question which is now before the court.

In this connection it will be proper to refer, briefly, to the history of the legislation other than such as is contained in special charters, by which taxes have been imposed upon railroad and canal companies in this state. By the act of 1866, {Rev., p. 1150,) it was provided that all real and personal estate within this state, whether owned by individuals or by corporations, (except such as was owned by corporations which, by their charters, were expressly exempted from taxation,) should be liable to taxation at the full and actual value thereof. The railroad tax law of 1873, {Rev., p. 1166,) after reciting that for the encouragement of railroad enterprise, laws creating and regulating railways in this state usually provide for the payment by them, in consideration of their charter privileges, of a fixed rate upon their capital stock or the cost of their works, in lieu of all other public impositions whatsoever, and that it was nevertheless intended that the property of such corporations, being largely acquired for or through the growth and extension of their prosperity, should contribute to the charges and expenses-essential for municipal and county purposes, and that it was desirable, in order to the avoidance of litigation and future-dissatisfaction, that such municipal and county taxation should be authorized, and that it should be permanently fixed and regulated, provided that railroad companies occupying and using railroads in this state, whether as lessees or otherwise, should pay, upon the cost, equipment and appendages of their respective railroads, a state tax, after such rate of taxation as might have theretofore been fixed by law upon such companies, or in default thereof, after the rate of one-half of one per centum upon such cost; and that they should pay upon all the real property by them occupied, used or owned for the purposes of their roads or otherwise, excepting the main stem or road-bed and track not exceeding one hundred feet in width, and excepting also a tract of land, not exceeding ten acres, at the termini, a county and municipal tax for the benefit of the counties, townships and cities respectively where such real property was situated, after the rate of one per centum upon a valuation thereof, and of all the improvements thereon, not by way of repairs, then or thereafter to be made. The act provided for the voluntary surrender, by any railroad company, of any privilege which it might claim of exemption from taxation under its charter, and for its acceptance, in lieu thereof, of the taxation' provided by the act. That act was in force when the amendments to the constitution were adopted, among which was the before-mentioned provision that property shall be assessed for taxes under general laws and by uniform rules, according to its true value. It will have been seen that under the act of 1873, the property was assessed for taxes for state purposes, not according to its true value, but according to its cost; and as to taxes for county and municipal purposes, it was assessed upon a valuation. The cost for the assessment of the tax for state purposes was to be ascertained by a return thereof, on oath or affirmation by the president of the company to the comptroller of the state, and the valuation for the assessment of tax for county and municipal purposes was to be fixed by a commissioner appointed by the governor. The act gave an action to the state against the corporation for false return, in case the comptroller should be dissatisfied with the return of the president. By Che general railroad law, (Rev., p. 925,) passed in 1873, it was provided that the companies incorporated thereunder should pay to the state an annual tax of one-half of one per cent, upon the cost, equipment and appendages of their road, including the cost of their road-bed, and such other taxes as might be assessed, from time to time, by a general law applicable to all railroads over which the legislature should have power for that purpose at the time of passing such law, and that they should be regularly assessed and pay tax for the value of their real estate (except the road-bed, one hundred feet wide,) and the improvements thereon, and their personal property, as taxed -at the time when that act was approved, in the city or cities, ■township or townships wherein it lay, at the same time and rate, and in the same manner and for the same purposes, and by the same person or persons, as the other taxes assessed in such cities or townships. The act of 1876 (Rev., p. 1168) provided that all railroad corporations and companies occupying or using railroads in this state, whether as lessees or 'Otherwise, liable to be taxed as such by a general law taxing railroads for state purposes, should pay an annual state tax •upon the true value of such railroads and their equipments and appendages at and after the rate of one-half of one per centum upon such value. The act contained a declaration (inserted, as it says, for greater certainty) that it should not apply to or affect any county, municipal or local taxation whatever. The act provided for a return of the valuation by ■the president of the company, and for the review of the valuation, or for the making of an original one if none should •be returned, by a board of railroad commissioners, and it gave to the company an appeal to a justice of the Supreme Court from the decision of the commissioners. By the general canal law, (Rev., p. 936,) passed in 1877, it was provided that the companies formed under that act should pay to the state an annual tax of one-half of one per cent, upon the cost of their canals, including equipment, appendages and expenses; the amount of the cost in each case to be ascertained by the annual statement of the president of the company, under oath •or affirmation.

Up to the time of the passage of the act of 1884, the General Railroad Tax acts of 1873 and 1876, (the provisions of the latter were expressly confined to the tax for state purposes,) were recognized as valid and were enforced. The question of their constitutionality, however, was never brought to a judicial test. It was held in 1879 that under the act of 1876, railroad corporations were required to pay a tax for state purposes, upon the value of their railroads and equipment and appendages. State, N. J. Southern R. R. Co., pros., v. Railroad Commissioners, 12 Vroom 235. And that they were required to pay county and municipal taxes under the act of 1873. State, Central Railroad Co., pros., v. Mutchler, 12 Vroom 96, and State, Pennsylvania R. R. Co., pros., v. Wetherill, Id. 147.

The act of 1884 covers both railroad and canal property. It fixes the same rate of taxation for state purposes which had previously existed for many years, but assesses it upon the valuation of all the property of the company used for its purposes, including the franchise, and provides for local taxation on part only of such property as the general railroad tax law of 1873 did; and while that act fixed a rate of one per cent, for local taxation, the act for 1884 provides that the rate for local taxation shall not exceed one per cent.

It will be seen that the act of 1884 introduced no novelty in railroad taxation, but that on the contrary the same method,, substantially, of taxing railroad companies had existed from 1873, under the act of that year, which act was modified in 1876, merely in order thus to conform it to the constitutional requirement.

The fact that railroad property, when the act of 1884 was passed, had been separately taxed under similar legislation, both for state and local purposes, for so many years, and that the validity of such legislation on the ground of unconstitutionality had not been brought to any judicial test, although immense interests in the hands of vigilant guardians had been annually affected by it, is an important circumstance in the consideration of the question now before the court; because so practical and contemporaneous a construction of the consti'tutional provision, acquiesced in for so long a time under such circumstances, and one so clear and tmiform, must have weight with the court in settling judicially the construction of the provision, if the construction were otherwise doubtful.

The power of taxation is an essential inherent attribute of sovereignty. In our state government it is vested in the legislative department. It is unlimited in extent, except as it may •be restrained by constitutional provision -or irrepealable legislative contract. Of course, to be exercised legitimately, it must be exercised within the scope of governmental authority .as limited and circumscribed in our polity. To exercise it out.side of the sphere of such authority would be usurpation. It is the province of the judiciary to determine whether in any legislation submitted for its decision, the constitutional restraints or limitations have been- disregarded or transcended. But unless the legislation is found to be clearly in contravention of some constitutional provision, or to be outside of the limit of governmental authority, the court will not annul it. "With the policy or impolicy, justice or injustice of the legislation, irrespective of such constitutional considerations, the courts have nothing whatever to do.

The prosecutors complain and insist that in the act of 1884 the constitutional restraints and limitations have been ignored and exceeded; that the property of railroad and canal companies has been segregated, by arbitrary selection, for special and exclusive taxation, and made to beai', practically alone, the entire burden of taxation to raise money for state purposes instead of its due proportion thereof only. And they insist that the legislation thus brought into question is in violation of the before-mentioned provision of the state constitution that property shall be assessed for taxes under general laws and by uniform rules, according to its true value, and of the provision of the federal constitution that no state shall deprive any person of life, liberty or property, without dué process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

In the act under consideration the legislature bis separated for taxation, not all the property of railroad and canal companies, but only so much of it as is used for the particular-purposes of those corporations, and has imposed upon the property so separated a tax for state purposes and tax for county and municipal purposes. The property of such companies not used for such special purposes is left to be taxed in the same manner as other like property. The property separated, so far from being taken by mere arbitrary selection, is, all' of it, so circumstanced by reason of the peculiar use to which it is put as to make it on that account a class by itself. To' value and tax such property in the same way in which other property is valued would be unjust. To do justice to the companies, and in common fairness, not only must the main stem of a railroad and the water-way of a canal be each valued and taxed as a unit, but the other property used in connection therewith and for the same purposes must also be valued and taxed with reference to such use. To make a just valuation thereof, property used for railroad or canal purposes must be estimated with regard to its value for such purposes. For example : the true value, for purposes of taxation, of railroad cuts and embankments and canal locks is not their cost, but what they are worth in connection with the works of which they form part. This subject is well discussed and forcibly illustrated by Mr. Commissioner Hunt in delivering the unanimous opinion of the court in People v. Barker, 48 N. Y. 70. See, also, to the same effect, the opinion of the United States Supreme Court in State Railroad Tax Cases, 92 U. S. 575, 608 (1875), and in Kentucky Tax Cases, 115 U. S. 321 (1885).

This peculiarity of the property in question constitutes it a legitimate class for the purposes of taxation—a class which, in order to deal with it fairly in the matter of taxation, must be treated separately. In the leading case of Van Riper v. Parsons, 11 Vroom 123, it was held that a law framed in general terms, restricted to no locality and operating equally upon all of a group of objects which, having regard to the purposes of legislation, are distinguished by characteristics sufficiently marked and important to make them a class by themselves, is not a special or local law, but a general law. See, also, S. C., Id. 1, 8. Railroad and canal property has such characteristics, and the act under consideration extends to and operates equally upon all such property. The law, therefore, is a general law. In State Railroad Tax Cases, ubi supra, it was said that railroads by themselves constitute a class for the purposes of taxation.

The constitutional provision requires not only that the assessment shall be under general laws, but that it shall be by uniform rules also. It does not require that all property shall be assessed for taxes, but that property when assessed for taxes—or in other words, such property as shall be assessed for taxes—shall be assessed under general laws, Ac. Certain property has been exempt from taxation ever since the amendments to the constitution were adopted, and such exemption has received the judicial sanction. The property is of the same kind as that which is taxed, but the use to which it is devoted—the purposes of religion, education, benevolence, &c.—makes it a class and justifies the exemption.

The constitutional provision does not take away from the legislature the power of selecting the subjects of taxation. State, Vail’s Ex’rs, pros., v. Runyon, 12 Vroom 98 ; State, Stratton, pros., v. Collins, 14 Vroom 562. But it does require that all the members of the class selected shall be included in the taxing law, and that the rule applied thereto shall be uniform as to the whole of the class, and that the assessment shall be made at the true value of the property constituting the class; and if these requirements are answered by the law, it is not in conflict with the constitutional provision.

If the legislature has power to exempt, on account of the special use to which they are put, certain kinds of property from the taxation to which other property of the same kind, but put to general uses, is subjected, it has the right to provide, in its discretion, that such special property shall be assessed at a different rate and in a different way from the other. Judge Cooley, in his work on Constitutional Limitations, says (page 497) that constitutional requirements that taxation upon property shall be according to value do not include every species of taxation, but that all sjjecial cases, such as those which he specifies, among which are those where corporations are required to pay a certain sum annually, in proportion to their capital stock or by some other standard, which methods are regarded by the state as most convenient and suitable for the taxation of such organizations, are by implication excepted. In fact, under our laws various methods, which have received express judicial sanction, are employed for the taxation of the property of various kinds of corporations in order that such property may be taxed at, and not beyond, its true value.

Railroad and canal property being peculiar property, which cannot in justice to the owner be valued in the same way as other property of a like nature, the legislature -was bound to provide a proper method of valuing it justly for the purposes of taxation. Such method must be a peculiar one_ The machinery provided for the purpose by the act—a state board of assessors—is appropriate, and such as is necessary in view of the peculiar character of the property. If by the method adopted the companies are required to bear no more than their just share of the public burden of taxation, they surely have no ground of complaint. Whether the tax ■which they pay is appropriated to state purposes alone, or to state and county and municipal purposes, is a matter which does not concern, them. All taxes, whether levied for state, county or municipal purposes, are state taxes—they can be imposed by no other authority than that of the state. The state appropriates the proceeds to what purposes it sees fit; but however the proceeds may be appropriated, every tax is a state tax. Camden and Amboy R. R. v. Commissioners of Appeals, 3 Harr. 71; State, Camden and Burlington R. R. Co., pros., v. Cook, 3 Vroom 338; Vreeland v. Jersey City, 14 Vroom 135.

If the legislative provision for the taxation of the property of railroad and canal companies is not in contravention of the constitution it will stand; the apportionment of the proceeds of the taxation cannot affect the assessment. The power of apportionment is not limited or affected by the constitution, and the judiciary has no control whatever over it. The legislature, in the act of 1884, takes pains to secure the railroad and canal companies against being required to pay more than their full share of tax. The act provides that if the state board of assessors, upon complaint of any company, shall in any case ascertain that the addition of the state tax of one-half of one per cent, to the local rate as limited by the act would compel any company to pay more tax than such company would pay if it did not pay that state tax but did pay full local rates on all its property used for railroad or canal purposes and its tangible personal property and franchises, without any other exemption than such' as would be allowed to an individual citizen on such property, then and in such case the board shall make such deduction as will make the tax equal to the amount that the company would pay upon all that property, including the franchises, if assessed at full local rates, without any state tax; and that for the purpose of ascertaining the amount (but for no other purpose) the board may apportion the value of the franchise among the taxing districts. Nor can it be successfully contended that under the act one company may be required to pay a greater proportion of tax for state purposes than another j for, as before stated, the apportionment does not affect the constitutionality of the tax, and each company is to be assessed upon the same kind of property at precisely the same rate and by exactly the same method of valuation. The assessment for tax for state purposes is to be upon the entire assessed valuation of each railroad and each canal company as ascertained by the state board of assessors. And here it may be observed that if the legislature may tax the property separately and by a peculiar rule, the peculiar character of which is made necessary in justice to the owners of the property as Avell as to those Avho own other taxable property, in view and by reason of the use to which the property is applied, the fact that only part of the property is taken into account in one part of the method (i. e., in making up the amount to be paid in respect of county and municipal tax), is of no moment. Tlie tax applied to state purposes and that applied to county and municipal purposes are one tax and are to be so regarded. The act provides that the sum of the estimates or computations for each company shall constitute the tax to be paid by each company. It may be added that no system of taxation can be devised which will be free from criticism on the ground that in some way or other it works unequally or lacks complete uniformity. Said the court in State Eailroad Tax Cases: “ Perfect equality and perfect uniformity of taxation as regards individuals or corporations, or the different classes of property subject to taxation, is a dream unrealized. It may be admitted that the system which most nearly attains this is the best. But the most complete system which can be devised must, when wé consider the immense variety of subjects which it necessarily embraces, be imperfect.”

The objection is made that under the act only the property mentioned in subdivision 2 of section 3 (real estate used for railroad or canal purposes, not including main stem or waterway), is subjected to assessment for taxation for county and municipal purposes, whereby it is argued the companies escape their share of county and municipal taxation in respect of the main stems or the water-ways and the tangible personal property in the taxing districts. But if the taxes be but one tax, and the legislature has the right to fix the-amount of that tax by the means adopted, it follows that the objection is without actual foundation; for the legislature has the right to say what tax the companies, in view of the peculiar character of their property, shall pay, and in what way it shall be assessed, provided it makes the assessment under general laws and by uniform rules, according to the true value of the property. To hold otherwise would be to hold that the legislature is bound to tax all property at the same rate and in the same way, without regard to the use to which it is put.

To summarize the views above presented. The power of taxation is in the legislative branch of the government alone. It is unbounded except as it may be limited by constitutional restraint. A law which taxes a class of property separately is not unconstitutional if it embraces all property of that class, and applies to it uniform rules and taxes it according to its true value. The constitutionality of such a law is to be determined in the same way in which it would be determined if the property taxed were the only property taxed in the state.

It is manifest from the provision that the companies shall not be required to pay more tax for all purposes under the act than they would be required to pay at full local rates, that the act is not liable to the criticism that it selects the property of two classes of corporations from the mass of similar property, not to put upon it a proportionate part of a general tax, but to charge it with the whole amount of a separate tax; for, so far from putting upon the property a separate tax, the legislature has carefully provided that it shall not pay any more than it would pay if taxed at precisely the same local rates as other property, without any taxation for state purposes. Moreover, it may be remarked, railroad and canal companies are not the only corporations which are required to pay taxes for state purposes. Another act of 1884, entitled “An act to provide for the imposition of state taxes upon certain corporations, and for the collection thereof,” requires other corporations to pay license tax to the state upon their franchises.

And here it will not be out of place to speak as to the tax-ability of franchises. They are undoubtedly property, and as such are taxable. Burroughs on Taxation, § 85; Society for Savings v. Coite, 6 Wall. 594; State Railroad Tax Cases, 92 U. S. 575. The act provides that the state board of assessors shall ascertain the value of the franchises separately. They are to ascertain their true value. They have a value which can be estimated. State Railroad Tax Cases, supra.

There is no substance in the objection that the law in question contravenes the provision of the fourteenth amendment to the federal constitution 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 act provides that a hearing be given to the companies interested touching the valuation and assessment of the property, and for a review of the assessment by the board, upon complaint of any company or person aggrieved, or of the attorney-general, or of any member of the board in behalf of the state, that the property is assessed too low or that property has been omitted, and for the correction thereof by the board as shall seem just; and that if such complaint be by the attorney-general or a member of the board, there must be notice to the company or person to be affected by the proceedings. The act also provides that any company or person assessed, or the attorney-general in behalf of the state, may •contest by certiorari the validity or amount of any tax levied under the act, and that upon the writ relief may be had as well in cases where it is claimed that the amount of tax is excessive or insufficient as in cases where it is claimed that the principle upon which the assessment is made is erroneous. This present proceeding is an illustration of the extent to which and the thoroughness with which such matters may be litigated. Without entering upon the question raised upon the hearing, whether artificial persons are within the scope of the fourteenth amendment to the federal constitution, it is enough to say that in the Supreme Court of the United States it has been held that laws similar to that under consideration are not in violation of the provisions of that amendment. In Davidson v. New Orleans, 96 U. S. 97 (1877), it was held that whenever by the laws of a state or by state authority, a tax, assessment, servitude or other burden is imposed upon property for the public use, whether it be for the whole state or some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed, in the ordinary courts of justice, with such notice to the person, or such proceeding in regard to the property as is appropriate to the nature of the case, the judgment in such proceedings cannot be said to deprive the owner of his property without due process of law. And the same doctrine was affirmed in Kentucky R. R. Tax Oases, 115 U. S. 321 (1885.)

In that case it was insisted that the law of Kentucky made an unjust and unconstitutional discrimination against railroad companies and their property, because such property, though called real estate in the legislation, was classed by itself as being distinct from other real estate, such as farms and city lots, and subjected to different means and methods for ascertaining its value for pui’poses of taxation, which methods differed also from those which, were applied to the property or corporations chartered for other purposes, such as bridge, mining, street railway, manufacturing, gas and water companies. And it was urged that such discrimination and difference were in violation of the rights of the railroad company under that clause of the fourteenth amendment which provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. The c >urt said, on this point, that ■ there is nothing in the constiti tion of Kentucky which requires that taxes shall be levied by uniform method upon all descriptions of property; but the whole matter is left to the discretion of the legislative power, and that there is nothing to forbid the classification of property for purposes of taxation, and the valuation of different classes by different methods; that the rule of equality in 'respect to the subject only requires that the same means and methods be applied impartially to all the constituents of each class, so that the law shall operate equally and uniformly upon all persons in similar circumstances, and that there is therefore no objection to the discrimination made as between railroad companies and other corporations in the methods and instrumentalities by which the value of their property is ascertained, and that the different nature and uses of their property justify the discrimination in that respect which the legislature has seen fit to make. It may be remarked that in what are known as the San Mateo Case, 8 Am. & Eng. R. R. Cas. 1, and the Santa Clara Case, 9 Sawy. 165, in the United States Circuit Court for the district of California, the adjudication in reference to the fourteenth amendment was upon a provision of the constitution of California denying to railroad and other quasi public corporations the same right of exemption from the taxable value of their property of the amount of a mortgage debt thereon which was allowed to others. This discrimination was held to be a denial of the equal protection of the laws. Those eases deal with a constitutional discrimination. They have no bearing upon the cases in hand to which the authoritative decisions of the United States Supreme Court above referred to are pertinent.

It remains to consider the objection that the act is inapplicable to those railroad companies whose charters contain a provision that the company shall pay a state tax of one-half of one per centum upon the cost of the railroad, “ provided that no other tax or impost shall be levied or assessed upon said company.” By the act “ concerning corporations ” it is provided that the charter of every company which shall thereafter (that part of-the act was passed in 1846) be granted by or created under any of the acts of the legislature, shall be subject to alteration, suspension and repeal in the discretion of the legislature. Every charter granted since the passage of that section is subject to it. A similar provision is contained in most of the railroad charters. It has been held in this court that no irrepealable contract can result from the provisions of a charter which is made in terms subject to alteration, amendment or repeal by the power granting it. State, M. & E. R. R. Co., pros., v. Miller, Collector, 2 Vroom 521; State, J. C. & B. R. R. Co., pros., v. Jersey City, Id. 575. The provision in the charter as to tax was merely a declaration that the legislature at the time of passing the charter intended that the companies should not then be chargeable with any other tax than the one-half of one per centum. Little v. Bowers, 17 Vroom 300. And those charters being subject to alteration, the provision as to tax contained therein presents no obstacle to the application of the act of 1884 to the property of the companies. By the reservation of the power to alter, the legislature retained the power to tax.

On the hearing of these cases this court declared that it would not hear argument at that time upon the subject of the liability of companies claiming to have irrepealable contracts protecting them from the operation of the act. But four of the prosecutors, viz., the Morris Canal and Banking Company, the Morris and Essex Railroad Company, the Paterson and Hudson River Railroad Company, and the Paterson and Ramapo Railroad Company, claim to have such contracts. The judgments of the Supreme Court in all the cases except those in which those companies are prosecutors, should be reversed, and the records remitted to the Supreme Court to be proceeded upon according to law. In those cases the records should be retained for argument upon the question reserved as to whether those companies have such irrepealable contracts.

Scuddjge, J.

I have prepared an opinion stating my conclusions, without discussing the whole subject in controversy. The questions raised and discussed on the writs of error to this court relate to the validity of the act entitled “An act for the taxation of railroad and canal property,” approved April 10th, 1884; and whether, if said law be invalid, there is any other statute under which this court may make or direct a legal assessment. It is not necessary to add anything to what has been already said by other members of the court on the latter part of this proposition, and I entirely agree with the conclusion that no prior statute exists by which these disputed assessments against railroad corporations can be amended or sustained if this law be invalid, or by which any new assessments can be substituted in the place of these by any action of this court. The former part of the proposition is more difficult to determine. Is this law invalid so that it cannot be executed without violating the fundamental law of our state ? If it be not thus controlled and annulled, it is the duty of this court to give it effect. It is not our province to say whether the law is impolitic, or even oppressive or unjust in its provisions, so long as it does not violate the constitutional rights of these corporations in the enforcement of what is designed to be strictly a tax laAV. The judicial poAver cannot legitimately question the policy, or refuse to sanction the provisions of any law not inconsistent with the fundamental law of the state. Cooley on Taxation, 84. The power to tax may be exercised oppressively upon persons, but. the responsibility of the legislature is not to the courts, but to the jseople by whom its members are elected. So, if a particular tax bears heavily upon a corporation or a class of corporations, it cannot for that reason only be pronounced contrary to the constitution. Veasie Bank v. Fenno, 8 Wall. 548.

A mere suggestion of these familiar principles of law giving the well-defined duties and powers of the co-ordinate branches of our government will dispose of many points in the arguments of counsel and bring us to the real issue which we have the power at this time to decide, under the assignment of errors before us. Is this tax law, of which these railroad corporations complain, unconstitutional ? If so, this case is ended. If not, further proceedings may correct its alleged defective execution. That part of the constitution which is said to be violated by its enactments is art. IV., § 7, ¶ 12: “Property shall be assessed for taxes under general laws and by uniform rules, according to its true value.”

There can be no question that this law imposes a tax on property, and it is not a franchise tax. By subdivision 4 of section 3 of the act, the value of the franchise is to be estimated and included in ascertaining the true value of all property used for railroad and canal purposes, and the tax is imposed on this total valuation. All is designated in the act as property, and is within the scope of this paragraph of the constitution. That the franchise of a railroad or canal company may be thus valued and assessed for general taxes is abundantly settled both by authority and precedent in legislative acts and in the decisions of courts. It has an appreciable market value not in all cases easy to measure, and not always determinable by the same rule or estimate. Corporate rights and privileges by grant from the government are not mere abstractions"or so involved with the other property of the corporation that they cannot be valued. The land, road-bed, rails, buildings and materials of which a railroad are composed have a value, and the added worth given to them by the uses to which they may be applied by the public grant of a franehise for such uses may be approximately if not exactly estimated. It has often been done, and sanctioned by courts. How this may best be done must be left largely to legislative discretion and judgment. The whole aggregate property of the railroad is thus to be valued and brought together for taxation, and the assessment is laid upon it to supply a revenue for the government of the state. This is an assessment of property for taxation within the above-cited paragraph of the constitution, and by its terms must be made under general laws. This I hold is a general law, applicable to all the railroads and canal companies in the state, unless they are protected by express limitations of taxation in their charter, and by what are called, in some cases, irrepealable contracts beyond legislative control. Railroad corporations have peculiar qualities which distinguish them from mere private corporations, or other public or quasi public corporations, in the right of eminent domain to condemn lands, conferred on them by charter; in the uses to which their railroads may be applied by them as carriers of passengers and freight, receiving tolls or fares for the same; in the employment of steam power, a dangerous agency, in passing through the state, and their protection in the careful use of such agency; in the structure of the road, with its rails, cuts, embankments, often built and maintained at great detriment to other property; in the extent of the road, often through several counties or across the state; in the depots, freight-houses, wharves, and the great accumulation of property at the termini and other points on the line of the railway. Canals have some of the same peculiarities in the construction and maintenance of their water-ways.. These characteristics, which so clearly distinguish them from other corporations, make it almost a necessity that they should form a class by themselves, and the right to do this for taxation has been recognized in the charters of companies, in our General Railroad act, the General Canal act, and laws passed prior to and since the amendments to the constitution in 1875, notably the tax laws of 1873 and 1876, all of which have been enforced and acquiesced in. In the Kentucky Railroad Tax Cases, 115 U. S. 321, the classification of the property of railroads for taxation is recognized, and in the opinion of the court Justice Matthews says : “ The right to classify railroad property as a separate class for purposes of taxation grows out of the inherent nature of the’ property and the discretion vested by the constitution of the state in its legislature, and necessarily involves the right on its part to devise and carry into effect a distinct scheme with different tribunals in the proceeding to value it.” We have no right to assume that this discretion will be abused and railroads taxed out of existence, as has been said, and to strain the power of the court to protect them in anticipation of such an attempt at destruction. If the property of railroad and canal companies admits of. this distinctive classification, founded on real differences and not on mere devices for the manifest purpose to oppress and harass them by unequal taxation, then the law which classifies them for taxation is general within the description of such a law in the well-known and oft-quoted decisions of our own courts.

The word “ all,” does not precede the word “ property ” in the paragraph referred to, and property may therefore be classified, and even exempted from taxation, as is sometimes done, without violating the express words of the constitution.

Besides the requirement that property shall be assessed for taxes under general laws it must also be assessed “ by uniform rules.” The word “ uniform ” is defined as “ not variable,” “ not different,” “ having the same form or manner.” As it stands in this paragraph of the constitution it means that rules must not be variable in their application to the subject of taxation included in the classification of property. In the Head Money Cases, 112 U. S. 580, 594, in construing the clause of the constitution of the United States that “ all duties, imposts and excises shall be uniform throughout the United States,” the court said: “ The tax is uniform when it operates with the same force and effect in every place where the subject is found; ” but that “ perfect uniformity and perfect •equality of taxation in all aspects in which the human mind can view it, is a baseless dream, as this court has said more than once;” citing State Railroad Tax Cases, 92 U. S. 575, 612. The rules for taxation must be uniform as to the prop■erty in the class on which it operates. As to railroad property, ■all property in that class must be assessed for taxes by the ■same rules. But suppose the law by its uniformity does produce unequal and unjust results in some cases, is it therefore •to be annulled? Suppose, as in this case, that the main stem which includes the road-bed not exceeding one hundred feet '■in width, with its rails, sleepers and depot buildings used for passengers, connected therewith, is assessed at one rate, and the other real estate used for railroad purposes in each taxing ■district is assessed at another rate, and no good reason is assigned for such difference; or suppose, as in section 6 of this act of 1884, it is enacted “ that whenever in any taxing district there shall be several branch lines of railroad belonging to or controlled by one company, or operated under one management, the assessors shall designate one of said lines as the main stem, and the value of the others shall be included in the separate valuation provided for in the second subdivision ■of section 3 in this bill,” (that is, the value of the real estate used for railroad purposes in each taxing district in this state, •other than the main stem,) and that this rule applied to some of the railroads produces unequal and unjust results, will these invalidate the law in whole or in part? These inequalities arise mainly from the fact that some railroad corporations have acquired more of a certain kind of property than others, and they have extended their holding, in many cases, far beyond the width of one hundred feet for the main stem of the road as originally intended and provided for in their charters. If all are taxed alike for such excess, the rule of uniformity is not thereby violated. Have not the legislature the legal right to say that fbr the main stem of the road one hundred feet in width, which the original charters contemplated the railroad companies should hold and use, they will tax at the rate of one-half of one per cent, for state purposes, which was the amount originally fixed in most, if not all of the charters; but for all acquired beyond one hundred feet in width a greater tax shall be paid, not to exceed in the aggregate of both taxes the local rate as fixed and assessed for county and municipal purposes ? The same rule is applied, by this separation, to-all in the class, and they are, by this law, carefully guarded, not only against assessment at a higher rate than others of the class, but also against a higher rate than is imposed on other property-holders in the several taxing districts where their property is located.

The objection that the property of railroads by this law is not assessed by taxes according to its true value, because it can only be truly valued as an entirety, and not in parcels, as provided for in the act, is not well taken. The method of determining the true value of property must be left to the discretion of the legislature. ' If this value is fixed as the basis-of taxation, the. method and the agencies to be used to ascertain it, belong to the legislative and not to the judicial province.

Nothing is said in the constitution as to the appropriation of taxes after they are assessed and collected. If as in this-case, one-half of one per cent, is reserved for state purposes, and one per cent, be distributed for local expenses for which general taxes may be assessed, this court cannot interfere with such apportionment, for the reason that there is no restriction in the constitution of the power of the legislature to make such apportionment. This is but a convenient form of collection and distribution of taxes when collected, without increasing the general rate of either the individual tax-payer or the railroad and canal company.

It is argued that “ the equal protection of the laws,” under the fourteenth amendment of the constitution of the United States, exempts from any greater burden or charges than such as are equally imposed upon all others under like circumstances, and that this equal protection forbids unequal exactions of any kind, and among them that of unequal taxation. Admitting this to be so, and I am not disposed to deny it, the limitation to all persons and property in like circumstances -restricts the comparison to all those within the same classification for taxation. This law does not stand alone in the ■classification of property for taxation, but is part of a system •of tax laws by which this burden is distributed among all ■classes of persons and upon all taxable property, with slight exemptions within the state, and taxes are thereby raised for the expenses of the state, county and municipal governments in their different departments, and according to their several ■requirements. Thus far, as it appears to me, there has been a fair effort throughout this whole system to place all persons and property^ so far as may be practicable, within the equal protection of the laws, both constitutional and legislative. That there are errors in details, and in some of the methods of assessment, all will probably admit, and doubtless when these are made plain by the practical working of the laws they will be corrected. But substantial and not exact equality is all that can be required under any system of legislation for taxes. Unless this law is manifestly wrong it should be sustained. In my opinion it is not, and the judgment should be reversed.

Parker, J.

On the 10th day of April, 1884, an act was passed by the legislature of the State of Hew Jersey entitled “An act for the taxation of railroad and canal property.” Under that act the Central Railroad Company of Hew Jersey, and other like companies, were taxed on their property used by them for railroad and canal purposes. The validity of these assessments was contested in the Supreme Court, and they were by said court adjudged invalid, on the ground of the unconstitutionality of the act. An abstract of the act of 1884 is given in the opinion which has just been read by the Chancellor, and I will not repeat it.

At the opening of the argument in this court it was announced that counsel would be heard upon two questions, viz.: (1) whether, if the act of 1884 be invalid, there is any lawful method of assessing taxes upon said companies in reference to the subjects of taxation mentioned in that act; and (2) whether the act of 1884 is constitutional.

In order to answer the first question the course of legislation in this state on the subject of taxation of corporations of this character should be considered. In the infancy of this class of corporations, when struggling for existence, the amount of tax they were required to pay into the state treasury was small. The state favored them by limiting the annual tax to be paid by such corporations to the one-halfi of one per cent, on the cost of their respective roads. This tax was for state purposes, and they were not assessed for local taxes. The wise- and liberal policy adopted by the state was founded in part on the fact that the enterprises in which such companies were-engaged were at that time of doubtful success, and in part on the belief that if successful they would contribute vastly to-the public good.

As time progressed, these corporations extended their business operations and acquired, additional property, often of great value, until in some sections of the state, especially in the cities, the exemptions from local taxation became so great as to encumber the property of citizens liable to be taxed with a heavy burden.

To prevent injustice arising from inequality of taxation, and to equalize as far as possible the public burdens, the legislature, on the 2d day of April, 1873, passed an act the avowed object of which was to establish just rules for the taxation of railroad property. This act made a radical change in the system. It provided not only that railroad companies should pay, upon the cost, equipment and appendages of their roads,, a state tax at such rate as had before been fixed by law, but also, upon all real property of such companies, owned by them (excepting the main stem not exceeding one hundred feet in width), a county and municipal tax for the benefit of the counties, townships and cities of the state respectively where the same were situated, after the rate of one per cent., exempting, however, from such tax land not exceeding ten acres lying in one parcel at the termini of the respective roads.

The law of 1873 was passed before the adoption of the constitutional amendment in reference to taxation, and therefore-its validity cannot be wholly tested by the same standard as the act of 1884. But upon the question now under consideration, viz., whether, if the act of 1884 be invalid, there is any lawful method in the act of 1873 of making these assessments on the subjects of taxation mentioned in the act of 1884, it is sufficient to remark that although based on the same general principle as the act of 1884, yet inasmuch as by the act of 1873 the assessment was to be made on cost, and not on true value, as the constitutional amendment prescribes, the act of 1873 will not sustain these assessments.

On the same day that the act of 1873 was approved the then governor signed what is termed the general railroad law, the nineteenth section of which provides that after any railroad constructed under that act should be in operation the corporation owning it should pay to the state treasurer a tax of one-half of one per cent., annually, on the cost, equipment and appendages of said road-bed, and also pay such other taxes as might be assessed from time to time by general law, applicable to all railroads over which the legislature should have power, for that purpose, and that such railroads should be taxed for the value of their real estate (except the road-bed of one hundred feet in width), and on personal property, as then taxed in the cities or townships where it should lie.

The act of 1876, providing for state taxes on railroads, was passed after the adoption of the constitutional amendment. This act is almost identical with the act of 1873. The chief object of the act of 1876 seems to have been to make the system of railroad taxation conform to the constitutional amendment that took effect in 1875, which prescribed that the assessment should be on true value instead of on cost. Where the acts of 1873 and 1876 did not conflict, the former stood, and under those two acts both the state and local taxes on railroad property in this state were assessed and collected up to the enactment of the law of 1884. Upon an examination of those acts, in comparison with that of 1884, it will be seen that they are grounded on the same general principle. If the act of 1884 be unconstitutional, so is the act of 1876, and these assessments cannot therefore be upheld under the act of 1876.

Neither can they be supported by the general law of 1866, because that law has no reference to taxation on railroad and canal property.

If the act of 1884 be unconstitutional and void, the sixteenth section of that act, which authorizes the Supreme Court to increase or reduce the assessment, will not avail, for the Supreme Court has no power to adjust or refer back an assessment made under an unconstitutional act, unless after the original assessment an act had been passed whereby a legal assessment can be made. Such was the decision of this court in construing the act of 1881, reported in Elizabeth v. Meeker, 16 Vroom 157.

Where the principle on which the act rests is in conflict with the constitution, one part of the assessment should not be set aside and the other part be sustained. In this case there cannot be a separation of the parts without doing violence to the general scheme and running counter to the intent of the law-making power. If the act of 1884 is void as to local taxation, it is also a nullity as to state taxes.

Plaving seen that if the act of 1884 be unconstitutional and void there is no lawful method of assessment upon these companies in reference to the subjects of taxation mentioned in such act, the vital question now arises-whether the act of 1884 is constitutional. Upon the answer to this question depends the decision of this cause.

I agree with the Supreme Court in that part of the opinion which holds the act of 1884 not invalid because it directs that the valuation and assessment shall be made by a board of assessors specially appointed for the purpose. It matters not what the machinery set in motion by the legislature to execute a tax law may be, so long as the principle lying at the root of the act is not antagonistic to the constitution. Nor would it affect the case if such machinery be found defective or if the board should make mistakes. The act gives the Supreme Court ample power to correct mistakes iii the application of the act.

Nor is the act of 1884 invalid because in the ascertainment of the value of the property of the companies the franchise is to be taken into account as one element of value. The opinion of the Supreme Court rightly holds “that this subject is not debatable at the present day, and the doctrine has become already accredited by many decisions as well of the federal as of the state courts.”

One so-called vice of the act of 1884 is stated in the opinion of the Supreme Court in the form of an interrogatory. It is asked “ whether by the law and constitution of the state it is competent for the legislature, at will, to select the property of two classes of corporations and impose a tax upon such property, at the same time exempting all other property from the burden?” If the act of 1884 was the only tax law on the statute book, the answer should be that it was not competent so to do. But that act is only one of a series of tax laws under which property in the state is taxed. If by virtue of the various tax laws in force all the property in the state (except that which is devoted to collegiate, academic, religious or charitable purposes) is taxed, how can it be said that the legislature, at will, selected the property of two classes of corporations and imposed a tax upon such property, and at the same time exempted all other property from the burden of taxation ? All taxes are, in one sense, state taxes. They are assessed and raised under different laws enacted by the legislature of the state, all forming one general scheme of taxation, designed to bring all the property in the state (liable to tax) under general laws and uniform rules according to its true value. Different agencies are employed to assess and collect, and the sums raised are applied to various public purposes. But this does not vitiate the system of taxation nor render invalid any one of the acts which, with others, constitute the system, if the constitutional prohibition be not violated.

While the taxing power is an inherent attribute of state sovereignty, to be exercised only by the legislátive branch of the government, yet it is controlled by constitutional limitations, which the people have adopted. So long as the legislative branch of the government conforms to the constitution, it is supreme on the subject of taxation. It has the power and the right to enact that local officers in each taxing district shall assess and collect for their respective districts the county, township and city taxes, and distribute the money without its passing through the state treasury; or to enact that a state board shall assess and collect all taxes and bring all the money into the treasury, in part to be distributed by the state among the municipalities; or to provide for a state board to assess and collect one portion of the tax, and local boards the residue. So long as all property (not exempt by statute) is reached and taxed according to its true value by general laws and uniform rules, it matters not whether the end be accomplished through one statute or through many forming one general system.

The mode of taxation under the “Act to establish a system of public instruction,” approved March 27th, 1874, is pertinent in this connection as an illustration. Under that act a state school tax was directed to be raised (in lieu of township school taxes), to be levied and collected by the local officers, to be paid through the several county collectors into the state treasury, and be redistributed by the state so as finally to reach the several school districts. This act is an instance of direction by the legislature of the specific channel into which a tax raised for a specific purpose may be made to go before it will reach the contemplated object. It shows the power of tlie legislature over the subject of taxátion, restrained only by constitutional provisions. In this connection it is proper to remark that the money raised for school purposes under that act is not retained by the state to aid in carrying on the state government, but passes back through the state treasury to the districts. There are not two modes of raising taxes to be used for state purposes.

Another somewhat similar instance is the act in reference to insurance companies of the state, the thirty-ninth section of which requires that every company organized under the act shall pay—not as a license fee, but as tax—into the state treasury, one-quarter of one per cent, per annum, on its capital stock, for a special purpose, i. e., for the school fund. Foreign insurance companies are required, not only to pay a license fee for the privilege of transacting business within the state, but also a tax of two per cent, on all premiums received in the state, to be distributed among organized fire departments, for the use of disabled firemen.

Enough has been stated to show the power of the legislature over the subject of taxation, and to demonstrate that in forming a judgment as to the validity of a specified act, it must be taken in connection with all other laws operative on the same subject.

When the state government desires to raise a tax for state purposes, through the local officers in the several taxing districts, it becomes necessary to fix the amount to be raised, and apportion it among the counties on the basis of ratables, but when the state chooses to levy a state tax direct through the machinery of its own officers selected for the purpose, an apportionment is not needed, and it is only required to ascertain the true value of the property to be assessed and to fix the rate.

It is alleged that the act of 1884 is unconstitutional and void, because it violates the clause of the amended constitution which requires property to be taxed “ under general laws and by uniform rules, according to its true value.” In the arguments addressed to the court by the several counsel of defendants in error, this objection to the act was elaborated and enforced, and the court is called upon to consider this branch of the case very fully.

In the first place, it will be observed that the word ‘‘ all ” is omitted from -the sentence which contains the constitutional restriction on the power of taxation. This omission by the commission that prepared the amendment and by the legislature that submitted it to the people, was not accidental. It was intended that some property should be exempt, and that upon the classes of property which the legislature saw fit to tax, the assessment should be according to the true value and by uniform rules, affecting alike all property of' a class.

In the opinion of the Supreme Court in this case it is conceded that the legislature has the power to classify property for the purpose of taxation, but it is maintained that a class must not be declared arbitrarily, and that it must arise out of the nature of the things classed. This is true, but is not property used by railroad and canal companies for the purposes of their business, a class of property arising out of its nature ? It is a class universally recognized as different from any other class in many respects. It is not the abstract value of the rails and ties as so much steel and wood, or of the land on which they rest as farm land or building lots, or of the tangible personal property in itself considered, which are alone to be taken into account in ascertaining the true value -of property used for railroad purposes, but the franchise also, which puts life into what otherwise would be comparatively •dead property, of little value. The true value of property used for railroad or canal purposes cannot be arrived at except by treating it as a class by itself.

This view is sustained, not only by our common knowledge gained by observation, but is held by numerous decisions of the courts.

In 9 Otto 722, Chief Justice Waite says: “ Railroads are a peculiar species of property, and railroad corporations are in some respects peculiar corporations.”

In the case of Louisville and Nashville R. R. Co. v. State of Kentucky, Justice Matthews said : “ The right to classify railroad property as a separate class, for pimposes of taxation, grows out of the inherent nature of the property.”

As has been seen already, the acts of 1873 and 1876 were grounded on the same general principle as the’ act of 1884, and it becomes important in this connection to inquire how the courts have practically regarded these former acts. In the case of State, Central R. R. Co., pros., v. Mutchler, Collector of Phillipsburg, reported in 12 Vroom, p. 96, a bridge within the main stem (one hundred feet wide) of the railroad of said company was assessed for local taxes, and the company claimed exemption from such assessment, under the laws then existing on the subject of railroad taxation. Those laws were the acts of 1873 and 1876 before mentioned. On page 97 the court in its opinion, delivered in 1879, said: “The first section of the act for the taxation of railroad corporations, of April 2d, 1873, exempts from county, township and municipal taxation the main stem or road-bed and track of such corporation not exceeding one hundred feet in width. The last-mentioned act was modified by the act of April 13th, 1876, but the act of 1873 was not repealed. Its provisions, except so far as altered by the act of 1876, are still in force. In the respects mentioned it is in force, and lands held by such corporations within the prescribed limits are exempt from taxation for county, township and municipal purposes, if used exclusively for railroad purposes. It purports to establish a uniform rule of taxation on this subject. A uniform rule must necessarily be the only rule applicable to the entire class of subjects embraced within the provisions of the statute, and by implication it supersedes and excludes all other rules on the same subject. The act of 1873 is expressly made applicable to all railroad corporations occupying or using railroads in this state, whether as lessees or otherwise.” The local assessment on the bridge was set aside. It does not appear that the question of the constitutionality of the acts of 1873 and 1876 was directly raised, or that it suggested itself to court or counsel on that occasion. The validity of the acts was taken for granted, and the result was that the company had the benefit of those acts in being declared exempt from the tax on the bridge. Had those acts been unconstitutional and void, the assessment for local tax on the bridge was lawful.

In Van Riper v. Parsons, 11 Vroom 1, 8, the Supreme Court . uses the following language, viz.: “A law settling the methods by which all railroads should become incorporated would be special in the sense that it would be confined in its operation to but a single kind of corporations, and so a law would be local, by this test, that should provide for the organization, under one system, of all the municipal governments in the state, as such law would manifestly have a restricted effect with respect to locality. But who, conversant with the usage touching these terms, would venture the assertion that such statutes as these would not be general laws. All legislation is based, of necessity, on a classification of its subjects, and where such classification is fairly made, and the legislation founded upon it is appropriate to such classification, it is as legitimate now as it would have been prior to the recent amendments to the constitution. If a set of objects be fairly classified, a law embracing them will be a general one and in all respects unobjectionable.”

The case of Van Riper v. Parsons came before the Supreme Court again, and on page 123 of 11th Vroom the syllabus of •the decision is tersely stated thus, viz.: “A law framed in general terms, restricted to no locality, and operating equally upon all of a group of objects, which, having regard to the qmrposes of the legislation, are distinguished by characteristics sufficiently marked and important to make them a class by themselves, is not a special or local law, but a general law.” If property used for railroad and canal purposes be not distinguished from all other property by marked and important characteristics, it would be difficult to find any property which could be classified.”

It should be observed that at the time the constitutional amendment was adopted, the act of 1873, which treated.property used for railroad purposes as a separate class, was in force, and that feature of the act has never been changed.

The case of the New Jersey Southern Railroad Co. v. Board of Railroad Commissioners, reported in 12 Vroom 235, was decided more than three years after the amendment to the constitution took effect. That opinion is founded on the assumption that the acts of 1873 and 1876 for the taxation of property used for railroad purposes were constitutional and valid laws. The question of constitutionality was not in that case distinctly raised, but the validity of those acts was taken for granted and acted upon, as has been repeatedly done by the courts during a period of ten years after the adoption of the constitutional amendment in reference to taxation. In the case to which reference is last made, the justice who delivered the opinion said: “ In 1877 a state tax was laid on each of these corporations by the board of railroad commissioners, pursuant to the provisions of the act entitled ‘ An act providing for state taxes on railroads and a more efficient collection thereof/ approved April 13th, 1876. These writs of certiorari were sued out to review the legality of such assessments.” The court held the assessments legal and properly made.

Although no case is reported wherein the constitutional objection to the act of 1876, or 1873, was expressly made, yet it appears by the tiles and records in the office of the clerk of the Supreme Court that each of the then justices had before him for review assessments on railroad property under the fourth section of the act of 1876, on claim of reduction, and that each justice proceeded to act under that section as if the law was constitutional. In one case the validity of the act was attacked, but the justice disregarded the objection and fixed the amount of the tax. A certiorari was taken, and to the return was attached by counsel of the company the following, viz.: “ The constitution of the State of New Jersey provides that property shall be assessed for taxes under general laws and by uniform rules, according to its true value. It is submitted that the statute under which the taxes in question have been assessed is not a general, but a special law, applicable to corporate property in railroads only, and that the act is unconstitutional and void.” The certiorari in that case was dismissed for want of prosecution, but was reinstated by consent. The writ was again dismissed and a writ of error taken, but the case was never brought to a hearing.

Under the act of 1876 large sums of money were each year collected as taxes on property used for railroad purposes and paid into the state treasury. After such action on the part of the state, and acquiescence on the part of the companies for so long a pei’iod of time under the acts of 1876 and 1873, the question of the constitutionality of a similar act is now raised. Such acquiescence on the part of the companies affected may not be decisive upon the question of constitutionality now distinctly raised, yet the practical construction given by the courts and acted upon so long by the companies may be taken as some evidence of contemporaneous opinion. As was said by the Supreme Court in the case of State v. Kelsey, 15 Vroom 1, “such a course of practice may amount to a practical exposition.”

The uniformity of rules in taxation which the constitution requires is that uniformity which operates on the whole of a class. A tax upon property of railway corporations should be governed by uniform rules as to the property of all such companies used for railroad purposes. The act of 1884, now under examination, is within this rule. It operates uniformly .upon the property of all railroad corporations used for railroad purposes, being, as has been already demonstrated, a distinctive class, by reason of inherent qualities, and therefore not antagonistic to the constitutional requirement of uniformity.

Still another question has arisen which should here be disposed of. It is whether these companies are exempt from the assessments, made under the act of 1884, by reason of the clause inserted in their respective charters that the tax of one-half of one per cent, is in lieu of all other taxes or imposts. This is accompanied by a subsequent clause in the same connection which provides that the charter may be altered, modified or repealed. This provision is also expressed in the sixth section of the General Corporation act. Charters of this nature have received construction repeatedly in the New Jersey courts.

In State, Jersey City and Bergen R. R. Co., pros., v. Jersey City, 2 Vroom 574, the justice who delivered the opinion of the Court of Errors, after quoting the clauses in the charter of the company, providing for the payment to the treasurer of the state, annually, by the company, of one-half of one per cent, on the cost of the road, and that no other tax or impost should be assessed or levied upon said company, and that the legislature might at any time alter, modify or repeal the same, said: “ The contract which is set up in the proviso in the fourteenth section of their charter before cited, which, following the provision fixing the annual sum they are to pay, declares that no> other tax or impost shall be levied or assessed upon them. This designation of what they are to pay, connected with the proviso excluding all other burdens in the form of taxation, they contend, forms a contract between them and the state. These statutory provisions form, in my opinion, a contract neither in letter nor spirit. They are to be read in connection with the other provision in the charter which reserves to the legislature the right to alter, modify or repeal.”

In 1 Vroom 368, it is decided, in referring to the latter clause, that “ the language extends to all the provisions of the charter.”

In Little v. Bowers, 17 Vroom 300, it was adjudged, in effect, that such provision in a railroad charter was not a contract, and that a railroad corporation having a repealable charter, was subject to additional taxation.

In Tomlinson v. Jessup, reported in 15 Wall. 454, the Supreme Court of the United States held that “ the reservation affects the entire relation between the state and the corporation, and places under legislative control, all rights, privileges and immunities derived by its charter directly from the state.”

Having considered the question of the constitutionality of the act of 1884 in all its bearings, after a careful examination of the organic law, and all the statutes relating to the assessment of taxes on railroad and canal property, and consulted the authorities on the subject, I have reached the conclusion that the said act does not in any particular violate the constitution of the State of Hew Jersey, and that it is a valid law.

The act in question is not only constitutional, but is founded on a just basis. While it requires of the companies the payment of one-half of one per cent, for state purposes, it so-guards against imposition in the assessment of local taxes that in no case can a company be forced to pay more than the local rate, but may pay much less. If there be any inequality, it is favorable to the companies, and of this they have no legal right to complain. It is the injured party who has the right to move for the correction of errors.

But it is contended that, the act of 1884 is in violation of the fourteenth amendment of the federal constitution, which provides that no state shall deny to any person within its jurisdiction the equal ¡protection of the laws. To sustain this contention the case of the County of San Mateo v. Southern Pacific R. R. Co., is cited. A critical examination of that case leads to the conclusion that it does not have the slightest application to the question now before the court.

The county of San Mateo brought suit against the company to recover state and county taxes claimed to be due from that corporation. The company had expended a large sum of money in the construction of its road, and to secure a portion of the indebtedness had executed a mortgage upon its railroad, rolling-stock, appurtenances and franchises, and also upon some land not used for railroad purposes. The board of equalization of the State of California assessed against the company taxes on the whole of its property, without any deduction from its value on account of the mortgage given upon it to secure its indebtedness. Under the constitution of that state, persons operating a railroad only in one county had the right to deduct from the valuation for mortgage debts, while those operating a railroad in more counties than one, could not claim deduction therefor.

There was also another distinction made in the constitution of California, between property held by individuals and that held by railroad corporations, which worked inequality. In the opinion delivered by Justice Field, in the United States Circuit Court for California, in the San Mateo case, he said: “ If we look at the scheme of taxation prescribed by the constitution of California for the property of railroad companies, we will perceive a flagrant departure from the rule of equality and uniformity, so essential in the distribution of the burdens of government. Wherever an individual holds property encumbered with a mortgage, he is assessed at its value, after deducting from it the amount of the mortgage. If a railroad ■corporation holds property subject to a mortgage it is assessed at its full value without any deduction for the mortgage, and as if the property was unencumbered.”.

It will' at' once be seen that the facts in the San Mateo case are entirely different from those developed by an examination of the act off 1884, and how the decision in that case can be tortured into an authority to show that the act of 1884 violated, in any respect, the fourteenth amendment to the constitution of the United States, is beyond my comprehension.

The act of 1884 makes no such discrimination in the valuation of railroad property encumbered by mortgage as is made by the constitution of California. On the contrary, the act ■of 1884, in the tenth section, expressly provides that in case any railroad or canal company shall claim a deduction, on account of any mortgage, or debt secured thereby, the state board of assessors shall allow the same, in the cases in which ■and to the extent to which the local assessors are authorized by law to allow a deduction in the case of any other owner of mortgaged lands.

Upon the whole case, I am clear in the opinion that the “Act for the taxation of railroad and canal property,” approved April 10th, 1884, is not unconstitutional and void, but is constitutional and valid in all its parts.

The judgment of the Supreme Court should be reversed.

Dixon, J.

Under “An act for the taxation of railroad and canal property,” approved April 10th, 1884, taxes were levied in that year upon all property used for railroad or canal purposes under a franchise in this state. The Central 'Railroad Company of Hew Jersey, and thirty-three other railroad and ■canal corporations, sued out writs of certiorari to review the assessments thus made, and thereupon the Supreme Court held the act to be unconstitutional, and for that reason set aside the taxes. Writs of error were then brought on behalf of the state, and the records are now before us. Although it is within the province of this court, on writ of error, not only to reverse or affirm the judgment brought up, but also, in case of reversal, to render such judgment as should have been entered below, if the necessary facts have been settled, yet upon the argument the court confined the present inquiry to the question, in substance, whether the judgments of the Supreme Court should stand.

The defendants in error insist that the statute is invalid because it violates fundamental principles which must be observed in every exercise of the taxing power, because it does not conform to paragraph 12 of section 7 of article TV. of the state constitution, and because it infringes the fourteenth amendment of the constitution of the United States.

The general principles of taxation need but slight notice. It is laid down that the power to tax belongs to the legislature and its agents exclusively, and that the courts, in the absence of constitutional restriction, have no control over its exercise beyond seeing that the will of the legislature is enforced. By this is meant, not that the power of taxation is a limitless power, but only that the legislative authority over the subject, taxation, is absolute. Taxation is a thing capable of definition, the boundaries of which, in our system of government, are to be ascertained from the history of the English and American peoples, but over the area thus determined the will of the legislature is the supreme law. No doubt impolitic or unjust taxes may be levied, but the only remedy for such impositions is by appeal to the legislature. The courts may decide whether any particular exaction is a tax or not, but if found to be a tax, such as they whose institutions we inherit recognized as coming within the range of the taxing power, it is the duty of the judiciary to uphold the levy, regardless of their own views of its wisdom or equity. The struggle for fairness of taxation must remain in the parliamentary arena, except as it may be removed to some other sphere by constitutional provision.

With regard to the present law, nothing has been urged against it on the general principles of taxation which may not, with equal force, be urged against it on the words of our con- ■ stitution, except the assertion that the legislature cannot authorize a levy to be made without first determining how much is needed for governmental purposes, and confining the levy to that sum. I know of nothing in the history of taxation which gives countenance to this claim, and therefore pass on to consider the constitutional restrictions.

The state constitution declares that “ property shall be assessed for taxes under general laws and by uniform rules, according to its true value.”

It is clear that the case in hand is subject to this provision —that it is one wherein property is assessed for taxes. This is manifest both from the title of the statute, “An act for the ■taxation of railroad and canal property,” and from the body ■of the law, by which the ownership or possession of property is made the sole ground for and measure of assessment. It is necessary, therefore, to ascertain the meaning of this constitutional clause.

The sentence does not import that all the property within the jurisdiction of the taxing body must be assessed. Such an .aim has never been deemed attainable by theorists; such an object has never been sought after by the legislature of this state; such an interpretation has never, by any branch of the government, been put upon the provision, and its language does not fairly support such a meaning. This clause was en-.grafted upon our organic law by amendment, adopted September 7th, 1875, when it was still, as it long had been and yet is, an open question among political economists, how taxes should be distributed over property so that their burdens may be borne by those best fitted to sustain them, and it is reasonable to suppose that if there had been entertained a design to settle this question by constitutional edict, the design would have been plainly declared. But such an intention cannot be made apparent on the face of this amendment without adding ■to it a word the importance of which the framers could not have overlooked. “ Property ” and “ all property ” are not interchangeable terms, and we are not warranted in substituting one for the other. The whole purpose of the sentence appears to be to define the mode in which property shall be dealt with when it is assessed for taxes. It requires three-things in such assessments: first, that they shall be made under-general laws; secondly, that they shall be made by uniform-rules; thirdly, that they shall be made according to the true-value of the property assessed. The signification of these three clauses will afford us the proper tests of the validity of the statute under review.

First. What are general laws?

Since the expression “ general laws” became prominent in our theories of constitutional construction, it has been on all hands agreed that a law operating equally throughout the state, and embracing all of a group of objects which naturally form a class by themselves, or which are fairly classified by the-legislature for legislation touching the basis of classification, is a general law. This principle was enunciated by the Chief Justice in Van Riper v. Parsons, 11 Vroom, 1, and is now firmly imbedded in our jurisprudence. For present purposes the phrase “ general laws” needs no further definition.

Secondly. What are uniform rules for the assessment of' property ?

In Stratton v. Collins, 14 Vroom 562, it was said that this clause requires that the same imposition should be made upon all the taxable property in the township for township purposes, in the county for county purposes, and in the state for state purposes. This statement, although sufficiently exact for the case then before the court, is broader than the constitution seems, on reflection, to demand. The expression “uniform rules ” is not of wider import than the expression “ general laws,” and if the latter may be confined to a class, with equal propriety may the former. Indeed, strictly speaking, a prescript-may be a uniform rule without prevailing over even a class; for it would be-a rule if designed for the government of a single individual, and if designed for the government of more than one, could be called a uniform rule. But such an interpretation would be too narrow for this constitutional-phrase. Its collocation with the words “general laws” indicates that it was to have a corresponding meaning, and the-whole sentence becomes harmonious by holding that it requires the same regulations to be applied to every member of each class which the general laws recognize or establish. This signification of the word “uniform” is common. Thus, the laws of nature are uniform, although none of them is universal, and many operate in single classes only. The same idea is well illustrated in the practice of the United States government. The federal constitution provides that all duties, imposts and excises shall be uniform throughout the United States; yet these taxes have always been levied in divers methods and amounts upon the different classes' of property and business. So, it empowers congress “ to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States.” But various rules of naturalization have been prescribed, and maintained without question, for distinct classes of aliens, as widows, minors, soldiers, seamen, and those residing here before specified dates; and the laws for the bankruptcy of bankers and traders have differed from those concerning other persons. This diversity in uniformity can rest only on the right to classify. The same import is expressly affixed to the word in the constitutions of Pennsylvania and Illinois, which enjoin uniformity in each class only, but it is held to be implied with equal force in the constitution of Wisconsin under the provision that “the rule of taxation shall be uniform.” Wisconsin Central Railroad Co. v. Taylor County, 52 Wis. 37. Similar views of the meaning of the term are expressed in Youngblood v. Sexton, 32 Mich. 406.

The third clause of the provision, that property shall be assessed for taxes according to its true value, excludes an assessr ment according to cost, number, weight, measure, fineness, or any other standard except true value—that is, the value which it has in exchange for money—and requires that the tax exacted from each person owning or possessing property of the class assessed shall bear the same proportion to the whole amount of taxes exacted from all persons having property of that class as the true value of each one’s classified property bears to the true value of all the property.

With these explanations of the constitutional provision, we come to examine the statute in question.

This enactment is susceptible of two interpretations : one, as being designed to authorize a single annual tax, levied upon all property in the state used for railroad or canal purposes under a franchise; the other, as being designed to authorize such a tax for the direct use of the state, and also an annual tax for each taxing district, to be levied upon so much of the real estate, used for railroad or canal purposes in each district, as is described in subdivision 2 of section 3 of the statute. A perusal of section 12 shows that while the whole sum chargeable in each year against any company is made a unit for the purpose of collection, constituting a single lien, a single debt, recoverable by a single action, yet up to the point of ascertaining what each company shall pay for the use of the state and what for the use of each taxing district in which its property lies, the processes of assessment are distinct, or at least quite distinguishable. The court is therefore at liberty to adopt whichever view of the act will most accord with the constitution and effectuate the legislative purpose to tax.

Let us first consider the law as one to impose a tax for the state and a separate tax for each district.

With regard to the state tax, the law provides for a board of assessors and directs these officers to ascertain the true value of all property, used for railroad or canal purposes, of each railroad and of each canal company in this state, including its franchises, and embracing in the term “ company ” not only corporations, but also individuals and associations owning or operating railroads or canals under a franchise; and it imposes an annual tax of one-half of one per centum of such value upon each company. These are the essential features of the assessment. The act contains, besides, some instructions as to the mode of ascertaining true value and of claiming and allowing deductions for debts, &c., but these are only subsidiary to the main design, and if in themselves misleading or unconstitutional, can be rectified or disregarded, under that provision of the act which requires the Supreme Court to correct assessments appearing to have been made upon erroneous principles or for improper amounts. If, therefore, these essential features of the law are consistent with the constitution, the law is valid, and this tax can be maintained, either as it was levied by the assessors or as it may be modified by the Supreme Court. Is the law, then, with reference to these features, constitutional ?

The property to be assessed is all property used for railroad purposes and all property used fór canal purposes. This is, in my judgment, legitimate classification. It is true that things used for railroad and canal purposes are not in essence different from such things when put to other uses. But classification of property need not rest upon the essence of things. The use made of them forms as just and as common a basis of classification as does their essence. So prominent in the very conception of property is the use of things that it would be singular if property as such had not been often classed upon that basis. Accordingly we find in our Crimes acts, Execution acts, Tax acts, and other statutes, that the use for which property is held is constantly made the ground for legislation concerning it. It would be a waste of time to particularize the instances. As long as railroad and canal corporations have existed in this state the property employed by them under their franchises has been placed, apart from other property for both the method and the amount of taxation. The same custom has prevailed elsewhere, and has received the approval of the highest judicial authority. Said the court in Kentucky Railroad Tax Cases, 115 U. S. 321 : “ The right to classify railroad property, as a separate class, for purposes of taxation, grows out of the inherent nature of the property, and the discretion vested by the constitution of the state in the legislature.” Inasmuch, therefore, as the law is to prevail everywhere in the state, and also relates to entire classes of property, it meets the requirement that laws for the assessment of property shall be general.

The law also directs that the assessments upon these classes of property shall be made by uniform rules, according to the true value of the property. Its simple mandate is that each company shall pay an annual tax equal to one-half of one per centum of the true value of its property used for railroad or canal purposes, including its franchises. Some objection has been interposed to the inclusion of railroad franchises, to the effect that they are not property, and that they have no exchange value, since similar franchises may be acquired by any persons organizing under the general railroad law. It suffices to say that this act imposes no tax upon franchises, but merely requires that they shall be considered in ascertaining the value of the property assessed. The franchises intended are but the legal privileges which the company enjoys in the use of its property, and of course, therefore, should not be disregarded in determining what that property is worth to its present possessor, and would be worth to any other possessor having the same privileges; and their importance is by no means destroyed because any other person who can obtain the same kind of property may use it in the same manner.

The imposition of the tax of one-half of one per cent, is in compliance with the constitution.

Let us turn now to the local tax.

Concerning this, the law directs (section 3) that the board of assessors shall ascertain separately:

I. The length and value of the main stem of each railroad, and of the water-way of each canal—the term “ main stem ” to include the road-bed not exceeding one hundred feet in width, with its rails and sleepers and depot buildings used for passengers connected therewith; the term “ water-way ” to include the towing-path and berme-bank.

II. The value of the other real estate used for railroad or canal purposes in each taxing district in this state.

III. The value of all the tangible personal property of each railroad and of each canal company.

IV. The value of the franchise.

It further provides (section 6) that whenever in any taxing district there shall be several branch lines of railroad belonging to or controlled by one company, the assessors shall designate one of said lines as the main stem, and the value of the others shall be included in the separate valuation provided for in subdivision 2 of section 3.

It then enacts (section 12) that each company shall pay, in addition to said tax of one-half of one per cent., a tax at the local rate, as fixed and assessed for county and municipal purposes upon other property in each taxing district, upon the valuation of its property in the several taxing districts, separately valued and assessed under the provisions of subdivision 2 in section 3 of the act, which tax shall also be computed by the state board of assessors; but the last-mentioned rate shall in no case exceed one per cent, of the valuation of the property valued under the provisions of subdivision 2 of section 3. This tax, when collected by the state, is to be transmitted to the several taxing districts for their local uses.

The first question here again arising is whether the law for the imposition of this tax is general—whether it embraces entire classes of property. In making the assessment, the property to be valued, and upon the valuation of which the tax is to be computed, is that described in subdivision 2, exclusive of the property mentioned in the other subdivisions. Is such property capable of being regarded as a class or classes of property?

There must be conceded to the legislature a large discretion on the subject of classification, and the judiciary has no right to thwart its reasonable exercise. But with this in mind, I have not been able to find any fair basis on which the property thus subjected to special taxation for local uses can stand as a class by itself. How does the main stem of a railroad to the width of one hundred feet differ, as a class of property, from the main stem lying beyond that width ? On what principle aré passenger depots ranked with the main stem, and freight depots, water-tanks, and all the other necessary adjuncts of a railroad excluded? What stamps the locks and berme-bank of a canal with one character, and its planes and feeders with another? Or how can the mere designation of ■one branch line of railroad as a main stem cause it to differ from other branch lines controlled by the same company in the same district ? How will you describe, or conceive of as •classes of property, groups so segregated? The divisions thus ■constituted by the legislature seem to me to be defined by no substantial distinctions, but to be purely arbitrary or fanciful, .and a law which deals with them exclusively is special, and not general.

That feature of the statute which limits the tax for local uses to one per cent, when the local tax on other property •exceeds one per cent., has also been assailed. But in my judgment such a limitation is permissible, provided the property so favored forms a class by itself. As before stated, the constitution is satisfied if in each taxing district the same rules of assessment are applied to all members of the same •class.

It is not plain, however, that this local tax can, under the .act, be assessed according to the true value of the property on •account of which it is levied. The intention expressed in the statute is that the property described in subdivision 2 shall be valued separately from that mentioned in the other subdivisions. For the purposes of the state tax this direction is only a means to an end, the end being the valuation of the whole railroad and canal property; and the courts may, and in obedience to the act itself must, if necessary, renounce the •designated means for the sake of the more important end. But for the purpose of local taxes the valuation of this segregated property is the end itself, the very basis on which the tax is to be computed, and it cannot be disregarded without overthrowing the tax. How the question arises whether the true value of this property can be ascertained by any process of estimation which leaves out of view the main stem of the railroad, the water-way of the canal, and the franchises under which alone the property can be utilized. This question appears to be a serious one; but it is unnecessary to pursue the matter, because, for the reason already stated, the law, so far as it provides for the local tax, is deemed not general, and therefore unconstitutional. If the act had directed the assessors to ascertain the true value of all the real property used for railroad or canal purposes in each taxing district, and had authorized taxes to be levied thereon for local uses by uniform rules, according to that value, the difficulties here stated would have been avoided. The property designated would have composed a class, and its true value could have been determined with reference to the value of the system to which it-pertains.

Recurring, then, to the view of the statute thus far considered, it appears that the law, so far as it directs a tax of one-half of one per cent, for state uses, is valid, and so far as it directs a tax for local uses, is invalid. There are no insuperable obstacles in the way of upholding the one tax without the other-, and the chief perplexities pointed out in argument as attending upon the practical enforcement of the law, will disappear if the local tax fails.

But it rvas said that the act might be interpreted as being-designed to authorize a single tax to be levied annually upon all property in the state used for railroad or canal purposes, Avhich tax, when collected by the state, would be retained in part for state, uses, and in part be distributed among local taxing districts for local uses. If the law can be maintained for ' the accomplishment of this design, it is our duty to support it.

Under this interpretation, the legislative scheme would be-that the assessors should ascertain the true value of all property used for railroad or canal purposes; that they should also-ascertain the true A7alue of the property included in subdivision 2 of section 3; that they should then determine how much money would enable the state to retain for itself one-half of one per cent, of the value of all the property, and to-pay over to each taxing district an ascertainable percentage of the value of such part of that property situate in the district as is described in subdiAÚsion 2.

So far, the steps of the laAV would not transgress the constitution. Considering the property to be assessed as the whole property used for railroad or canal purposes, the valuation of the designated portions of this property might be regarded as made only in order to aid in ascertaining the gross sum to be raised, and in clistributing.it when collected. And if the law had then directed or permitted the assessment of this gross sum upon the property assessed, by uniform rules, according to the true value of the property, it might have been upheld. But it does not permit such an assessment. It requires the tax to be apportioned among the several companies, not according to the true value of each company’s property as classified and assessed, but only in part according to that value, and in part according to the value of a portion arbitrarily selected from that property, and the inevitable result is that the tax exacted from each company does not bear the same proportion to the whole tax as the value of its classified property bears to the value of all the property in the class.

To illustrate this conclusion :

The total valuation of all the property in the state, used for railroad and canal purposes, is, $190,437,998

The total tax levied is, 1,273,670

Which is equal to $6.68 on each $1000.

The valuation of all the property of the Central Railroad Company, used for railroad or canal purposes, is, - 38,756,838

Its whole tax under the act is, 271,840

Which is equal to $7.01 on each $1000.

The valuation of all the property of the Easton and Amboy Railroad Company, used for railroad or canal purposes, is, 8,638,062

Its whole tax under the act is, 53,115

Which is equal to $6.15 on each $1000.

The valuation of all the property of the New York, Susquehanna and Western Railroad Company, used for railroad or canal purposes, is, ------- 4,893,428

Its whole tax under the act is, - 25,195

Which is equal to $5.15 on each $1000.

These discrepancies in the rates of taxation do not spring from any errors of the assessors, but are necessitated by the statute itself, and no process of rational construction can conform the act to any rule of assessment which will obviate them, if the whole sum chargeable against each company is treated as an entire, indivisible tax. If, therefore, the court were shut up to this interpretation, I should be constrained to hold the whole tax invalid, because assessed in violation of the constitution.

Hence the construction first indicated should be adopted, under which the tax of one-half of one per cent, can be sustained.

It remains to consider whether this state tax is opposed to the fourteenth amendment to the federal constitution, which prohibits any state from denying to any person within its jurisdiction the equal protection of the laws.

The general object of this provision, as declared by the Supreme Court of the United States, was to prevent unjust discriminations among persons, based upon differences of race or social condition. Slaughter House Cases, 16 Wall. 36. No such discrimination is observable in the imposition of this tax. The same court has also expressly adjudged that a state law which designates railroad property as a class by itself, and provides a distinct mode of taxation for that class, but which requires the application of the same methods to all constituents ■of the class, so that the law will operate equally and uniformly upon all persons in similar circumstances, denies to no person the equal protection of the laws, within the meaning of the constitution of the United States. Kentucky Railroad Tax Cases, 115 U. S. 321.

The state tax is in all respects constitutional.

One other suggestion deserves notice. It is that the court may look behind the statute for other enactments to support state and local taxes against these companies. If this act had failed to impose any tax, I should have thought the court at liberty to seek elsewhere for legal taxation of railroad and canal property; but the .first section of the act declares that the tax imposed by it shall be in lieu of all other taxation upon the property subject to taxation under the provisions of the act, and having concluded that this act does impose a tax upon all the property used for railroad and canal purposes in the state, no other tax on that property can be maintained consistently with the legislative will.

The judgment of the Supreme Court, so far as it annuls the tax of one-half of one per cent., should be reversed.

Reed, J.

First. The constitution does not require all property to be subjected to the imposition of a tax levy.

At the time of framing the twelfth paragraph, there were in existence several state constitutions in which, in variant shapes, was the provision that all property should be taxed. The commission which drafted our amendment deliberately refrained from employing the word “ all.” Nor do I understand that the assertion in the opinion of the Supreme Court, that the requirement was that all and not some property should be taxed, meant that a law, to conform to the constitutional standard, must impose a tax levy upon every kind of property. I think it could only have been intended to signify that all property must be subjected to the operation of tax statutes, but that the law may operate as well by the way of exemption as by imposition. This seems apparent from the admission that it is within the scope of legislative ability to provide that certain kinds of property may be relieved from the burden of taxation, and from the recognition of property used for church, school, college and the like purposes as a kind that may be exempted.

This power of exemption was exercised in the general tax act of 1866, which statute was recognized in the case of the North Ward Bank v. Newark, 10 Vroom 380; S. C.,11 Vroom 558, as a general law. Since then, in no case, in no argument, in' no expression of judicial opinion, has the exercise of this power in the act of 1866 been challenged as opposed to the constitution.

Second. If, then, the legislature can impose upon some and relieve other property from the tax rate, upon what rule must the separation of property for these purposes be made ? I think it may be assumed that this cannot be done capriciously. Whether the legislature could so act, even if unfettered by a constitutional limitation, is not a question needing an answer now. That it cannot so act-, in view of the twelfth paragraph of the constitutional amendment, is clear. The degree of the limitation is that both imposition and exemption must operate generally. Generality of operation has, by a long line of cases, been definitely settled to mean operation upon all of a class. Property must be taxed by general laws, namely, laws each of which includes all property included within its class; so, conversely, property must of necessity be exempted by a class or classes. The line which separates taxed from exempt property must be a line which divides classes.

Third. If taxation must be by laws each of which includes a class, does property used for railroad purposes include a class by itself? Property may be classed by reason of its inherent qualities. Real estate and personalty, tangible and intangible property, are obvious instances of differences which might be the basis of segregation for taxation by reason of inherent qualities. But I think differences may be impressed upon property by reason of the purpose for which it is used, which differences may also be the foundation of classification. A college owns lands and buildings; so does the owner of a hotel. The former may own scientific apparatus and books; so does the dealer in books and telescopes. The property of the college is, by the Tax act of 1866, exempt, but the same kind of property belonging to the owner of a hotel or a dealer in scientific instruments is subjected to taxation.

If the tax act of 1866 is a general law, and the exemption! clause in that act is to be regarded as based upon a proper classification, then the exemption of the property of colleges,, seminaries and cemeteries, grounded entirely upon a classification arising by reason of use, must be considered as establishing the right to select property for taxation in accordance with the same rule. I think, also, that the use of property for railroad purposes is in a degree distinctive as compared with all other uses of property. In the opinions of distinguished judges such property has been noticed as sui generis. It.is impossible to think of this ¡property in respect to its character for the purposes of taxation without connecting the tangible things themselves with the franchise by which they are utilized. By reason of the manner of its use under a railroad charter, a belt of land which stretches through a hundred taxing districts is welded into something which, for the purposes of valuation, becomes a unit. Its property, both real and personal, is shaped and constructed for the attainment of a purpose which, without a franchise peculiar to railway companies, would be impracticable. The property stripped of the peculiar power of utilization conferred by such a franchise would be comparatively valueless. The graded road-bed, the track, the depots, the engines, the cars, for other uses than railroading, would be of little worth ; and railroading without the state's charter of power and privileges could be hardly considered a practicable undertaking. - The public character of the functions which a railroad company performs •, its right to demand fares and freight charges, and to invoke the state's prerogative to condemn lands; its power to run trains across highways and through cities at a high degree of speed; its power to carry an element which, with all practicable guards, is still a menace to adjoining property—these and other powers, while in some respects they may be common to other corporations, are, in the aggregate, peculiar to railroad charters. Certainly the purpose for which property is used under such a charter impresses it with a distinct character, if we once admit that use can be the basis of classification. I conclude, therefore, that a law which includes in its operation all property used for railroad purposes is general.

Fourth. Must property be taxed at a uniform rate by reason of the requirement that property shall be taxed by uniform rules as well as by general laws? The constitution does not require that property shall be taxed by a single rule, but by uniform- rules. If we assent- to the proposition that property may be ranged into classes for any purpose of taxation, and •also to the proposition that a law which includes all of a class is a general law, I am unable to perceive how a rule that also ■applies to a class lacks uniformity of operation. Judicial sentiment has been in favor of the view that the constitutional ■amendment' was not intended to affect mere methods of pro■cedure in levying or collecting taxes, but was designed to fix ■the rules by which the burden of taxation was to be distributed. Inasmuch as all property taxed is to be taxed at its true value by the express terms of the amendment, if it is ■also held that all property must be taxed at a" uniform rate, then the power of classification is a barren privilege. Besides, I think it would follow from this construction that there is no power in the legislature to exempt property from taxation. And, conversely, if the admitted power to relieve a class or classes of property from taxation exists, how can it be said that uniformity of rule requires uniformity of rate to be imposed upon all property ? And if there exists the power to deal with property so as to exempt a class entirely, there must exist the power to relieve a class partially as to rate, and so the right to legislate for classes as to rate of taxation must be recognized.

Fifth. If the statute under consideration be valid, as tested by the views above expressed in regard to the requirements of the constitution, so far as it provides for the imposition of a tax at the rate of one-half of one per cent, upon railroad property used for railroad purposes, I regard it as sound. It includes in its operation an entire class of property, and the imposition of a tax of one-half of one per cent, upon all property within this class is within the constitutional authority of the legislature. Nor do I think there is any doubt concerning the validity of the provision now involved, however, which taxes all property owned by railroad companies, but not used for railway purposes; in the same manner as other property of the same kind is taxed for local purposes. This property is segregated from other property of such companies by the fact that it is used differently or is unused, and so it is with propriety thrown into the mass of taxable property in the several local taxing districts where it happens to-be situate, and is taxed at the local rates.

But there is a further provision in the act for the taxation of a part of the property owned by these companies and used by them for the purposes of their business for local purposes. The provision selects all the property so used, excepting a main stem one hundred feet in width and the passenger-depots, and imposes upon the part of such property which may be considered as belonging to each taxing district a tax at the-local rate of not exceeding one per cent. The act provides that where there shall be several branch lines belonging to one-corporation or operated under one management, one of the-said lines shall be designated as the main stem, and the others-be taxed. These features of the act I am unable to regard as-either general or uniform in their operation upon a class. It exempts from local taxation a strip of land one hundred feet in width, with its tracks, and it also exempts passenger depots, whether within or outside the strip; but, at the same time, taxes other property similar in kind and devoted to similar purposes.

The commissioners are empowered to select one of two or more lines owned or managed by one company, for exemption. The one selected is in no respect different from the others-which are left for taxation. And upon what ground can a-passenger depot be put in one class and a freight depot in another? Ho ingenuity can discover here a ground for a classification which is not entirely illusive. It must be remembered that this exemption is not an accidental failure to include something within the words of the act which might properly belong to the class, but it is a well-matured design to exempt an important, in some instances the most important, part of the class from the burdens imposed upon the remainder of the class. I am compelled to view it as an arbitrary selection of property for taxation and also for exemption, and so opposed to the text of the twelfth paragraph.

It may be further observed that this lack of generality is accompanied in this, as I think in all cases, by want of uniformity in the operation of this part of the statute.

Uniformity requires an equality of operation upon all property of the same class. It means that each owner of property of the class shall bear his proportion of the tax levied ■upon all the property comprising the class. If the value of • the main stem and passenger depots of each one of all the ■companies in the state bear a like proportion to the value of its other property of the same class, then the practical operation of this part of the law would be uniform.

But no such condition of affairs as this is conceivable as an •existing fact. In truth, the proportions which the two sections of property bear to each other among the different owners vary greatly. The result is that the company having a large amount of outlying property is heavily taxed, while the ■company whose property consists almost entirely of main stem and passenger depots pays, in comparison, next to nothing.

It is because laws of this kind operate in the way of dis■crimination in favor of some and adversely to other owners of the same class, that they are prescribed by the constitutional requirement of generality and uniformity of operation. This part of the statute is, in my judgment, void for these reasons, .and the local taxes levied under it should be set aside.

This part of the act is severable from those portions whioh provide for the levy of the tax for state purposes, and the record should be remitted to the Supreme Court for its consideration of those objections to the latter tax, other than constitutional, which were reserved.

Pateesoe, J.

I have reached a conclusion in harmony with the opinion of the court, and therefore shall set forth the reasons for so doing but briefly on the record. Hor would T •consider it at all necessary, if such reasons were similar precisely to those formulated in the judgment to be rendered. I think, besides, from the gravity of the matters involved in "the determination of the case, that these views should be expressed by more than a mere signification of assent. This is why I propose to add something to what has been said, though not required to sustain or strengthen the decision about to be given.

Until thirty-five years ago, state revenue was raised in New Jersey by assessments imposed on land and certainties,, so called; that is, gold and silver coin and other property of a visible and tangible nature. This system had the merit of simplicity, but public sentiment, after a centuiy and a half of practice, demanded a change because the burden of taxation was distributed unequally and unjustly. So, to remedy this,,, another species of property, invisible, incorporeal and intangible, was brought under the reach of the assessor. Rut under the new departure, though intended to remove the dissatisfaction existing previously, complaints of injustice were none the less frequent than before, and while the essential features were preserved, the plan was subject to constant modification. Equal taxation, like other abstract propositions, was easy to lay down in words, but to cany out in practice Mo labor, hoc opus or at. Finally, after a quarter of a century of experimental economy, constitutional restriction, to which the legislative authority had not been subjected previously, interposed, and declared that property should be assessed for taxes under general laws and by uniform rules, according to its true value. The words are imposing and equitable in sound, but, like all similar declarations of a general nature, when submitted to the touchstone of human ingenuity, sharpened by legal acumen/are capable of various interpretations when sought to be applied to a practical result. The ease now under consideration is an illustration in point. Difficulties arise at once in establishing any principle of impost on property for purposes of state revenue., Note here how learned 'legal critics differ as to the meaning-of state tax. While that phraseology may be, and for ordinary and distinctive purposes is, distinguished from what, for similar convenience, are recognized as local or municipal assessments, still, when considered as a system or science, no tax can be regarded as other than an impost of the state, because no other authority can lay a custom levy. It is in such a character and connection only that a judicial tribunal can contemplate the word “taxes” in a constitutional aspect. As matter of fact, any ordinary state tax, whenever laid, is collected through municipal instrumentality. Any argument drawn- from a specious distinction between state and local taxation, must be outside of constitutional intent, and therefore fallacious, and should be disregarded in arriving at a final determination of this controversy.

Then, too, the single and simple word “ property,” the very first in the amendment restricting legislative power in this particular, has elicited vigorous judicial criticism, as well as sharp and spicy legal sparring. Who would suppose so little a phrase would involve such a wide variation as shown in the argument; that so much could have been said, so many learned words utteied, in attempting to prove the meaning of the classical little logos as used in the constitutional sentence ? Property was to be assessed for taxes; nothing else could be. There is a popular definition of the word, in which those who have none are not concerned, and those who have generally try to keep but little on hand during the summer months. The word would seem to have but one signification for practical purposes. It is something seen and handled, touched, of which there is a visible, fixed sign. All agree to that. But it is said “property,” as used in the amendment, implies totality, and if it does not, then some only, and not all, is assessed. In opposition to this, it is claimed • that whatever property, is assessed is a totality, is all that is required by the constitution. Here a difficulty is started that must be settled by a judicial tribunal. What meaning is contemplated by the use of the word ? “ Property ” is the single logos-. It is in the beginning of the sentence, single and simple, not qualified by any limitations. It must signify all or only some. The constitution does not declare that the whole or part only of property should be assessed for taxes. What is the natural construction of the word in connection with practice and contemporary exposition ? Legislative power had been the sole arbiter in matters of financial economy for nearly two centuries in the history of the commonwealth prior to the restrictions of 1875, and the latter in this respect did not limit the discretion of that power. The same rule has obtained since as was followed before the amendment was adopted. There have been ten years of practice under the new dispensation, and that should go far toward determining the construction of the term. “Property” here is a totality, and “all property” could be no more, for the reason that both would mean whatever property was assessed in the exercise of legislative discretion. The construction that seems to me to be natural and proper is that whatever property the legislature should determine to assess, whether all or a part, must be taxed after certain mode and manner. That body, untrammeled and sovereign as to this, might select whatever it chose to bear the burden of custom, tithe and tribute, and that would be a totality because it would be all the property made subject to taxation. In my judgment there was error in the opinion of the Supreme Court in this respect.

This leads to the consideration of the constitutionality of the law, which is the only action a judicial tribunal can take. The taxing power is a legislative function exclusively, and is the life of a state government. Taxation is a prominent factor in state sovereignty. The power that exercises a prerogative of that high character cannot be stigmatized as a heresy. The exalted nature of the power is dwarfed because the use is so common. That other prerogative, the authority to declare war, is regarded generally as the ultima thule, the limit beyond which a state cannot go; but that must be furnished with the means of existence, or it becomes unavailing as an engine of destruction. It is wondrous because comparatively so uncommon. The light of the sun exceeds in intensity any product of human ingenuity, but is matter of everyday occurrence, and the radiance of his lustre excites no astonishment among men because so common to the eye. State taxation is before the people continually, and so the transcendent nature of the power it wields, the innate, inherent sovereign attributes it possesses, are not recognized as if exercised less frequently. Taxation is always with us. Such a power, of necessity, must be arbitrary, more or less, in the execution of its details and destructions. Judicial decision can only restrain the exercise of this power within the limits of the constitution; all other relief is legislative. In Hew Jersey this prerogative of the legislature can be restricted by the interposition of a legal or equitable tribunal simply and solely because it has run beyond the bounds imposed on it. In that case it is within the province of a court to grant relief. A township assessor is as much an autocrat in his homoeopathic domain as the quadrilateral created by the act under review is within the limits of its more imperial sway. The acts of each may be supervised by legal authority, but such supervision does not touch or question the right of the legislature in the premises.

The issue, then, to be determined here is whether this act does or does not conflict with the constitution. Had the legislature authority, under the restrictive amendments of 1875, to pass this particular law for the taxation of railroad and canal property ?

Three essential requirements are prescribed. Property taxed is to be assessed under general laws, by uniform rules and according to its true value. My reflections have led me to the conclusion that the last two elements will .follow the determination of the first, or that this case turns on the question whether the statute is a general law of the kind contemplated by the constitution. I shall consider them in the reverse order,

Property is to be assessed according to its true value. The act requires the assessors to do this, and the opinion admits that such valuation has been made under the law. This is just what the local assessor is required to do, and if he is governed exclusively by municipal interests, is rather apt not to do. The state assessors were appointed to perform this work; they report that in the exercise of the discretion entrusted and the powers vested in them, they have determined what they consider to be a true value of the property to be assessed. They have taken all elements into consideration, and have fulfilled the purpose for which they were commissioned. The properties in question, therefore, have been assessed according to the intent of the constitution; that is, at a true value through agents appointed by law.

Property, when taxed, is to be assessed by uniform rules. If it be found that the act sought to be overthrown is a general law within the limits of the constitution, then I fail to see in what way the assessors have done otherwise than cause the property they were required to tax to be so taxed by a uniform rule. The records show that just the same plan was adopted in each case. No discrimination in this respect is manifest. If there was, and it appeared that one road was assessed by one rule, and one by another, and a third by a mode different from either, a multiplicity of rules must have been shown in the result of the work of the commission. After a thorough and careful examination of the records, I find no evidence of this. Should the law stand the constitutional test, I think it clear that all the requisite essentials of uniform rules are preserved in its enactment. Let us see how this may be.

A general law, in the abstract, must be defined in some way before it can be carried out practically. It is by no means difficult to declare that property must be assessed under general laws. This, laid down as a general principle, would seem to command universal assent. Who will venture to disagree with the proposition ? No better illustration, however, of the difficulties and. differences attending on its execution can be found than is shown in the history of this statute of 1884. Take a specimen. The appellants insist that the law is general in operation, and the framers designed to adhere to the letter and spirit of the constitution. No legislator proposed to set up law in contravention of that. “ Oh, no,” say the respondents ; “ that is a mighty mistake; the law is special, and not general.” I quote directly from the record. Both are satisfied with the sound of the abstract declaration. But when a departure is attempted from that, a variation appears that is as divergent as many minds. Other instances of this divergenee could be adduced from the books of the case, of all which it may be said that like two parallel lines when extended, they run on but never meet, though, unlike those lines in this aspect, they become wider and still more wide-apart upon their onward way. I can only say farther, in this connection, that it is the province of the court under such circumstances, to settle and determine the matters in litigation ■ and, in my view, this must be decided ultimately by ascertaining whether the statute in question is or is not a general law in the intent of the constitution. If not, the-whole superstructure of the law must fall.

Property in the state is to be taxed in that way only. Then, to be so taxed, a law must, run or be co-extensive with the jurisdiction of the commonwealth, and not affect simply a portion of the territorial limits. This includes all state territory, for the application of its prescription is not confined to-any portion or portions, county or counties, city or cities; not even so much as a township is excepted from its operation. In this view it must be regarded as general. But the purport of the statute is to tax the property of railroads and canals, and no other kind. Is that within the meaning of the restriction ? I think so, for the reason that if the word “ general!> is to have a signification broader or more extended than this, then taxation could be accomplished only under one single-law, sweeping in all classes of individuals and property. This would be absurd, manifestly, and next to impossible, almost, to execute. A strict construction would require a repetition of this process whenever an alteration or amendment was necessary.. The true intent must be that the law-making power could not select certain property—say, for instance, that of the West End Eailroad Company, or a pottery in Trenton, or an oyster fishery in Perth Amboy—and take those properties by one method and under one law, and another railroad company, pottery or oyster fishery b.y another method and under another law. But it does seem to me that it can take a “ homogeneous mass of property ” throughout the state, and now to be found in every county, without such being arbitrary in any sense other than what is justified by the necessity always existing under any system of taxation. Selection in this way is the same as classification. I do not understand that there is any controversy but what a general law permits classification of property, and as that of railroads and canals all over the state is included in the act, I fail to see by what reasoning it can be part, and not the whole of á class. All is brought in alike and taxed; that is, all of this particular property. It is a class by itself, and but one part of a whole system. Acts for this purpose have been passed before, and no court has declared them to be contrary to the meaning of the constitution. Even corporations created by special laws have been regarded under the state system as a separate class, and to be assessed by a separate method from other corporations and railroads and canals would as certainly be a proper classification. Without extending these remarks, it is clear to me that the act must be regarded as a general law within the pale of the constitution, and I shall vote to reverse the judgment below.

No reference has been made to authorities, as those appear in the opinions already given to sustain the kw, nor shall I review or criticise any of those which are adduced to maintain the contrary, than to say that I have not been able to discover any analogy between the principle involved in the San Mateo case and this.