[1] All property of the railway company in | states require, but only declares that they the state was assessed by a state tax com- are "property" which "shall be considered by mission under an act, the validity of which assessing officers when assessing the property is not assailed, providing: of such corporations" and they are not valued *186 * * * "The franchises (other than the right to be a corporation) of all railroads are declared to be property for the purpose of taxa tion and the value of such franchises shall be considered by the assessing officers when assessing the property of such corporations." Acts of Arkansas 1911, p. 233, § 2. The act also required the commission to "determine the total value of the entire property of the corporation, tangible and intangible"; that the buildings and side tracks should be assessed as real estate in the town or district where located, but that the main track, also to be assessed as real estate, should be apportioned among the several towns and districts through which the road ran according to the "actual mileage in each town or district." *185 *The Circuit Court of Appeals did not hold either the railroad valuation or the district road improvement law unconstitutional, both being types of laws often upheld by this court (State Railroad Tax Cases, 92 U. S. 575, 23 L. Ed. 663, Cleveland, etc., R. R. Co. v. Backus, 154 U. S. 439, 14 Sup. Ct. 1122, 38 L. Ed. 1041, and Houck v. Little River Drain age District, 239 U. S. 254, 36 Sup. Ct. 58, 60 L. Ed. 266), but the first ground of its decision was, only, that the assessment of the main track under the former law, as applied to the case of taxation by benefits provided for by the latter, resulted in unequal taxation to an extent amounting to a denial of the equal protection of the laws. separately in the *assessment complained of, as it is itemized in the bill of complaint. It is not easy to define just what is meant by the "franchise" of a railroad company "other than the right to be a corporation" and the record does not attempt a definition. Morgan v. Louisiana, 93 U. S. 217, 223, 23 L. Ed. 860. The record is also silent as to what, if any, value was placed upon the franchises of the company here involved by the state tax commission, and as to what extent, if at all, they were "considered" in arriving at the assessment objected to, and therefore, it is contended, that the conclusion of the Circuit Court of Appeals that personal property value was included in the assessment of the real estate of the district has no foundation on which to rest, other than the assumption that the tax commission conformed to the law and "considered" the franchises when assessing the real estate and that this necessarily resulted, in fact, if not in form, in such inclusion—an unusually meager basis surely for invalidating a tax of the familiar character of this before us. If, however, the distinction sometimes taken between the "essential properties of corporate existence" and the franchises of a missioner, 112 U. S. 609, 619, 5 Sup. Ct. 299, corporation (Memphis, etc., R. R. Co. v. Com28 L. Ed. 837) be considered substantial enough to be of practical value, and if it be assumed that the distinction was applied by the state commission in making the assessment here involved, this would result, not in of the real estate of the company in the disadding personal property value to the value The court was carried to its conclusion by this process: The act creating the road district, but simply in determining what the trict, and the general law applicable to local assessments in proportion to benefits, both required that only real estate should be as sessed to pay for the improvement here involved; only the real estate of the other property owners of the district was assessed, and therefore when the franchises, personalty, of the railroad company were "considered" in making the assessment complained of, the company was taxed a "higher rate," a greater amount, than other property owners and by such discrimination was denied the equal protection of the laws. It is argued by the road district that this conclusion is erroneous, for the reasons following: The assessment law, which we have quoted, provides that the franchises of railroad companies ("other than the right to be a corporation") "shall be considered" by officials when assessing their property. It is to be noted that this law does not provide for the assessment of the franchises of railroad companies separately as personal. or intangible property, as the laws of some value of the real property was-its right of way, tracks and buildings-having regard to the use which it made of it as an instrumen tality for earning money in the conduct of railroad operations. This at most is no more than giving to the real property a value greater as a part of a railroad unit and a *187 going concern *than it would have if considered only as a quantity of land, buildings and tracks. This is the method of assessing railroad property often approved by this court, specifically in Cleveland, etc., R. R. Co. v. Backus, 154 U. S. 439, 445, 14 Sup. Ct. 1122, 1124 (38 L. Ed. 1041), saying: "The rule of property taxation is that the value of the property is the basis of taxation. It does not mean a tax upon the earnings which the property makes, nor for the privilege of using the property, but rests solely upon the the use to which it is put and varies with the value. But the value of property results from profitableness of that use, present and prospective, actual and anticipated. There is no pecuniary value outside of that which results (40 Sup.Ct.) from such use. The amount and profitable character of such use determines the value, and if property is taxed at its actual cash value it is taxed upon something which is created by the uses to which it is put. In the nature of things it is practically impossible-at least in respect to railroad property-to divide its value, and determine how much is caused by one use to which it is put and how much by another." And long experience has confirmed the statement by Mr. Justice Miller in Railroad Tax Cases, 92 U. S. 575, 608 (23 L. Ed. 663), that: "It may well be doubted whether any better mode of determining the value of that portion of the track within any one county has been devised than to ascertain the value of the whole road, and apportion the value within the county by its relative length to the whole." And see Kentucky Railroad Cases, 115 U. S. 321, 6 Sup. Ct. 57, 29 L. Ed. 414, in which, also, the contention is disposed of that the railroad track should be valued by the same officials and on the same basis of acreage as farm lands adjacent to it. Thus, the assessment complained of was made under valid laws and in a manner approved and customary in arriving at the val*188 Detroit v. Parker, 181 U. S. 399, 21 Sup. Ct. 624, 45 L. Ed. 917. Thus, the basis for assuming that the franchises of the railroad company were added as a separate personal property value to the assessment of the real property of the company becomes, upon this record, much too unsubstantial to justify invalidating the tax involved if it be otherwise valid, and the first assignment of error must therefore be sustained. [2] But the holding of the Circuit Court of 189 Appeals that *"the evidence fails to show that the railroad company derives any benefit from the road" is also assigned as error. In the act of the General Assembly creating this road district it is provided: "Sec. 5. It is ascertained and hereby declared that all real property within said district, ined by the building of the said highway more cluding railroads and tramroads, will be benefitthan the cost thereof as appropriated in the county assessment of each piece of property within the district, for this and the succeeding years, and the cost thereof is made a charge upon such real property superior to all other mortgages and liens except the liens for the ordinary taxes, and for improvement districts heretofore organized. * Special and Private Acts of Arkansas 1911, pp. 642, 645. * Where, in laws creating districts for local improvements and taxation, there is such a legislative declaration as this, as to what lands within the district will be benefited by the improvement, the law with respect to the extent to which such determination may be reviewed by the courts is so well settled, and has so lately been re-examined and restated by this court, that extended discussion of the ue of that part of railroad tracks *situate in a state, county or district. So far as this record shows, the assessment, modified by the decree of the District Court not appealed from, is not a composite of real and personal property values, but is the ascertained value of the real estate-the tracks and buildings -of the company within the taxing district, enhanced, no doubt, by the special use made of it, but still its value as a part of the rail-subject is not justified. road unit, resulting from the inherent nature In Spencer v. Merchant, 125 U. S. 345, 8 of the business in which it is employed, a value which will not be resolved into its con Sup. Ct. 921, 31 L. Ed. 763-a decision often cited and approved-it is decided that if the the courts, and the owners have no right to be heard on the question whether their lands have been benefited or not. stituent elements for the purpose of defeating proposed improvement is one which the state contribution to a public improvement. No at- had authority to make and pay for by astempt was made to prove fraudulent, or sessments on property benefited, the Legislacapricious or arbitrary action on the part of ture, in the exercise of the taxing power, has any officials in making the assessment, the authority to determine, by the statute imonly evidence upon the subject being the posing the tax, what lands, which might be opinions of four employés of the company benefited by the improvement, are in fact that the improvement of the road would not benefited by it; and if it does so, its deterbenefit the railroad property, and if inequal-mination is conclusive upon the owners and ity has resulted from the application of the state law in a customary manner to a situation frequently arising in our country, it is an incidental inequality resulting from a valid classification of railroad property for taxation purposes which does not fall with- the law *restated in cases so recent as Wagin the scope of the Fourteenth Amendment, ner v. Baltimore, 239 U. S. 207, 36 Sup. Ct. which "was not intended to compel the states 66, 60 L. Ed. 230, and Houck v. Little River to adopt an iron rule of equal taxation." Drainage District, 239 U. S. 254, 36 Sup. Ct. Bell's Gap Railroad Co. v. Pennsylvania, 134 58, 60 L. Ed. 266, with the result that the U. S. 232, 237, 10 Sup. Ct. 533, 535 (33 L. Ed. | rule as we have stated it was approved, with 892). And see French v. Barber Asphalt Pav- the qualification, which was before implied, ing Co., 181 U. S. 324, 21 Sup. Ct. 625, 45 L. that the legislative determination can be asEd. 879; Cass Farm Co. v. Detroit, 181 U. | sailed under the Fourteenth Amendment only S. 396, 398, 21 Sup. Ct. 644, 45 L. Ed. 914; where the legislative action is "arbitrary, The subject was carefully re-examined and *190 wholly unwarranted," "a flagrant abuse, and by reason of its arbitrary character a confiscation of particular property." And see Withnell v. Ruecking Construction Co., 249 U. S. 63, 69, 39 Sup. Ct. 200, 63 L. Ed. 479; Hancock et al. v. Muskogee, 250 U. S. 454, 457, 39 Sup. Ct. 528, 63 L. Ed. 1081; Embree v. Kansas City, etc., Road District, 240 U. S. 242, 250, 36 Sup. Ct. 317, 60 L. Ed. 624. The decisions relied upon by the company (Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43 L. Ed. 443; Myles Salt Co. v. Iberia Drainage District, 239 U. S. 478, 36 Sup. Ct. 204, 60 L. Ed. 392, L. R. A. 1918E, 190; Gast Realty & I. Co. v. Schneider Granite Co., 240 U. S. 55, 36 Sup. Ct. 254, 60 L. Ed. 523) are not in conflict with the rule but plainly fall within, and are illustrations of, the qualification of it. [3] An application of this rule to the case before us renders not difficult the decision of the second assignment of error. The road to be improved was "a little less than 31⁄2 miles in length" and extended from Alma, a considerable village, on the north, southerly to an east and west road which had its western terminus at the city of Van Buren, 8 miles west of the junction of the two roads. It was the principal road to and from Alma, the travel on it being greater than on all the other roads which served that village combined. In wet seasons the road was practically impassable for wagons, sometimes for three or four months together. People living south of the east and west road, who made Van Buren their trading point in wet weather, after the road was improved traded exclusively at Alma, it being 41⁄2 miles nearer for many of them. The *191 the road, by making the village of Alma more accessible, particularly in the wet seasons of the year, and by developing the adjacent country, would increase the business of the railway company and would divert business from Van Buren, where there was a competing railroad, to Alma, where appellee had the only line. It was in evidence also that after the act was passed, but before the road was completed, a large gas-producing district was discovered not far south of the southern terminus of the improved road which was tributary to it. To this must be added the obvious fact that anything that develops the territory which a railroad serves must necessarily be of benefit to it, and that no agency for such development equals that of good roads. This discussion of the record makes it clear that it is impossible to characterize as arbitrary, capricious, or confiscatory the ac192 tion of the General Assembly, in de*claring that the property of the railroad company within the district would be benefited by the construction of the contemplated road improvement, but, on the contrary, it makes it apparent that the case is one so fully within cuit Court of Appeals that the railroad the general rule that the holding of the Cirwould not be benefited by the improvement cannot be sustained. It results that the decree of the Circuit Court of Appeals must be reversed and that of the District Court affirmed. Reversed. Mr. Justice McREYNOLDS dissents. (251 U. S. 179) railway of the appellee was the only *one at Alma, but at Van Buren there was a competing road, with a line 250 miles GODCHAUX CO., Inc., V. ESTOPINAL, shorter than that of the appellee to St. Louis, Sheriff, et al. the chief market for the staples of the re- (Argued Nov. 17, 18, 1919. Decided Dec. 22, gion. 1919.) No. 101. TION ON REHEARING IN STATE COURT TOO LATE. as On the question of benefits which would come to the railroad property from the construction of the road, the appellee receiver COURTS 396(6)—RAISING OF FEDERAL QUEScalled four witnesses, three of them engineers and one a superintendent of the company. Two of these were familiar with the location of the road and the other two testified that they knew of its location in a general way. All four testified in general terms that the road was not and never would be of any benefit to the railroad. It is significant that no traffic man was called and that no evidence was introduced showing the extent of business done at Alma before and after the improvement of the road. To give the national Supreme Court jurisdiction, under Judicial Code, § 237, amended by Act Sept. 6, 1916, § 2 (Comp. St. § 1214), to review on writ of error the judgment of a state court, the essential federal question must have been especially set up there and, being presented for the first time on petiat the proper time and in the proper manner, tion for rehearing in the state Supreme Court, it came too late; that court not having entertained the petition and passed on the point, but having refused the petition, without more. For the district, three witnesses were called, one a doctor, one a merchant and one a long-time resident of the village of Alma. Each of these testified that, in his opinion, of Louisiana. In Error to the Supreme Court of the State For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (40 Sup.Ct.) Suit by the Godchaux Company, Incor- supposed conflict; and, unless that point was porated, against Albert Estopinal, Jr., Sheriff properly raised below, a writ of error canof the Parish of St. Bernard, and others. not bring the cause before us. Judgment dismissing the petition was af- Such a writ only lies to review "a final firmed by the Supreme Court of Louisiana | judgment or decree in any suit in the highest (142 La. 812, 77 South. 640), and plaintiff brings error. Dismissed. Messrs. R. C. Milling and Robert E. Milling, both of New Orleans, La., for plaintiff in error. Mr. Wm. Winans Wall, of New Orleans, La., for defendants in error. *180 *Mr. Justice McREYNOLDS delivered the opinion of the Court. By petition filed in the district court, St. Bernard parish, plaintiff in error sought to restrain collection of an acreage tax assessed against its lands not susceptible of gravity drainage. Invalidity of the tax was alleged upon the ground that no statute of Louisiana authorized it and also because its enforce ment would produce practical confiscation *181 court of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity, or where is drawn in *question the validity of a statute of, or an authority exercised under any state, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity." Judicial Code (Act March 3, 1911, c. 231) § 237, 36 Stat. 1156, as amended by Act Sept. 6, 1916, c. 448, § 2, 39 Stat. 726 (Comp. St. § 1214). The settled rule is that in order to give us jurisdiction to review the judgment of a state court upon writ of error the essential presented in a petition for rehearing, it comes too late unless the court actually entertains the petition and passes upon the point. Mutual Life Insurance Co. v. MeGrew, 188 U. S. 291, 308, 23 Sup. Ct. 375, federal question must have been especially and take property without due process of law contrary to the Fourteenth Amendment. set up there at the proper time and in the Answering, defendant in error asked dismiss- proper manner, and, further, that if first al of the petition, claiming the tax was properly assessed and also that an amendment to article 281 of the Louisiana Constitution, adopted November, 1914, deprived the court of jurisdiction to entertain the contest. The trial court exercised jurisdiction, sustained the tax and dismissed the petition. Upon a broad appeal the Supreme Court, after declaring that the constitutional amendment deprived the courts of the state of jurisdiction over the controversy, affirmed the judgment of the trial court. 142 La. 812, 77 South. 640. The record fails to disclose that plaintiff in error at any time or in any way challenged the validity of the state constitutional amendment because of conflict with the federal Constitution until it applied for a rehearing in the Supreme Court. That application was refused, without more. Here the sole error assigned is predicated upon such 47 L. Ed. 480, 63 L. R. A. 33; St. Louis & San Francisco R. R. v. Shepherd, 240 U. S. 240, 36 Sup. Ct. 274, 60 L. Ed. 622; Missouri Pacific Ry. Co. v. Taber, 244 U. S. 200, 37 Sup. Ct. 522, 61 L. Ed. 1082. The writ of error is The CHIEF JUSTICE concurs in the result, solely on the ground that as the court below exerted jurisdiction and decided the cause-by the judgment to which the writ of error is directed-the contention that a federal right was violated by the refusal of the court to take jurisdiction is too unsubstantial and frivolous to give rise to a federal question. MEMORANDUM DECISIONS No. G. T. BRYANT et al., petitioners, v. The UNITED STATES of America. October 27, 1919. For opinion below, see 257 Fed. 378. Motion to direct clerk of the Circuit Court of Appeals to certify and forward the original transcript of record in this cause and that the clerk of this court be directed to file the petition for a writ of certiorari herein, denied. No. — Arthur CRANE, petitioner, v. The UNITED STATES of America. October 27, 1919. For opinion below, see 259 Fed. 480. Motion to direct clerk of the Circuit Court of Appeals to certify and forward the original transcript of record in this cause and the motion for leave to prosecute the cause in forma pauperis, denied. (251 U. S. 539) No. 103. The UNITED STATES of America, plaintiff in error, v. MILL CREEK & MINE HILL NAVIGATION & RAILROAD COMPANY to Use of PHILADELPHIA & READING RAILWAY COMPANY, lessee; No. 104. The UNITED STATES of America, plaintiff in error, v. NORTH PENNSYLVANIA RAILROAD COMPANY to Use of PHILADELPHIA & READING RAILWAY COMPANY, lessee; and No. 105. The UNITED STATES of America, plaintiff in error, V. DELAWARE & BOUND BROOK RAILROAD COMPANY to Use of PHILADELPHIA & READING RAILWAY COMPANY, lessee. December 8, 1919. In error to the District Court of the United States for the Eastern District of Pennsylvania. For opinion below, see 246 Fed. 1013. The Attorney General, for plaintiff in error. PER CURIAM. Affirmed upon the authority of United States v. Larkin, 208 U. S. 333, 28 Sup. Ct. 417, 52 L. Ed. 517. Mr. Justice PITNEY took no part in the decision of these cases.. No. 121. Charles A. HITCHCOCK, petitioner, v. Alfred G. SCATTERGOOD et al. December 15, 1919. On writ of certiorari to the United States Circuit Court of Appeals for the Third Circuit. For opinion below, see Appeal of Hitchcock, 249 Fed. 23, 161 C. C. A. 83. Mr. Horace L. Cheney, of New York City, for petitioner. Mr. Francis B. Bracken, of Philadelphia, Pa., for respondent. Dismissed per stipulation. No. 116. Sarah J. BRIGGS, administratrix, 175 Pac. 105. Mr. Joseph G. Waters, of Topeka, Kan., for plaintiff in error. PER CURIAM. Dismissed for want of jurisdiction upon the authority of section 237 of the Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1156) as amended by the act of September 6, 1916, c. 448, sec. 2, 39 Stat. 726 (Comp. St. § 1214). (251 U. S. 564) No. 407. The BALTIMORE & OHIO SOUTHWESTERN RAILROAD COMPANY, cember 15, 1919. In error to the Supreme Court of the State of Ohio. For opinion below, see 124 N. E. 195. Messrs. Judson Harmon and George Hoadly, both of Cincinnati, Ohio, for plaintiff in error. Dismissed per stipulation. (251 U. S. 553) No. 583. Louis DRAGO, petitioner, v. CENTRAL RAILROAD COMPANY OF NEW (251 U. S. 553) No. 594. CHICAGO, DULUTH & GEOR-JERSEY. December 15, 1919. For opinion in GIAN BAY TRANSIT COMPANY, owner of steamship "The SOUTH AMERICA," petitioner. v. Charles T. MOORE et al. December 8, 1919. For opinion below, see 259 Fed. 490. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. (251 U. S. 553) No. 595. The TOLEDO & CINCINNATI RAILROAD COMPANY et al., petitioners, v. The EQUITABLE TRUST COMPANY OF NEW YORK et al. December 8, 1919. Petition for a writ of certiorari to the United States Circuit Court of Appeals for the Sixth Circuit denied. Court of Errors and Appeals, see 106 Atl. 803. Mr. Alex. Simpson, of Jersey City, N. J., for petitioner. Messrs. McDermott & Enright, of Jersey, City, N. J. (Mr. James D. Carpenter, Jr., of Jersey City, N. J., of counsel), for respondent. Petition for a writ of certiorari to the Circuit Court of Hudson County, State of New Jersey, denied. (251 U. S. 553) No. 590. The STATE OF WASHINGTON, petitioner, v. Isaac BELKNAP. December 15, 1919. For opinions below, see 104 Wash. 221, 176 Pac. 5, 182 Pac. 570. Messrs. L. L. Thompson, Atty. Gen., Glenn J. Fairbrook, Asst. Atty. Gen., and W. V. Tanner, of Seattle, Wash., for |