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From A careful consideration of the entire 122, art. 10, of the Constitution, which provides
that nothing therein shall be held or construed record, we are of opinion that the case should
to prevent the classification of property for be affirmed.
purposes of taxation and the valuation of differ
ent classes by different means or methods. PER CURIAM. Adopted in whole.
(Ed. Note. For other cases, see Taxation, Cent. Dig. 88 90–95; Dec, Dig. 42.) 6. TAXATION OM 42 – CLASSIFICATION – RE
VIEW BY COURTS. In re GROSS PRODUCTION TAX OF To justify judicial interference, the right to
WOLVERINE OIL CO. (No. 7426.) | classify being a legislative function, the classifi(Supreme Court of Oklahoma. Oct. 12, 1915.
cation adopted must be based on an invidious
and unreasonable distinction with reference to Rehearing Denied Jan. 17, 1916.)
the subject of the tax. Unless this appears, the
court will not declare the classification void, (Syllabus by the Court.)
though it may not approve its terms, or may 1. COURTS 206 — JURISDICTION OF SU- question the wisdom of its enactment. PREME COUBT_TAXATION.
|[Ed. Note.-For other cases, see Taxation, The only questions properly determinable Cent Dig. 88 90–95; Dec. Dig. 42.) by this court in the exercise of the exclusive and original jurisdiction conferred by Act
FOBMITY - GROSS March 11, 1915 (Laws 1915, c. 107, art. 2,
PRODUCTION TAX. subd. A) § 1, are those instituted to determine
The act imposing a gross production tax the validity of the act, and not those that may
nt and not those that may l equal to one-half of 1 per centum of the gross arise in the administration of the law, or that value of ores bearing lead, zinc, jack, gold, silconcern the application or distribution of the ver, or copper, or asphalt, 2 per centum of the revenues collected.
gross value of the production of petroleum or (Ed. Note.-For other cases, see Courts,
other mineral oil or natural gas, and which
omits to impose such production tax on coal, is Dec. Dig. Om 206.)
not repugnant to section 5, art. 10, of the Con2. LICENSES ml, 11 - PETROLEUM Tax
stitution, providing that taxes shall be uniform OCCUPATION Tax – STATUTE - "PROPERTY upon the same class of subjects. Tax.”
[Ed. Note.-For other cases, see Taxation, The gross production tax imposed by sub-| Cent. Dig. 88 68-89: Dec. Dig. 402 division A of the act of March 11, 1915, is not a property tax, but, instead, is a tax on the 8. TAXATION Om 42 - UNIFORMITY – PRODUCbusiness or occupation named therein, the TION TAX, amount of which is determined by the value of The imposition of a gross production tax, the gross production of petroleum and other based on the gross value of the production of commodities named, produced during the last petroleum or other mineral oil or natural gas, as preceding quarter annual period. Such tax the provided by section 1 of subdivision A of the Legislature may provide for by section 12, art.
act of March 11, 1915, but which provides that, 10, of the Constitution.
whenever the mining of said commodity is so ¡Ed. Note. For other cases, see Licenses,
carried on and conducted through a federal Cent. Dig. 88 1, 18-21; Dec. Dig. Owl, 11.
agency, the state has no authority to impose For other definitions, see Words and Phrases,
and collect therefrom such tax, and provides
that property of those so engaged shall be taxed First and Second Series, Property Tax.)
on an ad valorem basis, and not be subject to 3. TAXATION 200-OCCUPATION TAX-Ex- the gross production tax provided to be levied EMPTION-NATURE OF STATUTE.
in the act, is not in conflict with section 5, art. That portion of the act which provides that 10, of the Constitution, requiring that taxes the tax levied shall be "in lieu of any other shall be uniform upon the same class of subtaxes that might be levied and collected upon jects. an ad valorem basis upon the equipment and [Ed. Note. For other cases, see Taxation, machinery in and around any well prodụcing Cent. Dig. 88 90-95; Dec. Dig. Om 42.) natural gas or petroleum or other mineral oil, and used in actual operation of such producing
9. TAXATION 49 PRODUCTION Tax-VAwell from which a gross production tax is col
LIDITY OF STATUTE-AD VALOREM Tax. lected as herein provided," is not an exemption
The production tax imposed by the act not from taxation as prohibited in sections 46. 460, being an ad valorem tax on property, the stat. 50, art. 5, of the state Constitution, but aute is not repugnant to section 8, art. 10, of substitution of one form of taxation for an- the Constitution, requiring that all property other upon the conditions named in the act. which may be taxed ad valorem shall be assess[Ed. Note. For other cases, see Taxation,
ed for taxation at its fair cash value, estimated Cent. Dig. $ 319; Dec. Dig. Om 200.
at the price it would bring at a fair and volun
tary sale. For other definitions, see_Words and Phrases, First and Second Series, Exemption.]
(Ed. Note.-For other cases, see Taxation,
Cent. Dig. 88 115–124; Dec. Dig. 49.) 4. TAXATION 4 - SUBJECTS OF TAXATION -SELECTION BY LEGISLATURE-PoWEB.
10. TAXATION 38 - STATUTE IMPOSING Section 13, art. 10, of the Constitution Tax-STATEMENT OF PURPOSE-GROSS PROgives to the Legislature authority to select the
DUCTION TAX. subjects of taxation.
The act sufficiently states the purpose of (Ed. Note.--For other cases, see Taxation,
the tax levy, and is not, therefore, repugnant to Cent. Dig. $$ 3-14; Dec. Dig. www4.]
the provisions of section 19, art. 10, of the
Constitution, requiring that every act enacted 5. TAXATION 42CLASSIFICATION OF SUB- by the Legislature levying a tax shall specify JECTS-REASONABLENESS.
distinctly the purpose for which the tax is The power of the Legislature to distinguish, I levied. select and classify objects of taxation has a [Ed. Note.--For other cases, see Taxation, wide range of discretion. While the classifica
Cent. Dig. $ 67; Dec. Dig. 38) tion must be reasonable, and not arbitrary, there is no precise application of the rule of 11. CONSTITUTIONAL LAW 229-UNIFORM. reasonableness, and there cannot be an exact! ITY OF TAXATION-EQUAL PROTECTION. exclusion or inclusion of persons or things. The provision of the Fourteenth AmendThis right is expressly recognized in section ment to the Constitution of the United States that no state shall deny to any person the equal, levy and collection of a gross revenue tax protection of the laws does not prevent a state, from persons, firms, corporations, or assoin the exercise of its sovereign right, from ad-1justing its system of taxation in all proper and
ciations engaged in the production of petroreasonable ways, nor compel the states to adopt leum or other mineral oil, or natural gas, an invariable rule of uniform taxation. The and which act was amended by Act March amendment intends only that the equal protec
27, 1909 (Laws 1909, c. 38, art. 2) 8 1. Contion and security shall be given to all under like circumstances, and that no greater burdens
struing the amended statute in McAlestershould be laid upon one than are laid upon Edwards Coal Co. et al. v. Trapp, 43 Okl. others in the same situation.
510, 141 Pac. 794, it was held that the tax [Ed. Note.-For other cases, see Constitution- intended to be assessed and collected thereby al Law, Cent. Dig. 8 685; Dec. Dig. Om 229.] was upon the value of the property owned Original action between the State Board of
by plaintiffs, and not upon the agency or Equalization and E. B. Howard, as State
the means used by the federal government Auditor, and the Wolverine Oil Company,
in its intercourse and dealings with the Into determine the validity of portions of the
dian tribes. The same conclusion was reachact of March 11, 1915, as provided for by
ed by the District Court of the United States said act, and pursuant to section 5303, Rev.
for the Eastern District of the state in laws 1910. Validity affirmed.
Choctaw, O. & G. R. Co. v. Harrison, not
reported. A different result was arrived at Ames, Chambers, Lowe & Richardson, of
by the District Court for the Western DisOkla boma City, for Wolverine Oil Company.
trict in Missouri, K. & T. R. Co. v. Meyer, Sherman, Veasey & Davidson, Rice & Lyons, 204 Fed. 140, where it was said, under the Carroll & Mason, A. A. Richards, Ran- | facts in that case, that the tax imposed was dolph, Harer & Shirk, E. H. Chandler, C. W.
in effect a tax upon the business of mining, Grimes, Jobn M. Chick, and C. C. Magee, all
From the decision of Judge Campbell in the of Tulsa, amici curiæ. S. P. Freeling, Atty.
Harrison Case an appeal was prosecuted Gen.. and Smith C. Matson and J. H. Miley, direct to the Supreme Court of the United Asst. Attys. Gen., for the State Board of States, where the judgment of the trial court Equalization and E. B. Howard, State Au
was reversed, and it was said that the act, ditor.
| in effect, prescribed an occupation tax.
Choctaw, O. & G. R. Co. y. Harrison, 235 U. SHARP, J.  The importance of the le- s. 292, 35 Sup. Ct. 27, 59 L. Ed. 234. Section gal questions presented by the present con
6 of the act of May 26, 1908, having thus troversy is readily apparent, when it is been construed and characterized as being an known that there is involved many provi
occupation tax, and not a tax on property as sions of the state Constitution, both confer
such, it becomes important to note wherein ring power and containing limitations upon the act under review differs from the one the Legislature in the exercise of the taxing
condemned. In the beginning of the amendpower of the state; also the right of the ment to section 7464, it is provided that: state constitutionally to impose taxes of cer
“For the purpose of estimating the value of tain kinds, due to the fact that a consider any property rights attached to or inherent in able portion of the oil and gas production of the right to mineral in this state after the same the state is carried on through the instru
is segregated from the ore in place, and in lieu
of any other method of taxing the same and in mentality of a federal agency; also there is lieu of any other taxes that might be levied and presented the question that the tax levy collected upon an ad valorem basis upon the denies to the producers, or certain of them,
equipment and machinery in and around any
well producing natural gas or petroleum or other the equal protection of the laws of the state,
mineral oil and used in actual operation of such which the Fourteenth Amendment to the fed producing well from which a gross production eral Constitution guarantees shall not be tax is collected as herein provided (but oil or abridged by state action. The portions of
other mineral if on hand for more than thirty
days at tax rendering period shall be taxed ad the act the constitutional validity of which
valorem in the taxing district where situatare attacked will appear throughout the ed). * * * course of the opinion. Many of the legal This provision is not contained in the origquestions presented are new in the juris- inal act. Under the latter act the tax is prudence of the state, and are somewhat designated as a "gross production" tax, while difficult in their application to the anomal- | under the former it is referred to as a "gross ous conditions under which the oil and gas revenue" tax, and is payable to the state auindustry in the state is carried on.
ditor, and not to the state treasurer, as was The nature and character of the tax pro- formerly the case. The original act (refervided for in section 7464, Rev. Laws 1910, as ring to the gross revenue tax) provided that amended by section 1, art. 2, subd. A, of the it should be in addition to the taxes levied act of March 11, 1915 (1915 Sess. Laws, pp. and collected upon an ad valorem basis up180-183), first demands our attention; foron such mining, oil, or gas property, and the upon a proper construction of the statute in appurtenances thereunto belonging, equal to the particulars named must largely rest our one-half of 1 per centum of the gross receipts conclusions. Section 7464 does not material from the total production of petroleum or ly differ from section 6 of the act of May 26, other mineral oil, or of natural gas, while the
tion tax payable to the state auditor shall be , tom where ad valorem taxes are provided for, equal to 2 per centum of the gross value of and as the Oklahoma laws require. the production of petroleum or other mineral The act also provides that, whenever the oil or natural gas. The present act also con- mining of petroleum or other mineral oil or tains the following provisos at the end of natural gas is so conducted through a federal amended section 7464:
agency that the state has no authority to im* * . * Provided. that any such person, pose and collect therefrom a. gross production firm, association or corporation shall at the tax, as to all such persons, firms, associatime of making its report to the state auditor tions, or corporations engaged in the mining set out specifically the amount of the royalty, if any, exempt from taxation by law and in of ores bearing lead, zinc, Jack, gold, silver. computing the said tax shall pay on the actual copper, or other mineral oils or natural gas cash value of the entire gross production, less such property of such person, firms, associasuch exempt royalty; provided further, that ti
tions, or corporations, including leases when wherever the mining of ores bearing lead, zinc, jack, gold, silver or copper or petroleum or other the same are subject to be taxed by the state, mineral oil, or natural gas, is so carried on and sha
carried on and shall be taxed on an ad valorem basis, and conducted through a federal agency, that the not be subject to the gross production tax state has no authority to impose and collect
provided to be levied by the act. Clearly the therefrom a gross production tax, that as to all such persong firms, associations or corpora- act contemplates two kinds of taxation, and tions engaged in the mining of ores bearing lead, not alone a tax on property as such. This zinc, jack, gold, silver, copper or other mineral fact is emphasized by the provision of the act oils or natural gas, such property of such person, firms, associations or corporations, includ
s requiring that oil or gas on hand for more ing leases when the same are subject to be taxed than 30 days at tax rendering period shall be by the state, shall be taxed on an ad valorem taxed ad valorem in the taxing district where basis, and not be subject to the gross produc
situated, and by the provision that the mintion tax, provided to be levied in this act."
ing of oil or gas, when carried on and conIt will further be seen that the present ducted through a federal agency, shall be statute omits any reference to coal, and fixes taxed on an ad valorem basis, and not be the per centum of taxes payable upon the subject to the gross production tax provided gross value of the minerals named, and of for by the act. petroleum or of other mineral oil, or of nat-  Nor does the history of the legislation ural gas, and not according to the gross re- and the decision of the Supreme Court in the ceipts from production.
Harrison Case tend to change our views as Looking to the title of the act, under ar- to the nature of the act or the intention of ticle 2, dealing with the question at hand, the the Legislature in its passage. Shortly prior only yords indicative of its character are to the convening of the last Legislature the “Special Taxes-Mining Property and Gross Supreme Court had decided in the Harrison Revenue Tax." So we must look elsewhere Case that a federal agency could not be subin the determination of its nature. As al-jected to an occupation or privilege tax by ready seen, the tax in the body of the act is a state; but, on the other hand, the right of referred to as a "gross production tax," the state to levy an ad valorem tax on the while under the old act the nature of the tax, personal property of such instrumentality according to the language used, was a "gross was expressly recognized. In fact, this conrevenue tax." The use of the word "revenue" | clusion had already been reached by this in the former, while the latter act uses the court, in Re Indian Territory Illuminating word "production," is unimportant. It is Oil Co., 43 Okl. 307, 142 Pac. 997. This, we further provided in the latter act that oil or think, was precisely what the Legislature other minerals, if on hand for more than 30 by the act in question intended doing and days at tax rendering period, shall be taxed did; that is to say, that an occupation tax
orom in the toring district where sit- should be levied on the kinds of minerals uated. The fact that the present act makes named in the act and upon petroleum or the tax levied in lieu of any other method of other mineral oil or natural gas, other than taxing the same does not, of course, of itself, where the production was carried on and constitute the tax a tax upon the property of conducted through a federal agency, and those engaged in the production of oil or gas. that as to such property, including leases While the language of the old act, which pro- when the same were subject to be taxed by vided that the gross revenue tax should be in the state, the same should be taxed by the addition to the taxes levied and collected up- proper taxing authorities on an ad valorem on an ad valorem basis, was referred to by basis, at the same time making provision the Supreme Court in the Harrison Case, the for the deduction of certain exempt royalty. court's characterization of the tax was not in the present act, as in the old, save as to made to rest upon that fact. The tax is not the production carried on and conducted levied by assessment or upon estimate of the
through a federal agency, the manifest puramount of taxes required to be levied; nei- | pose was to reach the gross value of the ther is it on account of property owned on a proceeds, and secure a certain percentage given day. As was said in the Harrison
thereof, the same in legal effect as was said Case:
by the Supreme Court to be the purpose of "The requirement is not on account of proper- the former statute, and which the court respect to license and occupation taxes. Re-i “The government of the Union, though limitterring to sections 2 and 3 of the original ed in its powers, is supreme within its sphere of act, it was held in Meyer v. Wells Fargo &
action; and its laws, made in pursuance of the
Constitution, form the supreme law of the Co., 223 U. S. 298, 32 Sup. Ct. 218, 56 L. Ed. I land.” 445, that there was no warrant for calling Again, in this connection, it was said by the tax a property tax. The tax, other than | Chief Justice Marshall, in Weston v. Charlesthat provided for when the business is car- 1 ton. 2 Pet. 479. 7 L Ed. 481. After referring ried on and conducted through a federal
to the court's former opinion in McCullough agency, is payable only on the basis of the
v. Maryland: gross value of the production. If there be
“'All subjects over which the sovereign powno production, regardless of the value of er of the state extends are objects of taxation; the property, no tax is authorized. In short, but those over which it does not extend are, the tax is one levied on the occupation or
upon the soundest principles, exempt from taxa.
tion.' The sovereignty of a state extends to business; the standard adopted for the de
everything which exists by its own authority, termination of its amount being the value | or is introduced by its permission,' but not to of the gross production of the commodity
those means which are employed by Congress
to carry into execution powers conferred on that taxed.
body by the people of the United States.'” By section 12, art. 10, Constitution, the
To these early landmarks in our jurisLegislature was given the power to provide
prudence having to do with the taxing power for the levy and collection of various kinds
of the states, we refer that the limitations of taxes, including license, franchise, gross
upon the power of the state may not be overrevenue, income, and production taxes. That
looked, and the fact made clear that the the Legislature acted within its constitution
state, while without authority to impose and al authority is therefore clear, unless it be
collect an occupation tax upon a federal inmade to appear that the act itself is in vio
strumentality acting under congressional lation of other provisions of the Constitution.
authority, is not for that reason deprived of A proper construction of the statute, there
the right to levy and collect such tax upon fore, as already indicated, authorizes the
those engaged in business of the same naconclusion that it was the purpose of the
ture or kind admittedly within its jurisdicLegislature, gathered both from the lan
tion. The fact that the tax is one beyond guage employed and from the current history
the power of the state to impose, where the of the times, to levy and collect a tax on
circumstances may establish a federal agency, the business of producing oil or gas, the
will not be permitted to embarrass or prevent amount thereof to be measured by the value
| the sovereign authority of the state lawfully of the gross production, where not carried
to impose such tax on those not within the on and conducted through a federal agency,
federal jurisdiction. To so bold would be a but, where such was the case, the property
surrender by the state of one of its first and of the person, firms, associations, or corpora
most important functions of government. A tions engaged in the mining of oil or gas,
case very much in point is that of State v. including leases made the subject of taxa
Missouri, K. & T. R. Co. of Texas (Tex. tion, should be taxed on an ad valorem basis
Sup.) 100 S. W. 146. The statute there imunder the general taxing laws of the state.
posed upon railroads managing a line of railProperty of the latter character, except oil
road in the state for the transportation of and gas leases, were, prior to the passage
passengers, freight, and baggage an annual of the act, subject to taxation. Rev. Laws
tax on their gross receipts. The Texas & 1910, 88 7302, 7304, 7305. This, as already
| Pacific Railway Company, a railroad operseen, was also expressly provided for, both
ating in that state, was incorporated under in the act of May 26, 1908, and in the amend
an act of Congress, and not subject to the ment thereto of March 27, 1909. See, also,
tax imposed by the act of the Legislature. section 1, subd. A, of the act of March 11,
State v. Texas & Pac. R. Co., 100 Tex, 279, 1915. To those who could not be reached
98 S. W. 834. It was urged by other railby a tax on the occupation or business, by
roads that the statute was unconstitutional reason of a controlling jurisdiction in the
for various reasons, among which was that general government, no effort was made to it was in conflict with section 2 of article impose or collect such tax.
| 8 of the state Constitution, providing that: The taxing power of the state is one of
"All occupation taxes shall be equal and uniIts highest attributes of sovereignty, and its form upon the same class of subjects within authority to tax all subjects over which its the limits of the authority levying the tax." sovereign power extends is undeniable; but It was held that the railway company it cannot tax the instruments of the federal named did not belong to a class within the government, nor the means employed by authority of the Legislature for the purpose of Congress to carry into effect the powers con- imposing an occupation tax, and that the ocferred by the federal Constitution. Society cupation tax on railroads imposed by the statfor Savings v. Coite, 6 Wall. 594, 18 L. Ed. ute, levying on railroads doing business in the 897; Provident Inst. for Savings v. Massa- state a tax on their gross receipts, was not chusetts, 6 Wall. 611, 18 L. Ed. 907. As was in conflict with said provision of the Conheld by the Supreme Court, in McCullough y. stitution. The effect of the decision was to lature, . notwithstanding its inapplicability or privilege tax upon a federal instrumentalto one of the principal railroads within the ity acting under congressional authority. state, but over which the Legislature was  It is urged with much ability that without power to levy such tax. Here the the provision of the act which provides that, statute, operating alike upon all those en- | “In lieu of any other taxes that might be gaged in the industries named and over | levied and collected upon an ad valorem which the state could rightfully exercise the basis upon the equipment and machinery in authority attempted, and not being discrim. and around any well producing natural gas inatory, within a constitutional meaning, is or petroleum or other mineral oil, and used not repugnant to section 5, art. 10, of the in such actual operation of such producing Constitution, requiring that “taxes shall be well,” violates both sections 46, 46u, and 50, uniform upon the same class of subjects." | art. 5, of the state Constitution, prohibiting The statutes provide that all real property
the Legislature from passing any law exin the state, other than such as is specific
empting any property within the state from ally exempted, shall be subject to taxation. | taxation, and that whether the tax be upon Rev. Laws 1910, § 7302; section 1, subd. A,
the property as such or upon the occupation c. 107, Sess. Laws 1915. Yet, notwithstand
or business. The first contention is easily ing the statute, a large amount of land is
met; for by the terms of the act the property not taxed and cannot be, by reason of treaty
named is not exempt unless a gross producstipulations or agreements containing cove
tion tax is collected as therein provided. If nants against taxation made and entered in
a property tax is collected under the general
taxing laws of the state, no gross production to between the government of the United
tax is levied or collected, unless, possibly, in States and the Indian tribes in the state,
the case of oil on hand for more than 30 and which provisions inure to the benefit of
days from tax-rendering period. Hence as the enrolled tribal members to whom the
to such tax the act does not attempt to exlands of the tribe were allotted. Choate v.
empt equipment and machinery. Such is the Trapp, 224 U. S. 665, 32 Sup. Ct. 565, 56 L.
clear and unmistakable intent of the act, givEd. 941; Gleason v. Wood, 224 U. S. 679,
ing to the language used its plain and com32 Sup. Ct. 571, 56 L. Ed. 947; English v.
monly accepted meaning. Richardson, 224 U. S. 680, 32 Sup. Ct. 571,
As to those liable to and who pay a gross 56 L. Ed. 919. It could not successfully be
production tax, it will be noted that the act contended, nor has it to our knowledge ever
does not in terms exempt equipment and mabeen claimed, that because of the nontax
chinery, but provides that the payment of ability of these lands for the time other
the gross production tax shall be in lieu of lands of like character, but unrestricted in
any other tax that might be levied and colthe matter of exemption from taxation, were
lected on said property upon an ad valorem not, therefore, subject to taxation; and this
basis. This is not an exemption from taxaregardless of both our Constitutional inhibi.
tion within the meaning of the constitutional tions against exempting property from tax inhibitions, but a substitution of one form of ation, and requiring that all taxes shall be taxation for another upon the terms and conuniform upon the same class of subjects. ditions named. The equipment and machin
In the leasing of the lands of the Osage ery referred to is confined to that used in Nation for oil and gas, as well as in the mak the actual operation of producing wells, hence ing of such leases on the restricted lands of does not include equipment and machinery certain of the allottees of the Five Civilized on hand, and not so used. By the act a tax Tribes, the Department of the Interior, act is levied based upon the value of the gross ing pursuant to lawful warrant, has in be production. This can only arise through the half of these Indians, whom Congress has discovery and production of oil or gas. The regarded as dependent, and in need of the equipment and machinery owned by the progovernment's aid and protection, assumed ducer, and which is an indispensable agency full and complete jurisdiction and control in the discovery and production of the comduring the period of dependency. This form modity, forms a part of the property out of of general guardianship is exercised because which the production arises. Without it of the duty owing these dependent people, production is impossible. The same is not that the vast oil and gas deposits underneath taxed directly, neither are the lands or leastheir lands may be developed and marketed, es, where the production is through a lessee. and those lawfully entitled thereto given the A very instructive case, and one that gives benefit thereof. As was said in the Harrison strong support to our views, is that of McCase, the instrumentalities made use of by the Henry v. Alford, 168 U. S. 651, 18 Sup. Ct. general government are the lessees of such 242, 42 L. Ed. 614. There an act of the Dalands or their duly authorized assignees. kota Legislature exempted from taxation, More need not be said in this connection, for other than as provided by the act, lands the question is foreclosed by the opinion in granted to aid in the construction of the the Harrison Case. The limitation upon the Northern Pacific Railroad, which were outstate's power in this regard is expressly rec- side of the right of way and not used in its ognized by the act itself, and by counsel, who business as a common carrier, and provided