At any rate, its provisions are binding upon the taxpayer and enforceable against his property as long as they do not conflict with the provisions of the federal constitution, or the exclusive powers vested by it in congress.

§ 1116. Over-valuation not alone a ground of objection.— Over-valuation is not of itself a ground of action at law for the excess of taxes paid beyond what should have been levied upon a just valuation. The courts cannot in such cases take upon themselves the functions of a revising or equalizing board.1 board. It is only when the over-valuation of property has arisen from the adoption of a rule of appraisement which conflicts with a constitutional or statutory direction, and operates unequally not merely upon a single individual or corporation, but upon a large class of individuals or corporations, that a party aggrieved may resort to a court of equity to restrain the exaction of the excess upon payment or tender of what is admitted to be due.2

It must appear that the enforcement of the tax would lead to a multiplicity of suits or produce irreparable injury, or, where the property is real estate, that it would throw a cloud upon the title of the complainant before the aid of a court of equity can be invoked.3

§ 1117. Taxation of railroad property in general.—— Few classes of property are more difficult of a fair and accurate assessment for taxation than railroads. From its nature, it is of little value aside from its earning

1 Newman v. Supervisors, 45 N. Y. 676, 687; Bruecher v. Village of Port Chester, 101 N. Y. 240, 244; Lincoln v. Worcester, 8 Cush. 55, 63; Hicks v. Westport, 130 Mass. 478; Balfour v. City of Portland, 28 Fed. Rep. 738.

2 See Cummings v. Nat. B'k, 101 U. S. 153.

Dows v. City of Chicago, 11 Wall. 108. See City of Milwaukee v. Koeffler, 11 Am. & Eng. Corp. Cas. 495.

power as a means of transportation, if we except the lands used for depots, machine-shops and the like, and the buildings thereon. One method of arriving at a correct conclusion is to consider what persons of good judgment would give for the property, with a view of continuing to employ it in business to which it is at present devoted. Another plan sometimes resorted to is to make its net earnings the basis of a calculation, and to fix the valuation for the purpose of assessment at the amount of capital which would be required to yield the net income at the legal rate of interest. But this plan would give no opportunity to make allowances for bad management or diversions of receipts to illegitimate purposes, or for unprofitable business. It sometimes happens that owing to the lack of remunerative business or to poor judgment on the part of the management there are no net earnings. In that case the property would escape taxation altogether.

It is obviously unjust to make the gross earnings the basis of calculation as is sometimes done. A large volume of business may signify large profits or it may mean a loss; nor do extensive operations necessarily result from a large investment. On the other hand, a comparatively small investment in and operation of a line extending for a short distance through fertile and populous sections and enjoying a monopoly of the business may, on a much less volume of gross receipts, yield a large aggregate profit.1

1 In New York, in assessing a railroad for taxation, the assessors may properly refer to the reports of the company made under oath, and, as required by law, to ascertain the earning capacity of the road. People v. Hicks, 105 (N. Y.), 198; 11 N. E. 653.

The assessment law of Colorado (Gen. St. Colo., sec. 2847) provides, in respect to the taxation of railroads, that the "property shall be valued at its full cash value, and assessments shall be made upon the entire railway within this state, and shall include the right of way, road-bed," etc. Held, that the term “right of way," as used in the statute (Gen. St., sec. 2847), does not relate to a mere

1118. The Connecticut scheme of railroad taxation.No fairer or more accurate method can be found than that provided by the statutes of Connecticut. There the market value of the shares of railroads, at the date of assessment, is taken as its true valuation, and the property of the railroad company is fixed at the aggregate value of its entire capital stock. By making such

intangible right of crossing, but to the strip of land appropriated by the railroad company for its use, and upon which its road-bed has been built. Keener v. Union Pac. Ry. Co., 31 F. 126.

The New Jersey Law for taxing railroads (P. L. 1884, p. 142) directs the valuation of the property of these two classes of companies to be made in a distributive mode; that is, (1) off the main stem; (2) the other real estate used for railroad purposes; (3) the tangible personal property; (4) the franchises. Central R. R. v. State Board of Assessors, 49 N. J. L. 1; 7 A. 306.

The laws of Kentucky provide for railroad taxation by means of valuation by a state board of equalization, and a certification of such assessment lists to the county court and the railroad liable for the taxes. Kentucky Cent. R. Co. v. County of Pendleton (Ky.), 2 S. W. 176. In Illinois it is provided that railroad property shall be assessed at its fair cash value (Revenue Act, secs. 3, 4), and that for the assessment of railroad property by the state board of equalization, a tax assessed against railroad property, based upon a valuation by the board somewhat above its conceded value, is valid, although all other property in the same townships was assessed by the town assessors at one-third of its value. Illinois & St. L. R. & Coal Co. v. Stookey, 122 Ill. 358; 13 N. E. 516.

Where a state constitution in one section provides for equality of taxation and another specifies what property is subject to taxation, these provisions taken together have not the effect of preventing the legislature from modifying the terms of a provision for the payment by a railroad company of a percentage of gross earnings in lieu of another taxation, where that method had been established prior to the adoption of the constitution. In re County of Stevens (Minn.), 31 N. W. 942.

In estimating the value of railroad property for taxation, the cost of the acquisition of such property is not an absolute criterion of such value, but is an important element in the circumstances on which a judgment on the subject is to be formed. Cent. R. R. v. State Board of Assessors, 49 N. J. L. 1; 7 A. 306. Under Rev. St. Ill., c. 120, § 109, which provides that railroad property shall be assessed by the state board of equalization as "railroad track" and "rolling stock," and the amount of such assessment certified to the county clerks, and by them distributed among the several municipalities entitled thereto, it is sufficient in the lists of property upon which road taxes are levied to describe railroad property as railroad track," ") ," "proportion of rolling stock," "rolling stock main line," and "main track." Wabash Ry. Co. v. People (Ill.), 27 N. E. 456. Road taxes levied in a district through which a railroad runs are not a lien on railroad property lying within the county, but outside the district. Wabash Ry. Co. v. People (Ill.), 27 N. E. 456.

แ

value the basis the valuation of the portion within the state of a railroad extending into or through two or more states can be easily proportioned to the entire length of the road. In the same manner, the proportion of the taxes to which each county, district or municipality in which a portion of the road lies is entitled may be readily found.

If the cash on hand or other personal property and the real estate owned by the company outside of its roadway, roadbed, structures and superstructures have been taxed separately, the amount of taxes paid on these should be deducted from the capital stock taxes. Such deduction is provided for by the Connecticut statute.1

§ 1119. Railroads in more than one state. Where a railroad lies partly in two or more states, one of them cannot tax the value of the entire road either directly or indirectly. It cannot fix the valuation of the part within the state at the value of the entire capital stock, but should ascertain the value of the entire line or the entire capital stock, if that is made the basis of valuation, and then place such a proportion of the valuation upon the part within the state as its length bears to the entire length of the road.2

In estimating the value of the property of a railroad company by reference to the current cash value of the entire number of its shares, the current cash value of outstanding bonds secured by mortgage upon its property should be subtracted from the result.3

1 Secs. 5 and 6, act of 1876, concerning taxation of railroads for construction of this statute, see State v. Housatonic R. R. Co., 48 Conn. 44.

2 State Treasurer v. Auditor General, 46 Mich. 224; Louisville, etc., R. R. Co. v. The State, 8 Heisk, 663.

8 State R. R. Tax Cases, 92 U. S. 575.

§ 1120. Exemptions not favored. Exemptions, not being favored, cannot be derived by implication ;1 and being a personal privilege, an exemption cannot be assigned or transferred.2

A subsequent legislative act, taxing the property of a new corporation formed by the consolidation of two

1 St. L. I. M. & S. R. Co. v. Laflin, 30 Ark. 693; Weston v. Shawano Co., 44 Wis. 257; Jones & N. Mfg. Co. v. Com., 69 Pa. 137; Providence B’k v. Billings, 4 Pet. 514; Phila. & W. R. Co. v. Md., 10 How. 376; Delaware R. R. Tax Case, 18 Wall. 206; State v. Matthews, 3 Jones L. 451; Gordon v. Baltimore, 5 Gill, 231; Judson v. State Minor Ala., 150; St. Louis v. Boatman's Ins. & Trust Co., 47 Mo. 150. They are not favored. Sioux City v. Independent School Dist., 55 Ia. 152; Griswold College v. State, 46 Ia. 275; Tucker v. Ferguson, 22 Wall. 578; Burlington & M. R. R. Co. v. Hayne, 19 Ia. 143. They are contrary to public policy. Consequently can only be allowed when granted in clear and unmistakable terms. Nashville C. & St. L. R. Co. v. Marion Co., 7 Lea, 665; Wilson v. Gaines, 103 U. S. 421; Hage v. Richmond & D. R. Co., 99 U. S. 349; Allen v. Morse, 72 Me. 502; Erie R. Co. v. Penn. 21 Wall. 492; People v. Long Island City, 76 N. Y. 20; People v. New York Tax Commrs., 76 N. Y. 64. They must be strictly construed. R. R. Co. v. Berks Co., 6 Pa. 70; People v. New York Tax Commrs., 76 N. Y. 77; Wayne Co. v. Delaware & H. Canal Co., 15 Pa. 351; Crawford v. Burrell, Twp. 53 Pa. 219; Com. v. Chesapeake & O. R. Co., 27 Gratt. 348; Charles River Bridge v. Warren Bridge, 11 Pet. 548. "Immunity from taxation by the state will not be recognized unless granted in terms too plain to be mistaken." Chicago, B. & K. C. R. Co. v. State of Missouri, 7 S. Ct. 1300.

A railroad charter providing that it should pay to the state a certain sum of taxes, "and no more," held, these words are a limitation as to state taxation only, and do not relieve from county taxes. Kentucky Cent. R. Co. v. County of Pendleton (Ky.), 2 S. W. 176.

For an act held to confer exemption, see Prop. Rural Cemetery v. Commrs. of Worcester County (Mass.), 25 N. E. 618.

A contract between a state and a railroad company that the state will accept from the company a percentage on the cost of their road in lieu, and satisfaction of, all other taxation, applies as well to franchises and property acquired after the act as to those previously granted. DIXON, J., dissented. State v. Morris & E. R. Co., 49 N. J. L. 193; 7 A. 826.

So an act exempting the lands of a railroad and canal company exempts also all improvements made thereon for railroad, canal, depot, transhipping, or landing purposes, a grain elevator thereon, built by a railroad company, is exempt from such taxation. State v. Jersey City (N. J.), 9 A. 782.

A corporation whose business is collecting and selling ice, is not such a manufacturing company as is contemplated by the act of 1881 (Laws N. Y. 1881, c. 361), exempting manufacturing companies from taxation. People v. Knickerbocker Ice Co., 99 N. Y. 181; 1 N. E. 669.

2 State v. Whitworth, S Lea, 594; East Tenn. Va. & Ga. R. Co. v. Hambleton Co., 102 U. S. 273.