the laws.10 The point, however, is not discussed, but is ruled upon as above stated, based upon the authority of a decision by the United States Supreme Court. But that case only considered the question of the validity of certain Subway Acts of New York, under said Fourteenth Amendment, and held that the contention could not be sustained that said amendment was violated by that requirement of the State statutes which required the electric companies to pay the salaries of the Subway Commissioners.11 It is decided, however, that the denial of the constitutional guaranty of equal taxation is a deprivation of the rights secured by the Fourteenth Amendment of the Federal Constitution; that the requirement of uniformity of taxation applies to the mode of assessment as well as to the rate of levy; that property must be assessed at a just proportion in the value thereof; that railroad and telephone companies cannot be assessed at the full value of their properties while other classes of property are assessed at a less percentage, without any attempt at equalization; that neither erroneous action of the board making the assessment nor defective legislation as to equalization justifies a discrimination against a certain species of property, which imposes an unconstitutional burden thereon; and that legal and constitutional inequality of taxation does not arise in mere cases of individual hardship, nor does it apply to inequalities necessarily existing because of the different kinds of property and its various uses, rendering proportionately difficult the ascertainment of its real value. Nor are these differences in value, arising from mere difference of opinion, within the inhibition against inequality. But this term does cover differences in the scheme, mode, system, or method of assessing property, as well as applying to those substantial differences relating to large classes of property.12 10 Philadelphia v. Postal Teleg. Cable Co., 67 Hun (N. Y.), 21, 4 Am. Elec. Cas. 92, 21 N. Y. Supp. 556, 50 N. Y. St. R. 301. 11 People, New York Elec. L. Co. v. Squire, 145 U. S. 175, 4 Am. Elec. Cas. 122, 12 Sup. Ct. 880. This case affirmed upon the general points involved as to the Subways Acts. 107 N. Y. 593, 12 N. Y. St. R. 832, 28 Week. Dig. 175, 14 N. E. 820, 1 Am. St. Rep. 893, 2 Am. Elec. Cas. 176. See S. C., 6 N. Y. St. R. 281, 14 Daly (N. Y.), 154, 1 N. Y. St. R. 633. 12 Railroad & Teleph. Cos, V. Board of Equalizers, 85 Fed. 302, cited as to method of valuation of § 113a. continued. The equal protection of the laws is not denied by a classification which includes railroad and express companies, as subject to the unit rule of taxation. 13 Neither the Fourteenth Amendment of the Federal Constitution nor the commerce clause thereof is violated by taxing an interstate corporation upon the basis of deducting the value of all its tangible property from its entire property as an entirety, and assessing its intangible property within the State upon the mileage basis of the proportion of its lines within and without the State.14 So, intangible property owned by a corporation which, from its nature, is incapable of being owned by individuals may, in so far as there is any such property, be taxed without violating the constitutional provision for uniformity of taxation. Nor is the Fourteenth Amendment violated by such taxation of intangible property, when based upon its capital stock, proportioned to the amount which the gross receipts in the State bear to the total gross receipts.15 Where a State provides for equalization as to every considerable class of property, with the exception that it dispenses by statute with the equalization of the assessment on property of a particular character with assessment on other kinds of property separately treated, such statute constitutes special and class legislation. The State cannot discriminate in this respect between different kinds of property.16 property in Louisville & N. R. Co. v. Coulter, 131 Fed. 282, 303. Cited in Central Pac. R. Co. v. Evans, 111 Fed. 71, 74, to the point that where there is an unlawful departure from the provisions of the law relating to assessment, or any violation of the fundamental law, it is the duty of the court to enjoin the proposed invalid assessment cited in Nashville C. & St. L. Ry. v. Taylor, 86 Fed. 168, 170, where the allegations of the bill were of the character of those in the cited case. 13 Sanford v. Poe, 165 U. S. 194, 17 Sup. Ct. 305, 41 L. Ed. 683. 14 Weir v. Norman, 166 U. S. 171, 17 Sup. Ct. 527, 41 L. Ed. 960. 15 Western Un. Teleg. Co. v. Norman, 77 Fed. 13, Ky. Stat. 1894, § 4077; Adams Express Co. v. Kentucky, 166 U. S. 171, 41 L. Ed. 960, 17 Sup. Ct. 527, which affirmed an appeal from the decree of the circuit court which proceeded on the grounds stated by Judge Barr in the Western Union Teleg. Co. v. Norman, 77 Fed. 13. 16 Railroad & Teleph. Cos. V. Board of Equalizers, 85 Fed. 302. (See citations of this case in last note to 113 herein.) The terms of a charter of a corporation must V. be resorted to in ascertaining the purpose of its incorporation, as affecting its liability to assessment by a State board of equalization. Evanston Electric Illum. Co. Kochersperger, 175 Ill. 26, 51 N. E. 719. See generally as to taxation and depreciation of property, "due process of law" and "equal protection of the laws," under Fourteenth Amendment of United States Constitution, the following cases: United States: Union Refrigerator Transit Co. v. Commonweath of Ky., 199 U. S. 194, 26 Sup. Ct. 36, 50 L. Ed.- revg. 26 Ky. L. R. 23, 80 S. W. 490, 26 Ky. L. R. 392, 81 S. W. 268; Glidden v. Harrington, 189 U. S. 255, 23 Sup. Ct. 574, 47 L. Ed. 798, affg. 179 Mass. 486, 91 N. E. 54; Merchants & M. Nat. Bank v. Pennsylvania, 167 U. S. 461, 17 Sup. Ct. 829, 42 L. Ed. 236; Adams Express Co. V. Indiana, S. C.; United States Express Co. v. Indiana, S. C.; American Express Co. v. Indiana, 165 U. S. 255, 41 L. Ed. 707, 17 Sup. Ct. 991; rehearing denied, 166 U. S. 185, 17 Sup. Ct. 604; Western Un. Teleg. Co. v. Indiana, 165 U. S. 304, 14 L. Ed. 725, 17 Sup. Ct. 345; St. Louis I. M. & S. Ry. Co. v. Davis, 132 Fed. 629; Nashville & St. L. R. Co. v. Taylor, 86 Fed. 168. See Kane v. Erie R. Co., 133 Fed. 681, 67 C. C. A. 653; W. C. Peacock & Co. v. Pratt, 121 Fed. 772, 58 C. C. A. 48. California: Bank of California v. City & County of San Francisco, 142 Cal. 276, 64 L. R. A. 918, 75 Pac. 832. Connecticut: State V. Travelers' Ins. Co., 70 Conn. 590, 40 Atl. 465. See Appeal of Nettleton, 76 Conn. 235, 56 Atl. 565. Georgia: Singer Mfg. Co. v. Wright, 97 Ga. 114, 25 S. E. 249. Maryland: Simpson v. Hopkins, 82 Md. 478, 33 Atl. 714. Nebraska: Chicago, Burlington & Quincy R. v. Richardson County Neb., 100 N. W. 950; Cummings v. Hyatt, 54 Neb. 635, 74 N. W. 411. New York: See People v. State Board Tax Commr's, 174 N. Y. 417, 67 N. E. 69, 2 Elliott on Railroads (Ed. 1897), §§ 771-777, pp. 10911096. Classification for taxation; equal protection of the laws under Fourteenth Amendment, when not denied. Commonwealth, Titusville v. Clark, 10 Penn. Super. St. 507. Corporation is not a citizen as to privileges and immunities of citizen. Orient Ins. Co. v. Daggs, 172 U. S. 557, 19 Sup. Ct. 281, 43 L. Ed. 552, 28 Ins. L. Jour. 97, affg. 136 Mo. 382, 38 S. W. 85, 35 L. R. A. 227, 26 Ins. L. Jour. 67; Peter Schoenhofen Brewer's Application, 8 Penn. Super. Ct. 141, 42 Week. N. of Cas. 402, and cases cited. Railroad corporations are persons and citizens as to privileges and immunities. Pittsburg, C. C. & St. L. R. v. Montgomery, 152 Ind. 1, 49 N. E. 582, 9 Am. & Eng. R. Cas. (N. S.) 792. 219 stitution statutes § 114. Commerce Federal Constitution Penalty Telegraphic Conclus Penalty statutes Telegraphic despatches - Arkansas. In Arkansas the stat ute which imposed a penalty for negligent failure to transmit 1 See chap. 32 herein. a telegraphic despatch was expressly repealed and, under the later statute, the penalty provided can only be recovered for refusal to transmit, which does not include mere negligence, where there is a bona fide effort to transmit, such statute only forbidding discrimination as to charges or promptness. 1a Nor does said act impose a penalty for failure to deliver such message from the terminal office to the addressee.2 In an earlier case in this State the statute imposed a penalty for neglect or refusal to transmit or deliver messages in good faith and with impartiality. The despatch was sent from without to within the State, and the negligence of the telegraph company arose within the State. Judgment was rendered for the plaintiff to recover the penalty, the court holding that delivery was part of the duty of transmission. In none of these cases, however, was the question of interference with interstate commerce discussed or raised, although it was necessarily involved. - § 115. Commerce Federal Constitution - Penalty statutes -Telegraphic despatches-Georgia.- In Georgia a message sent from without the State was not delivered after it reached the office within the State, and the statute imposing a penalty for failure to transmit and deliver telegraphic despatches was held not invalid, as interfering with interstate commerce.5 And such a penalty statute is valid as to acts of negligence occurring entirely within the limits of the State, although happening in connection with messages to be transmitted to points la Frauenthal V. Western Un. Teleg. Co., 50 Ark. 78, 21 Am. & Eng. Corp. Cas. 70, 6 S. W. 236, 2 Am. Elec. Cas. 479; § 6419, Mansf. Dig., Repealed, Acts, 1885, p. 176; Batimore & Ohio Teleg. Co. v. State, 6 S. W. 513, Brooks v. Western Un. Teleg. Co., 56 Ark. 224, 4 Am. Elec. Cas. 662, 19 S. W. 572. See Sandels & Hills, Dig. of State of Ark. 1894, § 7334. 2 Brooks v. Western Un. Teleg. Co., 56 Ark 224, 4 Am. Elec. Cas. 662, 19 S. W. 572. 3 Gantt's Ark. Dig., § 5721. 4 Little Rock & Ft. Smith Teleg. Co. v. Davis, 41 Ark. 79, 8 Am. & Eng. Corp. Cas. 72. 5 Western Un. Teleg. Co. v. Lark, 95 Ga. 806, 23 S. E. 118. Act of Dec. 17, 1894, repealed Act of Oct. 22, 1887, imposing penalties upon telegraph companies in certain cases, and the Act of Dec. 20, 1892, amending same. Woodburn v. Western Union Teleg. Co., 95 Ga. 808, 23 S. E. 116. |