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Vol. I.]

HUNTINGTON v. Cent. Pac. R. R. Co.

(No. 2.

&c.; and, secondly, “ Improvements," as engine-houses, station-houses, fences, water tanks, ties, rails, &c., which are either - buildings, structures, fixtures, fences," or, “ improvements erected upon or affixed to the land."

So, also, the interest of the company in the railroad is real estate under the general principles of the law, without reference to the statute, as held after a full discussion of a similar question by the supreme court of California, in N. B. f M. R. R. Company's Appeal, in the matter of widening Kearney Street, 32 Cal. 505.

Section 3650 of the Political Code, provides that :

" The assessor must prepare an assessment book with appropriate headings, alphabetically arranged, in which must be listed all property within the county, and in which must be specified in separate columns under the head

* 1. The name of the person to whom the property is assessed ;

2. Land by township, range, section, or fractional section; and when such land is not a congressional division or subdivision, by metes and bounds, or other description sufficient to identify it, giving an estimate of the number of acres, locality, and the improvements thereon ;

“ 3. City and town lots, naming the city or town, and the number, block, according to the system of numbering in such city or town, and improvements thereon ;

" 4. All personal property, showing the number, kind, amount, and quality ; but a failure to enumerate in detail such personal property does not invalidate the assessment;

5. The cash value of real estate, other than city or town lots;
“6. The cash value of improvements on such real estate;
*7. The cash value of city and town lots;
" 8. The cash value of improvements on city and town lots.”

Section 3651 gives the form of the assesment books to be used, ruled into separate columns, one column for each particular specified in the preceding section, with the appropriate headings, among which is one column with the heading “ Value of real estate other than city or town lots," and immediately following, another headed, “ Value of improvements thereon.” There is no special provision of the statute for a differ

ent mode of assessing railroads. There is no provision at all for assessing - railroads, as railroads. The only provisions pointing out any exceptional mode of assessing the property owned by railroad companies relates to the rolling stock, which is as follows, to wit:

" Section 3663. Where the railroad of a railroad corporation lies in several counties, its rolling stock must be apportioned between them, so that a portion thereof may be assessed in each county, and each county's portion must bear to the whole rolling stock the same ratio which the number of miles of the road in such county bears to the whole number of miles of such road lying in this State.”

In relation to equalization of assessments by the State Board of Equalization, section 3693 provides :

* When the property is found to be assessed above or below its full cash value, the board must add to, or deduct from, the valuation of

“1. The real estate ;

Vol. I.]

HUNTINGTON v. Cent. Pac. R. R. Co.

(No. 2.

“ 2. Improvements upon such real estate ;

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“Such per centum respectively as is sufficient to raise or reduce it to the full cash value."

Under these provisions of the law, railroads must be assessed like any other real estate. They fall clearly within the statutory definition of real estate. The lands and the improvements on them must also be assessed separately, and the land, not being congressional division or subdivision, must be described by “metes and bounds, or other description sufficient to identify it, giving an estimate of the number of acres, locality, and the improvements thereon." Unless so assessed, the state board cannot equalize the assessment in the mode required by section 3693, which must also equalize each separately by adding to or deducting" from the valuation of, 1. The real estate; 2. Improvements upon such real estate.” This may be an unsatisfactory way of assessing railroads, but if so, the wisdom of the legislature has so provided, and the mode must be pursued or the assessment will be void. It cannot be said that this was inadvertently done, for railroads were not overlooked, the mode of assessing the rolling stock having been carefully provided for. The bill alleges that the several county assessors, “ in making their assessments, did not assess the right of way separately as land consisting of so many acres of such or such a value per acre, nor did they describe it by reference to township, or range, or section, or fractional section, or by metes and bounds, or by other description, except as hereinafter stated, nor did they assess separately the improvements, or iron and ties constituting said superstructure, as improvements of such or such a value, according to the cash value of said ties and iron, nor did they value said lands at their cash value as lands, or as of the same value as other adjoining lands of like quality. On the contrary, they assessed said right of way and superstructure together as constituting one thing, and described them as so many miles of railroad of such or such a value per mile, without regard to the width of the right of way."

And further:

" That in ascertaining the valuation of said road, said assessors and board of equalization were not governed by the value of the land considered as land, and of the same value as adjoining lands of like quality, nor by the value of ties and iron considered as ties and iron, as new or old, or depreciated in value by use; but on the contrary, they lumped said lands and superstructure and considered them as one thing, and ascertained their value by taking into account the franchises of said company and their value, the cost of construction, fills, embankments, tunnels, cuts, and snowsheds, and the fact that said road extended from San Jose, in the State of California, to Ogden, in the Territory of Utah, — a distance of about eight hundred and seventy-five miles, — and there formed a junction

with the Union Pacific, and constitutes a part of a line of railroads extending from the Pacific to the Atlantic Ocean, and the amount of business transacted by said plaintiff on said road, and the profits derived by said plaintiff therefrom; all of which, as complainants aver, was contrary to the rules prescribed by the statute of said State in such case made and provided.”

Vol. I.)

HUNTINGTON v. CENT. Pac. R. R. Co.

(No. 3.

This is certainly neither literally nor substantially the mode of assessing prescribed by the statute ; and, as the application is heard on the bill alone, the averments of the bill must be taken as true. Besides, the description is defective. It gives so many miles of railroad without regard to the width of the land occupied, or to any specific location. The bill shows that the land occupied varies in width from 100 to 400 feet, and that it has a superstructure of ties and iron rails forming a track for cars to run on, depots, stations, &c. The description adopted by the assessor is no more definite than that in Kelsey v. Abbott, 13 Cal. 616, 619, which was held by the supreme court of California to be insufficient, and the assessment consequently void.

But we do not find it necessary to determine whether this defect is fatal. The assessment, as equalized by the state board set out in the bill, shows some curious results. The assessment as equalized in San Joaquin County is twice, and in Placer, more than three times as much per mile as in Santa Clara and Alameda counties, and that of Placer County two and one half times as great as in Nevada County. And the value of the rolling stock as equalized is not apportioned according to the number of miles in each county. But we are not prepared to say that the court could remedy an erroneous or unequal assessment, provided that it is made in the proper mode, upon the proper principle, and in other respects properly made. Doubtless it could not. This assessment, in our judgment, has more radical defects. It is not made in the way prescribed by the statute. It is not only not formally, but is not even substantially such an assessment as the statute requires. The statute, for some wise reason, it must be presumed, expressly requires that the interest in the land and the improvements “must be separately assessed, and separately equalized.

" This has not been done, and these assessments could not be separately equalized, because the board of equalization would have no data in view of the mode of assessment by which it could be determined what part had been assessed to the land, or what to the improvements.

In states where the statutes contain provisions similar to those in this State, defining real estate for the purposes of taxation, and as to the mode and principle of assessing real estate, as in New York, it has been repeatedly held that the railroads are taxable" as real estate in the several towns in which such real estate is to be taxed upon its actual value at the time of the assessment, whether that value is more or less than the original cost thereof ;” that “the assessors are simply to ascertain the value of the land, and of the erections or fixtures thereon, irrespective of the consideration whether the road is well or ill-managed, whether it is profitable to the stockholders or otherwise. Such property is to be appraised in the same manner as the adjacent lands of individuals, and without reference to other parts of the railway." Mohawk & Hudson R. R. Co. v. Clute, 4 Paige, 395; Alb. f Sch. R. R. Co. v. Osborn, 12 Barb. 225; A. & W. R. Co. v. Town of Canaan, 16 Barb. 244; see, also, S. f M. R. Co. v. Morgan Co. 14 Ill. 163; Tax Cases, 12 Gill & John. 117. Decisions under different statutes of course have no application.

The statute of New York, under which the decisions cited were made, gives a similar definition of real estate to that cited from the Code of California, and provides, that “ All real and personal estate liable to

VOL. I.

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Vol. I.]

HUNTINGTON v. Cent. Pac. R. R. Co.

(No. 3.

taxation shall be estimated and assessed by the assessors, at its full and true value, as they would appraise the same in payment of a just debt due from a solvent debtor. (Stat. N. Y. 1851, 333.) Section 3627 of the Political Code of California is substantially the same. It provides that “All property must be assessed at its full cash value ;” and section 3617 provides that “ The term • full cash value,' means the amount at which the property would be appraised if taken in payment of a just debt due from a solvent debtor." And the assessor must ascertain - all the property in his county subject to taxation, and must assess such property to the persons who own, claim, have the possession or control thereof."

That is to say, the property in each county must be assessed in that county, without reference to property in any other county, and the value must be estimated at the amount at which that particular land and improvements thereon would be “appraised if taken in payment of a just debt due from a solvent debtor," if taken by itself out of its connections. For it is that portion only that can be taxed and that can be sold, in any given county. In adopting the provisions of New York, the construction before put upon the statutes by the courts of New York must be presumed to have been contemplated.

The bill alleges that the railroad and its appurtenances were not assessed or equalized upon that principle in any of the counties whose collectors are made parties, but that, on the contrary, they “ lumped said lands and superstructure, and considered them as one thing, and ascertained their value by taking into account the franchises of said company and their value, the cost of construction, fills, embankments, tunnels, cuts, and snow-sheds, and the fact that said road extended from San Jose, in the State of California, to Ogden, in the Territory of Utah — a dis

tance of about eight hundred and seventy-five miles -- and there formed a junction with the Union Pacific, and constitutes a part of a line of railroads extending from the Pacific to the Atlantic Ocean, and the amount of business transacted by said plaintiff on said road, and the profits derived by said plaintiff therefrom; all of which as complainants aver, was contrary to the rules prescribed by the statute of such State in such cases made and provided.” If this is so, — and, for the purposes of this motion heard upon the bill alone, the allegation must be taken as true- the assessment was made in direct violation of the provisions of the statute.

Upon the hypothesis alleged many elements were considered which the statute does not contemplate. In addition to other improper elements considered, such an assessment would be equivalent to taking the valuation of an undivided part of the whole road extending entirely across two states and a part of a territory, and in principle, like the case of S. f M. R. Co. v. Morgan Co. 14 mil. 163, it would be taking into consideration value given to it by its connection with other property outside of the said counties, and even outside the state in which the assessments were made ; or, in other words, assessing the entire road, including property ouside of the several counties and state where the assessments were made, and then taking a proportionate part of the whole, corresponding to the number of miles of road situate in the particular county where the assessment is made. If the assessment had been made in the mode,

Vol. I.)

HUNTINGTON v. CENT. Pac. R. R. Co.

(No. 3.

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and upon the principle prescribed by the statute, without actual fraud, it would, doubtless, be incompetent for the court to inquire into any error of judgment in ascertaining the value, however gross it might be.

The law has devolved upon the assessors the sole duty of determining the amount, and upon the boards of equalization the duty and power of equalizing, and their determination is final, provided they act in the mode, and upon the principle which the statute requires

. But they cannot depart from the mode or the principle prescribed, for when they do this, they act without authority. The court can only inquire as to whether they have pursued the statute. In this case the allegations of the bill being taken as true, as they must be, as now presented, it is apparent that the assessment has not been made or equalized in pursuance of the statute, either in the mode of assessment, namely, by assessing the land and improvements separately, or in the principle adopted for ascertaining the value. Section 3650 of the Political Code expressly provides for listing. “ All personal property showing the number, kind, and quality; but a failure to enumerate in detail such personal property does not invalidate the assessment ;” and section 3807 provides that " When land is sold for taxes correctly imposed, as the property of a particular person, no misnomer of the owner, or supposed owner, or other mistake relating to the OWNERSHIP thereof, affects the sale, or renders it void or voidable." Thus it is provided, that a failure to mention in detail personal property, or to name the true owner of real estate otherwise " correctly" assessed, shall not vitiate the assessment; but we find no saving clause to protect an assessment substantially defective by a failure to assess in the mode, as to assess the land and improvements separately, and upon the principle prescribed by the statute such defects as now appear to exist in this assessment. The maxim expressio unius exclusio alterius est, would seem to be peculiarly applicable.

It has often been held by the supreme court of California and the courts of other states, that taxes and street assessments not assessed in strict accordance with the provisions of the statute are void. The statute confers the power, and it affords the measure of power. Smith v. Davis, 30

, Cal. 537 ; Kelsey v. Abbott, 13 Cal. 618; Mo88 v. Shear, 25 Cal. 38; Blatner v. Davis, 32 Cal. 329; Taylor v. Donner, 31 Cal. 482 ; People v. Sneath f Arnold, 28 Cal. 615; Falkner v. Hunt, 16 Cal. 167, 172-3 ; see, also, Shimmin v. Inman, 26 Me. 228; Willey v. Scoville's Lessees, 9 Ohio, 43; Blackwell on Tax Titles, 176.

In our judgment, the several assessments in question have not been made in accordance with the provisions of the statute in the particulars indicated, and on those grounds they are void.

But the mere fact alone, that the tax levied is void, affords no ground for equitable relief. Are there any other circumstances alleged which present a proper case for equitable cognizance? The bill alleges that the several tax-collectors, who are defendants, threaten to collect and will collect the said several taxes by forced sale of the said railroad, fixtures, and appurtenances, unless voluntarily paid by said Central Pacific Railroad Company; that they will sell the same and give certificates of sale and deeds to the purchasers, under the laws of the State ; that said deeds will be conclusive evidence of the validity of said assessments, and the

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