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Statement of the Case.

property had been included in the valuation in violation of the provisions of the constitution of California, thereby invalidating the whole assessment.

such proportion from any money then, or to become, due said county, or city and county. Such action must be begun on or before the first Monday in February of the year succeeding the year in which the taxes were levied, and a failure to begin such action is deemed a waiver of the rights of action. [In effect March 9, 1883.]

"Section 3670. After the first Monday of February of each year, the controller must begin an action in the proper court, in the name of the people of the State of California, to collect the delinquent taxes upon the property assessed by the State Board of Equalization; such suit must be for the taxes due the State, and all the counties, and cities and counties, upon property assessed by the Board of Equalization, and appearing delinquent upon the Duplicate Report of Apportionment of Railway Assessments.' The demands for state and county and city and county taxes may be united in one action. In such action a complaint in the following form is sufficient :

"(Title of court.)

The People of the State of California`

V.

(Naming the Defendant)

"Plaintiff avers that on the day of in the year (naming the year), the State Board of Equalization assessed the franchise, roadway, road-bed, rails, and rolling-stock of the defendant at the sum of (naming it) dollars. That the Board apportioned the said assessment as follows: To the county of (naming it) the sum of (naming it) dollars (and so on, naming each county).

"That the defendant is indebted to plaintiff for state and county taxes for the year eighteen - in the following sums: For state taxes, in the sum of (naming it) dollars, for county taxes of the county of (naming it), in the sum of (naming it) dollars, etc., with five per cent added for non-payment of taxes. Plaintiff demands payment for said several sums, and prays that an attachment may issue in form as presented in section five hundred and forty of the Code of Civil Procedure.

"(Signed by the controller or his attorney.)

"On the filing of such complaint the clerk must issue the writ of attachment prayed for, and such proceedings shall be had as under writs of attachment issued in civil actions; no bond nor affidavit previous to the issuing of the attachment is required. If on such action the plaintiff recover judgment there shall be included in the judgment as counsel fees, and in case of judgment of taxes, after suit brought but before judgment, the defendant must pay as counsel fees such sums as the court may determine to be reasonable and just. Payment of the taxes on the amount of the judgment in the case must be made to the state treasurer. In such actions.

Statement of the Case.

All the suits were commenced in a court of the State, and were removed on petition of the defendants to the Circuit

the duplicate record of assessments of railways and the duplicate record of apportionment of railway assessments, or a copy of them, certified by the controller, showing unpaid taxes against any corporation, person, or association for property assessed by the State Board of Equalization, is prima facie evidence of the assessment, the property assessed, the delinquency, the amount of the taxes due and unpaid to the State, and counties, or cities and counties, therein named, and that the corporation, person, or association is indebted to the people of the State of California, in the amount of taxes, state and county, and city and county, therein appearing unpaid, and that all the forms of law in relation to the assessment and levy of such taxes have been complied with. [In effect March 9, 1883.]

"Section 3671. The assessment made by the county assessor, and that of the State Board of Equalization, as apportioned by the Board of Supervisors to each city, town, township, school, road, or other district in their respective counties, shall be the only basis for taxation for the county, or any subdivision thereof, except in incorporated cities and towns, and may also be taken as such basis in incorporated cities and towns when the proper authorities may so elect. All taxes upon townships, road, school, or other local districts shall be collected in the same manner as county

taxes. [In effect March 9, 1883.]

"Section 3672. The Board of Supervisors of each county must meet on the first Monday of July in each year to examine the assessment book and equalize the assessment of property in the county. It must continue in session for that purpose from time to time until the business of equalization is disposed of, but not later than the fourth Monday in July. [In effect January 1, 1873.]

"Section 3673. The Board has power, after giving notice in such manner as it may, by rule, prescribe, to increase or lower the entire assessment roll, or any assessment contained therein, so as to equalize the assessment of the property contained in said roll, and make the assessment conform to the true value of such property in money. [In effect March 22, 1880.]

"Section 3674. No reduction must be made in the valuation of property, unless the party affected thereby, or his agent, makes and files with the Board a written application therefor, verified by his oath, showing the facts upon which it is claimed such reduction should be made. [In effect January 1, 1873.]

"Section 3676. Upon the hearing of the application the Board may subpœna such witnesses, hear and take such evidence in relation to the subject pending, as in its discretion it may deem proper. [In effect January 1, 1873.] Section 3692. The powers and duties of the State Board of Equalization are as follows:

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"1. To prescribe rules for its own government, and for the transaction of its business.

Statement of the Case.

Court of the United States for what is now the Northern District of California. In each, judgment was rendered for

"2. To prescribe rules and regulations, not in conflict with the constitution and laws of the State, to govern supervisors when equalizing, and assessors when assessing.

"3. To make out, prepare, and enforce the use of forms in relation to the assessment of property.

"4. To hold regular meetings at the state capitol on the second Monday in each month, and such special meetings as the chairman may direct.

"5. To annually assess the franchise, roadway, road-bed, rails, and rolling-stock of all railroads operated in more than one county in this State, at their actual value, on the first Monday in March, at 12 o'clock M., and to apportion such assessment to the counties, and cities and counties, in which such railroads are located in proportion to the number of miles of railway laid in such counties, and cities and counties, in the manner provided for in section 3664 of said code.

"6. To equalize the assessment of each mortgage, deed of trust, contract, or other obligation by which a debt is secured, and which affects property situate in two or more counties, and to apportion the assessment thereof to each of said counties.

7. To transmit to the assessor of each county, or city and county, its apportionment of the assessments made by said Board upon the franchises. roadways, road-beds, rails, and rolling-stock of railroads; and also its apportionment of the assessments made by such Board upon mortgages. deeds of trust, contracts, and other obligations by which debts are secured, in the manner provided for in § 3664 of said code.

"8. To meet at the state capitol on the third Monday in August, and remain in session from day to day (Sundays excepted) until the third Monday in September.

9. At such meeting to equalize the valuation of the taxable property of the several counties in this State for the purpose of taxation; and to that end, under such rules of notice to the clerk of the Board of Supervisors of the county affected thereby as it may prescribe, to increase or lower the entire assessment roll, or any assessment contained therein, so as to equalize the assessment of the property contained in said roll, and make the assessment conform to the true value in money of the property assessed!, and to fix the rate of state taxation, and to do the things provided in § 3693 of said code.

10. To visit as a Board, or by the individual members thereof, whenever deemed necessary, the several counties of the State, for the purpose of inspecting the property and learning the value thereof.

"11. To call before it or any member thereof, on such visit, any officers of the county, and to require them to produce any public records in their custody.

12. To issue subpoenas for the attendance of witnesses or the production

Argument for Plaintiffs in Error.

the defendant, to review which the plaintiff below, in each case sued out a writ of error.

Mr. J. M. Wilson for plaintiffs in error. Mr. Samuel Shellabarger was with him on the brief. Mr. G. A. Johnson, Attorney General of California, filed a brief for same.

The principal questions presented by these records are the following:

First. Inasmuch as the constitution of California provides that in assessing property held by individuals for taxation the amount of encumbrances by mortgage is declared to be an interest in the property, and shall be assessed against the mortgage, and the value in excess of the mortgage shall be assessed against the owner; and inasmuch, as in cases of such corporations as the defendant, operating a railroad in more than one county of the State, no such division is provided for

of books before the Board, or any member thereof, which subpœnas must be signed by a member of the Board, and may be served by any person. "14. To appoint a clerk, prescribe and enforce his duties. The clerk shall hold his office during the pleasure of the Board.

"15. To report to the governor, annually, a statement showing: "First. The acreage of each county in the State that is assessed.

"Second. The amount assessed per acre.

"Third. The aggregate value of all town and city lots.

"Fourth. The aggregate value of all real estate in the State.

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Fifth. The kinds of personal property in each county, and the value of each kind.

"Sixth. The aggregate value of all personal property in the State. "Seventh. Any information relative to the assessment of property and the collection of revenue.

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Eighth. Such further suggestions as it shall deem proper.

16. To keep a record of all its proceedings. [In effect April 3, 1880.] "Section 3693. When, after a general investigation by the Board, the property is found to be assessed above or below its full cash value, the Board may, without notice, so determine, and must add to or deduct from the valuation:

"1. The real estate.

"2. Improvements upon such real estate.

"3. The personal property, except money, such per centum respectively as is sufficient to raise or reduce to its full cash value." [In effect April 3, 1880.]

Argument for Plaintiffs in Error.

or permitted; is this a denial to that company of the equal protection of the laws as contemplated by the Fourteenth Article of Amendment to the Constitution of the United States?

Second. Inasmuch as neither the constitution of the State of California, nor any law of that State, (as is claimed by the defendant,) provides for any special notice to be given to the defendant, of such assessment, and makes no specific provision for a hearing before the Board of Equalization, but only such notice and right to be heard as might be implied from the existence of the laws making it the duty of the property owners to make returns, and the officers to assess and apportion; - does this amount to a taking of the defendant's property, in the shape of taxes, without "due process of law," as contemplated by the Fourteenth Article of Amendment to the Constitution of the United States?

Third. Is the property in question exempt from taxation because of its relations to the government of the United States?

Fourth. Is this tax void because the franchise was blended with the roadway, road-bed, etc., in making the assessment?

In the beginning of this discussion we desire to call the attention of the court to the fact that the assessment in question is upon the franchise, road-bed, roadway, rails, and rollingstock of the defendant exclusively; that it does not embrace the value of the fences along the road, nor does it embrace any steamers used in connection with the business of said road, nor does it embrace any of the outlying lands granted to the company by the United States in aid of the construction of the road, and which are covered by the land-grant mortgage mentioned in the answer and findings of fact. The question, therefore, as to whether or not the method that may have been pursued by the State in assessing these outlying lands was a valid method, or whether the constitution and laws of the State of California in relation to and affecting the taxation of such lands are valid, is not involved in this record. And we have, therefore, to consider, in the discussion of this case, simply the question whether or not what has been done

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