
    Louisville & Nashville Railroad Co. v. The State of Tennessee, Austin, County Judge, et al.
    
    1. County Bonds. Railroad Subscription. Recitals in Record.
    
    In a county court proceeding ordering an election to determine whether stock shall be subscribed by the county in a railroad, and bonds issue to pay for the stock, or in the proceedings ordering the issue of the bonds, the recitals of facts in the record to authorize the orders made, can not be disputed in a collateral proceeding — such as a suit to be relieved of a tax laid to pay interest on the bonds. 780
    2. Same. Application for. Commissioners or Directors.
    
    An application made in the name of commissioners appointed by the Legislature to organize a company, will not vitiate the order for such election, though the directors had been elected and were the proper agents of the company to make the application. 782
    3. Same. Quarterly Court. Majority of Justices.
    
    Though the act of 1871, c. 50, requires the order to be made by a majority of the justices at a quarterly term, yet bonds will not be subject to attack after issue because the order was made by a majority of the justices not at a quarterly term. 783
    4. Same. Const, of 1870, art. 2, s. 29. Excepted Counties.
    
    The Constitution of 1870, art. 2, s. 29, does not require, to hind one of the counties excepted by the proviso of that section, a majority of the whole number of voters in the county, but a majority of the votes cast in the election. 784
    5. Same. Same. Same.-
    
    The same excepting clause applies as well to a subscription of stock as to loan of credit. 784
    6. Same. Collateral attack.
    
    The validity of bonds issued is not subject to attack for any mere irregularity in the proceedings under which they were issued. 780
    Cases cited: Ross v. Anderson Co., MS., Knoxville, 1874; State v. Jeff. 21
    
      Co., 3 Hum., 305; State v. Crutcher, 2 Swan, 504.
    
      7. Railroad. Assessment of for taxation. By county.
    
    A county assessment of a railroad for taxation, by estimating the value of the whole road in the State and out of it, including rolling-stock, equipments and buildings, and then taking the average value per mile, and multiplying by the number of miles in the county, is not objectionable. 791. 801
    8. Same. Same. How ■valued.
    
    A railroad is not to be estimated as so much land usqd for farming purposes, but according to its value as a railway. 789
    9. Same. Same. Act of 1873, c. 118, s. 8.
    Railroad companies are not within sec. 8 of the act of 1873, c. 118, exempting any bank, banking association, or any other joint stock company from taxation, and laying the tax on the stockholder. 793
    10. Taxation. Constitution. Art. 2, s. 28, construed.
    
    The provision in the Constitution requiring all property to be taxed according to its value, it seems, forbids the exemption of any from taxation.
    11. Corporations. Property of.
    
    There are four elements of property in all joint stock companies: 1st. The capital stock; 2d. The corporate property; 3d. The franchise; 4th. The individual stock of the stockholders. 795
    12. Taxation. Assessment. District Assessor and Cownty Judge.
    
    The provision for separate assessments of the property in each civil district, by the several district assessors, does not prevent the County Judge, or other officer required to assess property omitted, from assessing, in gross, property of the same tax-payer extending through several districts. 795
    13. Same. Same. Standard of.
    
    The assessment of property is not subject to any exact standard, and that of the assessors appointed by law is to be presumed correct until the contrary appears. 796
    14. Certiorari. Constitution. Art. 6, s. 10, construed.
    
    The act of 1873, c. 44, prohibiting the use of the writs of certiorari and of supersedeas to stay the collection of any tax, is not violative of the Constitution, art. 6, s. 10. 804
    FROM SUMNER.
    Petition to Guild, J., for writs of certiorari and supersedeas to stay the collection of a tax and set aside the assessment. Application heard in open court, June Term, 1874, on petitions, answers and affidavits, and granted, and at the same time the petition dismissed. Appeal by petitioners.
    J. J. Vertrees for the plaintiff:
    1. Certiorari is the remedy: Code, 3124, 3123; Dillon on Municipal Cor., s. 739, notes; Bob v. State, 2 Yerg., 176; 1 Sneed, 453; Mayor and Aldermen v. Pearl, 11 Hum., 249; Wilson v. Lowe, 7 Col., 155; 2 Hum., 30; Peck, 362; Haywood, 54, 69; 6 Col., 340, 420; 2 Col., 20; 11 Hum., 252; Martin & Yer., 168; 7 Col., 153; Dillon on Municipal Cor., 692; 9 American Reports, 591; Comm. L. Rep., No. 10, 174; Smith v. Pen & Peagan, Knoxville, September Term, 1874.
    2. So perfect is this remedy, that equity will not interfere, unless special grounds of equitable jurisdiction exist: Fnmng v. St. Louis, 5 Wallace; Dor os v. Chicago, 11 Wallace, 109; LlannerinMe v. Georgetown, 15 Wallace, 547.
    3. The collection of illegal taxes can be restrained by this writ: State v. Foreign Bonds, 15 Wallace, 300; 7 Wallace, 262; 18 Wallace, 206; McGrath v. Loague, 6 Col., 340; Spears v. State,- Lbid, 420; 11 Hum., 249; Winston et al v. Penn. & Pacific, P. P. Co., MS., Nashville, Dec., 1872;, Smith v. Pen & Peagan, Comm. L. Rep. No. 10, 174, s. 73.
    And s. 7030 of the Code, and the act of 1873, c. 44, do not impair this writ in the collection of taxes.
    
      1. Because they relate to the collection of revenue due the State.
    2. Because, as to that, they are unconstitutional and void: 2 Yer., 264; 7 Yer., 22; 11 Michigan, 113; 2 Amer. Hep., 178; 1 Blackstone, 39; Constitution of Tennessee, art. 6. ■
    These assessments were unauthorized and void.
    1. Because they are an assessment upon property beyond the jurisdiction of Sumner: JR. JR. Co. v. Jaehson, 7 Wallace, 262; State Tax v. Foreign Bonds, 15 Wallace, 300;- Delaware State Tax, 18 Wallace, 206; 9 Yer., 490; Bedford v. City of Nashville, 7 Heis., 412; St. Louis Ferry Co., 11 Wallace, 431; Morgan v. Parham, 16 Wallace, 474.
    2. Because this taxation is unequal: Bedford v. City of Nashville, 7 Heis., 412; Toppan v. Merchants’ National BanJc, 19 Wallace.
    3. Because prohibited by statute, a tax being laid upon the shares of stock of individuals instead of the capital: , act of 1873, c. 118, s. 8.
    The Cumberland & Ohio railroad tax is null and void.
    1. And herein the defense of innocent purchasers is unavailing, and besides, the determination of the question is not left to the justices: Constitution, art. 2, s. 29.
    2. Said tax is void for want of power to issue the bonds: Cooley’s Const. Lim., 215; Dillon on Municipal Corp., § 426, c. 14; Marsh v. Fulton, 10 Wallace.
    
      3. There was an absence of power. First. Because the conditions precedent in reference to subscription were not complied with: Code, s. 1142; Winston v. Tenn. & Pacific R. FI. Co., MS., Nashville, 1872. Second. Because stock can not be taken by any county, except upon an election and the assent of three-fourths of the votes cast: Const., art. 2, s. 29.
    And the exception in said provision does not re- • late to the taking of stock; and if it does, it requires a majority of the voters of the counties voting, and not a majority of the voters voting: Const,, art. 2, s. 29; Cock v. Qooch, 5 Heis.; Minutes of the Const. Convention, pp. 139, 194-5.
    Loaning credit and taking stock are not the same: People v. Salem, 20 Michigan; 4 Amer. Bep., 400; Stewart v. Polk County, 27 Iowa; 1 Amer. Bep., 238; Allen v. Town of Toy, 60 Maine; 11 Amer. Bep., 285; Walker v. Cincinnati, 21 Ohio; 8 Amer. Rep., 24; Miller v. Leavenworth, 7 Kansas; 12 Amer. Bep., 425; Lj. & N. R. R. Co. v. Davidson Co., 2 Sneed.
    5. Because the bonds must be issued by the County Court and not the County Judge; act 1870-71, c. 50.
    6. The County Judge of Sumner county assesses and taxes the plaintiffs’ road as having thirty-five miles of road in Sumner, when they only have thirty-one miles therein, making a large difference in amount of taxes.
    
      C. R. & Lee Head, for the petitioners:
    The writ of certiorari was in use in North CaroCarolina as far back as 1777. With but few exceptions, it was used for all the different purposes to which it is now applied. The Constitution secured its existence, together with the general outlines of its use. For a time held to apply only to civil cases, afterwards it was held to apply to criminal cases. At first, its issuance was only authorized when directed by the fiat of a judge; but afterwards, it was allowed to be granted by two justices. Every facility has been afforded for its use, and every inconvenience remedied.
    This writ is the proper remedy by which to remove judicial sentences of all courts exercising jurisdiction under statutory regulations, either in a summary way, or by a mode of proceeding according to common law forms.
    It has also been held to lie in administration and probate causes.
    In the case of Murfree v. Leeper, 1 Tenn. B., 1, it was held that, in cases falling within the jurisdiction of the County Court, in which the judgment of such court was, by statute, declared to be final and conclusive, without any appeal to the Superior Court, this exclusion of appeal does not take away the writ of certiorari.
    
    What other remedy is there? A suit in equity will not lie to restrain the collection of a tax upon the sole ground that it is illegal. In addition to the illegality of the tax, there must exist some special circumstances bringing the case under some recognized head of equity jurisdiction — such as that the enforcement of the tax would lead- to a multiplicity of suits, or produce irreparable injury, or that the property is real estate, and the imposition of the tax throws a cloud upon the title of the owner — otherwise courts of equity will not interfere with the determinations of inferior boards or tribunals of special jurisdiction. “In all other cases,” says the court in the case of Ewing v. City of St. Louis, 5 Wallace, 413, “the review and correction of the proceedings must be obtained by the writ of certiorari.”
    
    
      ■ In the case of Spears v. County Court Clerk of Shelby County, 6 Cold., 420, involving the question of taxes on privileges, this court says: “The writ of certiorari affords the proper remedy against a distress warrant illegally issued to collect taxes, or a penalty for failing to pay taxes.” This case involved a construction of the revenue act of 1868. This writ was used as the remedy, and relief obtained.
    In the case of the M. and A. of Nashville v. Pearl, 11 Hum., 249, it was held that the writ of certiorari was the proper process by which to remove a corporation warrant into the Circuit Court. The court says: “The certiorari has a much more extended application in this State than in England. It has been adopted with us as the almost universal method by which the circuit courts, as courts of general jurisdiction, exercise control over inferior jurisdictions, however constituted, and whatever may be their course of proceeding.” ■
    The provisions of our statute are conclusive. Sec. 3123 of the Code provides that “the writ of certiorari may be granted in all cases where an inferior tribunal, board or officer, exercising judicial functions, has exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of the court, there is no other plain, speedy or adequate remedy.” The County Court is an inferior tribunal, the tax imposed is in violation of law, and the act of assessment made by the Judge of the County Court is clearly in excess of the jurisdiction conferred.
    But the main argument of defendants is, that the only remedy provided by law for the petitioners as taxpayers, is to pay the tax assessed against them under protest, and then to sue the officer collecting the same, within thirty days after making the payment, for the recovery thereof.
    The act of 20th March, 1873, “to facilitate the collection of revenues,” relates to revenue due the State, and if constitutional and valid, does not deprive the petitioners of their remedy as against the county and railroad tax.
    But we deny the constitutionality of this act. The Legislature had as well pass an act suspending the writ- of habeas corpus, as to deprive the citizen of his constitutional right to apply for and obtain the writ of certiorari, as provided in s. 10 of art. 6 of the Constitution.
    
      In the case of Duggan v. McKinney, 7' Yerg., 22, the court says: “This court is of the opinion that the power secured to the judges of the superior courts by the Constitution, by art. 5, and to the judges and justices of inferior courts, in the sec. 7 of the same article, was only intended to restrain the Legislature from abridging the right of the citizen to his remedy by certiorari.
    
    The Legislature may suspend the writ of habeas corpus, but no exception is made by the Constitution in which the writ of certiorari should be suspended, or refused the citizen when applied for upon his sworn petition, showing good cause for the same. The Legislature has created an exception in favor of the State.
    But, furthermore, s. 17 of art. 1 of the' Constitution provides; “That all courts shall be open; and every man, for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial, or delay.” When a citizen is pursuing his remedy by due course of law, that is, by suit pending in one of the courts, an act of Assembly passed requiring his suit, or a certain class of cases embracing his, to be dismissed, would be unconstitutional and void: 2 Yerg., 554; 6 Yerg., 119, 132. .
    A rule oí court requiring a motion for new trial to be made on a particular day, has been held to be repugnant to the constitutional provision that all courts shall be open: 7 Yerg., 502. An act must be unconstitutional -which requires the citizen to pay revenue when the same is unjust, illegal, contrary to the statute, and a plain violation of a constitutional provision ; and such is the requirement of the act in question. This act .seems to be violative of fundamental principles of republican government, and a legislative encroachment upon the Constitution.
    The writ of certiorari is likewise authorized by ss. 3123 and 3124 of the Code. By reference to s. 17, art. 2, of the new Constitution, we have the following clause: “All acts which repeal, revive, or amend former laws, shall recite in their caption or otherwise the title or substance of the law repealed, revived, or amended.” Neither in the caption or body of said act are these two sections of the Code mentioned, either by number, title, or in substance; nor is there any repealing clause in said act. The result of this omission is, that ss. 3123 and 3124 of the Code are not repealed by the act of 1873, c. 44.
    The Circuit Judge allowed defendants to file their sworn answers, together with a number of exhibits and affidavits, on the motion to dismiss. This is error: Beck v. Knab, 1 Tenn. B., 55; King v. Rentfroe, 1 Tenn., 191; Stuart v. Hall, 2 Tenn. B., 179.
    In the case of Studdart v. Fowlkes, 2 Swan, 537, all these decisions are reviewed, and the practice settled to be, that on the hearing of motions to dismiss petitions for a certiorari for insufficiency, counter affidavits of all persons are excluded, and the court looks alone to the petition and papers: 1 Head, 624; 3 Sneed, 326,
    The re-assessments made by the County Judge were not authorized by law.
    1st. The facts upon which the same were made.
    Petitioners own 185 miles of. road from Louisville to Nashville, 31 miles of which lie in Sumner county, civil districts Nos. 5, 6, 7, 11, 12, 19, including road-bed, occupying, in the aggregate, 241 acres, valued at $8,435; several depot grounds, and one .separate parcel of land. In Davidson county and the' State of Kentucky they own valuable engine-houses- and machine-shops, indispensable to running and operating their road. Also rolling stock, which is in. Sumner county only when in use, passing over the-road. Assessments were made upon their depot grounds- and tract of' land for the years 1873 and 1874, by the respective tax assessors in the several districts aforesaid, and the tax levied in pursuance thereof, aggregating $105. The amount assessed and levied for 1873 was paid. In June, 1874, petitioners were notified to appear before the County Judge of Sumner, and show cause why the road-bed, rolling stock, &c., should not be assessed for taxation. They then and there proved the facts just recited, and insisted that their road-bed, rolling stock, &c., as such, were not liable for taxation. But the County Judge assessed the road-bed, rolling stock, &o., in Sumner county at the sum of $675,000, and a tax levied thereon for the year 1873 of 5,400 for state, county, school and sinking fund purposes. The assessment for 1874 was $500,000. The assessments for both years were made upon the same basis, which was upon a valuation of the entire road-bed, rolling stock, equipments, engine-houses and machine-shops, in view of the special purposes and uses to which they were all applied, and the profits arising therefrom.
    The act of 1873, c. 118, to provide more just and •equitable laws for the assessment and collection of revenue for state and county purposes, relieves us of the necessity of reviewing the previous laws, since, by the 80th section of said act, all laws in conflict therewith are repealed. The 8th section thereof provides that “no tax shall hereafter be assessed upon the capital of any bank, banking association, or of any other joint stock company; but the stockholders in such bank, banking association, or other corporations, shall be assessed and taxed on the value of their shares <of stock therein.” It is sufficient to render assessments made and tax levied on petitioners’ property for 1873 and 1874 illegal, that the County Judge has not complied with the provisions of the act; fox', by it, the capital of no corporation in Tennessee is liable for taxation as such, but the individual shares of «took shall be assessed and taxed according to their value. If these corporations own real estate, the same is not exempt from taxation, but is subject thereto to the same extent and rate, and in the same manner, as other real estate.
    The power of taxation is derived by the legislative department of the government from art. 2, s. 28, of the Constitution, which is, that all property, whether real, personal or mixed, shall be taxed according to its value, and not according to the purposes for which the same may be used; or what it may be worth estimated and valued in connection with something in another county or state, but simply according to its value; that value to be ascertained in such manner as the Legislature may direct, so that taxes shall be equal and uniform throughout the State. Furthermore, no one species of property shall be taxed higher than any other species of property of the same value.
    If the property is to be assessed as real estate under the act of 1873, then the law governing the same is clear and unmistakable. By the 4th section of the act, real estate shall be assessed according to its market value, on a credit of one and two years, deducting fifteen per cent, in gross, in the district or ward where the same is situated. If the assessments made by the County Judge of $675,000 for 1873, and $500,000 for 1874, could be held to have been made upon the property of the Louisville & Nashville Railroad Company as real estate, while the same would not be in compliance with statutory law, in addition thereto, one species of property would be taxed higher than another. The real estate of this corporation lying in Sumner county numbers 241 acres, worth, as is alleged in the petition, $8,435. The same is assessed by the County Judge, and a tax levied thereon for one year of $5,400. An unequal and oppressive tax is contrary to law: 1 Hum., 232.
    The road-bed, rolling stock, and such buildings as are necessary and indispensable to tbe running of the road, are not real estate under the act of 1873. They compose a part of the capital stock of the company, which, by s. 8 of the act, is not liable to be assessed as such, but which is reached by a tax on the shares of stock in the hands ■ of stockholders. The value of the shares of stock is controlled to a very great extent by the number, size and cost of the appurtenances of these corporations; and if the same are taxable as real estate, and in addition must pay the taxes required by this act, the result necessarily is double taxation. The petition alleges that the stockholders have been so assessed. All railroad companies own lands along the line of their road, especially in timbered sections of country, from which they supply cross-ties and fuél. Such are the lands contemplated by said act which are to be taxed as other real estate; otherwise, no uniform rule can be laid down for making such assessments.
    The County Judge fixes' a value upon the entire line of road, with all its appurtenances, both in Tennessee and in Kentucky; then, there being 31 miles of the road in Sumner county and 185 miles in Tennessee and Kentucky, he takes 31-185 of the whole value, by which method he arrives at a fictitious value for every mile of road in Sumner county, and thus he assesses the same for largely more than its actual value. All their costly bridges are in Davidson county and Kentucky — out of Sumner county. These are estimated by him in arriving at a value for each mile in Sumner. It is simply an absurdity to say that every mile of petitioners’ road in Sumner county, or in Tennessee and Kentucky, is of equal value.
    But other objections remain. If this mode of assessment be correct, then Davidson county must adopt the same rule as against petitioners, which estimates that portion of the road in Davidson as worth the same in proportion to the number of miles in the two counties, as in Sumner, when in point of fact, the road in Davidson is worth largely more than in Sumner, because all the valuable depot buildings, machine shops and engine houses of the company in Tennessee, and the railroad bridge across the Cumberland river, are in Davidson county. By this rule Sumner gets more than her proportion. Another objection is, that the officer of the law in making assessments and levying taxes, is confined to his own county and state, and therefore, he is strictly confined to property within his jurisdiction. In the assessment here, is included not only the buildings in Davidson county and Kentucky, above mentioned, but also the individual shares of non-resident stockholders. If any statute could be found authorizing such a course, the courts could not enforce the same, because tax laws are purely local and can have no extra-territorial operation: 15 Wall., 300.
    In the case of Railroad Company v. Jaekson, 7 Wall., 262, the Court held that a state had no power to tax the interest on bonds, secured by mortgage, given by a railroad corporation, binding every part of the road, when the same lies partially in another state; one road incorporated by two States. In the case of St. Louis v. The Ferry Go., 11 Wall., 423, the Court held that the ferry boats of a corporation, incorporated in one state, carrying passengers forward and backward across a river to a city in another state, are not taxable under a law taxing “within the city,” where the relation of the boats to the city was simply that of contact, as one of the termini of their voyages.
    In the case of Louisville & Portland Canal Co., v. Commonwealth of Kentuehy, one hundred acres of land owned by the company, were listed for taxation by the Commissioner at $1,000,000, considered in their improved state, including all improvements thereon. But all the property was situated in Jefferson county, within the jurisdiction of the Commissioner. Besides, the Commissioner acted under a statute in force in Kentucky, and upon which this decision was based, directing lands or town lots to be listed, adding their value “considered in their improved state, including all improvements thereon.” We have no such statute in Tennessee. Similar statutes were enacted in the different states in which such decisions were made; at least, as far as I have been able to extend my investigation.
    The tax for the benefit of the Cumberland and Ohio Eailroad, involves the legality of the entire proceedings connected therewith. Contesting the collection of any tax, opens the investigation, not only as to the mode, but as to right of the assessment and levy of the tax. The Code, 1142, provides, that “any county, incorporated town, or city, may subscribe for stock in railroads upon the following terms and conditions”: minutely set out in 1143-49. Section 1150 provides, that as soon as the stock is subscribed, it is the duty of the County Court, or corporate authorities, to levy a tax sufficient to meet the instalments of subscription as made. This latter section contemplates a strict compliance with all terms and conditions prescribed in that chapter. For upon them is made to depend the right and power to subscribe the stock.
    Upon the application of Commissioners, a proposition was submitted to the legal voters of Sumner county, to take stock in said Cumberland & Ohio Railroad Company, to the amount of $300,000, payable in the bonds of the county. An election was held, and without any order of the court subscribing said stock, or confirming the election, or recognizing the same as valid, the County Judge proceeded to issue some $80,000 or $100,000 of the bonds of the county. The County Court has levied' a tax sufficient to meet the interest on the entire amount of $300,000.
    The subscription of stock by Sumner county in said Cumberland & Ohio Railroad is void. By the Code, the election can be ordered only upon application made in writing by the Commissioners. But before this application can be made, the entire line of the road, in which the stock is proposed to be taken, shall be surveyed by a competent engineer, and substantially located by designating the terminii, and approximating the general direction of the road, and an estimate of the grading, embankments, and masonry, made by the engineer under oath. This survey, location, and estimate of the entire line, must be filed with the application for the order for election.
    These are conditions • precedent, and the power of the County Court to order the election is vested only when these directions are followed. The chief engineer of the company in his report of the survey and estimate of grading, etc., says: “In compliance with the requirement of the Code of Tennessee, as set' forth in section 1145, ch. 3, title 8, I have caused surveys and estimates on that portion of the railroad contemplated from Nashville to Cincinnati, lying in Sumner county,” which was done by E. F. Falconnet, a competent engineer. This report is not under oath. The latter under oath states, that “he has made a survey of the Cumberland & Ohio Eailroad, located in Sumner county, from the State line to Gallatin, and then to a point of intersection on the Edgefield & Kentucky Eailroad,” giving in addition, the distance through Sumner county, and' estimated cost.
    The survey and estimate required by the statute, was of the entire line of the road from Nashville to Cincinnati, and not merely of that portion in Sumner county. Nor is the survey, “ from the State line to Gallatin, and thence to a point 'of intersection on the Edgefield & Kentucky Eailroad,” without mentioning or giving a general idea as to what point he commenced on the State line, and the same as to the point of intersection, such a substantial location, designating the termini, and approximating the general direction of the road, as meets the requirements of the law. These omissions are not mere irregularities, which render the proceedings voidable, and of which advantage could be taken then, but not afterwards, but they are fatal to the proceeding.
    By the act of 1851-2, e. 117, the County Courts of the respective counties, through which railways had been or might be thereafter, located, were authorized to subscribe stock therein through their chairman. As conditions precedent, however, ■ the Sheriff was required to hold an election, after giving thirty days notice, specifying the amount of stock proposed to be taken, when payable, and the name of the company in which the stock was to be taken. In the case of the Justices of Campbell County v. The Knoxville & Kentucky R. R. Company, 6 Col., 598, the Court held, that all these requisites must be complied with, to authorize the subscription of stock by the chairman under said act; Winston et ais., v. Tennessee & Pacific Railroad Company, MS.
    The provisions of the Code referred to, are not repealed by the act of December, 11, 1871. The latter is entitled, “An act to amend section 1142 of the Code, and to repeal the third section of an act passed January 16, 1871.” The first section of the act referred to, provides “That so much of section 1142 of the Code, as prohibits any incorporated town, or city, from subscribing stock in railroads, to an amount exceeding in the aggregate one-fifteenth of its taxable property, be and the same is hereby repealed.”
    Section 2 repeals section 3 of the act approved January 23, 1871. . Section 3 directs how the election is to be held by the Sheriff. Section 4 authorizes stock to be subscribed to an amount not exceeding one-tenth instead of one-fifteenth of its taxable property. The 5th section repeals section 1149 of the Code, which requires the money raised to be expended in the county in which the stock is taken, or as near thereto as practical. No other sections of the Code are amended or repealed by this act. Besides, the record from the County Court shows that the survey and estimate were made, and other proceedings had, under these several sections of the Code.
    • Another reason why the issuance of these bonds is not authorized by law, is, that it would be in direct violation of the Constitution. The distinction between giving or loaning credit to, or becoming a stockholder in such association or corporation, is clear. The Constitution recognizes the distinction: Art. 2, s. 29. Perhaps the origin of the distinction is this. In 1838, by legislative enactment, the State was authorized to become a stockholder in turnpike companies and other corporations. Stock was subscribed by the State under this act. But the losses of the State were so heavy, that in 1852, this law was repealed, and an act passed authorizing bonds to be issued, as a loan of the credit of the State to corporations.
    Art. 2, s. 29 of the Constitution provides, that “the credit of no county, city or town, shall be given, or loaned to, or in aid of any person, company, association, or corporation, except upon an election to be first held by the qualified voters, and the assent of three-fourths of the votes cast at said election. Nor shall any county, city, or town become a stockholder with others in any company, association, or corporation, except upon a like election, and the assent of a like majority.” Now, be it either to take stock or loan credit, the assent of three-fourths of the votes cast at the election, is necessary.
    But twenty-six counties, Sumner included, are excepted out, of the provisions of this section, so far that the assent of a majority of the qualified voters of either of said counties, voting on the question, shall be sufficient, when the credit of such county is given or loaned to any person, association, or corporation. To subscribe stock requires three-fourths of the votes cast; to a loan of credit, only a majority of the qualified voters of either of said counties voting is necessary. But this is a case of subscription of stock of $300,000; the assent of three-fourths of the votes cast, is required.
    But concede that the exception made in this provision of Constitution would apply. Then what would be required? “A majority of the qualified voters of either of said counties voting on the question,” not the assent of a majority of the votes cast. The word voting, here most clearly refers to counties, and not to the qualified voters. To give or loan the credit of either of said twenty-six counties, the assent of a majority of the qualified voters of the county must be obtained. Otherwise the expression “ a majority of the votes cast” would have been employed, as is done in the same section of the Constitution.
    At the time of the election there were 4,500 qualified voters in Sumner county. 2,861 voted at said election, of that number, 1,781 voted in favor of, and 1,080 against subscription.
    But the argument is made that some of these bonds have passed into the hands of innocent purchasers and bona fide holders, and that as such, they are to be protected.
    This position would be correct, if the objections assigned were mere irregularities. But if a compliance with the requirements of the' Code, was indispensable, then the authority of the County Court to order the election, only existed when this was done. If done without, the election would be void. Neither could these parties, if such there be, shield themselves as innocent purchasers or holders of the .bonds, if we are correct in the construction we have given to the provision of the Constitution. A subscription of stock in a railroad by counties, is in the nature of a contract. The county must act through its officers as agents, who derive their authority to act, together with the manner in which the same is to be exercised, from the Constitution and statute books. Ignorantia legis, exeusat neminem. From these, persons may know the extent of the agent’s authority, and whether the acts done are within the scope of their agency. If these bonds are void, ah initio, holders thereof could stand upon no higher ground than a bona fide holder of forged paper, who has never been protected by the courts as an innocent purchaser.
    J. J. Turner for Sumner county.
    Petitioner is a foreign corporation, not a Tennessee or United States corporation: See petition, Charter in Kentucky, and act of Legislature in Tennessee.
    It is taxed in Kentucky by the mile, and not on stock, consequently justice demands taxation here by the mile and not on stock, as stockholders live in a different state and we protect their property: See act of Kentucky Legislature, February 20, 1864; L. <& W. JR. JR. Co. v. Commonwealth, 1 Bush, (Ky.) R., 250.
    A corporation like this has four elements of property for taxation, viz.: the capital stock; 2. the corporate property; 3. the franchises of the corporation, and all of which are taxable to the corporation, and lastly; the shares in the capital stock, which is taxable only to the shareholders: Gordon v. Appeal Tax Court, 3 How., 133, 150, or 346, Curtis’ Ed.; Redf. Am. Railway cases, 499, 500 and 506.
    The stock or shares in a corporation is a totally different thing from the capital stock, the franchises of the corporation, or the corporate property of the corporation, and therefore, a tax on shares will not exempt the other items from taxation, and to tax both can not be construed to be double taxation: 9 Yer., 490; 12 Allen, (Mass.) 316; 13 Gray, 488. See also the various cases in U. S. Courts, 3 Wall., 573: 4 Wall., 459; 6 Wall., 632, 594, 611; 9 Wall., 353; 8 Wall., 168; 10 Wall., 410; 40 Barb., (N. Y.) 334; 46 Barb., 588; 18 How., (N. Y.) 245.; 32 Barb., 509; 23 N. Y., 192. _ ■
    All the presumptions are in favor of the power to tax, and the power of taxation is unlimited in the Legislature or Congress. It is one of the incidents of sovereignty that cannot be controlled: Cooley, C. L., 479, 845; 4 Wheat., 428; McCulloch v. Maryland, 4 Peters, 561; Providence Bank v. Billings, Abbott’s Digest of Corporations, p. 834, §§ 5 to 10; 6 Wall., 605-7; 9 Wall., 859; 10 How., 393; 19 Penn. R., 144; 7 Ham., (Ohio,) 125.
    The courts must follow the legislature in such eases: Cooley Const. Lim,, 129.
    The petitioner is liable to taxation under the act of March 25, 1873: See the various sections, and section 8 only applies to cases like National Banks, etc., and not to petitioner which is foreign corporation.
    Rolling stock must be treated as real estate, and assessed in the counties: 25 Ind., 177; 12 Barb., (N. Y.) 223; 16 Barb. 244; 12 Gill. & L, (Md.) 117; 48 Barb., 173; 5 Rhode Island, 459; 10 Ohio R., 159-64; 4 Paige Ch. R., 384; 14 111., 163; 12 Iowa, and especially 2 Rhode Island, 459.
    Street railways are taxed as real estate: See cases 2 Dillon on Mun. Corp., § 628, and cases cited. See especially 52 Barb., People v. Erie II. R.
    
    The method and manner of assessing railroads is discussed and determined: 48 Barb., (N. Y.) 173; 27 111., 64.
    In Delaware railroad tax case, 18 Wall., 206, 32, the Supreme Court of the United States held, that besides the privilege tax, the legislature might tax not only the nett earnings, but also the shares, and that the taxation of shares was a different tax from that of the property of the corporation, approving 3 Wall., 583; 9 Yer., 501; 14 Gratt., 385; 46 N. H., 398; 12 Allen, 322; Redfield’s Supplement to Law of Railways, 507, 510.
    
      In Union Pacific Railroad Go. v. Peniston, 18 Wall., 5-50, the tax of f16,000 per mile by Nebraska held good. A strong case.
    In regard to the bond tax; petitioner and the County Court of Sumner are estopped by the acts of their agents: 10 Wall., 644-6; Abbott’s Digest of Corporations, p. ,800, § 150.
    Fraud must be set up in time and contest must also be made in time: Abbott’s Digest of Corporations, p. 806, §§ 200-1.
    A purchaser of a bond is not bound by suit pending : 1 Woolw., (Iowa,) 66; 2 U. S. Digest, title, Bonds; 18 Gratt, (Va.) 338.
    Tax proceedings are in the nature of proceedings in rent, and according to the law of the land: 2 Tenn., 215; 5 Hay., 256; 4 Wheat, 428; Potter’s Dwar. on Stab, 405-6, 420-7.
    As to these railroad bonds, the question is no longer in fieri; the rights of third. parties have attached, and the petitioner is precluded from making or raising these preliminary questions upon every principle of estoppel. Corporations, like individuals, are estopped either by acts or acquiesence, where the rights of third parties have attached: Abbott’s Dig. of Corp., p. 329, §§ 1 to 7; 32 N. H., 295; 34 111., 459; 15 Ind., 26; 11 Ohio, 516; 2 Black, (U. S.) 722; 8 Ohio, 394; 29 Conn.; 34 111., 405, 421; 38 111., 266; 5 Wall., 772; 7 Ohio, 327, 421; Bigelow on Estoppel, c. 18, pp. 461-67; 24 111., 90. See 5 Am. ■ Law B,ev., 272, for a full discussion of ultra vires.
    
    The facts of this cause show that petitioner stood by and saw the bonds issued and paid taxes for 1873, and this "determines his election and works an estoppel”; Bigelow on Estoppel, p. 578, c. 20.
    The issuance of bonds, the levy of a tax and payment of interest on the bonds " validates county bonds irregularly issued”: 5 Wall., (U. S.) 772; 25 Penn., 156; 1 Penning. (N. J.) 347; 1 Halst. (N. J.) 115; 3 Halst., 191; 19 Johns., 284; 4 Serg. & Bawle; Ang. & Ames on Corp., §§ 237-8, and note 3, and authorities cited.
    The various questions of irregularity raised by petitidn, are such as can only be raised while the matter is in fieri and not after the rights of third parties have attached. It is like the case of an erroneous judgment or decree, or sale of land, which can only be raised directly. If the court had jurisdiction of the person and subject matter, it is sufficient: 5 Sneed, 128; 8 Hum., 207; 1 Head, 460.
    Even the acj;s of officers de facto are as valid as those de jure: 3 Head, 691; 5 Sneed, 510.
    A county acts through its officers and is bound by their action, as a natural person is bound by his agent. Therefore, the county is bound as the County Judge and - County Court have issued the bonds, levied the taxes, etc.: 3 Hum., 305; 11 Hum., 47; 2 Swan, 504; State, ex rel. JRoss v. Anderson county.
    
    The following cases cover every question of irregularity made in the petition, and they hold that where the bonds are issued, that it is too late to raise these preliminary questions: 6 Ellis & B., (Com. Law B.,) 327; 21 How., 539; 24 How., 433; 1 Black B., 386-90; 2 Black, 722; 1 Wall., 83, 173, 211, 385 ; 3 Wall., 294, 237, 654; 4 Wall., 270, 535; 5 Wall., 772, 194; 6 Wall., 166, 210; 7 Wall., 82; 11 Wall., 136-9; 14 Wall., 282; 13 Wall., 298-9: 15 Wall., 355-73; 16 Wall., 6 and 644; 19 Wall., 84.
    All the presumptions are in favor of the validity of the bonds and subscription: 3 Hill, 263; 3 N. Y., 68; 4 Mass., 45.
    Conditions precedent are always to be presumed to be complied with or waived, where bonds are issued, or the subscription has been made: 43 Penn.; Commonwealth v. Pittsburgh, 7 Wright, 391.
    A tax payer can not stand by and see improvements made upon the strength of a subscription, and then deny its validity: 34 Ind., 140; 16 Kansas, 300; 1 Cal., 455.
    The record of the County Court can not be attacked collaterly unless void: 6 Hum., 444; 5 Hum., 313-15; 4 Sneed, 371; 3 Sneed, 59. »
    Every presumption not inconsistent with the record is to be indulged in favor of the record of a court like the County Court: 5 Cranch., 173; 10 Peters, 449; 3 Peters, 193; 2 How., 319; 2 Wall., 328; 6 Wheat., 453; 4 Wall., 435; 2 How., 319; 22 How., 1; 4 Wall., 174.
    Every intendment is in favor of the County Court’s jurisdiction: 6 Hum., 631, 378; 2 Head, 253.
    The County Court is not an inferior court: 1 Col., 369; 2 Swan, 206; 4 Col., 70; 6 Hum., 131.
    The act of January 23, 1871, repealed the Code, sections 1142 to 1165.
    
      To constitute a “subscription” by a county to the stock in a railroad company, it is not necessary that there be an act of chirographical subscription. Acts may constitute it or estop the county to deny it: 19 "Wall., 241; 11 B. Munroe, 143.
    The decision of the State Courts declaring bonds null and void will not be regarded' by the United States Courts, where it is ■ a question of bonds negotiable in form: 19 Wall., 666; 3 Wall., 654; 4 Wall., 435; 6 Wall., 166 and 120; 11 Wall., 136-9; 14 Wall., 282.
    County bonds not void ab initio may be made valid by ratification. The doctrine of ratification is a legal panacea to all manner of mere irregularities, where the bonds are not void ab initio.
    
    A county under our law is a corporation. The citizens are the corporators, and the County Court is the agency through which the corporation acts. Like other artificial or natural persons, it can ratify the unauthorized acts of its • agents: State, ex rel, Boss v. Anderson comity.
    
    The power to issue bonds, is incidental to the power in the County Court to create a debt: State, ex rel. Boss v. Anderson County.
    
    Irregularities in an election or in the issuance of bonds, do not affect the holder of the bonds where paid out bona fide: State, ex rel. Boss v. Anderson county.
    
    Petitioner is liable to taxation under the 18th section of its charter, on its “real estate estimated upon the prime cost of the proposed works.”
    The prime cost June 1, 1864, on main stem, 185 miles, besides court, agency, office and contigent expenses, and interest accounts, was $5,981,612.67, or $32,332.04 per mile, or $12,000 per mile more than it is assessed at. The prime cost has been added to since 1864, by new depots, lands, rolling stock and machinery, at least $1,500,000.
    The report ending June 1st, 1864, shows nett earnings, less interest account, main stem...................................$2,077,599 03
    Interest on mortgage debt, main stem..... 226,012 00
    Leaves after paying all expenses.............$1,851,587 03
    On a capital of....<............................... 4,333,224 98
    Or 42f per cent on capital stock.
    Prime cost of main stem, 185 miles, June 1st, 1864.................................... 7,491,117 80
    In 1865, made 35 per cent.
    In 1866, made 25 per cent.
    Report ending October 1st, 1868, shows it cost per mile............................... 43,029 00
    Report ending October 1st, 1869, shows- it cost per mile............................... 42,040 18
    The report of October 1st, 1873, is the one in which the Court will see furnished the main information to be relied on, Jan. 10, 1873, and
    Jan. 10, 1874, cost per mile......... 38,000 00
    33 miles in Sumner county gives............ 1,254,000 00
    Nett earnings, main stem, 185 miles....... 1,011,485 74
    185 miles at $38,000, gives.................... 7,030,000 00
    Nett profits gives on cost in 1873, 14J per cent.
    
      Jas. W. McHenry, for the State:
    
      First. This suit, we insist, can not be maintained! as against the taxes due the State. It is prohibited by the act of 1873, to facilitate the collection of revenue: c. 44, Sess. Acts, pp. 71-73.
    This case must be controlled by this act, unless the same be held unconstitutional, and consequently null and void.
    “The accepted theory upon this subject appears to be this: In every sovereign State there resides an absolute and uncontrolled power of ’legislation. In Great Britain .this complete power rests in the Parliament; in the American States it resides in the people themselves, as an organized body politic. But the people, by creating the Constitution of the United States, have delegated this power as to certain subjects, and under certain restrictions, to the Congress of the Union; and that portion they can not resume, except as it may be done through amendment of the National Constitution. Eor the exercise of the legislative power, subject to this limitation, they create, by their state constitutions, a legislative department, upon which they confer it; and granting it in general terms, they must be understood to grant the whole legislative power which they possessed, except so far as at the same time they saw fit to impose restrictions. While, therefore, the Parliament of Britain possesses completely the absolute and uncontrolled power of legislation, the legislative bodies of the American States possess the same power, except, first, as it may. have been limited by the Constitution of the United States; and, second, as it may have been limited by the constitutions of the states. A legislative ■act can not,, therefore, be declared void, unless its conflict with one of these two instruments can be pointed out.”
    * * * “When a law of Congress is assailed as void, we look in the National Constitution to see if the grant of specified powers is broad enough to embrace it; but when a State law is attacked on the same ground, it is presumably valid in any case, and this presumption is a conclusive one, unless' in the Constitution of the United States or of the State we are able to discover that it is prohibited. We look in the Constitution of the United States for grants of legislative power, but in the Constitution of the-State to ascertain if any limitations have been imposed upon the complete power with which the legislative department of the State was vested in its creation. Congress can pass no law but such as the Constitution authorizes, either expressly or by clear implication; while the State Legislature has jurisdiction of all subjects on which its legislation is not prohibited”: Cooley’s Const. Lim., 172, 173; Bell v. Bank oj Nashville, Peck, 269.
    Chief Justice Marshall, in one of the ablest -opinions delivered by him, has said of the taxing power: “ The power of taxing the people and their property is essential to the very existence of government, and may be legitimately exercised on the objects to which it is applicable to the utmost extent to which the government may choose to carry it. The only security against the abuse of this power is found in the structure of the government itself. In imposing a tax, the Legislature acts upon its constituents. This-is, in general, a sufficient security against erroneous and oppressive taxation. The .people of a State, therefoi’e, give to their government a right of taxing themselves and their property; and as the exigencies of' the government can not be limited, they prescribe no-limits to the exercise of this right, resting confidently on the interest of the legislator, and on the influence-of the constituents over their representative, to guard them against its abuse”: MoCulbeh v. Maryland, 4 Wheaton, 428.
    “The power to impose taxes is one so unlimited in force and so searching in extent, that the courts-scarcely venture to declare that it is subject to any restrictions whatever, except such as rest in the discretion of the authority which exercises it. It reaches-to every trade or occupation; to every object of industry, use, or enjoyment; to every species of possession; and it imposes a burden which, in case of failure to discharge it, may be followed by seizure and sale or confiscation of property. No attribute of sovereignty is more pervading, and at no point does the power of the government affect more constantly and intimately all the relations of life than through the exactions made under it. Taxes are defined to be burdens or charges imposed by the legislative power upon persons or property, to raise money for public purposes. The power to tax. rests upon necessity, and is inherent in every sovereignty. The Legislature of every free State will possess it under the general grant of legislative power, whether particularly specified in the constitution among the powers to be exercised by it or not. No constitutional government can exist without it, and no arbitrary government without regular and steady taxation could be anything but ah oppressive and vexatious despotism, since the only alternative to taxation would be a forced extortion for the needs of government from such persons' or objects as the men in power might select as victims”: Cooley’s Const. Lim., (3d ed.) 479; Lane County, v. Oregon, 7 Wallace, 77; Harrison v. Willis, 7 Heis., 35; 3 Statutes at Large, 592.
    In Murray’s Lessee v. Hoboken Land and Improvement Co., 18 How., 272, the unanimous opinion of the court was delivered by Mr. Justice Curtis. It is an elaborate and learned opinion. He says: “ Tested by the common and statute law of England prior to the emigration of our ancestors, and by the laws of many of the States at the time of the adoption of this amendment, the proceedings authorized by the act of 1820 can not be denied to be due process of law, when applied to the ascertainment and recovery of balances due to the government from a collector of customs, unless there exists in the Constitution some other provision- which restrains Congress from authorizing such proceedings. Eor, though ‘due process of law’ generally implies and includes actor, reus, judex, regular allegations, opportunity to answer, and a trial according to some settled course of judicial proceedmgs: 2 Inst., 47, 50; Hoke v. Henderson, 4 Devereux (N. C. Kep.), 15; Taylor v. Porter, 4 Hill, 146; Van Zandt v. Waddel, 2 • Yer., 260; State Bank v. Cooper, Ibid, 599; Jones’ Heirs v, Perkins, 10 Yer., 599; Greene v. Briggs, 1 Curtis, 311; yet, this is not universally true. There may be, and we have seen that there are, cases under the law of England, after magna charta, and as it was brought to this country, and acted on here, in which process, in its nature final, issues against the body, lands and goods of certain public debtors, without any such trial; and this brings us to the question, whether those provisions of the Constitution which relate to the judicial power are incompatible with 'these proceedings?”
    Again: “ The power to ' collect and disburse revenue, and to make all laws which shall be necessary and proper for carrying that power into effect, includes all known and appropriate means of effectually collecting and disbursing that revenue, unless some such means should be forbidden in some other part of the • Constitution.”
    And again; “ It may be added, that probably there are few governments which do or can permit their claims for public taxes, either on the citizen or the officers employed for their collection or disbursement, to become subjects of judicial controversy, according to the course of the law of the land. Imperative necessity has forced a distinction between such claims and all others, which has sometimes been carried out by summary methods of proceeding, and sometimes by systems of fines and penalties, but always in some way observed and yielded to.”
    He still further adds: “Though, generally, both public and private wrongs are redressed through judicial action, there are more summary extra judicial remedies for both. An instance of extra judicial redress of a private wrong is the recapture of goods by their lawful owner; of a public wrong by a private person, is the abatement of a public nuisance; and the recovery of public dues by a summary process of distress, issued by some public officer authorized by law, is an instance of redress of a particular kind of public wrong, by the act of the public through its authorized agents. There is, however, an important distinction between these. Though a private person may retake his property, or abate a nuisance, he is directly responsible for his acts to the proper judicial tribunals. His authority to do these acts depends not merely on the law, but upon the existence of such facts as are, in point of law, sufficient to constitute that authority; and he may be required, by an action at law, to prove those facts, but a public agent, who acts pursuant to the command of a legal precept, can justify his act by the production of such precept. He can not be made responsible in a judicial tribunal for obeying the lawful command of the government; and the government itself, which gave the command, can not be sued without its own consent. At the. same time there can be no doubt that the mere question, whether a collector of the customs is indebted to the United States, may be one of judicial cognizance. It is competent for the United States to sue any of its debtors in a court of law. It is equally clear that the United States may consent to be sued, and may yield this consent upon such terms and under such restrictions as it may think just. Though both the marshal and the government are exempt from suit for anything done by the former in obedience to legal process, still Congress may provide by law that both, or either, shall, in a particular class of cases, and under such restrictions as they may think proper to impose, come into a court of law or equity and abide by its determination. The United States may thus place the government upon the same ground which is occupied by private persons who proceed to take extra judicial remedies for their wrongs, and they may do so to such extent, and with such restrictions, as may be thought fit”: City of Philadelphia v. The Collector, 5 Wall., 420; Nichols v. United States, 7 Wall., 122.
    The act of Congress of July 13, 1866, c. 184, s. 19, prohibited suits for the recovery of taxes alleged to have been paid illegally, except upon certain conditions therein set forth: 14 U. S. Statutes at Large, 152.
    This act was amended March 2, 1867, c. 169, s. 10, by adding the following: “And no suit for the purpose of restraining the assessment or collection of tax shall be maintained in any court”: 14 U. S. Statutes at Large, 475.
    This provision came before the Circuit Court of the United States for the southern district of Ohio, for enforcement in the case of Pulían v. Kinsinger, in equity, before Judge Emmons. He delivered an ably written opinion; maintaining the constitutionality of said provision. He says: “It has been again and again decided, under every variety of state constitution intended to secure ‘trial by jury/ ‘due process of law/ and the ‘inviolability of private property/ that the political power may appropriate it by any summary mode which the wisdom of the Legislature may prescribe, and that neither the novelty nor the injustice of the form will warrant judicial interference. The following are but a small portion of the numerous judgments establishing the principle and illustrating the tendency in our country to question and demand the reiteration of the oldest and best settled governmental powers. In Ohio this has often been ruled: Wright’s Ohio R., 132; Mercer v. Williams, 5 Hammond, 115; Bates v. Cooper, 6 Ohio, 454; Williard v. Hamilton, 14 Ohio; Symons v. Cincinnati, 12 Ohio State, 105. It is repeatedly said in that State that these constitutional provisions have no influence upon the power of the State to prescribe rules by which to condemn or tax the citizen’s property. See, also, 4 ■ Blackford (Ind.), Pubotham v. McClure; 8 Black-ford, 266, Harrison v. Lawrence; 1 Carter (Ind.), 48, McCormack v. Trustees; 2 Carter, 331, Camal Co. v. Ferris; 18 Wend, Bloodgood v.' Mohawk Co.; 2 Hill, 342, Baker v. Johnson; 6 Hill, 359, People v. Hayden; 5 Davis, 401, People v. Commissioners; 15 Barb., 627, Paxford v. Knight; 1 Gibbs (Mich.), 442, Snoio v. Williams; 31 Maine, 215, Mason v. Kennebec Co.; 19 Penn. St., 456, Lyons v. Commonwealth; 17 Penn. St., 524, 12 Illinois, 102, People v. Wells; 21 Conn., 304, Bradley v. N. Y. & Co.; 21 Conn., Clark v. Saybrook; 1 Penn. St., 309, Mayor v. Scott; Littell ¡ (Ky.), 223, Jaekson v. Union; 1 A. K. Marshall, 84, : Cashwell’s Heirs v. Mollroy; 2 Dev. & Battle’s Law i (N. C.), 451, Raleigh & C. R. R. Co. v. Davis; 7 Metcalf, 78, R. R. Co. v. Middlesex; 3 Mich., 496, People v. Oreen; 3 Mich., 506, Smith v. MaAdam; 35 New Hamp., 135, Mt. Washington R. R. Co.”
    
    The case of Sears v. Cottrell, 5 Mich., 251, is a leading case. There the act of 1853 (S. Acts, p. 140) provided as follows: “ In case any person shall refuse or neglect to pay the tax imposed on him, the treasurer shall levy the same by distress and sale of the goods and chattels of said person, or of any goods and chattels in his possession, wherever the same may be found within his township; and no claim of property to be made, thereto by any other person shall be available to prevent a sale.”
    It was objected that the last clause was unconstitutional, on the ground that it violated the provision that no person should be deprived of his property “without due process of law,” etc.
    The Court among other things, say: “The law is for the collection of a revenue of the State, and not of a debt between individuals. State exigencies are Í not to bé measured by those of individuals; and ex- f perience has shown the necessity of more summary and j stringent laws for the collection of the revenues of the government than have been found expedient to enforce the payment of debts between individuals.”
    In this case, however, the legislation of this State, under discussion, does not require us to proceed to the full extent of the authorities we have cited. No condition is imposed on the tax payer, to the litigation of the tax other than its prepayment to the collector. A full, complete and substantial remedy is provided in the statute itself, for the tax payer. The State consents that its officer, the tax collector, may be sued in its own courts for the tax. It provides, that if judgment in such suit shall be rendered against its officer, such judgment shall be paid to the tax payer from the treasury of the State. This broad remedy is made co-extensive with the remedies provided, in like eases, for all other citizens of the State.
    The plaintiff must execute a bond for costs before he can bring his suit against another citizen.
    In actions of replevin, the property is taken out of the possession of the defendant and delivered into the custody of the plaintiff. In many cases, the result demonstrates the property to have been that of the defendant.
    In cases of receivership, the true owner is often, during litigation, deprived, by orders of the court, of the possession and enjoyment of his own property; and compelled to pay compensation to the receivers for managing and controlling the same.
    Other illustrations of equal hardship to the true owners of property might be stated.
    The litigant tax payer is placed upon an equality with all other citizens. His rights and equities and remedies are precisely the same with theirs. Pending the litigation, the tax which constitutes the subject matter of the suit, shall be deposited in the treasury of the State.. It may be used by the State to pay its current expenses, and- its indebtedness. And if judgment shall be rendered in favor of the litigant tax payer, “the Comptroller shall issue his warrant for the same, which shall be paid in preference to other claims on the treasury.”
    Second. The main and leading legal propositions embodied in the petition, on the grounds of which relief is sought, as already seen, are these:
    1. The Louisville & Nashville R. R. Co., is a corporation, as it exists in Tennessee, chartered by, and organized under the laws of Kentucky; or, in other words, is a foreign corporation, within the limits of Tennessee.
    2. It is unconstitutional, and in violation of the Constitution of Tennessee, to tax the shareholders in said corporation, on their stock therein; and, in addition, to tax the property, real or personal, of any description, owned by said corporation, within the State of Tennessee.
    3. That the Tax Act of Tennessee, c. 118, 1873, and especially by force of the eighth section thereof, exempts said corporation from the taxes assessed and levied against it by the authorities of Sumner county.
    4. The taxes so levied are not assessed as required by - law, in the proper civil districts of said county.
    
      These several propositions we shall proceed to discuss in the order in which they have been stated.
    1. It is alleged that the Louisville & Nashville R. R. Co., is a corporation, as it exists in Tennessee, chartered by, and organized under, the laws of Kentucky; or, in other words, is a foreign corporation in Tennessee.
    The Louisville & Nashville Railroad Co., was first chartered by an act of the Legislature of Kentucky, approved March 5th, 1850: Pam. Acts, p. 5, et seq.
    
    By the second section of said act, the capital stock of said company is fixed at three millions of dollars, in shares of one hundred dollars each.
    Sec. 14 provides: “ That the President and Directors of said company are hereby vested with all powers and rights necessary to- the construction of a railroad from the city of Louisville to the Tennessee line, in the direction of Nashville, etc.
    Sec. 18 is, in part, this: “And that the said road or roads, with all their' works, improvements, or profits, and all the carriages, vehicles, and machinery for transportation used therein, and all other species of property thereunto belonging, are hereby vested in said company incorporated by this act, and their successors forever; and shall never be taxed beyond the rates of tax imposed upon real estate, estimated upon the prime cost of the proposed works.”
    The Legislature of Tennessee, on the 4th of Dec., 1851, passed an act entitled, “An Act to incorporate the Louisville & Nashville E. E. Co.: Sess. Acts of 1851, c. 23, pp. 28, 9.
    This act adopts substantially the provisions of the act of Kentucky aforesaid, of the 5th March, 1850, and, also, the amendments thereto, adopted March 20, 1851.
    Said corporation is specially embraced within the provisions of the General Improvement Law of Tennessee, by virtue of section 10 of said act: Sess. Acts, 1851-2, c. 154, pp. 204, 215; and c. 62, pp. 63-4; 1855-6, pp. 57-8; Priv. Sess. Acts, 1857-8, pp. 18, 21; Sess. Acts of 1857-8, c. 163, pp. 386-390.
    The title of this last act is: “An act to amend the charter and several acts amendatory thereto, passed by the Legislatures of Tennessee and Kentucky, incorporating a company to construct a railroad from the city of Louisville to the city of Nashville.”
    Sec. 14 is;: “That it shall be lawful for any sheriff, coroner, or constable, to levy upon and sell, as other personal preperty, any share or shares in any railroad or turnpike in this State, belonging to any execution debtor or corporation, against whom they hold an execution: Code, 1489, 3034.
    It seems diflfcult, in view of this legislation, and the acts of the Louisville & Nashville E. E. Co., to resist the -conclusion, that within the limits of Tennessee, said railway is a corporation of this State, deriving its franchises, powers and privileges from said legislation, and not otherwise: Ohio & Mississippi R. R. Co. v. Wheeler, 1 Black, 286,
    In the • case last cited, Chief Justice Taney, in de- ' livering the opinion of the Court, said: “ It is true, that a corporation by the name and style of the plaintiffs appears to have been chartered by the States of Indiana and Ohio, clothed with the same capacities and powers, and intended to accomplish the same objects, and it is spoken of in the laws of the states as one corporate body, éxercising the same powers and fulfilling the same duties in both states. Yet is has no legal existence in either state, except by the law of the state. And neither state could confer on it a corporate existence in the other, nor add to or diminish the powers to be there exercised. It may, indeed, be composed of and represent, under the corporate name, the same natural persons. But the legal entity or person, which exists by force of law, can have no existence beyond the limits of the state or sovereignty which brings it into life and endues it with its faculties and powers.” See the Delaware E. E. Tax, 18 Wall., 206; Tallmadge v. The North Am. Coal & Hans. Co., 3 Head, 337; Sprague v. Hartford It. S. Co., 5 E. I., 233; Mississippi It. II. Co. v. Cross, 2 Ark., 443; Hardy v. Merriwether, 14 Ind., 203; Angel & Ames on Corp., (9th Ed.) § 633; Bank of Augusta v. Earle, 13 Peters, 519.
    2. It is alleged in the petition, that is unconstitutional, under the Constitution of Tennessee, to tax the shareholders in said corporation, on their stock therein, and in addition, its property, real or personal.
    This position, as we understand it, is advanced, independently of' the Tax Act hereafter to be considered.
    
      This brings us to consider, what is stock in a railroad company, and what is capital stock?
    Angelí & Ames lay down the doctrine on these subjects thus:
    “ One of the principal points of view, as it has been already stated, in which a joint-stock corporation may be regarded, is in relation to its stock. By the term joint-stock corporation, we would be understood to mean such a corporation as has for its object a ■dividend of profits among its stockholders. A corporation of this sort is invariably empowered to raise a certain amount of capital, by the mutual subscriptions ■of its members, and this capital is divided into shares, which are made to vest in the subscribers according to their respective contributions; and they entitle the holders of them to a corresponding proportionate part of the profits of the undertaking. * * * *
    A share in one of these companies may be defined to be a right to partake, according to the amount of the party’s subscription, of the surplus profits obtained from the use and disposal of the capital stock of the company to those purposes for which the company is constituted. It is believed to be not unusual for the act of incorporation to provide that this interest shall be personal property, though it must be so regarded independently of any enactment to that effect; and this, notwithstanding it arises, in a measure, out of realty, it being the surplus profit only that is divisible among the individual shareholders. The land, buildings, etc., of canal, turnpike and railroad companies, are the mere instruments whereby the joint-stock of the company is made to produce that profit; and, moreover, belong exclusively to the corporate body, ■which is altogether á separate person from the individual members ”: Ang. & Ames on Corp., (9th Ed.) §§ 556-7; Bradley v. Holdsworth, 3 Meeson & Welsby, 334; Waltham v. Waltham, 10 Met., 595.
    The same principles were ruled in the case of the Union Bank of Tennessee v. The State, 9 Yer., 490.
    In that case the Court said: ‘But this Court, in the case of Brightwell, adm’r, v. Mallory et ais., has said, “that is a mistake to suppose that the stock of an individual consists of so much money owned by him in bank; the money in the bank is the property of the institution, and to the ownership of which the stockholder has no more claim, than a person who is not at all connected with the bank. The stockholder has an entire and perfect ownership over his own stock, and may sell and transfer’ it to whomsoever he pleases, and from doing which the bank has no power to restrain him.’ It necessarily follows that the capital stock of the bank can not be taxed as the property of the stockholder, as he has no legal title to any portion of' it, but only the immediate right to receive his share of the dividends as they are declared, and the remote right to his share of the effects on hand at the dissolution of the institution.”
    The decision was made in 1836, nearly forty years ago. It has never been called in question, so far as we know, since it has been rendered. On the contrary, another Convention was called in this State in 1870. It re-adopted, in substance, the provisions, on this point, of the Constitution of 1834. They did' this with a judicial exposition thereof, made as aforesaid, standing unquestioned for about thirty-four years.
    No principle is more plainly established, than that such re-adoption is made, with the distinct intention to embrace within the provisions of the Constitution, the .exposition thereof rendered by the highest tribunal in the State.
    In Van Allen v. The Assessors, 3 Wall., 384, the Supreme Court of the United States, say: “ The interest of the shareholder entitles him to participate in the nett profits earned by the bank in the employment of its capital, during the existence of its charter, in proportion to the number of his shares; and, upon its dissolution or termination, to his proportion of the property that may remain of the corporation after the payment of its debts. This is a distinct, independent interest or property, held by the shareholder, like any other property that may belong to him. Now, it is this interest which the act of Congress has left subject to taxation by the States, under the limitations prescribed, as will be seen on referring to it ” : National Panic v. Commonwealth, 9 Wall., 358; People v. Commissioners, 4 Wall., .244.
    In the case of the- National Panic v. Commonwealth, 9 Wall., 358, Judge Miller, in delivering the opinion of the Court, says:
    “In the several recent decisions concerning the taxation of the shares of the National Banks, as regulated by sections forty and forty-one of the Act of Congress of June 3d, 1864, it has been established as the law governing this Court, that the property or interest of a stockholder in an incorporated bank, commonly called a share; the shares in their aggregate totality being called sometimes the capital stock of the bank; is a different thing from the moneyed capital of the bank held and owned by the corporation. This capital may consist of cash, or of bills and notes discounted, or of real estate combined with these. The whole of it may be invested in the bonds of the government, or in bonds of the states, or in bonds and mortgages. In whatever it may be invested, it is owned by the bank as a corporate entity, and not by the stockholders. A tax upon this capital is a tax upon the bank, and we have held that when that capital was invested in the securities of the government it could not be taxed, nor could the corporation be taxed as the owner of such securities.
    On the other hand, we have held that the shareholders, or stockholders, by which is meant the same thing, may be taxed by the states on shares so held by them, although all the capital of the bank be invested in Federal securities, provided the taxation does not violate the rule prescribed by the act of 1864”: Queen v. Arnwud, 9 Adolphus & Ellis, (N. S.) 806.
    Now, we have selected for the purpose of this argument, on this point, the strongest cases to be found —cases in which the capital stock of the corporation was positively exempted from taxation — and in which, nevertheless, the shares of stock, are held subject to taxation as the distinct, independent, and private individual property of the stockholders. In this State we have seen that such shares are by statute declared to be personal property, and, as such, subject to execution.
    No substantial distinction exists between a bank corporation and a railroad corporation. Angelí & Ames, as already shown, place all joint stock corporations, in this respect, on the same footing: Richmond v. Daniel, 14 Gratt., 385; Savings Bank v. Nashau, 46 N. H., 398; Dwight v. Mayor, 12 Allen, 322; Redf. Sup, to Law of Railways, 507-10; The Delaware Railroad-Tax, 18 Wall., 229; State v. Petway, 2 Jones’ Eq.. (N. C.) 396.
    In this case, if there had been a positive exemption of the capital stock of the Louisville & Nashville Railroad Company, from taxation, in its charter, such exemption would not have prevented the State from taxing the individual shares of the stockholders.
    We conclude, consequently, that the taxation of the individual shares of the stockholders, residents, and citizens of Sumner county, Tennessee, in the Louisville & Nashville R. R. Co., all other questions aside, was constitutional and legal; and that such taxation interposes no objection to the taxation of the property of said corporation by the State, or to the assessment sought to be superseded in this case.
    But we add: the stockholders are not parties to this proceeding. . Their rights, as such, are not involved. We have to deal with the corporation, as such. Certainly, the corporation, in this proceeding, can not be heard to complain that its stockholders, as such, have been unconstitutionally or illegally taxed.
    3. It is next insisted, that the Tax Act ' of Tennessee, approved March 25, 1873, exempts, and especially by force of the eighth section thereof, said corporation from the taxes assessed and levied against it.
    Our answer to the position last aforesaid, is as follows:
    1. Said act, and especially said eighth section, on a fair construction thereof, does embrace the railroad corporations of Tennessee, or the Louisville & Nashville R. R. Co.; and the provisions' of said act of 1873, other than said eighth section, do declare the property of said corporation taxable, and provide details for its assessment and taxation.
    2. The property of the corporation taxed in this case is not the capital of the Louisville & Nashville R. R. Co., within the sense of said eighth section, on the assumption said corporation is held to be embraced therein.
    3. Assuming that both these immediately preceding positions should be ruled against the. State, then we maintain, that said proviso, by its .terms real estate, includes all the property, which we contend is subject to be assessed and taxed.
    4. The exemption of any property by the Legislature of Tennessee, since the Constitution of 1870, except in the cases therein specified, is unconstitutional. The Louisville & Nashville R. R. Co., does not fall within any of said exceptions. The “corporations” therein specified are municipal corporations. Nor is there any exemption contained in the charter of said railroad company, or by virtue of any contract between said company and the State. The Constitution of the State provides, art. 2, s. 28: “All property, real, personal, or mixed, shall Be taxed.”
    The property of the corporation, and the property of the stockholders therein, are essentially distinct and separate property; and the taxation of the individual stockholder is no taxation of the corporation, and conversely. Then, where is the constitutional legislative authority to prescribe that the property of the stockholder shall be taxed, and the property of the corporation shall not? We shall not return to this proposition.
    Sec. 1 of the act of 1873, is: “ That all property, real, personal, and mixed, shall be assessed for taxation, except such as is declared exempt in the next section.”
    See. 2 defines all exemptions; and the property of railroad corporations is not among them, in any aspect.
    Sec. 4 provides as follows: “That the basis of all assessments shall be as follows:
    “ 1. To assess the property to the person or persons owning, or claiming to own the same, on the 10th day of January, of the year for which the assessment is made, if known; if not, then to unknown owners.
    “ 2. To assess real property at its market value, on a credit of one and two years, deducting fifteen per cent, in gross.”
    
      The words “ person hr persons,” in the foregoing sub-section, embrace a corporation: Code, 50: Angelí
    & Ames on Corp., §‘ 441; People v. TJticá Insurance Co., 15 John., 382; Louisville & Nashville P. P. Co. v. Commonwealth, 1 Bush, (Ky.) 250.
    Sec. 5 of said act provides, “that in assessing real estate, the following shall be shown;
    “ 3. The value of the land, or town lots, including improvements.”
    Sec. 14 is: “ That this act shall not be so construed, and shall not so operate, as to exonerate or release from taxation, any company or corporation whose charter exempts stock and shares thereof from taxation ; but it is hereby enacted, that in all cases where such stock is exempted, such company or corporation shall be assessed in such way as may be lawful.”
    It is manifest, that if the position assumed in the petition be correct, and our argument against the position erroneous, to the effect, that the Louisville & Nashville E. E. Co., was organized in Tennessee, under the authority of the State of Kentucky; and that it is simply a foreign corporation, doing business with the consent of the Legislature of Tennessee, in this State, then said eighth section, now under review, has no application; for said section expressly applies to corporations, “ organized under the authority of this State or the United States.”
    We recognize the force of the cáse of Bedford v. The Mayor and City Council of Nashville, 7 Heis., 409. That case is based on the act of 1868-9, c. 45, s 9. Sess. acts, p. 66, similar to the above, and, with íthé exception of the words, “or any other joint stock company, organized under the authority of this State or of the United States,” a substantial copy from the National Bank Acts, passed by Congress, one on the 3d of June, 1864, and the other on the 10th of February, 1868: 13 U. S. Statutes at Large, 99; 15 U. S. Statutes at Large, 34.
    This case of Bedford v. The M. & C. C. of Nashville, held that the Nashville Gas Light Co., a corporation organized for the purpose of supplying the city of Nashville with gas, having its office and place of business, within the corporate limits of said city, was a stock company embraced within said ninth section.
    But a railroad corporation extending through counties, and, it may be, states, is quite a dissimilar corporation, and the reasons on which said eighth section rests, as applicable to the one class of corporations, are very different as applied to the other class. Physical locality and territorial occupancy of the corporations, are fundamental ideas in that section. Take this language : “ Said shares shall be included in the valua-
    tion of personal property of such stockholder in the assessment of state, county, or municipal taxes, at the place, town, ward, or district where such bank, banking association, or other corporation is located, and not elsewhere, whether said stockholder reside in said place, town, ward, or district, or not, but not a greater rate than is assessed upon other moneyed capital in the hands of individuals in the State.”
    Here, we have all the territorial phraseology essential to carry out the idea embraced in said acts of Congress, with the words necessary to superadd the other corporations, which belong to the same class with banks. These are place, town, ward, or district, and not elsewhere. Their correlatives are county and municipal.
    “It is a well settled rule of' construction, that the real intention of the law-makers, when accurately ascertained, will always prevail over, the literal sense of terms. The case of The State v. Clarksville Turnpike, 2 Sneed, 88, furnishes an accurate statement and fine illustration of the rule, that the real intention of the makers must prevail over the literal sense of the terms. The owners of the turnpike road were allowed by the words of the charter, to 'erect a toll-gate within two miles of Clarksville, and appoint a toll-gatherer thereat.’ The Court, ignoring a strict adherance to the literal meaning of the words, 'within two miles of Clarksville,’ but giving proper force to the intention as deduced from the subject matter, the reason, and spirit of the provision, held that the owner could not place the gate nearer to the town than the two-mile post; See Potter’s Dwarris on Statutes, 202-4; Sandman V. Beaeh, 7 Barn. & Cress., opinion by Lord Tenterden.
    In the Delaware Railroad Tax Case, 18 "Wall., 206, the Supreme Court of the United States, say: “And when such immunity,” [exemption from taxation,] “is conferred, or such limitation is prescribed by the charter of a corporation, it becomes a part of the contract, and is equally inviolate with its other -stipulations. But before any such exemption or limitation can be admitted, the intent of the legislature to confer the immunity or prescribe tbe limitation, must be clear beyond a reasonable doubt. All' public grants are strictly construed. Nothing can be taken against the state by presumption or interference. The power of taxation is an attribute of sovereignty, and is essential to every independent government.” * * * *
    If the point were not already adjudged, it would admit of grave consideration, whether the legislature of a state can surrender this power, and make its action in this respect binding upon its successors any more than it can surrender its police power or its right of eminent domain. But the point being adjudged, the surrender when claimed must be shown by clear, Unambiguous language, which will admit of no reasonable construction consistent with the reservation of the power. If a doubt arises as to the intent of the legislature, that doubt must be solved in favor of the state ”: Commonwealth v. Eaton Bank, 10 Penn., 415; Brovidenae Ba/nkv. Billings, 4 Peters, 514; Charles B,iver Bridge v. Warren Bridge, 11 Peters, 420.
    Consider the fourteenth section in immediate connection with said eighth section, and it seems difficult to reach a conclusion variant from that on which we insist. "We repeat it in part: “That this act shall not be construed, and shall not so operate, as to exonerate or release from taxation, any company or corporation whose charter exempts stock and shares thereof from taxation”; but such company or corporation shall be taxed in “such way as shall be lawful.”
    It seems to us, that applying the foregoing rules of construction to said eighth section, and considering the entire provisions of the act, and particularly said fourteenth section, it is dificult to sustain the conclusion that the Legislature ever contemplated, by the terms used, to embrace within said eighth section, that class of corportions to which the plaintiff belongs.
    4. It is insisted that the assessments were not made in the proper civil districts of Sumner county.
    The 25th section of the tax act aforesaid, under which the assessments were made, provides: “That if any person, company, firm, or corporation in said county, have not been assessed as contemplated by the provisions of this act, or have been assessed an inadequate amount, it shall be the duty of said Chairman, or Judge, Clerk, Trustee, Sheriff, or Tax Collector, to cite said person, company, firm, or corporation, to appear before them for the purpose of being assessed according to law; and said Chairman, or Judge, Clerk Trustee, or Tax Collectpr, are authorized to make the proper assessment, “and cause the same to be entered upon the tax books for collection.”
    1. It is not. by any means clear that a special assessment under the twenty-fifth section aforesaid, is controlled by the sub-section 4 of section 4 of said act. The only direction contained in said twenty-fifth section is, that the assessor shall “cause the same to be entered upon the tax books for collection.” If the object had been to amalgamate the special assessments provided for with the district assessments, why was not such specific direction given? "What need is there that the assessment should be divided among the several civil districts through which the track of the road passes? The books go into the hands of one collector for the whole county.
    2. The provision of the act, requiring the assessment to be in the district in which the property is situated, is directory, and not imperative. The omission does not increase the taxes of the tax payer. If the property was assessed in the wrong county, then such error might subject the proper owner to additional or double taxation. The rates of taxation in ■wrong county might be higher than in true one. So, if a district tax was assessed and levied. But such a tax is unknown to our political system. Then, what harm can come to the property owner whose property extends through a number of civil districts in a county, in the event his property should be assessed as an entirety, instead of assessing it, in parts, in each civil district: Sellers .v Fite, MS.; Johnson v. Williams, 2 Tenn., Cooper’s Ed., 178; Davis v. Bryan, 7 Yer., 88; Crowder v. Sims, 7 Hum., 259; Cooley’s Const. Lim., 74-8.
    3. Again, sec. 569 of the Code provides: “When several tracts or parcels of land belonging to the same person lie contiguous, forming one entire tract, the whole may be included in one valuation, and so extended.” This assessment falls within the reason, scope and spirit of said section.
    
      Third. The provisions of the charter of the Louisville & Nashville R. R. Co., adopted as aforesaid by the Legislature of Kentucky, in regard to the taxation of said corporation, have no binding force in this State. The Legislature of Tennessee did not, in re-adopting said charter, substantially, in this State, adopt said provisions on the subject of taxation. The legislation of Tennessee is untrammeled and unlimited by any thing contained in the laws of Kentucky on that subject: The Delaware Railroad Tax, 18 Wall., 206.
    
      Fourth. The taxes levied, in this case, and authorized to be levied by the Tax act of 1873, aforesaid, and the laws of Tennessee, on the Louisville & Nashville R. R. Co., are not obnoxious to any prohibition contained in the National Constitution, or any legislation of Congress: Paul v. Virginia, 8 Wall., 168; Ducat v. Chicago, 10 Wall., 410; The State Freight Tax, 15 Wall., 232; The State Tax on Railway Gross Receipts, 15 Wall., 284.
    
      Fifth. The next subject of inquiry is in regard to the rule of assessment of the real estate and fixtures of the Louisville & Nashville R. R. Co., in the State of Tennessee.
    This rule is fixed by the Constitution of the State, and the acts of the Legislature aforesaid, adopted to execute and carry out the provisions of the Constitution. It is the universal rule of real value and uniformity.
    The Supreme Court of Kentucky, in the case of the Louisville &' Portland Canal Co. v. Commonwealth, 7 B. Monroe, 160, announce these principles: “ The Tax Commissioner of one of the districts of Louisville, in 1846, valued, and assessed one hundred acres of land, owned by the Louisville & Portland Canal Co., with the improvements thereon, including the canal, at one million of dollars. An appeal was taken from the assessment, by the company, to the County Court, under the last clause of the statute of 1819, (2 Stat. Law, 1376,) and a motion made to reduce the valuation to one hundred thousand dollars. The motion failed by a division of the Court, and the company have appealed to this Court.
    “ The proof shows clearly, that if the canal be embraced and estimated in the valuation, that the amount will at least equal, if not exceed, the value found by the commissioner. That the cut or canal, together with all locks, dams, bridges, and houses, should be taken into the estimate in fixing the value, we can not doubt.
    “The 7th section of the statute of 1831, (2 Stat. Law, 1385,) provides, ‘ that each person listing lands or town lots for taxation, as now directed by law, shall also add to said list, the value of said lands or town lots, considered in their improved state, and including all their improvements thereon, attached to the freehold, of any kind or description.’ The language of this statute is broad enough, and was no doubt intended by the Legislature to embrace any and every kind of addition or amelioration which may be made to or upon lands or town lots, for the use of, or enjoyment of man, or the issues or profits arising from the same. All such improvements add to the value of the freehold, and should be estimated in the valuation of the same for taxation. And whether such lands, with their improvements, belong to an individual or a corporation, they are equally subject to taxation according to their increased value.
    
      “Had the land through which the canal has beeni excavated, been owned by an individual, with capital sufficient to make the canal, locks, etc., there could be no doubt that he would have had the right to do so, and to exact tolls at his discretion, from all those who might choose to use the same in avoiding the dangers of the falls. And' if so, he surely would be subject to taxation on the property thus increased in value by the improvements and consequent increase in value, by reason of the issues and profits springing out of the same. If so, we can see no good reason why a corporation owning the same property, should not be subject to taxation in the same manner and at the same valuation, as if owned by an individual. The charter contains no restriction on the right of taxation, which is a sovereign right, and should never be regarded as surrendered, limited or restricted in the grant of a charter or creation of a corporation, unless there be express terms of surrender, limitation or restriction. The property of the corporation lies in the state, and is protected by the laws of the state, and may be taxed here whether the shareholders live here or elsewhere, as the real estate, with ihe improvements, of individuals lying here may be taxed, whether the owners live here ' or elsewhere.
    The rule laid down by the Supreme Court of Illinois, in the case of The State of Illinois v. The Illinois Central Railroad Co., 27 111., 64, is thus stated: “This clause has been understood to mean, the value at the time of taxation or assessment. Values are fluctuating and changable, as all experience shows. Nor is it easy, at any one period of time, to lay down a general and satisfactory rule of certain application, in all cases, for the purpose of ascertaining the value of many kinds of property subject to taxation. Where property has a known and determinate value ascertained by commerce in it, as in most kinds of personal property, or fixed by law as money, there can be no difficulty. But there are many kinds of property, as to which the assessor has no such satisfactory guide. Such is peculiarly the case with railroad property, and other similar property, constructed not only for the profit of the owners, but for the accommodation of the public, under the sanction and by the exercise of the sovereign power of the state. In such cases the inquiry should be, what is the property worth, to be used for the purposes for which it is constructed, and not for any other purpose to which it might be applied or converted, or for which it ihight be used. In such cases, if the property is devoted to the use for which it was designed, and is in a condition to produce its maximum income, one very important element for ascertaining its present value is discovered, and that is its net profits. When property is thus improved, it is manifest that it is more or less valuable, as it yields a greater or less profit, in its productive and commercial use.”
    In assessing real property belonging to a railway company, consisting of a strip of land but a few rods in width, upon which the railroad track is located, with the necessary stations, buildings, etc., the land should not be assessed as an isolated piece of property, but as part of the whole railway; and its value should be estimated in connection with its position, and the business and profit derived therefrom: The People v. Barker, 48 N. Y., 70; 2 American Railway Reports, 149. .. •
    Judge Redfield (1 Red. Amer. Railway Cases, 497) says: “The subject of the taxation of corporations is well discussed, and learnedly and carefully defined, by Mr. Justice Wayne in delivering the opinion of the court: Gordon v. The Appeal Tax Court, 3 How., <U. S.) 133.
    “‘The franchise is their corporate property, which, like any other property, would be taxable if a price had not been paid for it. * * The capital stock
    is another property corporately associated for the purpose of banking, but in its parts is the individual property of the stockholders, in the proportion they may own them; and being their individual property, they may be taxed for it, as they may for any other property they may own. A franchise for banking is, in every state in the Union, recognized as property. The banking capital attached to the franchise is another property, owned in its parts by persons, corporate or natural, for which they are liable to be taxed, as they are for all other property, for the support of government.5 55
    In Wilmington Railroad v. Reid, 13 Wall., 268, it is said: “Nothing is better settled than that the franchise of a private corporation — which, in its application to a railroad, is the privilege of running it and taking fare and freight — is property, and of the most valuable kind, as it can not be taken for public use even without compensation. It is true it is not the same sort of property as the rolling stock, road-bed, and depot-grounds, but it is equally with them covered by the general term, ‘the property of the company,’ and therefore equally within the protection of the charter”: The State Freight Tax, 15 Wall., 232; Veazie Bank v. Fenno, 8 Wall., 547; West Fiver Bridge Co, V. Fix, 6 How., 529; 2 Kent’s Comm., 11th ed., 303; Angelí & Ames on Corp., 9th ed., § 4; The Monroe Savings Banlc v. The City of Foohester, 37 New York, 367.
    It is thus seen that the component elements of value of a railroad corporation are these:
    1. The capital stock; 2. The corporate property: 3. The franchise of the corporation; 4. The individual stock of the shareholders.
    The corporate property, in the above classification, may be sub-divided as follows: 1. The land itself;
    2. Road-bed and superstructure, including cross-ties, iron, side-tracks, etc.; 3. Bridges; 4. Depot-grounds
    and depot-houses, and all other improvements, including water-tanks, etc.; 5. Rolling stock, etc.
    These various elements of value are to be assessed and taxed as a railroad.
    Another fact to be regarded in fixing said value is the profits of the railway company.
    And still another consideration, which the assessor might look to in determining the value of the corporate property, is its cost. The last fact is not of itself a controlling one. The railway may have cost too much or too little. It may have increased or depreciated in value since it was built.
    In the case of Cook y. The Rockford, Rock Island & St. Louis Railroad Go., recently decided, and not yet reported, except in pamphlet form, the Supreme ■Court of Illinois say: “ There is, moreover, an almost insuperable difficulty which must attend all attempts by local assessors to assess the capital stock, franchise, roadway and rolling stock of most railroad companies. Such roads are usually located through several counties. The cost of construction in a particular town or county affords no criterion of the value of that portion of the road, for every mile of the road is equally indispensable to its existence as a whole, and contributes, proportionally, to its principal earnings. Local improvements may, indeed, vary, and they are required to be assessed by the local assessors; but the road and its equipments constitute a single, entire property. In determining the value of such property, the question is neither one of original cost nor of the intrinsic value of the various items of which the road and its equipment is composed, taken separately; but what is It worth, with all its capacities and facilities; as a railroad? The franchise- extends to the entire corporate property, and it is not possible that it can be divided. It must, if assessed at all, be assessed as an entirety, and this, as we have already shown, may be in connection with the'” property to which it is attached”: Railroad Co. v. Peniston, 18 Wall., 5.
    
      Sixth. We maintain that the rolling stock is a part of the road — constitutes, in the sense of the law, fixtures thereto; and that the real, actual, aggregate value thereof must be apportioned to the road, in its entire length of 185 miles, from Louisville to Nashville.
    The common law is progressive; it expands to meet the new and varied exigencies of society and civilization; and the enlightened courts of our own State have, from time to time, recognized and applied this principle: Jaeob v. The State, 3 Hum., 519.
    This question came before the Supreme Court of New York in the case of The Farmers’ Loan and Trust Oo. v. Hendriehson, 25 Barb., 484. Strong, Judge, said: “The property of a railway company consists mainly of the road-bed, the rails upon it, the depot erections, and the rolling stock, and the franchise to hold and use them. The road-bed, the rails fastened to it, and the buildings at the depots are clearly real property. That the locomotives, and passenger, baggage and freight cars, are a part, and a necessary part, of the entire establishment, there can be no doubt. Are they so permanently and inseparably connected with the more substantial realty as to become constructively fixtures? Railways being a modern invention, and of a novel character, we have no decisions upon this question, and those relating to and governing old and familiar subjects do not absolutely control us, although we must necessarily resort to them as guides. Judge Weston well remarks, in Farrar v. Stachpole, 6 Greenl., 157, that modern times have been fruitful of inventions and improvements for the more secure and comfortable use of buildings, as well as of many other things which administer to the enjoyment of life. "Venetian blinds, which admit the air and exclude the sun, whenever it is desirable so to do, are of modern use; so are lightning-rods, which have now become common in this country and in Europe. Those might be removed from buildings without damage; yet, as suited and adapted to the buildings upon which they are placed, and as incident thereto, they are doubtless part of the inheritance, and would pass by a deed as appertaining thereto.
    “The general principles of law must be applied to new kinds of property, as they spring into existence in the progress of society, according to their nature and incidents, and the common sense of the community. It may be that if an appeal should be made to the common sense of the community, it would be determined that the term 'fixtures’ could not well be applied to such movable carriages as railway cars. But such cars move no more rapidly than do pigeons from a dove-cote, or fish in a pond, both of which are annexed to the realty. Judge Cowen admits, in Walker, v. Sherman, that a machine, movable in itself may become a fixture, from being connected in its operations by boards, or in any other way, with the permanent machinery. It • results from many cases that it is not absolutely necessary that things should be stationary in any one place or position, in order that they should be technically deemed fixtures. The movable quality of these cars has frequently, if not generally, induced the opinion that they are personal property. Hence, railway mortgages of rolling stock have, as I understand, been generally filed in the offices of the clerks of all the towns through which the roads pass. That was undoubtedly the more prudent course, as it saved any question as to the character of the property. Even the learned counsel for the plaintiffs has gone no further than to denominate the cars ‘quasi’ fixtures. Public opinion, however, although respectable in matters of fact, is an unsafe guide as to legal distinctions.
    “That railway cars are a necessary part of the entire establishment, without which it would be inoperative and valueless, there can of course be no doubt. Their wheels are fitted to the rails; they are constantly upon the rails, and except in cases of accidents, or when taken off for repairs, nowhere else; they are not moved off the land belonging to the company; they are peculiarly adapted to the use of the railway, and in fact can not be applied to any other purpose; they are not like farming utensils, and possibly the machinery in factories and many of the movable appliances to stores and dwellings; the objects of general trade; they are permanently used on the particular road where they are employed, and are seldom, if ever, changed to any other. Many of these are strong characteristics of the realty; some of them have often been deemed conclusive.
    “ In Imshington v. Sewell, 1 Simons, 435, 480, Vice Chancellor Hart was inclined to think the devise of a West India (real) estate passed the stock of slaves, cattle and implements, because such things are essential to render the estate productive, and denuded of them, it would rather be a burden than a benefit. The reason assigned appears to be sound; but the Vice Chancellor carried the doctrine further than the cases would warrant, as slaves (in the West Indies), cattle and implements of husbandry, were objects of general commerce. In the case of The King v. The Inhabitants of St. Nicholas, Caldecott, 276, (cited by Judge Cowen, 20 Wend., 269) it was decided that a steelyard, being in a machine-shop, was a fixture. Lord Mansfield said: 'The principal purpose of the house is for weighing. The steelyard is the most valuable part of the house. The house, therefore, applied to this use, may be said to be built for the steelyard, and not the steelyard for the house/ Surely this reasoning is equally applicable to the cars on a railway. The railway is constructed expressly for the business to be done by the cars, and what evinces their essentiality in a strong point of view in this case is, that there can be no tolls, which are expressly mortgaged, without them. It is remarked by Mr. Dane, in his Abridgment (vol. 3, p. 157), that certain articles were 'very properly a part of the real estate and inheritance, and pass with it, because not the mere fixing and fastening to it is alone to be regarded, but the use, nature and intention/ Judge Weston, in the case which I have cited from 6 Greenl., in speaking of a saw-mill, said: 'If you exclude (from the realty) such parts of the machinery as may be detached without injury to the other parts, or to the building, you have it mutilated and incompíete, and insufficient to perform its intended operations/ Surely all this would be true of a railway, for it is nothing without its locomotive vehicles. It is true that no mechanical or agricultural business can be carried on to much extent without tools or farming implements, and such tools and implements are universally conceded to be personal property; but then such tools or implements are not peculiarly adapted or confined to any particular establishment, but may be used upon them generally, and are subjects of frequent barter. It is different, I admit, as to the stationary machinery in a factory, and articles of a similar character in a dwelling-house, which are not absolutely fastened; but although they are considered as personal property for reasons peculiar to them, and not of universal application, yet such reasons do not seem to me sufficient, while many things become fixtures without physical annexation.”
    Judge Bedfield says of this case: “This opinion is certainly plausible, and it is impossible to say that the views here maintained will not, or may not, ultimately prevail. There is, no doubt, justice and convenience in such a view. But it seems to us somewhat a departure from the general law of fixtures in this country, and at variance with generally received notions upon that subject, at present, when carried to the extent of declaring the rolling stock of a railway a fixture ”: 2 Bedf. on Bailw., (4th ed.) 483.
    The same doctrine is supported by the courts of Illinois. It was held in the case of Titus v. Mabee, 25 111., 257, that railroad cars and locomotives were, when on the road for use, prima facie■ a part of the realty, and could not be severed and sold under an execution. This case was reaffirmed in the subsequent case of Titus v. Ginheimer, 27 111., 462.
    In Palmer v. Forbes, 23 111., 301, the court say: “We are not departing from the common law rule, when we hold that the rolling stock and material provided for the repair of the track, are a part of the real estate. It is not necessary in all cases that things should be actually affixed to the freehold, in order to constitute a part of it for the purpose of transfer and sale. Take the case of mill-stones, which are constantly being taken up and sharpened: when up, they are as much a part of the mill as when in their beds, and would pass by a deed or mortgage of the mill, if they had been, in fact, detached for six months. So of various kinds of machinery, as a screw, or cutting engine, or lathe, where á great multitude of different sized pinions or cutters are kept on hand, but only one of which can be used at a time. All of these are necessary to make the complete machine, and. would pass by a sale of the factory as being a part of it, but with no more propriety than is the rolling stock a part of the railroad. No road can be complete without its machinery, any more than would a cotton or grist-mill.”
    In Indiana, in the case of the Toledo & Wabash Pailway v. Lafayette, 22 Ind., 262, it is held, that a railway company should be taxed for its road, as an entirety, including everything in any way used by the company in running or operating it: Louisville & New 
      
      Albany JR. JR. Co. v. The State of Indiana, 25 Ind., 177. See MoGraw v. Memphis & Ohio JRailroad Co., 5 Cold., 434; 1 Washburn on Neal Property, (3d ed.) §. 10; Minnesota Co. v. St. Paul Co., 2 Wall., 509, and note.
    We now proceed to summarize the propositions we have advanced and sought to maintain in this argument:
    1. The act approved March 21, 1873, c. 44, prohibits this proceeding, and is constitutional and valid.
    2. The Louisville & Nashville Nailroad Company is a corporation, incorporated by the Legislature of Tennessee, and derives its franchises, powers and privileges from the legislation of this State, to the extent said corporation is run and operated within its limits.
    3. The stock in said corporation, owned by individuals, is their separate, distinct and individual personal property; and such of them as reside in Sumner county are taxable on said shares, according to their real value, as on their other personal property.
    4. The eighth section of .the tax act of 1873 does ■not embrace railroad corporations.
    5. If said eighth section does embrace railroad corporations, then the exemption of the capital does not exempt the other corporate property, which property has been assessed and taxed in this case.
    6. The, proviso to said eighth section authorizes tbe taxation in this case, as the real estate of said corporation.
    7. Said exemption of the capital is unconstitutional.
    8. The objection that the assessment of the corporate property was not made in the several civil districts of Sumner county, if so made as insisted, neither renders said assessment void or voidable.
    9. The provisions contained in the charter of incorporation, passed by the Legislature of Kentucky, in regard to the taxation of the Louisville & Nashville Railroad Company, are not in force in this State.
    10. Nothing contained in the Constitution or laws of the United States contravenes the tax.
    11. The real estate and fixtures of the corporation in Tennessee are subject to taxation, in the manner and to the extent which have been pursued and adopted in this case.
    12. The rule of valuation of said taxable corporate property is prescribed by the Constitution and laws of Tennessee, at its real and actual value.
    13. To make said valuation, that part of the road lying in Sumner county should be estimated at its true value as a railroad, having Louisville and Nashville as termini. The property which should be included has already been specifically stated in the argument.
    14. The rolling stock is a part of the realty. It is a fixture thereto. The aggregate value thereof should be apportioned to each mile of the road in Kentucky and Tennessee, namely, 185, as alleged in the petition.
    The magnitude and importance of these questions can not be overestimated, as they regard the people of Tennessee. Their public debt of all kinds will not vary far from $25,000,000. This large debt, in -the main, has been incurred in aiding in the construction of the railroad system of Tennessee. Good faith, public honesty, and a wise public policy demand that this debt shall be paid. How can this be done, unless all the property in the State subject to taxation shall pay its proportion? It has been officially stated that the value of the railroad corporate property which will be subject to taxation during the present year, is $70,000,000: Killebrew’s Kesources of Tenn., 396.
    So far as we know, this is the first effort in the State to tax these railroad corporations. For years they have enjoyed the franchises conceded to them without contributing one dollar towards discharging the common burden. They are in fact, in a great part, the result of the munificent liberality of the people of Tennessee. The property, and the toil of the people, have, in a great measure, built them. The laws of the State have fostered and protected them. And now, after the State has abstained from taxation for a period varying from fifteen to twenty years, the first endeavor to make them contribute their reasonable part to the common- charge, is met by litigation.
    
      Ed. Baxter, for plaintiff, argued:
    1. Plaintiff’s road-bed and superstructure represents its capital, which is exempt from taxation.
    2. But if taxable as real estate, it should have been assessed in the several districts where it is located, and not elsewhere.
    3. If taxable as real estate, it should have been taxed at its real value, and not upon the oppressive and exorbitant valuation that was placed upon it by the county. judge.
    I. The certiorari was the proper remedy for the ■correction of the errors in the assessment complained of.
    Where the valuation of the assessor is made upon correct legal principles, and the error is one of mere valuation, his action may be final; but where, as in this case, in arriving at his valuation, he proceeds upon erroneous principles, certiorari will lie to correct the errors of law committed by him: State v. Quaife, ■3 Zab., 89. His action in this regard is clearly judicial, and his conclusions can be reviewed by means ■of the writ of certiorari: State v. St. Louis County Court, 47 Mo., 594; State v. Clothier, 1 Vroom (N. ■J.), 352-353; C. N. JR. R. v. Butte Co., 18 Cal., •671; Swift v. Poughkeepsie, 37 N. Y., 516; People v. Assessors, 40 N. Y., 154.
    II. We insist that the road-bed, with its superstructure, represents the capital of the corporation ■originally paid in by the stockholders, and as such is expressly exempt from taxation under the laws of this State: Acts 1873, pp. 171, 173, s. 14; Const. 1870, art. 2, s. 28.
    As no other property in the- State of Tennessee is subjected to double taxation, it was thought by the Legislature to be both unjust and unconstitutional that the same property should' be once taxed to the corporation, which held but a technical legal title to it, and then taxed again through the shares of the stockholders, who were in substance and in equity the owners of it. Therefore, the assessment law was framed so as to tax it through, the shareholder and exempt the corporation; unless it appeared that the shareholder was exempt from taxation, and in that event the corporation was taxed. In this way the property would be taxed either through the corporation or the shareholders, but it could be taxed but once; and as our shareholders have been taxed to the full market value of their shares, the Louisville & Nashville Railroad Co., as a corporation, can not again be taxed in regard to the very property represented .by those shares, and upon which their value depends.
    Ve are aware of the decisions of this Court, and of the United States Supreme Court, to the effect that the corporation is the legal owner of the capital, and of all the property of the corporation, and can deal with it as absolutely as a private individual can deal with his own,’ while the stockholders are the owners of their respective shares of stock, which are a distinct independent interest, or property held by the stockholder like any other property that may belong to him. We are also aware that those cases hold that the shares of the stockholder may be taxed, though the capital of the corporation may be invested in government securities, which are exempt from taxation. . Rut those cases do not hold that where the capital of the corporation is invested in property which is subject to taxation, and which, as a fact, is taxed to the corporation, it can again be taxed through the shares of the . stockholders in a state ' where the Constitution requires equality and uniformity in taxation. And even if it were conceded that the Constitution was not in the way, and that the Legislature, if it saw proper, could tax the corporate prop-' erty, first to the corporation, and then to the stockholder, it would not be compulsory upon the Legislature to exercise such unjust power, but it would have the clear right to forego its exercise and direct that it should be taxed but once, whether that be to the corporation or the shareholder.
    “The capital stock of a bank consists originally of the money paid in by the subscribers to the stock of the bank”: Connersville v. Bank, 16 Ind., 105; Union Bank v. State, 9 Yerg., 498. But this original fund does not remain as money, “it changes its form, and is represented by the notes of other persons or corporations”: 16 Ind., 105. “It may consist of cash, or of bills and notes discounted, or of real estate, combined with these. The whole of' it may be invested in bonds of the government, or' in bonds of the states, or in bonds and mortgages”: National Bank v. Commonwealth, 9 Wall., 359. But in whatever it may be invested it still remains the capital of the bank, and a tax upon that capital is a tax on the bank: 9 Wall., 359; 16 Ind., 105.
    A railroad company, having no banking powers, invests its capital or capital stock differently from a bank, “the whole undivided fund paid in by the stockholders, the legal right to which is vested in the corporation, to be used and managed in trust for the benefit of the members,” (9 Yer., 498) instead of being used by the corporation in discounting bills and notes, and purchasing bonds and mortgages, is employed in building and equipping its road, which represents the capital of a railroad corporation as completely as the notes and bills, bonds and mortgages represent the capital of a bank. To tax its capital and then tax its road, which represents that capital, is to tax the same thing twice; and to say that the State exempts the capital, and yet taxes the road, involves the absurdity that the law should, in the same word, tax and exempt from taxation the same identical thing: The Ordinary v. Central JR. JR., 40 Ga., 650; JBJannibal JR. JR. v. ShaeMett, 30 Mo., 558.
    We stand ready to show that every dollar of the capital of the Louisville & Nashville Railroad Co. was invested in its road; the shares of its stockholders in this capital are taxed by the State and the taxes paid; the assessment act says that this capital shall not again be taxed against the corporation, as to do so would be double taxation: Bangor JR. JR. v. JSarris, 21 Maine, 534; State v. Bentley, 3 Zab., 538, 539.
    
      But it will be said that the proviso to section 8 of the assessment act expressly directs that “the real estate ” owned by corporations shall be taxed: Acts 1873, p. 171. “The real estate” owned by a corporation, which forms no part of and is not represented by its capital, may be taxed of course. A railroad corporation, after exhausting its capital in building its road, may, from its surplus earnings, or from funds borrowed from others, purchase real estate and hold it like any other corporation; but such real estate would represent no part of its capital, and wonld be taxable under the proviso above cited: 40 Ga., 650, This is “the real estate” referred to in the proviso, and the operation of the proviso must be restricted to it, as upon any other construction the proviso would destroy the main section, at least to the extent of the real estate which is actually represented by the capital.
    Take the case of the North Nashville Real Estate Company, chartered by this State: every dollar of its capital was and is invested in a large tract of land adjoining Nashville on the north; it was bought with a view to speculation, but the scheme has proved unfortunate ; its stockholders are taxed and pay upon their shares — its capital is exempted by the assessment law; but can the land which represents the capital, and nothing but the capital, be taxed as “real estate” under the proviso, and these unfortunate stockholders compelled to pay another tax for the same thing through the name of the corporation ? If the real estate representing the capital of that company can. not be twice- taxed, why- is' it that our road-bed and: superstructure, which represents our capital, and as a fact is our capital, can be doubly taxed, when both assessments are made under the same law?
    III. But if-we were-to concede, for the sake of argument, that the, road-bed, with its superstructure, is real estate within the meaning of the proviso to-sec. 8 of the assessment ■ law,- and as such is taxable-to the company, still we insist that the county judge proceeded upon erroneous principles.- in making his assessment, which is exorbitant; oppressive and unjust.
    The assessment law requires that all real property shall' be assessed “ at its market value,” on a . credit-of one and two years,: deducting fifteen per cent, in gross: Acts 1873, p. 169, s. .4, ¶- 2. And the Constitution of 1870 requires that all property shall be taxed according to its value, * * so that taxes shall be equal and uniform throughout the State, and no one species of property from- which a tax may be-collected shall be taxed higher than any other species of property of the same'value: Const. Tenn., art. 2, s. 28. His Honor says - that he found out ■ from the reports of the company’s president, . that the road cost an average of $38,000 per mile, and that its net earnings were $5,467 per. mile; he estimated the length of the road ’ in Sumner county at- thirty-five miles, -and valued each-, of said - miles- at - a fraction over $27,000, which was found from an estimate upon the whole length of the road. From this it is manifest that in arriving at-his-valuation-he looked alone to • the cost of the road»’ - and its - net- ■ earnings. - We would like to know whether-any individual citizen of this State, who may have purchased land at the high prices of ,1865-66, was- taxed’ in 1873-74 upon -its original cost ? if so, he was most; grievously wronged. On the other hand, will the state ■ and county agree to confine their assessment for 1875 to the net earnings of the lands that were devastated by the grasshopper, or blasted by the drought of 1874? If they ■are unwilling to be governed by the net earnings in a season of general adversity, why should they be allowed to resort to it in times of general prosperity? And if the “original cost” ■ and “net earnings” are both thrown out when assessments are made upon private citizens, why are they to be regarded in assessing the property of corporations? Are odious individuals and corporate bodies (who have no votes) to be governed by one rule, while the mass of the ■community are favored with another? or are taxes to be equal and uniform, and every one to stand or :fall by the same rule or law that governs every other member of the body politic under similar circumstances? Vanmnt v. Waddell, 2 Yer., 260.
    In the case of the Chicago & N. W. R. R. v. Boone County, 44 111., 244, the supervisors were allowed by the inferior court to introduce certain evidence, including a report of the president of the company, to show what the road had cost. The Supreme Court of Illinois held that this was error; they say: “What property cost three years ago affords no evidence of its value to-day, and least ■ of all where the equipment of a railroad is concerned ”: 44 111., 245. The question for the assessor is, not what it originally cost, but what is its value on the day of assessment as compared with the valuations made against other-taxpayers. “Nothing would tend more to mislead a jury than evidence of what it cost”: 44 111., 246.
    As to the report made by the president of the railroad company, the court held it to be clearly incompetent, upon the ground that, being very voluminous, the bearing it had upon the case before the court had to be ascertained, if at all, by a careful analysis and dissection, to which a jury would scarcely be able to-subject it; besides, the statements contained in it were- ' not sworn to by the president, and if true, they could easily have been proved by witnesses under oath: 44 III, 247. In this case, even if the cost of the road could be looked to, there was no evidence of that cost before the county judge, except reports of the company’s president, which it is not pretended were sworn to. If these reports are thrown out, the assessment is without any legal evidence upon which to stand, and for that reason alone should be reversed.
    So far from the cost of a mile of railroad representing its. real value, it is frequently just the reverse. Other things being equal, that mile of road is most valuable to the company which approaches nearest to a straight line and to the ' level of the earth’s surface. Deep cuts, high fills, sharp curves, heavy grades, trestles, bridges and tunnels are the most costly parts of the line, and they require constant watching and repairs, with occasional renewals out and out; and yet they are of no more value to the road than other sections which required no more work than leveling the ground and' throwing up a bed for the track. The tunnel in- Sumner county probably cost more than all the balance of the road in that county.
    But if the cost of the road is to be the criterion of its value, the cost, instead of being arrived at from “an estimate upon the whole length of the road,” should have been confined to that portion of the road which lies in Sumner county. There is no pretense for assuming that the road passing through the rolling lands of Sumner county cost as much per mile as that part of. it which crosses the mountain ranges of Kentucky, and the large and numerous- rivers of that state, which are spanned by iron bridges of the most costly character. The cost of the road-bed as it runs through the sparsely settled poor lands of Sumner county, bears no proportion to the lands occupied in the cities of Nashville, Franklin, Bowling Green, Elizabethtown and Louisville, all of which is estimated' as a part of the “ whole length of the line.”
    The assessment law expressly requires that property shall be assessed “in the district or ward in which it lies”: Acts 1873, p. 169, s. 4, ¶ 4. The district of Sumner county in which the tunnel is located is entitled to the benefit of the fact that that portion of the road cost so much more than any other part of the road in that county. The cities of Nashville and Edgefield can not be required to share with the country districts of Davidson county the costly depots, round-houses, machine-shops and bridge, which are situated exclusively within their limits.
    
      The assessment law enacts that where any one has not been “assessed as contemplated by its provisions, or has been assessed upon an inadequate amount, the county judge is to make the proper assessment”: Acts 1873, p. 175, s. 25. We have just shown that the assessment “as contemplated by the provisions of the law,” is an assessment of the property “in the district or ward in which it lies,” and if no assessment of the road-bed and superstructure had been made in the several districts of Sumner county, the “proper assessment” for the county judge to make, was to assess the road-bed as it lies in said districts, and not an assessment in gross for the whole county. This is made manifest by the 43d section of the act, which requires the clerk of the county court to make out from the tax-books an aggregate statement, showing the value of all town lots, the number of acres and value of all tracts of land, and the value of all personal property. “This statement shall be made and the facts shown by civil districts and wards, and aggregated for the whole county for the items named”: Acts 1873, p. 179, s. 43. This statement can not possibly be made, unless the county judge makes his assessments by districts; and it is conclusive that the law intends that the real estate owned by railroads shall, like that of individuals, be assessed in the several wards and districts as town lots, or as “tracts of land” — the tax-books showing the “number of acres and the value of all tracts of land.”
    We' come next to examine the “net earnings” of a railroad as an element of its taxable value. If a railroad lies wholly within -the boundaries' of a single state, and all its profits are earned within . that state (as is the case with the English, railways, and with the railroad running from Nashville to Lebanon in this State), the taxation of the railroad may well be estimated upon the basis of its net earnings, the State levying the entire tax in the first instance, and making such distribution of it among the several counties as may seem just or equitable among them. In England it is distributed among the several parishes, not in proportion to the length of the railway, but in proportion to the actual earnings in each parish: 2 Redf. Railw., p. 179 (3d ed.); this is manifestly the only fair mode as between the several counties of the same state. The Louisville & Nashville Railroad Co. have but ten miles of road in Davidson county, while they have over thirty miles in Sumner — and yet their profits upon the Davidson county business is probably ten times as much as the profits upon the Sumner county business; and yet, if the net earnings were divided. between these two counties in proportion to the length of road within their respective limits, Sumner county would get three times as much tax from the road as Davidson.
    It is useless, however, to discuss the merits of a tax upon the net earnings of a railroad; for the Constitution of Tennessee requires property to be taxed according to its value, and permits no income tax, except .“a tax:upon incomes derived from stocks and bonds that are not taxed ad valorem,” Const., art. 2, s. 28. Even if the Constitution ,.were not in the. way> the Legislature would probably never levy an income tax, owing to the fact that odious and inquisitorial assessment laws are requisite for its collection. The people would not submit to an income tax upon themselves, and unless the mass of the community is taxed in that manner, corporations can not be subjected to it.
    Where the line of a railroad runs not only through several counties of the same state, but also through several states possessing distinct rights of sovereignty, a tax upon net earnings, which will be just alike to the states and the railroad, becomes impossible. The State of Kentucky has the_ same right as Tennessee to tax the net earnings of this road; and whether she insists upon levying her tax in proportion to the length of the road, or the profits earned in her state, she would get the advantage of . this State. This State might retaliate upon Kentucky by disregarding the proportion claimed by her; but it would be a cruel injustice' upon the railroad for Tennessee to impose a double tax upon earnings which the State of Kentucky had already taxed. The only safe plan to avoid conflicts between the states, and at the same time do justice between the states and the railroads, is to adhere strictly to our Constitution — tax only such property as is within our boundaries, and tax that as we tax all other real estate, by the number of acres and upon the value per acre.
    In the case of the Albany & Schenectady JR,. JR. Go. v. Osborn, 12 Barb. B., 223, 227, it appears that plaintiff’s railway ran between Albany and Schenectady, and was a fraction less than seventeen miles in length. A portion thereof, nearly ten miles in length, rail within the town of Watervliet. The principal office of the plaintiff was in the city of Albany. The defendants, who were the assessors of the town of Watervliet, assessed $250,000 as the valuation of that part of the railway which lay within the said town, being all the real estate belonging to the railway in said town, which sum the assessors arrived at by estimating the entire worth of the plaintiff’s road, considering the lucrativeness and income thereof, and taking the same proportion of said worth that the length of the said road in the town of Watervliet bore to. the whole length thereof. The actual value of that part of the plaintiff’s railway, including the land on which it was laid and the fixtures connected with the same, lying within . the said town, and detached from the remainder of the road, did not exceed $60,000, beyond which last valuation the plaintiff insisted it could not be legally assessed. The New York statute provides that “all real or personal estate liable to 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.” Upon the foregoing state of facts the Supreme Court- of New York held “that no distinction was made between the property of a corporation and that of an individual;” 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, or whether it is profitable to the stockholders or otherwise. Such property is to be appraised in the same manner as the .adjacent lands belonging to individuals, and without reference to other parts of the railway. In estimating the value of an adjacent farm, it certainly would not be permitted to take into consideration the skill with which it was managed, nor the means bv which high prices were obtained for the produce. These would change with every occupant and perhaps with every year. If such a course were proper, two adjoining farms of equal extent and fertility, and equally distant from market, might be very unequally taxed in the same town, because the one was occupied by a poor farmer and yielded no profit, and because the other was managed with an amply rewarded skill and industry. Such a course of proceeding would levy an income tax, or at least a tax upon skill and thrift rather than upon the value of the land itself.” Under the statute the income of the road was not taxable; nor in the taxation of either its real or personal estate was the profitableness of the road to be taken into account. The court therefore held that the actual value of that part of the railway, including the land on which it was kid and the fixtures connected with the same, lying within said town, and detached from the remainder of the road, was the value at which it should be assessed.
    In the case of the Albany & West Stoekbridge E. E. Co. v. Town of Ganaan, 16 Barb., 244, 250, the plaintiff's railroad ran from the Hudson river in New York to the westerly line of the State of Massachusetts, a distance of about ‘ thirty-eight miles. On its route it passed for about nine miles through the town of Canaan in "the State of New York, and the quantity of land occupied by it in that town was ninety acres, worth about fifty dollars per acre, and with the erections, superstructure and fixtures upon the road in that town, did not exceed in value $45,000. The assessors nevertheless assessed it at $300,000, arriving, at that sum, as plaintiffs averred, by valuing the road at the cost thereof and estimating the income and productiveness thereof.
    The Supreme Court of New York, affirming- the case in 12 Barb., 223, cited above, held that it was '“the duty of the assessors to estimate the section of. the plaintiffs’ road within their jurisdiction at its full and true value. In ascertaining this value, the superstructure and fixtures, every thing annexed to the land, was to be taken into the account. But whether the stock was above or below par, or whether the business of the road was productive or unproductive, were questions with which the assessors had nothing to do.”
    In the case of the Sangamon & Morgan JR. JR. v. Morgan County, 14 111., 163, 167, the railroad extended -from. Naples in Scott county, through Morgan county, to Springfield in Sangamon county, in the State of Illinois, a distance of fifty-five miles in all, twenty-seven miles of which were in Morgan county. The entire road-bed was assessed at $125,000, .and Morgan county claimed the right to assess for state and county taxes on-27-55 of this amount. The Supreme Court of Illinois held, that the jurisdiction •of the county court to levy the tax did not extend beyond its own limits, and therefore their mode of valuation was improper. In the language of the court, “instead of valuing and assessing the twenty-seven miles of road which is situated in Morgan county, an undivided portion of the whole road was assessed and taxed. The valuation should have been of, and the assessment upon, that portion of the road which was situate in Morgan county.” “We can not know,” say the court, “nor is it even probable, that each mile or portion of the road was of equal value. It is not probable that each portion of the road was equally profitable or productive. One portion of the road may be badly constructed and another well constructed. One portion may have heavy grades and curves, and another portion be level and straight. In some places the land occupied by the road may be very valuable, while in other places it may be nearly valueless. All of these considerations must be taken into, account in ascertaining the value of any portion of the road. But admitting that each portion of the road was of equal value, still the valuation should have been of that specific part which was within the county, and not of an undivided part of the whole road, portions, of which are- within two other counties. A farm or a field might be divided by a county line, but- in such case the valuation should not be of the whole farm or field, and the assessment made upon such valuation in proportion to the quantity situated in the county for which the tax is levied. Each county must assess and tax the real property within its limits and no other.”
    In the case of the Chicago & N. W. JR. JR. Co. v. Boone County, 44 111., 244, the supervisors of Boone county were allowed to show in the inferior court that the railroad company had made a return to the county clerk of McHenry county for 1865 of their property in that county, from which it appeared that they had valued their track at $3,000 per mile; and the argument was, that, inasmuch as the track in Boone was in as good repair and capable of doing the same proportionate amount of business as that part of it running through McHenry county, therefore the value must be the same, and it should be assessed accordingly. But say the Supreme Court of Illinois: “ This, in our opinion, does not follow. So far as the return in McHenry county is concerned, non con-stat, but that it was proper and necessary to place that valuation upon it in order to put it on the basis established by the assessors of that county for assessing the property of individuals therein. What may have been just in McHenry county may not have been just at the time the return was made by the railroad in Boone county. So that they returned their property as. high as individuals in Boone county, they complied with the law as enforced against the taxpayers of Boone county and the same of McHenry county. Neither county furnishes a rule for the other.”
    In the case of JRegina v. Overseers of JPutney, 3 El. & Bl. in 107 Eng. Com. Law E., p. 108, the pipes and reservoirs of a waterworks company were so placed in the several parishes in which they were respectively situated, that the whole together formed one apparatus for the supply of Water to the customers of the company; a part'of such apparatus being rateable to the poor rate in each parish. It was insisted that the value of the whole apparatus in all the parishes in which it was situate should be ascertained, and then divided among said several parishes according to the quantity of land occupied by the apparatus in each parish; but the Court of Queen’s Bench replied that if this principle be correct, every square foot of land occupied by the apparatus is to be rated at the same rate, without regard to the situation or nature of the land, whether it was originally part of a barren heath, like Putney heath, or part of the market ground of Fulham; and without regard to whether it be merely land occupied by pipes under the surface of the highway, or whether it be land upon which expensive buildings have been erected for the purpose of converting it into- filtering beds or reservoirs. We have no difficulty in saying that this principle is not correct, and that we can not sanction it.”
    It will be argued, however, that while it may be right to confine the assessment of each county to that portion of the railroad which lies within its own limits, yet regard may be had to the fact that it' is a component part of an entire line, and as such, has a value far exceeding what it would have were it detached from the balance of the line and operated as a separate railroad.' That a railroad from Nashville to Louisville is more valuable than one from Nashville to the Kentucky line may be true, but the State of Tennessee has no right to tax a railroad lying beyond her limits, and as the only part of the railroad within her jurisdiction lies between Nashville and the state line, that is the only part of it that this State can legally tax. So a railroad from the state line to Nashville is more valuable than one whose terminii are on the north and south boundaries of Sumner county; but Sumner county can only tax such a railroad as she finds within her jurisdiction, and can not add to that value by looking beyond her limits. The question is, what is that part of the railroad worth that lies within her own limits? And to arrive at this, she has no right to estimate the value of the whole road and then assume to take a certain proportion of it; for if, by taking such a proportion of the value of the whole road, she gets a larger sum than she would by taking the value of only so much of the road as lies within her own limits, she is ceiv tain to get a tax upon values that do not exist within her own jurisdiction, and which therefore she has no right to tax. If Sumner county may thus get the benefit of values beyond her jurisdiction, so may every other county upon the line, and we may thus be compelled to pay upon the same values twenty different times.
    It is said, however, that the road-bed and superstructure should be taxed as a railroad, and not as farming land; that our road-bed is worthless for farming purposes, that our iron and cross-ties would be worth only what they would bring as so much old material, and in that way we - would escape from all but- a nominal taxation. We do not insist that our land should be' taxed lower than the adjacent lands, merely because we have rendered them useless for farming purposes by the way we have constructed our road. On the contrary, we stand ready to pay as high a tax upon every acre of ground we own in Sumner county as any adjacent taxpayer of that county is taxed upon his. We also stand ready to pay the full value of all iron ' and cross-ties put upon the road; and when we have done this we have done as much as any other tax-payer, and should not be required to do more. The assessment law requires that “in assessing real estate the following shall be shown:
    “1. The description of the property.
    “2. The name of the owner or owners.
    “3. The value of the land or town lots, including improvements.
    “ 4. The value of mills, manufactories, distilleries, breweries, founderies and other buildings used for similar purposes”; Acts 1873, p. 169, s. 5.
    We ask that our assessment be made upon this principle and no other. We do not insist that our land shall be taxed as a farm, for it is not a farm. It has a character as distinctive as that of a mill, manufactory, distillery, brewery, or foundery, and should be taxed precisely as it is. But in taxing the mill of a private citizen situated in Sumner county, while it could not be taxed as a mere building, the assessor could not look to the fact that the same citizen owned a distillery a few yards distant, but in Davidson county, where he used the products of his mill more profitably. Neither could Davidson county, in taxing the distillery, have regard to the mill in Sumner. The fact that they were both owned by the same person and used in connection with each other might render both of them much more' profitable, but it would not make them more valuable in the sense of our assessment laws, which do not affect to tax profits or incomes. Some other citizen of Sumner might own a mill by the side of the other mill, and in all respects its duplicate; would he be entitled to a reduction in his taxes because he had no distillery, like his neighbor’s, to furnish a market for his mill, which, in consequence, lay idle most of the year? So; while our railroad in Sumner county is to be taxed as a railroad, and is not to be regarded as a mere slip of land encumbered with old iron and cross-ties, yet it is to be regarded simply as a railroad, and its franchise right to charge for freight and passengers, the profits that it may earn from that source, and the fact that we own other portions of a road, which, operated in connection' with it, enables us to make this part of the road more profitable than it otherwise would be, can not be regarded.
    In the case of the State Easton Del. Dr. Co. v. Metz, 31 N. J. Law, 378, the prosecutors were the owners of a toll-bridge over the Delaware river, between Easton in the State of Pennsylvania, and Phillipsburg in the State of New Jersey. The one-half of the bridge, including the abutments and piers, to the middle of the river on the New Jersey side, was assessed for taxation as real estate in New Jersey, under a statute which required the “assessor to assess' and value property at its full and fair value, and at such prices as, in his judgment, said property would sell for at a fair and bona fide sale by private contract at the time 'such assessment was made.” The witnesses on the part of the tax assessor estimated its value from $120,000 to $200,000, looking not only to the value of the bridge as a structure, but upon the fact that it was a toll-bridge, owned by a company with the right of taking tolls; that the travel was large and income very profitable. The witnesses on the part of the bridge company estimated its value at from $25,000 to $60,000, looking only to the material value of the bridge as a structure, without reference to the franchises of the company or the income of the bridge or the amount of travel. The assessor estimated the whole at $120,000, and assessed the New Jersey half of it at $60,000. Upon certiorari, the Supreme Court of New Jersey reduced the assessment to $25,000. They held that the assessor did right in refusing to assess it as if it was worth only the value of the lumber that was contained in it; that it was in fact a bridge, with a character as distinctive as that of a house, a store, or a mill, and should be valued at what it was, as distinguished from the value of the material to be converted into something else. But while the assessor had the right to take these matters into consideration, as well as the fitness of the structure to the purposes for which it was intended, the court held that he had no right whatever to look to the value of the franchise, nor to the income derived from the tolls. Upon this point they say: “There is a great distinction between the franchises of a company under its charter, and the material things contemplated by it and necessary to its objects. There is a value about each. In this case the rights of the bridge company, under their act of incorporation, to build a bridge and to take tolls, are matters of value apart from the structure. They are not liable to be taxed under our present tax laws, except only so far as they may be reached in the capital stock, and the surplus, if to tax such is legal. If the bridge should be destroyed, these rights would still exist, and, as such, could not be taxed; and if rebuilt, its value should not be enhanced by the peculiar franchises or profits of the company. The franchises do not connect themselves •to the bridge as determining its value; the bridge is •only the material means to their enjoyment, and has an ascertainable value in itself”: p. 383. A building fitted up expressly for a bank, with its vaults and arrangements, would be valued independently of the profits that could be made there under its charter. The adaptedness of the building for a bank would be taken into the estimate of value, but not the franchises or profits of the corporation using it; and so, in this case, the adaptedness of a bridge as a structure for the purposes intended should be considered in fixing its value, but not the franchises or profits of the corporation using it: p. 383. Proceeding upon these principles, the court reduced the assessment, as stated above.
    Section 13 of the assessment act taxes the franchises of certain saving banks, but they are the only corporations whose franchises are taxed by the laws of Tennessee: see Acts 1873, p. 172, s. 13.
    Att.-Gen’l Heiskell for the State.
    The first question in this case is the question of jurisdiction. Of this, I desire to say, that I am well satisfied that the question comes up as it does — that is to-say, in such form, that it can be determined without in any manner defeating a decision on the merits of the case, since a judgment on the question as to the county, will afford a rule by which the state in any event will govern herself, and so obtain the benefit of a determination equally conclusive, practically, whether the-Court shall entertain the jurisdiction as to her or not..
    The question of jurisdiction is one of vital importance to the State, and if to that, I direct the chief of my argument, the weighty consequences hanging on its determination, will amply justify me.
    This branch of the case, in my mind, upon consideration, divides itself into two parts, and gives rise to two questions. The acts on the subject, 1868, c. 79, s. 16, and 1873, c. 44, s. 2, expressly forbid the use of a supersedeas to stay the collection of any tax. The latter also prohibits any proceeding but the one provided for in its body, for the remedy of any wrong in connection with the taxes. This last, probably, does preclude the remedy by certiorari. The remedy by certiorari is constitutional, the remedy by supersedeas is not. The one, therefore, stands upon a different footing from the other. As to the one, the supersedeas, it is merely a question whether the state is bound to prescribe the same remedy between the millions composing her community on the one side, and the individual on the other, as she provides for one individual against another, and whether she has done so. As to the other, the certiorari, it is a question of the extent of the constitutional provision, and the intent of it.
    The association of the certiorari with the supersedeas, in our minds, is calculated to mislead. But when examined, they are found to be merely associated writs. The certiorari is used in many instances without the associated writ, and on the contrary, the supersedeas is in constant use, disconnected with the certiorari. Every day we have certioraris issued from this Court to bring up perfect records. We may use it if a court below refuses to send up the record at all, to enforce the right of appeal. It may be allowed on the pauper oath when the supersedeas can not be obtained for want of security. On the contrary, the supersedeas accompanies a writ of error — where it is ordered by a Judge of the Supreme Court, and its relation to the writ of error is precisely the same as to certiorari; sometimes accompanying it, and often not doing so. There is then no necessary connection between them. The prohibition in the act of a supersedeas is not therefore in any sense an interference with the constitutional writ of eertiora/ri, but is perfectly consistent with it.
    This branch of the statute, then, involves simply the right to use exceptional remedies in the collection of revenue, and the question whether the remedy here is exceptional.
    The preventive remedies of the courts are extraordinary, and not the usual remedies. Every lawyer will remember the history of that memorable contest by which the writ of injunction was set on foot, by which a court having no revisory power, and so no writ which would affect the process of the other, by the use of a power over the person of a suitor, prohibited him from using the process they could not stay or supercede. It was an extraordinary process, out of the course of the common law, and as such regarded and resisted by one of the greatest of English judges. It was, however, established and has become common, but still, remedy by way of prevention in every shape is regarded as extraordinay, as distinguished from the common course of law to redress evils after they have been consummated. No writ of this kind issues of course, but every one — injunction, attachment, supersedeas, mandamus, etc., is granted only upon the oath of a party. Now, the State does, by this act of 1873, take away the preventive remedies, and leaves the citizen, in a contest with her, to the ordinary remedial actions which prevail between citizen and citizen.
    "We contend that there is no constitutional provision which prohibits such a course, and no direct prohibition is put forward. It is needless to repeat the authorities, which have been presented by Mr. McHenry, which settle that due process of law does not require, in respect of the State, the same process that is required between citizens. The distress warrant is due process of law in collecting revenue. Indeed, distress itself, without warrant, was due process of law in England, in cases of trespass, etc. This summary process has been constantly used in Tennessee, and it is used in the United States courts by statute, under provisions of a constitution exactly equivalent to ours, prohibiting the deprivation “of life, liberty or property, without due process of law.” As to the exceptional mode, taking away the supersedeas, there can be no question.
    But the matter of the certiorari stands upon a different footing, and as there is a clause in the Constitution prohibiting its disuse, we must consider the scope and intent of the- prohibition. To do this it is necessary that we study its terms.
    The Constitution of 1796, art. 5, s. 7, is in these words: “ The Judges or Justices of the inferior courts of law, shall have power in civil cases to issue writs of certiorari to remove any cause, or a transcript thereof, from any inferior jurisdiction, into their court, on sufficient cause, supported by oath or affirmation.” The subsequent Constitutions have the same words in every essential particular.
    It is said the certiorari has been held to apply to several cases not within its scope in England; but is not held that the Constitution requires such extension. In the case of courts martial, our courts held, that a cer
      
      tiorari would lie — but not that it was included in the constitutional provision. Nor was any point involving the Constitution involved in Duggan v. McKinney, 7 Yer., 21, except that it was held that the Constitution pi’otected the remedy, and did not restrict the power of the Legislature to regulate it.
    The case in 11 Hum., 251, does not mention the Constitution. It states that at the earliest period of our judicial history., the writ was extended in its operation, and cites 2 Tenn. It., 181; 4 Hay., 54, 69.
    The cases in 4 Hay., are proceedings in a court martial, to which the Constitution could not apply, and which showed- no extension of the English practice. The other, Stuart v. Mall, 2 Tenn., 181, is a case where the attempt was to get the benefit of a writ of error and bill of exceptions, by means of a certiorari, to re-try a case from the County Court, and where the relief was denied. The court speak only of proceedings in courts not of record. Not a single one of the cases cited, nor any to be found in our decisions, go beyond this revision of acts of courts, justices, or courts martial, until the case of Pearl v. Nashville, 11 Hum., 249. There it was applied to the warrant of a city recorder to collect a tax, and that proceeding was quashed for defects apparent on its face.
    Now, none of these c'ases show that the Constitution extends to courts martial, whose jurisdiction is criminal, nor to tax cases. Could, then, the Legislature forbid the issue of the writ in a case of court martial ? Certainly, for the Constitution applies to civil, not criminal matters. The same observation is true of Spears v. Loague, 6 Col., 421, where there is no allusion to the Constitution, and nothing to show that it was cited or relied on. Smith v. Hen & Reagan, MS., Knoxville, 1874, is put upon the Code, 3123, and not on the Constitution.
    So there is nothing in the decisions of.our courts to show that they have regarded a distress warrant as being subject to certiorari, within the Constitution. There may be persuasive authority that before the act of 1873, the certiorari was a proper remedy, but not that it was a constitutional remedy, beyond the power of the Legislature to repeal. The question is just this, and on this there is no authority.
    Now, to what does the Constitution apply? To civil cases — to remove causes, or transcripts thereof, from inferior jurisdictions.
    I maintain, that a revenue matter is not civil, that an assessment is not a case or a cause, and that a tax assessor is not a jurisdiction.
    I have already shown, (chiefly by the aid of my learned associate,) that revenue proceedings are exceptional in their character, and not subject to the rules as to civil proceedings, and we are not' therefore, bound liberally to construe e civil ’ to include matters which may or may not come within its scope. When you undertake to show that the people have tied their own hands in a constitution so that they may not protect themselves as a state,, from the most serious embarrassment, and that the Legislature as their representatives, have exceeded an authority, which you must limit by strict proof, you fail if the expression is equivocal. Besides, if you find in that constitution, a provision allowing the Legislature to decide whether the State is to be suable or not, you will not construe a doubtful declaration, that she may be sued by certiorari, to operate against the State if the words expend their proper force in any sense upon these litigations, in which the State is no party. Revenue cases are not properly 'civil/ To sue in a revenue case is to sue the State, and as the option is given to the Legislature to decide whether the State can be sued in any case, it will not do to say that ' civil’ is to include State cases.
    Mr. Bouvier defines a civil action to be "an action which has for its objects, the recovery of private civil rights or compensation for their infraction.”
    Now, supposing a suit brought by the State for revenue, can it be said to be an action to recover a private civil right, or compensation for the infraction? If not — if it is a public right to collect the tax, i. e., a right belonging to the public and not to a private individual, then it — if a case, is not a civil case.
    Blackstone, in treating of actions, says: " In treating of these, I shall at present, confine myself to such wrongs as may be committed in the mutual intercourse between subject and subject, which the King, as the fountain of justice, is officially bound to redress, in the ordinary forms of law, reserving such injuries or encroachments as may occur between the crown, and the subject, to be distinctly considered hereafter, as the remedy in such cases is generally of a peculiar and eccentrical nature ”: 3 Black., 114.
    He then proceeds, p. 115, to define suits and actions, and to divide them into actions, real, personal, and mixed, and says under these may every species of remedy by suit or action in the courts of common law be composed. Showing that in his classification, revenue matters are not included in this class.
    He then, after going through the various civil actions, treats of the petition of right; the monstrans de droit; as the only remedy against the crown, and proceeds to show the remedies which the King has.
    It is true, he speaks of remedies against officers of the King, but they are remedies after the fact by action of trespass, etc., or if by way of prevention, are upon the idea of personal wrong, not justified by law; in which the officer is acting outside of his official duty. No instance, I think, can be produced in which the courts have stayed the proceedings of tax assessors, or others acting in the scope of their duties, by certiorari or other preventive writ, on the ground of mistake of judgment. See my brief on the Bank of Tennessee case, classifying the cases in which officers may be sued.
    Nor is it a case. Bouvier defines a case to be a question contested before a court of justice. An action or suit at law or in equity.
    Of course, it has various other meanings; as a case of conscience; a ease of compound comminuted fracture; ■ or a case of swindling. But it can hardly be supposed that such cases can be subjects of certiorari. Taken in connection with ‘ courts5 and ‘ civil,’ it means an action in a court.
    Now, I maintain, that when the tax assessor sends me one of the assessment blanks, and I hand it back to him, and he puts it down on his tax-book, we do not institute a case. Nor do we make a case within the meaning of the Constitution, when I fail to make my return, and he puts me down as I was last year, or adds to that oné-fourth of the amount,' because I fail to make the proper return. If these are civil cases within the Constitution, in which every man has the right to certiorari, then is our Constitution a curse, and our revenue system a mockery, under which, the little fish will be consumed by those who are able to fight off the taxes. This thing of assessing taxes is not judicial, it is not upon evidence, but eyesight of the assessor; he takes no testimony, he issues no process, he opens no court, he institutes no suit! Who are the parties, where is his transcript or record? The review by the Sheriff, County Judge, or other officer has some of the insignia, of a suit, but it must be in its nature like the original act of assessment.
    It is not a cause to be brought up. A cause is defined to be “An action or suit at law or in equity, a case in court.
    Then, the Constitution fails in three particulars to cover and protect an assessment of taxes. It is not a case, cause, or civil.
    Again, a tax assessor is not a jurisdiction. That is a word as strictly applicable to courts, as case and crime: Mr. Tidd, Pr., p. 398, uses ‘ inferior jurisdictions’ as equivalent to ‘inferior courts.’ Who calls the Governor’s office a superior jurisdiction, or a Sheriff’s an inferior jurisdiction, or a tax assessor a jurisdiction? The concurring indications show that the Constitution had in view something other than these things, and meant to apply this process, beyond legislative recall, to Justices of the Peace, and other like jurisdictions, acting between private parties — and they meant then to trust the Legislature and Courts with the extension to criminal cases, and such others as they may deem proper. The courts may have extended it to this class of cases, but not with any-intimation that it was in this application, placed upon the impregnable basis of a constitutional writ. The Legislature too, have treated it upon the same footing, thinking it was necessary, in 1857-8, to insert it in the Code.
    I have shown that the decided cases do not establish any thing on the constitutional question, and are consistent with my view. But there is a case inconsistent with any other, the case of Wade v. Murray, 2 Sneed, 50. There was a case — a civil case,- before a jurisdiction — not a Chancery Court, but a Chancellor with statutory power, sitting at Chambers, on notice with parties, evidence, and all the paraphernalia of counsel,, argument, etc. Yet the Court held that it was not a case for certiorari, because it was evident that the Legislature meant that there should be no appeal or writ of error. All the cases on certiorari were cited in the briefs, and the Constitution, art. 6, s. 15; which must be a misprint for s. 10; as s. 15 relates wholly to civil districts, and constables, etc. The Court recites its provisions, and holds, notwithstanding the Constitution, that it can not apply where the Legislature means the proceeding to be final: 2 Sneed, 56, and they hold that the certiorari can not be maintained. They might have said that the Legislature have not clearly manifested the intention to take away this right, and a fair construction of the act, will be to hold that it allows this writ. They do not even give that effect to the Constitution. They hold that the Legislature has the power to make any proceeding final, when they see proper so to do, and this provision of the Constitution does not prevent it.
    How much more here where is no case, no civil action or cause, no jurisdiction or court, and a matter in which the Legislature has declared, in words carefully weighed and framed, that the proceedings shall not be disturbed or inquired into until the tax is paid.
    This case seems to establish a theory which has been floating in my mind for some time, viz.: that the Constitution only intended to settle the writ of certiorari as a mode of reaching a result when the review was to be made, but did not intend to compel the Legislature to make every proceeding of an inferior judicature subject to review. This would give it the operation contended for by the one class of North Carolina lawyers, and settle the whole controversy, whether it was the proper writ, without settling for all time that no civil judgment could be final in the first instance. Either this is the effect of the decision, or it must be put upon the ground that only-controversies of a regular court or . judicature can be subject to its constitutional irrepealable action. The fact that the case of Wade v. Murray was the subject of a dissent, to my mind, gives assurance that it was thoroughly considered. Nothing is more sure to bring out the powers of the judicial mind than a disagreement and collision of judges, taking different sides of a question and debating it orally, in consultation.
    It is to be remembered, too, by those who would give weight to the case in 11 Hum., that this opinion is by the same judge who delivered that opinion, and it shows affirmatively what that opinion' shows negatively, that he was not in that case (Pearl v. Nashville) considering the constitutional aspect of the matter, but the practice and usage only — beyond the Constitution.
    
      Certiorari is not properly a mode of reviewing questions of fact, but of law merely: 1 Tidd, 398, note A. Such was the English rule. But in Beck v. Knabb, 1 Tenn., 60, the right of certiorari after trial (the writ in England being used almost 'wholly before trial) is derived from the right of retrial on appeal; and it is clearly shown that where there is no appeal, there can be no retrial on certiorari. And this ease strongly corroborates the case of Wade v. Mwrray, 2 Sneed. In the case of Quaife v. State, 3 Zab., 90, the same point is recognized, that at common law the certiorari only reached errors of law; and although the court in that case revise the errors of law, they refuse to have anything to do with the estimate of value.
    Again, it is clear, from our decisions, that the certiorari was either a substitute for a writ of error, or for an audita querela, to affect a judgment; or a proceeding to affect an execution» To the latter no analogy can be claimed for this proceeding. No indication occurs anywhere on our books that the dispute in North Carolina involved the application of this writ beyond these two classes of cases. In these we have the measure of the right of review by the superior courts, and these were confined to courts and judicatures, and did not extend to acts of mere ministerial officers not constituting courts.
    The cases on the subject of certiorari cited by Mr. Baxter, throw no light on the constitutional argument.
    The case of Quaife v. State, 3 Zab., (N. J.) 89, and the preceding case of Kingsland, show that the matter enquired of was the levy of a tax by a town meeting above the amount limited by law, and beyond the authority of the body, and the certiorari went to the clerk of the township in one case, and to the tax collector in the other. The act to be reviewed was therefore quasi legislative in its character, and, clearly not within the proper scope of the certio
      
      rari as used in this State. But the case in 1 Vroom, 353, shows that the application of the certiorari in New Jersey is regarded by their own court as anomalous and peculiar to their practice, and they justify it upon legislative recognition. They do not claim for it any legitimate derivation from anything in the common law.
    It further appears that in that State the statute gives a right of appeal to the courts, and they might well maintain the jurisdiction upon the same principle which we have deduced from the common law, in Bech v. Knahb, that a right to appeal, whenever defeated by accident, &c., supports the right to certiorari.
    
    The case of State of Missouri v. St. Louis Court, 47 Missouri, 599, is a certiorari to the county court, which is an appellate court in questions of assessment by statute, a regular court acting upon complaint of the party, and the proceeding in which has all the elements of a suit; so that it throws no light whatever on the question, whether the original assessment is a case to which the certiorari may reach under our Constitution.
    The case of the Cal. Nor. R. R. v. Board of Supervisors of Butte Co., 18 Cal., 671., is a proceeding under a statute of California, expressly giving a remedy, and time to prosecute the remedy, but without prescribing what the remedy is to be, and the court hold the appropriate remedy is by certiorari, and this results from the statute and common law principles, as the remedy by writ of error would, if it was to operate on a court of record. It is to a board of supervisors, who seem to be a court having some of the qualities of our county court, probably, however,, with only revenue powers,, and not acting in a mode to which writs of error will apply.
    In 37 New York Rep., 516, the case is a suit against a tax collector, in which, without any statute on the subject, the attempt is made to recover taxes- and go into the assessment, and the point decided is, that no such suit will lay; and so the action failed. The court do then extrajudicially discuss the certiorari,. beginning in this way: “ But in this case we are not prepared to say that the plaintiff has not, or rather had not, if he had availed himself of it in time, an ample remedy by certiorari to correct the assessment while it was in fieri and capable of being reached.” The opinion then proceeds with some rather loose obiter dicta about the scope of the certiorari, and concludes with, “ If this remedy should fail, and the town authorities fail to redress the grievance, the only remedy will be to apply to the Legislature to provide one.” Certainly this is too loose to answer as an authority.
    But in New York the fact is, the certiorari is a statutory remedy in numerous cases, and by express statute goes to officers as well as courts, as it does here under the Code.
    The other citation from 40 N. Y. is an error; no such case is found in that book.
    It is said the act of 1873, amending the Code, is void under the Constitution, art. 2, s. 17. The evil to be remedied by that provision was this: the Legislature had been in the habit of passing acts which gave no notice on their face of their purpose or substance — as, Be it enacted, that sec. 4700 of the Code be repealed; or amended by inserting the words, &c. Now the Legislature, by such act, was liable to be imposed on by the change of a single figure or word, or by impudent misrepresentations on the Soor. It was, therefore, required that the act should give notice on its face of its subject. This act does so fully, and is in compliance with the Constitution. To give the constitutional provision the construction claimed, would render it impossible to legislate, as every law modifies or affects many other laws; and if every act to be affected, directly or remotely, must be recited ■or directly referred to, legislation would be impossible.
    As to the construction of the act of 1873, s. 8, ■the conclusions of Mr. McHenry are clearly right. There are technical rules which bind us to this construction. But if we look beneath the crust of technicality, we find them founded in the deepest knowledge of mental operations.
    The rule is universal that the enumeration of particulars, followed by a general elanse, gives to the general clause a restricted operation, to matters ejusdem generis. A mind directed to particulars is naturally disposed to extend their enumeration by some general clause, lest something should be omitted; but just as naturally the thoughts are confined to something of the like kind. Such general clause is not indicative of an intent to include everything that the most extended construction of them may include.
    The present case brings before us the principle. The law enumerates certain corporations of a particular kind, and we may extend the general clause to any corporation of like kind. Now, what is like
    kind? Likeness may be in various degrees. It may liken banks to banks, or other money corporations; or banks to other local corporations, as gas companies. Now, the court have held that a gas company is included. That establishes the extension of the like thus far to the broader construction. But the-question now is, is this likeness to be extended to corporations in no like sense local, as a railroad, which may reach throughout the State and beyond it? Does not the use of the provision referring to locality, &c., show conclusively that the Legislature did not contemplate such a corporation as a railroad ? But it may apply to all like in kind as to local character, not to those unlike in that respect. It may be said this applies to the main question, whether the Legislature intended to tax railroads, and that the details prescribed do not fit. them. But they are bound by their duty to tax all property, and a well settled and the controlling rule is, that they shall not be construed to act contrary to the Constitution.
    In regard to valuation, the mode of estimating in oidor countries throws light upon the proper mode of arriving at value. Thus (as suggested by a very experienced and able lawyer) estates in England are estimated at certain number of years-purchase, that is, at a certain multiple of the yearly profits; showing that yearly profits is a well-settled means of estimating value; whereas, one of the great' points for petitioners here is, that value is to be decided upon without looking to this element at all.
    As to the question of constructive realty, it . is a familiar common law idea. The keys of a house; the title-deeds of an estate; and the muniment chest to contain them; the horn pertaining to an estate held in cornage, are instances. Villains regardant were annexed to the manor and passed with it. More modern instances of fixtures very like rolling stock are, the bands on machinery, which are in every respect on the same footing. A little reflection will furnish many more.
    
      
      This is what is meant hy the constitutional provision for keeping the courts open.
    
    
      
      In Beck v. Knabb, 1 Tenn., 60, in speaking of a duplicate of this clause _ applicable to courts of record, Judge Whyte says: “There was a doubt whether a certiorari could issue to a court of record in a civil case. The provision in the Constitution seems to be designed to remove this doubt. He did not see that any other meaning could attach to it.” This surely justifies my conclusion as to the clause under consideration.
    
   Sneed, J.,

delivered the opinion of the court.

This controversy involves questions of vast magnitude to the parties and the public, and we must acknowledge our obligations to the learned counsel on both sides, for the great ability with which they have argued these novel and difficult issues, upon which an adjudication is demanded. The plaintiff is an incorporated railroad company, chartered by the State of Kentucky in 1850, for so much of its road as lies in that State, and by the State of Tennessee in 1851, ' for so much thereof as lies in the latter State, and has been for many years operating its original main trunk of railroad one hundred and eighty-five miles,

connecting the cities of Louisville and Nashville, and owns and operates about six hundred and five miles of road in the two states aforesaid; and, as lessee, operates and controls some two hundred and fifty miles of road in this State. About thirty-three miles of the plaintiff's road lie in the county of Sumner, in this State, and the same has been assessed for taxes for 1873 and 1874, on behalf of the State and county, by 'the defendant Austin, as County Judge of said county of Sumner. This litigation involves the validity of said assessment, and embraces two causes originating by petition- for certiorari and supersedeas in the Circuit Court of Sumner county, in one of which, the defendant Austin, as County Judge, and the State of Tennessee, are defendants, and in the other, the said Austin and the Cumberland & Ohio E. E. Co., are defendants. The case first named involves the validity of the assessment on behalf of the State and county, and the second upon the same grounds as that on behalf of the county, with the additional defence, that so much of the latter assessment as seeks to exact a tax in liquidation of certain county bonds, issued in aid of said Cumberland & Ohio E. E. Co., is illegal and void for want of lawful authority in the County Court of said county, to subscribe stock in said company and issue said bonds. In both cases, the writ of supersedeas was awarded, restraining the tax collector from enforcing the collection of the taxes until further notice, and in both cases answers were filed; in the first, by defendant Austin, and in the second, by the defendant Austin and the Cumberland & Ohio R. R. Co. The two cases were heard by the Judge of the Circuit Court upon the petitions, answers, exhibits, and proofs, who rendered judgments dismissing the petitions in both cases, and from the judgments the plaintiff appeals.

"Waiving for the present, the consideration of the main question involved in these two causes, we proceed, first, to dispose of the question, whether the plaintiff 'can, in this proceeding, successfully resist the payment of its lawful quota of taxation in liquidation of the said county subscription to the Cumberland & Ohio R. R. — assuming for the argument that the assessments complained of are, upon all other grounds, valid and lawful.

The Cumberland & Ohio R. R. Co. was incorporated by the State of Kentucky on the 24th of February, 1869. The General Assembly of this State, on the 10th of January, 1870, passed an act stating the fact of the aforesaid charter, and that the objects thereof was the construction of a railroad from the Ohio river, through certain counties in Kentucky, to a point on the boundary line between the States of Tennessee and Kentucky, about due north from the town of Murfreesboro, in Tennessee, with a view of connecting with the Southern system of railways converging at Nashville, Tennessee; and enacting that for the purpose of carrying out said enterprise in the State of Tennessee, and to form the connection aforesaid, the powers and privileges of said Cumberland & Ohio R. R., as granted by the State of Kentucky, be granted and extended from the point aforesaid, on the boundary line aforesaid, to the town of Gallatin, in Sumner county, in the State of Tennessee, and from thence to the city of Nashville, in said State; and said Cumberland & Ohio R. R. Co., for the purpose of building and constructing said railroad, were granted all the powers, rights, and privileges, which were conferred upon the Louisville & Nashville R. R. Co., by its charter originally granted and amended by the Legislature of the State of Tennessee. Certain named gentlemen, thirteen in number, and among whom were J. C. Rodemer, J. J. Turner and W. S. Munday, were appointed commissioners to receive subscriptions to the capital stock of said Cumberland & Ohio R. R. Co., and “they may cause books to be opened for that purpose, at such times and places as they may see proper.”

By section 30 of said act, “each county and incorporated town, through which the said road may be located, in the State of Tennessee, may take stock in said road, as provided by the Code of Tennessee. On the 1st day of May, 1871, the commissioners aforesaid, appeared before the County Court, composed of the defendant Austin, County Judge, and twenty-five of the Justices of said county, and presented an application on the part of said company, to submit the questions to the voters of said county, whether the said county of Sumner would subscribe stock in said company to the amount of $300,000, in aid of said enterprise, upon the terms and conditions prescribed by law, and issue its bonds for the amount, bearing six per cent, interest, payable annually, and said bonds to be payable in not less than ten, nor more than thirty years from the issuance of the same. This application was granted, the record showing that a majority of the Justices of the county voted for it. The entry of record contains the following recital: “And it appearing that said road has been surveyed by a competent engineer, and substantially located by designating the terminii of said road, and a number of points in the same, and the general direction and course of the road have been designated, and an estimate of the grading, embankment and masonry, made by the engineer, under oath, and filed with the application ; now in pursuance of the law,” etc. The entry then proceeds to order an election, according to the formulary prescribed in the statute.

At the July Term following, the vote of the county was reported, from which it appeared that the total number of votes cast was 2,861, of which, 1,781 were for the subscription, and 1,080 against it, the majority for subscription being 701. The subscription was thus carried, and the same was duly accepted by the company. It does not appear that said enterprise has been abandoned, but the same is in process of completion; and it is stated that up to the present time, some $220,000 of said subscription has been evidenced by the bonds of the county, and that much of the same has been negotiated in the discharge of contracts and obligations, and entered into by the company in the prosecution of its enterprises, and the county has received its certificates of stock therefor. The people of Sumner county have, since the maturity of the coupons, been regularly taxed to meet the interest, and the interest has been regularly paid. The plaintiff as a tax payer of the county, has heretofore paid a small assessment on its property, on this account, without protest. The county has its stock regularly represented in the operations of the company, and a special commission of citizens has been constituted by the County Court, under heavy bonds, whose duty it is to receive these railroad taxes and discharge the coupons as they may be presented. It is said that the subscription aforesaid and bonds so issued are void and unlawful, and that no tax could be lawfully predicated upon the same; and divers grounds are urged in argument, which we will notice as briefly as possible.

We have recently had occasion to say in a case where the bondholders were themselves parties to the litigation, that “after the solemn obligations of the county have been negotiated and thrown .upon the commerce of the country, into the hands of bona fide holders, who, so far from having notice of any supposed illegality, were encouraged by the county itself, through a series of years to give them implicit credit, it would require a very grave departure from legislative restrictions to justify the courts in exonerating the county ”: State, ex rel. Ross v. Anderson county, MS., Knoxville, 1874. In the case now before us, however, the bondholders, who are the parties most vitally interested, are not before us, and we are asked in a collateral proceeding, to annul the action of a court of competent jurisdiction, at the suit of a single tax payer, because certain things required to be done were not done, when the record assumes on its face, that every material prerequisite of the statute has been complied with. The statute provides, that before such application can be made, the entire line of the road in which stock is proposed to be taken, shall be surveyed by a competent engineer, and substantially located, by designating the terminii, and approximating the general direction of the road, and an estimate of the grading, embankment, and masonry, made by the engineer, under oath, and filed with the application.” The record of the County Court assumes that all of this was done, and though the certificate of the engineer, exhibited in the record, does not fill the exact requirements of the statute, yet it is avered in the answer of the Cumberland & Ohio R. R. Co., that it was the same enterprise under a different name rhat was before the county of Sumner in 1852, for a subscription under the name of the Cincinnati, Danville & ■ Nashville R. R. — that the road was carefully surveyed by an eminent engineer, and a careful estimate made of the cost of the road; that the field notes, profiles and estimates, fell into the hands of the Cumberland & Ohio R. R. Co. That the route was again carefully traced and examined by the engineers of the Cincinnati Southern R. R., the original profile and notes having been furnished said engineer by the said Cumberland & Ohio R. R. Co. That these notes, profiles, and estimates, together with a map, were before the County Court, furnishing all the facts required by the Code; that they were filed, but subsequently withdrawn to be used at other points; and that the Cumberland & Ohio R. R. Co., m 1871, and previous to its application in May of that year, had made careful instrumental surveys of the road, and had fixed its main terminii, and the general points on the road. In view of the recitals of the record, that all these requirements of the law had been strictly complied with, we are to presume that the record speaks the truth, and it must be held to prevail against a collateral attack like this.

It is further urged, that the application of the County Court was unlawfully made by the commissioners aforesaid, as the company was then organized, and the law required the application to be made by the board of directors.

If we concede that the plaintiff’s construction of the statute be correct, we could not hold that a departure so slight and immaterial from the terms of the statute, should vitiate the important action of the court “ and the people ” which followed it. But we think the statute which allows the application to be made by the commissioners or board of directors of the company, if organized, admits of no such construction; and it is immaterial from which body the applcation may come. The vital and important matter is the action of the court and the people, which is to follow it. Nor are we prepared to hold after a subscription of stock has been made upon a vote of the people, and the bonds have been negotiated, as in this case, that the whole proceeding is void, because the consent of a majority of the Justices was not obtained at a Quarterly Term; the fact appearing that a majority of the Justices of the county were actually present and voting on the question at the May Term, 1871, instead of a Quarterly Term. The old act upon the subject provided, that the election ■ might be ordered by the “County Court”; and it was held by this Court in the case of the Louisville & Nashville R. R. Co. v. Davidson oounty, et al., 1 Sneed, 638, that where a new power is vested in the County Court, or a new duty devolved upon it, and no particular number of Justices is specified, any number which may constitute a legal court can perform it. And in the same case, the Court holds that the duties imposed by the statutes upon the court in these matters of railroad subscription, are ministerial merely, and not judicial. That the intention evidently was to commit the whole matter to the people, and provide that their edict in relation to it, should be subject to no intermediate obstruction, but be fully and fairly carried out by the use of the agencies designated. Thé Legislature could have appointed any other county officers to perform these acts, as well as the Justices of a County Court. The duties required were all ministerial: 1 Sneed, 681. But the Legislature of 1871, thought it wiser and safer to commit this important trust to a majority of the Justices of the county, instead of the three functionaries constituting the quorum court; and hence, the act of 1871, c. 50, provides, that the consent of a majority of the Justices of the Peace of the County, at a Quarterly Term of the County Court, should first be obtained.

,We think as their duties are ministerial merely, and not judicial, that the spirit and purpose of the enactment, was to ’secure absolutely the consent of a majority of the Justices of the county; and that the requirement that it, should be so obtained at a Quarterly Term, was directory, and intended the better to secure that consent, inasmuch as under the constitution of the court, a majority of said Justices were not usually in attendance upon the Quorum Terms of the Court. As held by this Court, the Justices were in such matters the mere instrumentalities of the people, upon' whom the whole responsibility of self-taxation was thrown, and they were the mere agents by whom the popular edict upon the matter was to be registered and enforced. The county of Sumner at the present stage of the proceedings, could not well complain of an irregularity which it has ratified and adopted, by its subsequent action; and the plaintiff can not stand in any better condition.

But it is said that this subscription of stock was unlawful and void, because it was not made upon the requisite popular vote. The constitution of 1870 provides that the credit of no county, city or town shall be given or loaned to, or in aid of, any person, company, association or corporation, except upon an election to be first held by the qualified voters of such county, city or town, and the assent of three-fourths of the votes cast at said election. Nor shall any county, city or town become a stockholder with others in any company, association or corporation, except upon a like election and the assent of a like majority. But the county of Sumner and others are specially excepted out of this provision, so far that the assent of a majority of the qualified voters of either of said counties voting on the question shall be sufficient, when the credit of such county is given or loaned to any person, association or corporation: Art. 2, s. 29.

We have seen that the subscription in this case was carried by a majority of the voters voting in the election, and we have seen also that the- charter of the Cumberland & Ohio R. R. Co. had conferred upon the county of Sumner the power to subscribe for stock in said road under the provisions of the Code. These provisions of the Code, requiring a majority of the voters of the county, weré repealed by the act of 1871, c. 50, in accordance with the provisions of the Constitution of 1870, above cited. The question is, whether these provisions, as to the number of votes required, apply in this case to a matter of subscription of stock, or a lending or giving of credit, so far as the excepted county of Sumner is concerned. The literal phraseology would seem to distinguish between a lending or giving of credit, and a subscription of stock; and yet, to give it such a construction, would involve the absurdity of permitting the county to give or lend its credit to a railroad upon the assent of a majority of the voters voting in the election, and to require a three-fourths’ vote in subscribing for stock; or, in other words, the county may tax itself and donate its taxes as a gratuity to a corporation upon a bare majority of the voters voting in the election, and upon a proposition to subscribe stock, by which the county may be indemnified for its outlay, a majority of three-fourths is required. . We can not assent to such a construction. “Constitutions,” said Mr. Story, “are instruments of a practical nature, founded on the common business of life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them, the people adopt them, they must be supposed to read them, with the help of common sense ”: Story on the Const., § 451. They must be interpreted in the light of practical sense, and enforced according to their manifest intention. The general provision is, that the credit of no city, town or county shall be given, or loaned to, or in aid of, any person, company, association or corporation, except upon an election to be first held by the qualified voters, and the assent of three-fourths of the votes cast at said election. Nor shall any county, city or town become a stockholder with others in any company, association or corporation, except upon a like election and the assent of a like majority. Now we find certain exceptions to this provision in favor of the counties of Sumner and others, and a new county authorized to be established out of fractions of Sumner, Macon and Smith counties, so far that the assent of a majority of the qualified voters of either, voting on the question, shall be sufficient: but with the words added: “ When the credit of such county is given' or loaned to any person, association or corporation.” And in looking to the journal of the convention, we find the amendment to the section under consideration, by which the new county to be established out of fractions of Sumner, Macon and Smith, was excepted from its provisions; and this amendment expressly includes the taking of stock, as well as the giving or loaning of credit to or in aid of any person, company or corporation. This amendment was adopted by the convention as a part of said sec. 29 of the Constitution, but by some singular misprision. in the final engrossment of the instrument, the words, “become a stockholder,” were left out in the excepting clause. Taking this amendment and the manifest intention of the framers of the instrument as a guide and interpreter, we are constrained -so to construe the section as to apply its general provisions, as to “subscribing stock,” to the excepted -counties. Some of these were contemplating a subscription to some railroad enterprise, already projected through them on the faith of such promised subscription, as Sumner county was, and this exception was incorporated in the Constitution with a view to ensure it. Why a larger vote should be required for a subscription, than for a giving of credit, is simply incomprehensible. It can not be the meaning of the instrument, and manifestly is not, when the whole section and its purposes are considered. In the construction of the organic law, as in the construction of statutes, the real intention, when ascertained, will prevail over the literal sense of terms. “Thus,” .say this court in regard to the construction of statutes, “a thing may be within the letter of the statute, and yet not within the statute, unless it be within the intention of the maker ” : 2 Sneed, 88; 1 Wheat, 326; 20 Wend., 561; 1 Kent, 462; 15 John., 380; 14 Mass., 92; Dwarris on Stat., 691, 725. We can not, therefore, hold this proceeding void upon this ground, without doing violence to these familiar rules of construction.

As to other mere irregularities and departures from the precise formularies prescribed by statute, it is sufficient to say, that under our owq, adjudications and those of many of the courts of this country, including those of the highest tribunal in the Union, it is now too late for the county of Sumner or its tax-payers to resist the payment .of this subscription on that ground. We will not encumber this opinion with a detail of the multiform phases in which these questions have been presented and adjudged, but must content ourselves with' a mere reference to some of the cases, where they may be found, and ' where the various questions raised in' this branch . of the case are discussed: 7 Ohio, 327-401; 34 Ill., 421; Ross v. Anderson Co., MS., Knoxville, 1874; 24 Ill., 9; 5 Wall., 90; 25 Penn., 156; Ang. & Ames Corp., 237; 1 Penning (N. J.), 347; 1 Halst., 115; 3 Halst., 191; 19 John., 284; 3 Hum., 305; 11 Hum., 47; 2 Swan, 504; 21 How., 429, 539; 6 Ellis & Bl., 327; 24 How., 435; 1 Black, 386; 2 Black, 722; 1 Wall., 83-175; 3 Wall., 294; 9 Wall., 478; 1 Wall., 211-385; 3 Wall., 327, 654; 4 Wall., 270, 535; 5 Wall., 772; 6 Wall., 166, 210; 11 Wall., 136; 7 Wall., 82; 14 Wall., 282; 13 Wall., 298; 15 Wall., 356; 6 Wall., 6, 644; 19 Wall., 84; 3 Hill., 263; 4 Mass., 45; 10 Wall., 645; Abb. Dig. Corp., 800-806; 7 Wright, 391; 34 Ind., 140; 16 Kansas, 300; 1 Col., 455; Smith et al. v. Clark . Co., 1 Cent. L. J., 5.

We. conclude that, the plaintiff can not resist the tax assessed against it by the county of Sumner, to discharge the county’s indebtedness on account of the subscription of stock in the, Cumberland & Ohio. R. R. Co., upon any of the grounds assumed in the petition or in the argument; and that said subscription being a valid. debt. against the county, the, levy of taxes for its extinguishment was lawful and proper.

And this brings us to the consideration of the question, whether the assessment for county taxes was, in the form and manner in which it was done, a valid and lawful assessment.

■ The Constitution of this State, and the law passed in pursuance thereof, provide that all property, real) personal and mixed, shall be taxed, subject to certain specified exemptions; and that all property shall be taxed according., to its value, that value to be ascertained in such manner as the Legislature may direct, so that the taxes shall be equal and uniform throughout the State; and no one species of property, from which a tax may be collected, shall be taxed higher than any other species of property of the same value: Const. 1870, art. 2, § 28.

Before the assessment now in controversy, the plaintiff had been taxed, not as a railroad, but as the owner of eight acres per mile upon which its thirty-three miles of road in Sumner was built, aggregating 241 acres, and on its depot-houses and other real estate in the county, of the aggregate value of $8,435; and this property was assessed as other real estate in the county — the road-bed as farming lands were assessed, and the buildings and other realty as other like property of like value; the aggregate amdunt' of taxes assessed against the plaintiff on all its railroad and other property in said county being about $105.00 for the year 1873, which was paid.

The laws of this State have never established any basis of' assessment for railroad property as such. The general provision applicable to every species of property alike, was, at the time of the assessment now in controversy, that all real property shall be assessed at its marlcet value, on a credit of one and two yearsf deducting fifteen per cent.; and all- personal property at the same value at which it ought to be appraised in payment of a just debt in cash from a solvent debtor: Act 1873, c. 118, s. 4. The 25th section of the act just cited provides that, “should it, at any time after the assessments have been made, come to> the knowledge of the chairman or judge of the county court, the clerk of the county court, the county trustee, sheriff, or tax-collector, of any county in the State, that any person, company, firm or corporation-in said county have not been assessed as contemplated' by said act, or have been assessed on an inadequate amount, it shall be the duty of said chairman or judge, clerk, trustee, sheriff, or tax-collector to cite such person, company, firm or corporation, their agent, attorney or representative, to appear before them for the purpose of being assessed according to law; and said chairman or judge, clerk, trustee, sheriff, or tax-collector, are hereby authorized and empowered to make the proper assessment against such person, company, firm or corporation.” Under the provisions of this section, after the plaintiff had been assessed, as above stated, for the year 1873, the defendant Austin, as County Judge of Sumner county, summoned the agent of the plaintiff before him, to show cause why a new and different assessment should not be had for 1874, and why said company should not be assessed for taxes for 1874, upon their road-bed, rolling stock, depots and other property in the county of Sumner.The defendant Austin states that said company appeared before him by its attorney; that the consideration of said matter was postponed from time to time, at the request of said attorney; and that, finally, no satisfactory reason appearing why the assessment should not be made, he proceeded to make the same upon the basis, as stated in his own words, as follows: “I estimated the length of the company’s road in Sumner county at thirty-five miles, and valued each of said miles at a fraction over twenty-seven thousand dollars, which was formed from an estimate upon -the whole length of the road, and the whole amount of stock, to find how much stock each mile represented. I then multiplied this amount by thirty-five, the number of miles in the county. I then made an estimate of this amount, counting the stock to be worth forty-five cents to the dollar, the market price thereof on the 10th of January, 1874. This gave the amount on which the assessment was made, which was $500,-000. I also caused a similar notice to be served on said company to show cause why they should not be taxed for the year 1873. No answer or appearance having been made, I assessed said company for taxes for the year 1873, estimating the value of their property in this county for the year 1873 at $675,000, the amount for 1873 being made greater than the amount for'1874, on account of the stock being worth more in 1873 than in .1874. I caused such assessment to be entered on the tax-books for collection. The taxes for - Sumner county for 1873 were assessed by the county court at its April term, 1873.”

It is complained in the petition of the plaintiff that the assessments of the county judge, now in controversy, were made upon a valuation of the entire road-bed, rolling stock, equipments, engine-houses and machine-shops of petitioner, together with the special uses and purposes to which they were all put and applied, the profits arising from them as a railroad and appurtenances, and also the depot-grounds and lands already assessed as before stated; that a part of said valuation of $675,000 was assessed as the pretended proportional actual value of the road-bed, rolling stock and depot grounds in Sumner county, as compared with the value of the entire road, from which, however, the taxes before assessed against said depot grounds separately, and which had been paid, as stated above, were directed to be deducted. And it' is insisted that said road-bed, if liable to taxation as such, must be assessed in the several districts where it is located, and not elsewhere, and not in gross. That it should be taxed and assessed according - to its value as aforementioned, and not in. the mode-adopted. That the assessment and- taxation of the capital, property, road-bed, and rolling stock to -petitioners corporation, and the taxation, also, of the shares of stock therein to the stockholders, is unequal, unconstitutional and void; and that the road-bed, rolling stock, capital and property of petitioner’s corporation are not subject or liable to assessment and taxation, and the same is prohibited by law. The last proposition— that the road-bed, rolling stock, capital and property of the plaintiff is not subject to assessment and- taxation — is predicated, we presume, upon the- 8th section of the act of 1873, c. 118, which is in the words following: “No tax shall hereafter be assessed upon the capital of any bank or banking association, or any other joint stock company organized under the authority of this State or the United States, but the stockholders of such bank or banking association, or other corporation, shall be assessed and taxed on the value of their shares of stock therein; said shares shall be included in the valuation of personal property of such stockholders in the assessment of state, county or municipal taxes, at the place, town, ward or district where such bank or banking association or other corporation is located, and not elsewhere, whether said stockholders reside- in said place, town, ward on district or not; but not at a greater rate than is assessed upon other moneyed capital in the hands of individuals in this State.”

Aside from the effect of the familiar principles of law, that the authority to tax is never to be taken to be relinquished except upon ■ the most clear and unequivocal expression of the legislative will, we are satisfied from the very terms of this statute, that it was not intended to embrace railroad corporations: 16 How., 435; 4 Pet., 561; 11 Pet., 545. This view might be enforced by a mere criticism upon- the literal force of the words employed, but the matter, as it seems to us, is too plain for argument. It is not to be supposed that the State would surrender so splendid a source of its revenues, except in terms that could not be misunderstood.

We are not called upon in this case to construe the statute in question otherwise than as it is supposed to embrace railroad corporations within its provisions, nor to pronounce upon the abstract question of the compatibility of such a statute with that provision of the constitution which requires that “all property shall be taxed,” save such as may be exempted from the general burthen by the express terms of the instrument itself. The provision that exempts certain property from taxation, would seem to be one of those which executes itself; and when the lawmaking power undertakes to vouchsafe exemptions, it must look alone to the organic law for its authority to do so. Whatever is the subject of ownership, is actually owned, and is appreciable in value, is property in the sense of the constitution; and “all property shall be taxed,” is the imperative, and not merely potential or directory injunction, which would seem to embrace every conceivable species of property as subject to the burthen, except such as are specially exempt, or may be exempted at the will of the Legislature.

The four elements of property in all joint stock companies are, the capital stock ■ the corporate property ; the franchise of the corporation, and the indi-' vidual stock of the shareholders. Whether either of these may be exempted under the peculiar provisions of our constitution, may be matter of grave doubt— not necessary, however, to be decided in this case. The sole question before us on the provisions of the eighth section of the act is, whether it was intended to embrace railroad corporations, which we hold, upon its obvious import, was not intended. We take it, therefore, that all the property of a railroad corporation is taxable in this State; but the question recurs, has the plaintiff in this case been assessed according to the constitution and the law ?

It is said that the plaintiff’s property should have been assessed in the several districts in which it lies, and such is the requirement of the law in regard to taxable property in general. But the assessment in this case falls directly within the exception specified by the statute, when in the opinion of the County Judge an inadequate assessment had been made, in which event, it was the special duty of that officer to re-assess the property. We see no objection to the exercise of this power by that officer, and the assessment of railroad property, as such, lying in several civil districts, certainly does not fall within the reason-of the general law requiring the property of’the citizen to be assessed in the district in which it lies; as the sole enquiry of the assessor would be, what is the value of the property, and this could as well be ascertained in the town of Gallatin, as in the several districts through which the railroad runs. Even in the case of an assessment by the district assessor, he is not absolutely required personally to inspect each lot, tract or parcel of land, but he may otherwise “obtain satisfactory information in regard to the value thereof”: Act 1873, c. 118, s. 30.

In this case, we are. to presume that the assessor has availed himself of the best sources of information, and that. he has arrived at the approximate value of that part of the plaintiff’s road. which lies in Sumner county. An exact mathematical certainty in assessing the value of property for taxation is not attainable. It was an observation of Chancellor Kent, that a just and perfect system of taxation, is yet a desideratum in civil government: 2 Comm., 332. But we do not understand that this assessment is objected to as excessive in valuation. We think, on the other hand, that it is so susceptible of demonstration, that if the basis of assessment be lawful, the plaintiff has no right to complain of the valuation. In the absence of any specific legislative directions, fixing a basis for the assessment of railroad property, we must throw ourselves upon the provisions of the Constitution and the general law, that all property must be taxed according to its value; and that real estate must be assessed at its market value, on a credit sale of one and two years. If that portion of the plaintiff’s railroad lying in Sumner county, while in full operation,- were levied upon and sold upon a credit of one and two years, it would be sold and bought as a railroad, an integral part of a great and profitable line of freight and travel, between the two cities of Louisville and Nashville, and not as so many acres of ground upon which its easement lies, with its appurtenant houses and lands. If a tract of land be bought and sold in the same way, its capacity for production and advantages of market, would be essential elements and incidents of valuation. A railroad, with its necessary fixtures and appliances, is real estate, and taxable as such, and must be taxed upon its value as a railroad, and that value .must be ascertained by its actual, and not its speculative profits, or its mere capacity for productiveness; as it must be taxed at its value when assessed, and not what might be its value if under better management. We can conceive of no better criterion by which its value can be ascertained, than, first, the value of its structure, superstructure and properties, and then the profits which may enure to its owners in its operation. And xhis we understand to be the basis of assessment in this case. If it be an interstate railroad, as in this case — a part in this State and a part in another — we know of no better plan to fix the taxable value of that portion lying in this State, than to ascertain what proportion the latter bears to the whole. Upon this subject, however, there is great conflict of authority, and great contrariety of judicial reasoning and ruling.

Thus, it is said, a state may impose taxes upon the corporation as an entity existing under ■ its laws, as well as upon the capital stock of the corporation, or its separate corporate property, and the manner in which its value shall be assessed, and the rate of taxation, however arbitrary or capricious, are mere matters of legislative discretion. A tax on a corporation may be proportioned to the income — revenue, as well as to the value of franchise granted, or the property assessed: 18 Wall., 208. In Paine v. Wright, 6 McLean, 395, it is said that a tax can only be just and equal on railroad corporations, by being assessed upon the profits, while the case of the Sangamon & Morgan P. P. Co. v. The County of Morgan, et al. 14 Ill., 163, it is held that the portion of a railroad company which lies within a county is taxable there, and the valuation must be of that specific part of it situated in such county, without reference to the whole road. But how, we ask, is that part of it, if valued as a railroad, to be ascertained except as proportioned to the value of the whole? In the case of The People ex rel. etc., v. Barker, Am. Railway Rep., 149, it is held, that in assessing real property belonging to a railway company, consisting of a strip of land but a few rods in width, upon which the railroad track is located, with the necessary stations, buildings, etc., the land should not be assessed as an isolated piece of property, but as a part of the whole railway, and its value should be estimated in connection with its position and the business and profit derived therefrom. And so in the case of The People ex rel. etc., v. Fredericks et al., 48 Barb., 173, it was held that the real estate of railroad companies should be assessed at its value for the purposes to which it had been adapted, and not as mere farming lands; and in estimating the same, the assessors are not bound to consider it as mere land, and superstructure, isolated from other parts of the road. They are entitled to estimate the value of that part of the real estate within their jurisdiction which contributes to make up a complete and useful railroad extending beyond the town they represent. Judge Davis in delivering this opinion in this case said; They, the assessors, were not called upon to assess a farm, but some nine miles of railroad, completed and operated as a railroad; and the question was, what is the fair value under the statute rule, of this estate, thus made into a complete and useful railroad? To sever for the purpose of assessment the buildings and superstructure, and call the residue farming lands, would be a gross absurdity. A farm four rods wide and nine miles long, intersected with public highways, cut up with cattle-guards, culverts and bridges, divided lengthwise by a graded embankment, with ditches on either hand occupying a large share' of its width, would be a poor investment, either for cultivating or grazing purposes, and no assessor would be justified in appraising it at forty dollars an acre, because the adjoining farms, which were useful, such as were of that value. The law as well as good sense, require that the assessors should regard this property precisely what it was, and judge of it accordingly.”

In the case of The State of Illinois v. The Illinois Central R. R. Co. 27 Ill., 64, it is held that in assessing the value of a railroad for purposes of taxation, the enquiry should be what is the property worth, to be used for the purpose for which it was designed, and not for any other purpose to which it might be applied. In such a case, if the property is devoted to the use for which it was designed, and in a condition to produce its maximum income, one very important element for ascertaining its present value, is the amount of its nett profits. This, however, should not be the absolute standard of value. There should be taken in connection with it, the enquiry — what would a prudent man give for the property as a permanent investment, with a view to its present and future income. “When property is thus improved/’ said Judge Breese, in delivering the opinion, “it is manifest that is it more or less valuable, as it yields a greater or less profit in its product and economical use. No prudent purchaser of such property would neglect in the first instance, to look at the income the property yields, so that he might, thereby, judge what profits he might in the future reasonably expect from its investment. To ascertain what he might safely give for the juoperty, no doubt he would and ought prudently to anticipate the future as' well as regard the past; and yet should he give more than the value as indicated by the present income, such enhanced value would be rather speculative than real, depending on a great variety of circumstances and casualties.” We will not multiply citations upon this question. It resolves itself at last into one of practical sense, from which the law of it must be evoked. We had as well talk of assessing a gold mine for taxation by the value of contiguous farming lands, as to assess a railroad by that standard. The law which requires that all property shall be taxed according to its value, would thus be rendered inoperative and nugatory.

In this case, it is said, that the assessor has treated the rolling stock of the road as part of the realty. This does not necessarily follow, however, because he has included it as one of the elements of value. The rolling stock necessarily enters into his estimate of value, and is an indispensable element of it, and so the implements of husbandry make land valuable, but are not a part of the realty. The rolling stock is a part of the railroad, and without it the road as such would be without value. It is a kind • of mixed property, partaking of the character of both realty and personalty — a sort of nondescript whose status has never been defined either by legislative or judicial ruling, in this State. In the case of the Farmers Loan & Trust Co. et al. v. Hendrickson, 25 Barb., 484, the Supreme Court of New York, held that as between mortgagees and judgment creditors of the mortgagors, the rolling stock of a railroad company, such as locomotive engines, passenger, baggage and freight cars, etc., are fixtures, and will pass under a mortgage of the track of a roadway. ' In discussing the question, the Court say: “As a general rule, in order that articles originally personal should be considered as annexed to the freehold so as to become fixtures, they must either be fastened to the -realty, or what is clearly a part of it, or must be placed upon the land with a manifest intent that they shall permanently remain there; and that they shall be in some way peculiarly fitted to something that is actually fastened upon it, and essential if not absolutely necessary to its proper enjoyment. It is not necessary that things should be stationary in one place or position, in order that they should be technically deemed fixtures.” And so it was held also, that the rolling stock of a railroad is a fixture, in Farrer v. Stackpole, 6 Greenl., 157; Palmer v. Forbes, 23 Ill., 300; Pennock v. Coe, 23 How., U. S., 117. “We are all of opinion,” say the Supreme Court of Illinois in Palmer v. Forbes, “that rolling stock, rails, ties, chains, spikes, and all other material brought upon the ground of the company incumbered by the mortgage, and designed to be attached to the realty, should be considered as a part of the realty.” And to the same effect are the cases of the Louisville & New Albany R. R. Co. v. The State, 25 Ind., 177, and Minnesota Co. v. St. Paul Co. 2 Wall.. 644. Following these respectable authorities, we might safely hold, that for the purposes of taxation, the rolling stock of a railroad company may be considered a part of the realty. The Legislature certainly has a right to impress it with the character of realty or personalty, but until it does so, it must be classified according to the doctrines of the common law. We have seen that by the Constitution of this State, all property except such as is exempt, shall be taxed. That it shall be taxed according to its value;- that value to be ascertained in such manner as the Legislature may prescribe. We can not presume' a hiatus in the law, or that the lawgivers have been utterly oblivious of this great source of revenue, and have left it untaxable; that the property of the plaintiff is exempt from this general burthen. The Legislature had not up to the time of this assessment, prescribed the basis or manner of assessing railroad property for taxation, but it is left to be assessed under the general law, “that real property shall be assessed at its market value, on a credit of one and two years, deducting fifteen per cent, in gross.” In this case, the plaintiff’s property has been assessed on its actual value, as railroad property, upon a valuation of its entire road-bed, rolling stock, equipments, engine houses, machine shops, depot grounds and lands, in view of the special uses and purposes to which they were all put and applied, and the profits arising from them as a railroad and appurtenances. It seems to us, if the plaintiff’s property in the county of Sumner were exposed to' sale, that all these elements of value would be essential and indispensable in the estimate of its value, and that they constitute the only safe and just criterion thereof. It results, therefore, in the opinion of the Court, that the assessment of the plaintiff’s property for county taxation in this case, was lawful and proper, and that there is no error in the judgment of the Circuit Court dismissing the petition.

The case involving an assessment of like nature for purposes of state taxation, is resisted on another ground, which is not involved in the case already considered. It is' argued on behalf of the State that the remedy by certiorari does not lie to resist an assessment for state taxes. The Legislature has prescribed a remedy in such case on behalf of the taxpayer, and it is insisted that the remedy thus prescribed is exclusive of all others.

The first section of the act of 1873, c. 44, is in these words: “That in all cases in which an officer, charged by law with the collection of revenue due the State, shall institute any proceeding or take any steps for the collection of the sum alleged or claimed to be due by said officer, from any citizen, the party against whom the proceeding or step is taken shall, if he conceives the same to be unjust or illegal, or against any statute or any clause of the Constitution of the State, pay the same under protest; and upon his making such payment, the officer or collector shall pay such revenue into the state treasury, giving notice at the time of payment to the Comptroller that the same was paid under protest; and the party paying said revenue may, at any time within thirty days after making said payment, and not longer thereafter, sue the said officer having collected said sum, for the recovery thereof, and the same may be tried in any court having jurisdiction of the amount and parties, and if it be determined that the same was wrongfully eollécted as not being due from the said party to the State, for any reason going to the merits of the same, then the court trying the same may certify of record that the same was wrongfully paid, and ought to be refunded; and thereupon the Comptroller shall issue his warrant for the same, which shall be paid in .preference to other claims on the treasury.55 The second section of this act declares this remedy to be exclusive of all others. It will thus be seen that an ample remedy is provided for the citizen who conceives himself wronged by an improper exercise of the taxing power.

But it is argued, on behalf of the plaintiff, that this statute is unconstitutional and void, as it deprives the citizen of the remedy by certiorari, guaranteed by the organic law. . By the tenth section of the sixth article of the Constitution it is provided, “that judges or justices of the inferior courts' of law and equity shall have power in all civil cases to issue writs of certiorari to remove any cause, or the transcript of the record thereof, from any inferior jurisdiction, into such court of law, on sufficient cause, supported by oath or affirmation.55 We are of opinion that, in regard to the taxing power in the State, this statute does not infringe either this or any other constitutional provision. The power to tax is not conferred by the Constitution, but is the incident and the highest attribute of sovereignty. Its limitations are self-imposed by the sovereign, and these alone are to be found in the bills of rights and constitutions vouchsafed to the subject for his protection. No government could exist for a day without this attribute of supereminent sovereignty, and no government could exist for a day if its subjects could resist at pleasure and without restriction, the power to levy taxes. It is the paramount power of all others which guarantees to the subject absolute protection upon the condition of absolute obedience and promptness in meeting its pecuniary exactions, by which alone it has the power to protect. The government can create its own sources of revenue without restriction, except such as it has imposed upon itself. Its power in this respect is imperial and all-pervading, and in the free states of America it is as unfettered and absolute, to the extent of their territorial jurisdiction, and subject only to the self-imposed restrictions of their own organic laws, as it was in imperial Rome when the “decree went forth from Caesar Augustus that all the world should be taxed.” ' The power to tax involves the power to exist, and the one must be exercised promptly, certainly, and without interruption, in order to secure the other. “The State can not commit suicide.” The remedy provided by the statute is ample, speedy and certain, and the indemnity of the injured citizen is absolutely assured. We have no hesitation in holding that the clause of the Constitution in question has no reference whatever to any litigation growing out of the taxing power in the State, and that the enactment is constitutional and valid.

Affirm the judgment.

Judges Deaderick, McFarland and Nicholson

joined in the following dissenting opinion:

It is ordained by the Constitution of the State that “all property, real, personal and mixed, shall be taxed according to its value, that value to be ascertained in such manner as the Legislature shall direct.” This provision was not intended to confer upon the Legislature the power of taxation; that power is inherent in the Legislature, as the representative of- the sovereignty of the State. It was intended to be an imperative direction to the Legislature to subject all property to taxation, except that exempted by the Constitution, and to require that the taxation should be according to its value, but imposing upon the Legislature the duty of directing the manner in which the value is to be ascertained, so that taxes shall be equal and uniform throughout the State. It is obvious that this provision of the Constitution can not be practically operative until the Legislature has prescribed the manner of ascertaining the value of property. The question is, has the Legislature, by any act, directed the manner in which railroads or railroad corporations shall be assessed for taxation? They can only be taxed, after the Legislature has prescribed the manner of ascertaining their value. Their franchises, as well as their road-beds, rolling stock, &e., constitute, property, real, personal and mixed, and are therefore properly subjects of taxation. But, until the manner of ascertaining their value is prescribed, no valid assessment of them for taxation can be made. The Legislature, in 1873, undertook to discharge the duty imposed by the Constitution, by the passage of an act which decrees that “all property, real, personal and mixed, shall be assessed for taxation,” except such as is therein expressly exempted. This is but a repetition of the constitutional ordinance, and shows that it was the purpose of the Legislature to carry out that ordinance. The basis on which all assessments of property are to be made is declared, and as to real property, it is to be assessed “at its market value, and to be assessed in tbe district or ward where situated, on a credit of one and two years, deducting fifteen per cent, in gross.” “In assessing real estate, the following shall be shown: 1, the description of the property; 2, the name of owner or owners; 3, the value of the land or town lots, including improvements; 4, the value of mills, manufactories, distilleries, various founderies, and other buildings used for similar purposes, Ac.” “In describing real estate, the following rules shall be observed: 1, the number of the town lots shall be given, the name of the street, avenue, alley or road on which it fronts, &c.; 2, if" the property is a part of any known sub-division, the number, &c.,' its size, dimensions, &c., shall be given; 3, In describing tracts of land, when it can be done, the surveyor’s district, range, township, &c., shall be designated, and the number of acres.” The act requires each assessor, in assessing in his district or ward, to commence at some corner or outside point of his district or ward, and assess the property in rotation as it joins, or lies contiguous to, property just assessed; and- proceed in some regular manner until he has made the circuit of his district or ward. He shall see each lot, tract or parcel of land, or otherwise obtain satisfactory information in regard thereto, &c. The provisions for the sale of real estate for unpaid taxes, require the real estate to be described as “tracts of land, town lots, and parts of town lots.” These are all the provisions of the act which can bear upon the question under consideration, except the 25th section, which authorizes the chairman or judge of the county court, the clerk of the county court, the county trustee, sheriff, or tax-collector, of any county, upon information that any person, company, firm or corporation in said county have not been assessed as contemplated by the provisions of the act, to cite said person, company, firm or corporation to appear before them for the purpose of being assessed according to law. This section has no other effect than to provide for collecting assessments omitted or improperly made, in pursuance of this act. The question now is, did the Legistature intend, by the provisions of this act, to prescribe the manner of assessing railroads for taxation ? There is no direct allusion to the franchises, stock, road-beds, rolling stock or other property of railroad corporations, throughout the statute. If we assume that the locomotives and cars of railroads, as well as their corporate franchises, constitute real estate, then it' may be conceded that the language of the first section is broad enough to include railroads. It says: “All real estate shall be taxed.” But did the Legislature intend to include railroads as real estate? Our business is with the intention of the act. Is it possible that the Legislature could have intended to subject so vast an amount of property to taxation without directing specifically how its value was to be ascertained?- Every direction laid down in the act, as to the manner of assessing real estate, has special reference to town lots and tracts of land as constituting the only real estate to be assessed. The value of the real estate to be assessed is its market value, on a credit of one and two years, deducting fifteen per cent, in gross. This is to be the value of the land, or town lots, including improvements. The town lots are to be described by numbers, streets, &e. The land is to be described by reference to the surveyor’s district, range, township, Ac. There is to be ah assessor for every civil district or ward, and he is- directed to commence at a corner or outside point of his district or ward. All this has manifest reference to land and town lots as the real estate intended by the Legislature. It is clear that there is no express direction in the statute as to the manner of assessing or ascertaining the value of the property of railroad corporations. This is a preliminary step to be taken by the Legislature before this property can be subjected to taxation, by the express provision of the Constitution.

But it appears that the authority for making the assessments, in the present case, is claimed for the county judge of Sumner county, by virtue of the provision of the 25th section of the act of 1873. That portion of the Louisville & Nashville railroad located in Sumner county was not assessed for taxation by the regular assessors. This fact coming to the knowledge of the county judge, he notified the railroad company to appear before him, for the purpose of being taxed “according to law.” He accordingly made the assessment now resisted by the railroad company. It is obvious that the assessment was not made in pursuance of the manner of ascertaining the value of real estate prescribed in tbe statute. He assumes that tbe railroad, including its road-bed, engines and cars and franchises is real estate, and, as • such, subject to assessment. He ascertained the value of the whole road, with all its fixtures and franchises, by a rule entirely arbitrary, and then assessed the portion of the road located in Sumner county according to the value so ascertained. But the statute prescribes no such manner of ascertaining the value of. real estate for the purpose of assessment. We have seen that all the provisions of the statute, directing the manner of ascertaining the value of real estate, have special reference to the assessment of town lots and tracts of land, with their improvements, and that the assessment of a railroad as real estate, in pursuance of these provisions, would be wholly impracticable; hence it is that the county judge has adopted an arbitrary manner of making the assessment, under the assumption, we presume, that as the regular assessors had not assessed the railroad, he had the power to supply the omission, and in so doing, to exercise a discretion as to the manner of making the assessment. But the statute only authorized the county judge to make assessment in these cases where the regular assessor had omitted to assess “according to the provisions of the statute,” and, in express terms, he was required to assess “according to law.” No discretion whatever is given to him, but he was required to, make his assessment in the manner directed by the statute. It may be, and we think it is probably true, that the manner adopted by the assessor in ascertaining the value of the railroad in Sumner county for assessment is a proper manner, but the Constitution imposes the duty upon the «Legislature to direct the manner of ascertaining the value of all real estate. Until this duty was performed by the Legislature, the county judge had no authority to adopt a manner not prescribed by the Legislature.  