§ 4594. Railroad companies. The post-road character of a line of railroad does not, of itself, wholly exclude it from the taxing power of a state through which it runs. Nor can a railroad company, organized under a state charter, claim exemption from state taxation of its property merely because of the fact that the federal government holds the company's second mortgage as security for money advanced and is entitled to demand certain services of the company in consideration of land grants made.71 Again, the fact that the incorporation of a privately owned railroad company, in which the federal government owns no stock and only a part of the directors of which are appointed by such government, was by act of Congress; that large grants of aid in the form of bonds and lands were made by Congress to the company; that the federal aid bonds were made a lien on the company's property; that the federal government was to have a preference in the use of the company's railroad and the company's telegraph line, etc., does not prevent a state

other taxes are collected from individuals. Sumter County v. National Bank of Gainesville, 62 Ala. 464, 34 Am. Rep. 30.

A law making national banks the agents of the state to collect from shareholders the tax on their shares is not invalid, because state banks are not required to do the same. Merchants' & Manufacturers' Nat. Bank v. Pennsylvania, 167 U. S. 461, 42 L. Ed. 236.

It has been held that the state may allow a tax against the stockholders of a national bank on their shares, to be collected by levying upon the property of the bank, upon its failure to pay the tax as required by statute. First Nat. Bank v. Douglas County, 3 Dill. 330, Fed. Cas. No. 4,799. But the property of the bank cannot be levied upon in the absence of statutory provision therefor, under a tax warrant authorizing the collector to levy upon the property of the persons named therein (the stockholders), even when the bank is required by law to pay the tax. First Nat. Bank of Sandy Hill v. Fancher, 48 N. Y. 524.

That mandamus will lie to compel the bank to pay the tax, see Town of St. Albans v. National Car Co., 57 Vt. 68.

A state statute giving banks the option to pay a tax of four mills on each dollar on the actual value of their shares, or of collecting from their shareholders, and paying into the state treasury, a tax of eight mills on the dollar of the par value of the shares, is not invalid. Merchants' & Manufacturers' Nat. Bank v. Pennsylvania, 167 U. S. 461, 42 L. Ed. 236. 71 Thomson v. Union Pac. R. Co., 9 Wall. (U. S.) 579, 19 L. Ed. 792. Said the court: "We perceive no limits to the principle of exemption which the complainants seek to establish. It would remove from the reach of state taxation all the property of every agent of the government. Every corporation engaged in the transportation of mails, or of government property of any description, by land or water, or in supplying materials for the use of the government, or in performing any service of whatever kind, might claim the benefit of the exemption. The amount of property now

through which such railroad and telegraph line run from taxing such of the company's property as is within the state.72 Nor is the property of a domestic railroad company state property and as such exempt, under the state constitution, from state taxation merely because the state has reserved to itself in the company's charter the right to purchase the company's road at the expiration of a given time at a valuation then to be made upon certain notice, the state's interest in the road, resulting from such reservation, being too remote and too contingent to be regarded as within the meaning of the constitutional exemption.73

A state, however, cannot tax the franchises of a corporation which have been granted to it by the federal government, and when, in assessing the "franchise" of a railroad company, the state board of equalization has included secondary franchises, granted to the company by Congress for national purposes and to subserve national ends, the assessment will, to that extent, be invalid.74 But a state may tax the franchise conferred by it on a domestic railroad company, notwithstanding the fact that subsequently certain franchises were conferred on such company by the federal government, when, at least, the several franchises vested in the company do not constitute such an indivisible unit that to tax the franchise received from the state will necessarily be to tax the franchises granted by the general government.75

Lands in possession of a railroad company which has acquired a complete title thereto under the terms of the grant of such lands made by Congress to the state for railroad aid purposes are subject to state taxation, Congress not having provided otherwise.76 But a railroad company which has leased and is operating, under the Curtis Act, unallotted Indian coal lands, cannot be compelled to pay the Oklahoma tax on corporations, etc., engaged in the mining or pro

held by such corporations, and having relations more or less direct to the National Government and its service, is very great. And this amount is continually increasing; so that it may admit of question whether the whole income of the property which will remain liable to state taxation if the principle contended for is admitted and applied in its fullest extent, may not ultimately be found inadequate to the support of the state governments."'

72 Union Pac. R. Co. v. Peniston, 18 Wall. (U. S.) 5, 21 L. Ed. 787. 73 Thomson v. Union Pac. R. Co., 9 Wall. (U. S.) 579, 19 L. Ed. 792. 74 California v. Central Pac. R. Co., 127 U. S. 1, 32 L. Ed. 150.

75 Central Pac. R. Co. v. California, 162 U. S. 91, 40 L. Ed. 903.

76 Tucker v. Ferguson, 22 Wall. (U. S.) 527, 22 L. Ed. 805.

duction of coal, such tax being one, not on property, but on occupation, and, in the case of such company, one on the occupation of an instrumentality of the federal government."7

§ 4595. - Telegraph companies. A telegraph company, does not, by accepting the provisions, and availing itself of the resultant privileges, of the Act of Congress of July 24, 1866,78 become an agency of the federal government to the extent that it passes beyond the taxing power of the state without regard to the manner in which that power is exercised.79

On the contrary, it is settled "that the privilege given under the terms of the act to use the military and post roads of the United States for the poles and wires of the company is to be regarded as permissive in character, and not as creating corporate rights and privileges to carry on the business of telegraphy, which were derived from the laws of the state incorporating the company, and that this permissive grant did not prevent the state from taxing the real or personal property belonging to the company within its borders, or from imposing a license tax upon the right to do a local business" other than such as consists of the sending of messages for the national government.80 So a foreign telegraph company which has constructed and is operating its lines in the state under the Act of 1866 may be required, as far as anything in such act is concerned, to pay a property tax otherwise valid. Likewise, a municipal ordinance requiring telegraph companies and agencies each to pay a certain sum "for business done exclusively within the city * and not including any business done to or from points without the state, and not including any business done for the government of the United States, its officers or agents" and providing a money penalty for delinquency in the matter is not invalid even as to a foreign telegraph company which has accepted the provisions of the federal statute.82 Again, it has been held that the assessment, by a state board of equalization-which was required by statute to assess all property, real and personal, "including franchises," of telegraph companies and which had specifically assessed the poles, wire, and instruments of a foreign telegraph company which was in the state solely under the authority of the Act of 1866—of "all other property" of such company was not invalid, it being conceded that the company had, in the state, property other than that specifically valued, as an assessment of a federal franchise.83

U. Tel. Co., 141 U. S. 40, 35 L. Ed. 628.

82 Postal Tel. Cable Co. v. City Council of Charleston, 153 U. S. 692, 38 L. Ed. 871, distinguished in Williams v. Talladega, 226 U. S. 404, 57 L. Ed. 275.

83 State v. Western U. Tel. Co., 165 Mo. 502, 65 S. W. 775. Said the court: "The trial court was in error in holding that the defendant derived its franchise-that is, its right to exist and be a corporation and do a telegraph business from the government

§ 4596. Taxable corporations-Foreign corporations.

nothing in the inherent nature of a private corporation which places