San Benito County v. Southern Pacific Railroad , 77 Cal. 518 ( 1888 )

Thornton, J., concurring.

The rulings of the supreme court of the United States in the cases cited in the beginning of the foregoing opinion, on the question of the power of the state to tax the franchises granted by the United States government, must control our action in this case. The question is federal, and on such questions the settled law requires that the courts of the state shall conform to the decisions of the highest federal judicial tribunal.

The license tax in question herein is one that affects the franchises enjoyed by the defendant company under a grant or grants from the federal government. It is a tax on the right of this company to carry on its business under the federal grant, and comes within the judgments of the United States supreme court in the cases cited.

Under the constitution of this state, which requires all taxation to be equal and uniform throughout the state, it must be supposed that the legislature would not impose or authorize the imposition of any taxes by any county or other political subdivision of the state, whether in the nature of property or license taxes, which would destroy or render valueless the business of any railroad corporation, or cripple such corporations by onerous burdens. The guaranty of fai,r and just taxation is found in the constitution of the state. Taxation by a county must be equal and uniform, at least as to all persons engaged in the same business in the county, and such a guaranty will protect railroads in a county from unfair or unjust or oppressive taxation, which would tend to destroy their business or cripple it, or interfere with their right to do business, as it protects individuals on whom such taxes are imposed.

The amount of the tax is so small in the case before us that it cannot be considered onerous.

But in the view taken by the supreme federal tribunal, the foregoing considerations are of no -weight. The power of the state to tax is held not to exist at all, without regard to the fact whether the tax is so trifling as not to in any decree be onerous, or equal, or uniform on all persons, whether natural or artificial, engaged in the business of carrying persons or freight for hire, or by means of railroad cars.

Following, then, the judgments of the supreme court of the United States in the cases above cited, we must hold that the license tax under consideration was levied without authority of law, and must bo held void.

- With the foregoing observations, I add that I concur in the foregoing opinion and judgment.