rivers. The state accepted said grant of land | United States for such enlargement, on such for said purposes, and by an act of its legis- terms as may be approved by the governor lature, approved August 8, 1848, undertook for the time being of the state."

the improvement of said rivers, and enacted, among other things, that "whenever a water power shall be created by reason of any dam [60] crccted *or other improvements made on any of said rivers, such water power shall belong to the state, subject to the future action of the legislature."

One of the rapids in Fox river, around which it was necessary to secure slack water navigation by means of dams, locks, and canals, was commonly known as the Kaukauna rapids. The state adopted a plan and system for the construction of a dam and canal at said Kaukauna rapids, whereby there was to be built a low dam beginning on the south side near the head of the rapids, extending down stream, on or near the south bank of the river, across lots 8, 7, 6, and on to lot 5 of section 22, and thence extending at about a right angle with the south bank across the river, leaving an opening at the north end through which the water of the river could pass, and be conducted by a conduit or canal to a certain point at which should be placed a lock.

The sales of lands granted by Congress not proving sufficient to carry on the work, the board of public works were authorized by the legislature to issue certificates of indebtedness, which were declared to be a charge upon the proceeds of the lands granted by Congress and upon the revenues to be derived from the works of improvement.

In July, 1853, the state legislature created a corporation under the name of "The Fox & Wisconsin Improvement Company," to which, by the second section thereof, were granted and transferred the uncompleted works of improvement, together with all and singular the rights of way, dams, locks, canals, water power, and other appurtenances of said works. The company agreed to pay the outstanding certificates, and forthwith undertook the work. Additional lands were granted by Congress in 1854 and 1855, to aid the state in the improvement of the Fox and Wisconsin rivers. The company subsequently executed a deed of conveyance of the works of improvement, the incidental water powers and all of the lands, in trust to apply all revenues derived from the improvement and the proceeds of sales of the lands to the payment of the unpaid certificates and of bonds issued by the company, and to the completion of the works.

[61] *In 1864 the company failed, the deed of trust was foreclosed, and, in 1866, the property of the company, consisting of the works of improvement, the water powers and the lands, were sold pursuant to a decree of court entered February 4, 1864. The purchasers became incorporated under the name of the Green Bay & Mississippi Canal Company, and that company was authorized, by the third section of an act of the legislature approved April 12, 1866, to "enlarge and increase the capacity of said works and of the said rivers so as to make a uniform steamship navigation from the Mississippi river to Green Bay, or to surrender the same to the

July 7, 1870, Congress passed an act entitled "An Act for the Improvement of Water Communication between the Mississippi River and Lake Michigan by the Wisconsin and Fox Rivers." By this act Congress authorized the Secretary of War to ascertain the sum "which in justice ought to be paid to the Green Bay & Mississippi Canal Company as an equivalent for the transfer of all and singular its property and rights of property in and to the line of water communication between the Wisconsin river and the mouth of Fox river, including its locks, dams, canals, and franchises, or so much of the same as shall, in the judgment of said Secretary, be needed," and to that end he was authorized to "join with said company in appointing a board of disinterested and impartial arbitrators"-one to be selected by the Secretary, one by the company, and the third by the two arbitrators so selected. The act provided that in making their award the arbitrators should take into consideration the amount of money realized from the sale of lands granted by Congress to aid in the construction of said water communication, which amount should be deducted from the actual value thereof as found by the arbitrators. It was further enacted that no money should be expended on the improvement of the Fox and Wisconsin rivers until the Green Bay & Mississippi Canal Company should make and file with the Secretary of War an agreement, in writing, whereby it shall agree to grant and convey to the [62] United States its property and franchises upon the terms awarded by the arbitrators.

By an act approved March 23, 1871, by the legislature of Wisconsin, the directors of the Green Bay & Mississippi Canal Company were authorized to sell and dispose of the rights and property of said company to the United States, and to cause to be made and executed all papers and writings necessary thereto as contemplated in the act of Congress.

Subsequently, in November, 1871, the arbitrators fixed the then value of all the property of the company at $1,048,070, and the amount realized from land sales, to be deducted therefrom, at $723,070, leaving a balance of $321,000 to be paid to the company. And, in anticipation that the Secretary might decide that the personal property and "the water powers created by the dams and by the use of the surplus waters not required for purposes of navigation," were not needed, these water powers and the water lots necessary to the enjoyment of the same, subject to all uses for navigation, were valued at the sum of $140,000, personal property $40,000, and the improvements $145,000.

The Secretary of War recommended to Congress that it should take the works of improvement and not the water powers and personal property. Congress accordingly, by act approved June 10, 1872, made the necessary appropriation, and the company, by its deed of September, 1872, conveyed and granted to the United States "all and singular its

:

The plaintiff further alleged that the bridge constituted a part of its line of railway, and had no separate earning capacity, and no greater earning capacity than any other equal number of feet of its line of railway, and was used exclusively by it in transporting freight and passengers across the Ohio river to and from the states of West Virginia and Ohio; and that it was advised and believed that the bridge was an instrument of interstate commerce, and was not, as a separate structure from its line of railway, a proper subject for taxation by the state of West Virginia in the manner above set forth.

court of the United States for the northern district of Illinois, to restrain the collection of a tax assessed by the city of Chicago upon his shares in the bank, alleging, among other things, that the tax was illegal and void, because the tax was not uniform and equal with taxes on other property as required by the Constitution of the state, and because the shares were taxable only at the domicil of the owner and therefore were not property within the jurisdiction of the state of Illinois. This court, speaking by Mr. Justice Field, without considering the validity of the objections to the tax, held that the bill could not be maintained, saying: "Assuming the The bill then charged that the tax upon tax to *be illegal and void, we do not think [381 the bridge was illegal and unjust, and con- any ground is presented by the bill, justifystituted a cloud upon the title to the bridge, ing the interposition of a court of equity to and that by reason of that clause of the Con- enjoin its collection. The illegality of the stitution of the United States, which gives tax and the threatened sale of the shares for Congress control over interstate commerce, its payment constitute of themselves alone the circuit court of the United States for no ground for such interposition. There the district of West Virginia was clothed must be some special circumstances attendwith authority and jurisdiction to restraining a threatened injury of this kind, distinand to prevent the assessment and collec-guishing it from a common trespass, and tion of this illegal and unjust tax; and bringing the case under some recognized head prayed for an injunction against its assess- of equity jurisdiction, before the preventive ment and collection, and for her relief. remedy of injunction can be invoked. It is The bill was sworn to March 18, 1895; and upon taxation that the several states chiefly was filed March 25, 1895, together with an rely to obtain the means to carry on their affidavit to the effect that, since the bill was respective governments, and it is of the utmodes adopted to enforce the taxes levied most importance to all of them that the should be interfered with as little as possible. Any delay in the proceedings of the officers, the taxes may derange the operations of the upon whom the duty is devolved of collecting government, and thereby cause serious detritherefore, allow its injunction to issue to rement to the public. No court of equity will, strain their action, except where it may be necessary to protect the rights of the citi zen whose property is taxed, and he has no adequate remedy by the ordinary processes of the law." 11 Wall. 109, 110 [20: 66]. party of whom an illegal tax is collected has against the officer making the collection or ordinarily ample remedy, either by action the body to whom the tax is paid. Here such remedy existed. If the tax was illegal, the might have had his action, after it was paid, plaintiff protesting against its enforcement against the officer or the city to recover back the money, or he might have prosecuted either for his damages. No irreparable injury would have followed to him from its collection. Nor would he have been compelled to resort to a multiplicity of suits to determine his rights. His entire claim might have been embraced in a single action." 11 Wall. 112 [20: 67].

ANN

intended to apply alone to taxes levied by the | pany under a statute of the state of TennesUnited States, it shows the sense of Congress of the evils to be feared if courts of justice could, in any case, interfere with the process of collecting the taxes on which the government depends for its continued existence." The court then quoted from Dows v. Chicago, and Hannewinkle v. Georgetown, above cited, and proceeded as follows: "We do not propose to lay down in these cases any absolute limitation of the powers of a court of equity in restraining the collection of illegal taxes. But we may say that, in addition to illegality, hardship, or irregularity, the case must be brought within some of the recognized foundations of equitable jurisdiction; and that mere errors or excess in valuation, or hardship or injustice of the law, or any grievance which can be remedied by a suit at law, either before or after payment of taxes, will not justify a court of equity to interpose by injunction to stay collection of a tax. One of the reasons why a court should not thus interfere, as it would in any transaction between individuals, is that it has no power to apportion the tax or to make a new assessment, or to direct another to be made by the proper officers of the state. These officers, and the manner in which they shall exercise their functions, are wholly beyond the power of the court when so acting. The levy of taxes is not a judicial function. Its exercise, by the Constitutions of all the states, and by the theory of our English origin, is exclusively legislative. A court of equity is, therefore, hampered in the exercise of its jurisdiction by the necessity of enjoining the tax complained of, in whole or in part, without any power of doing complete justice by making, cr causing to be made, a new assessment on any principle it may decide to be the right one. In this manner, it may, by enjoining the levy, enable the complainant to escape wholly the tax for the period of time complained of, though it be obvious that he ought to pay a tax if imposed in the proper manner. 92 U. S. 613-615 [23: 673, 674).

[40] *In Union Pacific Railway Co. v. Cheyenne, in which the Union Pacific Railway Company obtained an injunction against the levy of a tax by the city of Cheyenne, the facts were peculiar. The plaintiff, owning many lots of land in that city, had paid a tax assessed on all its property by a board of equalization under a general statute of the territory of Wyoming, and had also been taxed by the city of Cheyenne under provisions of its charter which had been repealed by that statute; and the bill showed, as stated in the opinion, that the levy complained of "would involve the plaintiff in a multiplicity of suits as to the title of lots laid out and being sold; would prevent their sale; and would cloud the title to all its real estate." 113 U. S. 526, 527 [28: 1102].

In Shelton v. Platt, 139 U. S. 591 [35: 273], the president in behalf of himself and other members of an express company, a joint-stock company of the state of New York, filed a bill in equity in a circuit court of the United States in Tennessee to restrain the collection of a license tax upon the com

see, alleged to be contrary to the Constitu-
tion of the United States. The bill averred
that the comptroller had issued a warrant of
distress to a sheriff to collect such taxes for
two years, the sheriff had levied or was
about to levy the warrant on the property
of the company, and the comptroller was
about to issue a like warrant to collect the
tax for a third year; that the property of
the company in Tennessee was employed in in-
terstate commerce in the express business,
and was necessary to the conduct of it; and
that the seizure by the sheriff would greatly
embarrass the company in the conduct of
that business and subject it to heavy loss
and damage, and the public served by it to
great loss and inconvenience. This court
held that, even if the statute was unconsti-
tutional and the tax void, the bill could not
be maintained, and, speaking by the Chief
Justice, said: "The trespass involved in the
levy of the distress warrant was not shown
to be continuous, destructive, inflictive of
injury, incapable of being measured in
money, or committed by irresponsible per-
sons. So far as appeared, complete compen-
sation for the resulting injury could have
been had by recovery of damages in an ac- [41]
tion at law. There was no allegation of in-
ability on the part of the express company
to pay the amount of the taxes claimed, nor
any averment showing that the seizure and
sale of the particular property which might
be levied on would subject it to loss, dam-
age, and inconvenience which would be in
their nature irremediable." The court went
on to say that another statute of the state
(which had been adjudged by this court in
Tennessee v. Sneed, 96 U. S. 69 [24: 610], to
afford a simple and effective remedy) pro-
vided that where an officer charged by law
with the collection of a tax took any steps
to collect it, a party conceiving it to be un-
just or illegal might pay it under protest
and sue the officer to recover it back, and
should have no other remedy by injunction
or otherwise. The court observed that "leg-
islation of this character has been called for
by the embarrassments resulting from the
improvident employment of the writ of in-
junction in arresting the collection of the
public revenue; and, even in its absence, the
strong arm of the court of chancery ought
not to be interposed in that direction, except
where resort to that court is grounded upon
the settled principles which govern its juris-
diction;" and that the jurisdiction exercised
by the courts of the United States to restrain
by injunction the collection of a tax wholly
illegal and void had always been rested on
other grounds than merely the unconstitu-
139 Ú. S. 596-598 [35:
tionality of the tax.
276, 277].

In the light of these decisions we proceed to an examination of the provisions of the Code of West Virginia of 1891, chap. 29, § 67, under which the tax upon the plaintiffs' bridge was assessed.

That section requires every corporation, owning or operating a railroad wholly or partly within the state, to make, through

and Ohio was real estate. It was a "building or structure," within the proper meaning of the words. Bridge Proprietors v. Hoboken Land & Improv. Co. 1 Wall. 116, 147 [17: 571, 577]; [State], Whitall, v. Glouces ter County Freeholders, 40 N. J. L. 302, 305. And it had been declared by Congress to be "a lawful structure." Act of July 14, 1862; 12 Stat. at L. 569, chap. 167. The fact that the bridge was an instrument of interstate commerce did not exempt so much of it as was within West Virginia from taxation by the state. Henderson Bridge Co. v. Henderson City, 141 U. S. 679 [35: 900].

its principal officers, to the auditor of the state, on or before the 1st of April in each year, a return in writing, under oath, showing, among other things, the following: 1st. The whole number of its miles of railroad within the state. 2d. If the railroad is partly within and partly without the state, the whole number of miles within, and of those without the state, including all its branches. 3d. "Its railroad track in each county in this state through which it runs, giving the whole number of miles of road in the county, [42] including the *track and its branches and side and second tracks, switches, and turnouts therein; and the fair cash value per mile According to the facts alleged in the bill of such railroad in each county, including and admitted by the demurrer, the plaintiff in such valuation such main track, branches, has been assessed by the board of public side and second tracks, switches, and turn-works one sum upon the whole length of its outs." 4th. All its rolling stock, and the railroad track within the state, and another fair cash value thereof, distinguishing be- sum upon that part of the bridge within the tween what is used wholly within the state, state, as a separate structure. and what is used partly within and partly without the state, and the proportionate value of the latter, according to the time used and the number of miles run thereby in and out of the state; "and the proportional cash value thereof to each county in this state through which such railroad runs." 5th. "Its depots, station houses, freight houses, machine and repair shops and machinery therein, and all other buildings, structures, and appendages connected thereto or used therewith, together with all other real estate, other than its railroad track, owned or used by it in connection with its railroad, and not otherwise taxed, including telegraph lines owned or used by it; and the fair cash value of all buildings and structures, and all machinery and appendages, and of each parcel of such real estate, including such telegraph line, and the cash value thereof in each county in this state in which it is located."

The plaintiff alleged in the bill that its return included, in the number of miles of its main track, so much of the bridge as lay within the state; and contended that the bridge was included in "its railroad track," within the meaning of the third subdivision of the section of the code above quoted, and therefore should have been assessed only as so many feet of the railroad. But the return does not mention the bridge; and, if it was included in the term "railroad track" in that subdivision, the increased value of the track by reason of the bridge might properly be taken into consideration in estimating the value of the railroad track, and the assessment of the track and the bridge separately would seem to be a difference of form rather than of substance. Pittsburgh, C. C. & St. L. Railway Co. v. Backus, 154 U. S. 421, 429 [38: 1031, 1037]; Robertson v. Anderson, 57 Iowa, 165.

If the bridge was not covered by the third The return made by the railroad company subdivision, it was certainly included in the to the auditor is to be laid by him, as soon as fifth. This subdivision begins by designatpracticable, before the board of public works. ing "depots, station houses, freight houses, If the return is satisfactory to the board, the machine and repair shops and machinery board shall approve it, and, by an order en- therein, and all other buildings, structures, [44] tered upon its records, direct the auditor to and appendages connected thereto or used assess the property of the company with therewith." It was argued that the words taxes, and he shall assess it as afterwards "thereto" and "therewith," in this sentence, provided. But if the return is not satisfac- referred to the same antecedent as the pretory, the board is authorized to proceed, in vious word "therein;" and that "therein" such manner as it may deem best, to obtain referred to depots, station houses, freight the information required to be furnished by houses, machine and repair shops, and therethe return; and may compel the attendance fore "thereto" and "therewith" must be of witnesses and the production of papers; equally restricted. But if a strictly gramand is directed, as soon as possible after hav-matical construction should be adopted, it ing procured the necessary information, to may well be doubted whether "machinery assess and fix the fair cash value of all the therein" related to anything but machine property required to be returned, in each and repair shops; and it can hardly have county through which the railroad runs; been the intention of the legislature to limit and, in ascertaining such value, to consider the words "buildings, structures, and apthe return, and all the evidence and informa-pendages connected thereto or used theretion that it has been able to procure, and all such as may be offered by the railroad company.

[43] *The legislature evidently intended that the annual return should include all the real estate owned or used by the railroad company in connection with its railroad within the state. The plaintiff's bridge across the Ohio river between the states of West Virginia

with" to those connected or used with such shops only. If the bridge is not a "building or structure," within the meaning of those words, as here used, it certainly (if not part of the "railroad track," under the third subdivision) comes within the words next fol. lowing, "together with all other real estate, other than its railroad track, owned or used by it in connection with its railroad." By