For failure to make the statement required of the car-owning company or individual under this law, a penalty of not less than twentyfive dollars and not more than one hundred dollars per day for every day of such failure is imposed. The proceeds of this penalty are applied to the common-school fund. There is no specific provision for penalty in case of failure by the railroad company on which such cars are run to make the return required. § 9351, Revised Statutes, 1899. These returns are to be filed by the state auditor and laid before $ 9347, ibid. the State Board of Equalization at the time and in the manner required of railroad companies. It is the duty of the State Board of Equalization to ascertain from $9348, ibid. these statements the number of cars required to make the total mileage of the cars of each such company or individual within the period of one year. It is further required to ascertain and fix a valuation upon each particular class of such cars, and upon the number ascertained to be required to make the total mileage of the cars of each such company, trust, or individual within the period of a year, it is required to assess the several car companies, trusts, and individuals. It may base the assessment on the returns of the railroad companies when the above companies or individuals fail to make the statement required. And it is required in determining the daily average travel of such cars to harmonize the reports of the several railroad companies and taxed companies and individuals. The assessment, as made, is to be included in the proceedings of the board and filed in the office of the state auditor at adjournment. The making of the assessment is in effect the determination of the 9350, ibid. tax, all that is necessary to such determination after assessment being that the state rate shall be applied to the assessable valuation, this being done by the state auditor in his certificate to the companies and individuals taxable. The certificate of the board's action must be made by the state auditor on or before August 1st yearly, and must be made to the president or chief officer of such company, trust, or individual. It must show the aggregate mileage of the cars of each such company or individual in this state during one year, the number of cars required to make such aggregate mileage in one year, the valuation per car, and the aggregate valuation of such cars and amount of state tax due thereon. 3. Payment of the Tax. The tax is due and payable into the state treasury on or before Ibid. January 1st following. 4. Default of Payment. For failure to pay the tax as required, the company or individual is § 9351, ibid. subject to a penalty of not less than twenty-five dollars and not more than one hundred dollars, the proceeds thereof to be applied to the common-school fund. After forty days refusal to make the return required or to pay the tax, suit is to be instituted. The state auditor must notify the attorneygeneral, giving a full statement of the facts, and the latter brings the suit. The property of the company or individual is subject to seizure under execution. § 9352, ibid. S § 1, Art. XII, Constitution of Montana. § 7, ibid. § 16, ibid. § 17, ibid. MONTANA. A. GENERAL CONSIDERATIONS. 1. CONSTITUTIONAL LIMITATIONS. "The necessary revenue for the support and maintenance of the state shall be provided by the legislative assembly, which shall levy a uniform rate of assessment and taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all property, except that specially provided for in this article. The legislative assembly may also impose a license tax, both upon persons and upon corporations doing business in the state." "The power to tax corporations or corporate property shall never be relinquished or suspended, and all corporations in this state, or doing business therein, shall be subject to taxation for state, county, school, municipal, and other purposes, on real and personal property owned or used by them and not by this constitution exempted from taxation." "All property shall be assessed in the manner prescribed by law except as is otherwise prescribed in this constitution. The franchise, roadway, roadbed, rails, and rolling stock of all railroads operated in more than one county in this state shall be assessed by the State Board of Equalization and the same shall be apportioned to the counties, cities, towns, townships, and school districts in which such railroads are located, in proportion to the number of miles of railway laid in such counties, cities, towns, townships, and school districts." "The word 'property' as used in this article is hereby declared to include moneys, credits, bonds, stocks, franchises, and all matters and things (real, personal, and mixed) capable of private ownership, but this shall not be construed so as to authorize the taxation of the stocks of any company or corporation when the property of such company or corporation represented by such stocks is within the state and has been taxed." II. GENERAL STATEMENT: SYSTEM AND DEVELOPMENT FROM 1890 To 1900. Railroads are taxed upon the valuation of their general property, including the value of their franchises.1 Assessment is by a state board and by local assessors, the state board assessing property of a general state character and difficult of localization, the local assessors assessing the remainder. To this general statement exception, under act of March, 1891, must be made in the case of railroads operated in but one county, which are assessed by the county authority. There was no very material change in the laws in the period 1890–1900. The act of March 6, 1891, entitled "An Act concerning revenue," did alter the general law of railroad taxation, but the change was rather in wording and minute detail. than in general outline. (For the changes, see text below.) The codes of 1895 changed the law to a certain extent. Section 5182 of the Political Code provided that the said codes, together with the session laws of 1893 and 1895, should constitute the public statutes of Montana, and further provided that "all other statutes of this state of a general nature existing and in force theretofore, that is, prior and up to the time designated for the said codes to take effect, are hereby repealed, unless continued in force by incorporation into said codes, and this repeal provision shall take effect at the time said codes go into force and effect as 1 Not all of the property is taxable in every case, however. In the case of the N. P. R. R. vs. Carland, 5 Mont., 146, it was held that "the right of way of a railroad chartered by Act of Congress through the public lands is an easement therein, and personal property attached to the soil within the boundaries of such right of way, becomes a part of and is included in the exemption from taxation granted thereby, and any tax levy upon any part of the property so exempt is void." aforesaid." The said codes went into effect on July 1, 1895, and they incorporated with but slight changes sections 11, 30, 43, 44, 45, 46, 47, 48, and 49 of the revenue act of 1891, above referred to as sections 3696, 3719, 3737, 3738, 3739, 3740, 3741, and 3742, respectively, of the Political Code. The only really important change is that made in the case of section 43 of the Act of 1891. This section provides for statements to the State Board of Equalization by railroads operating in more than one county. Section 3737 of the Political Code of 1895 provides for a more detailed statement, and introduces new items in the same. This and other effective changes are all noted in the text below. There is no specific law concerning the taxation of sleeping-car and similar companies. The act of March 6, 1891, above cited, provided that the return should include a statement of the dining and sleeping cars not owned but used in operating the road. Previous thereto there had been no such specific provision. Section 3737 of the Political Code of 1895 makes a similar provision.1 B. THE RAILROAD TAX 1. Nature. § 1675, Compiled Statutes, ences to the Com The tax is on the general property, the assessment of the state authority and 1887. (All referthat of the local authority complementing each other, so that both the property of general state character and that of a local character are covered. $11, Act, Mar. 6, 1891. a piled Statutes of are to the Fifth Division. The law of March 6, 1891 (p. 73), alters the above somewhat, in that 2. Assessment. By the law as it was in force at the beginning of the decade the Territorial Board of Equalization was required to assess "all the property in this territory belonging to railway corporations, except lots or parcels of real estate, owned by the road in each county, and improvements thereon, and except depots, machine shops, and other improved property connected with such road and located in any county," which was required to be "taxed" (i. e., assessed) in the county where located. $11, Act, Mar.6, 1891. 3 The law of March 6, 1891 (p. 73, Laws of 1891), provides that "the 1Although, as here stated, there is no specific provision concerning the assessment and taxation of these cars and companies, there is indirect provision, as follows: The assessor acquires from each person a statement under oath, setting forth specifically all the real estate and personal property owned by such person or in his possession, or under his control, and all property belonging to, claimed by, or in possession, or under the control or management of any corporation of which such person is the agent. Furthermore, under section 44, act of March 6, 1891, and section 3738 of the Political Code of 1895, it is provided that the rolling stock must be assessed in the name of the person, corporation, or association owning or leasing (or "using," section 3738, Political Code, 1895) the same. Under this provision if the sleeping and dining cars are leased or used by the railroad company, they are assessable to such railroad company. 2 While in appearance an alteration, this is not so in effect, in that the franchises of railroads, both state and local, were assessed prior to 1891 under section 17 of article 12 of the Constitution of Montana. 3 This exception was intended to apply to railroad lands acquired by the N. P. R. R. Co., under act of Congress, and not to any buildings or improvements upon its right of way, or used in connection with the operation of the road. Such lands were at that time, and are now assessed by the assessors of each county, independent of the State Board of Equalization.—Attorney-General of Montana. §3738, Political Code in Statutes, 1895. 1891. * * $44, Act, Mar. 6, have their principle place of business." In section 44 of said act it is § 3719, ibid. § 30, ibid. $1675, Compiled Statutes, 1887. $3737, Political Code in Statutes, 1895. § 3719, ibid. * * * which such property is situated.” To aid the territorial board, returns must be made to the board by the president, vice-president, general superintendent, auditor, or other general officer of "any corporation operating any railroad in this territory," on or before August 1st annually. The return must be signed and sworn to by one of said officers, and must show in detail for the year ending on December 1st preceding values, etc., as required, of road, rolling stock, etc. (See Return Sheet.) In case of failure to make the return, it is provided that the board shall proceed to make the assessment, and shall add a penalty of thirty per cent to the value as determined by it. $43, Act, Mar 6, 1891. § 3737, P. C. S., 1895. §30, Act, Mar. 6, 1891. By the act of March 6, 1891, provision is made for a similar though more detailed return to the State Board of Equalization. This return is to be made by the president, secretary, managing agent, or such other person as the board may designate, of every railroad corporation, etc., operating a railroad in more than one county in the state, and must be properly signed and sworn to. It must be made on or before the first Monday in March annually. Differing from the preceding law, this act provided that the return should state "the number of sleeping and dining cars not owned by such corporation, person, or association, but used in operating the railroads of such corporation, person, or association in the state, or on the line of the road without the state, during each month of the year for which return is made; also, the number of miles each month said cars have been run or operated within and without the state." (For other respects in which the two returns differ, see Return Chart.) Section 3737 of the Political Code of 1895 makes some changes in the contents of the return. It provides that the return shall state the number, kind, and value of rolling stock owned but used out of the state, either upon divisions of road operated by the party making the returns, or by and upon other railroads, and items of earnings, cost of operation, capital stock, debt, etc. (For full statement of changes, see Return Chart.) In the case of railroads operated in but one county, the assessor must require the railroad to make a verified statement containing the number of miles such property is operated in the county and the value thereof. The words "other franchises," as here employed, have reference not necessarily to other franchises granted to railroads, but to franchises granted to other corporations, for other purposes, such as electric light, street railways, water supply, etc., as well as franchises granted to railroads operated entirely within one county. In other words, section 3696 is intended to cover all franchises of whatever character, and is not limited to franchises granted to railroads. § 14, Act, Mar. 6, 1891. § 43, ibid. § 18, ibid. And local assessors must also require from each such person or company a statement, under oath, setting forth specifically the property in its or his possession at 12 m. on the first Monday in March annually, and showing, among other things, all depots, shops, station grounds, buildings, and other structures erected on the space covered by the right of way, and all other property owned by any person, corporation, or association of persons owning or operating any railroad within the county. $3701, Political Code in Statutes, 1895. In case the statement is not furnished to the State Board of Equal- § 3737, ibid. and final." The same is true as to railroads operated in one county. § 3705, ibid. piled Statutes, 1887. The Territorial Board of Equalization meets for purposes of assessment on the 1675, Comfirst Monday in September annually, in the executive office. The "said property shall be valued at its full cash value, and the assessment shall be made upon the entire railway within this territory and shall include the right of way, roadbed, bridges, culverts, rolling stock and all other property exclusively used in the operation of such railway." It is provided that the "board shall take into consideration all matters connected with said road, necessary to enable them to make a just and equitable assessment of said railway property." § 44, Act, Mar. 6, 1891. $3738, Political Code in Statutes, 1895. § 48, Act, Mar. 6, 1891. The law of March 6, 1891, provides that the State Board of Equalization shall meet at the state capitol on the third Monday in July, continuing in session from day to day till the second Monday in August and later if business requires. Assessing the property noted above (p. 3), the board is required to assess the rolling stock "in the name of and against the company or corporation, leasing, using, or conveying such rolling stock," and they must assess the railroad "to the corporation, person, or association of persons owning or leasing the same," and the assessment must be made on the entire railroad in the state, including right of way, bridges, and culverts. Section 3738 of the Political Code of 1895 reads somewhat differently with respect to the above matters. It provides that the rolling stock shall be assessed "in the name of the person, corporation, or association owning, leasing, or using the same." And the assessment of the railroads must be "to the corporation, person, or association of persons owning or leasing or using the same." §3742, Political The board is required to prepare annually a "Record of Assessment code in Statutes, of Railroads," to contain each assessment made by the board. 1895. 3. Apportionment of Assessed Valuation. § 1675, Com 1887. The Territorial Board of Equalization is required to send a statement of appor- piled Statutes, tionment to the county clerks of the counties through which the railroads run on or before September 15th annually. Such statement must give the "length of the main track of each railway within the county, and the assessed value per mile of the same, as fixed by a pro rata distribution per mile of the assessed value of the whole property herein specified." This statement must be entered upon the proper record of the county. The county commissioners, at the first meeting after the receipt of the statement, are required to make and cause to be entered in the proper record book, |