copy from the controller of the certificate and report of the State Board of Assessors on file in his office, and of the certificate of the controller that said tax has not been paid; the attorney-general shall also apply for an order that execution forthwith issue on said judgment, directed to a master of the court of chancery, to be named by said justice in said order; the said orders shall be respectively applied for on five days' notice to the company or mortgagee or mortgagees, or other creditor concerned, which notice, in case of any company, shall be served in the same manner as a summons is directed by law to be served upon a corporation, and in all cases the proceedings shall be summary; in case a certiorari shall have been granted, on application of the attorney-general the orders above provided for shall be made and enforced without prejudice to the right of the state to enforce the payment of any additional amount of tax which may be imposed and to apply for a second judgment therefor; in case a certiorari shall have been granted on application of any company or mortgagees or other creditor taxed, and the tax shall have been reduced after the payment thereof, then the excess shall be repaid by the state upon the order of the court, and the state controller shall, upon such order, issue his warrant for such payment accordingly.

"Section 15. The master in chancery to whom the execution shall be directed, shall sell all the franchise, real estate, and rolling stock and property of said company, and the estate and interest of any mortgagees, and the debt due to any creditor for which a deduction has been allowed, or so much thereof as may be necessary to make the amount due on said tax judgment and the usual execution fees; the execution shall describe the property or debt aforesaid, whereon the tax was assessed, and shall direct the sale thereof and generally the sale of all other property of said company or person; such sale shall pass the absolute title to the franchise and property and debt aforesaid so sold, whereon the said tax was assessed or became a lien, free and clear of all liens, incumbrances, and trusts of every nature, except taxes subsequently levied; in cases of the sale of the estate and interest of any mortgagee it shall pass as well such estate as the interest of all bondholders and cestui que trust for whose benefit said mortgage may have been given or may be held in trust or otherwise as to any other property of said company or persons, the judgment or execution shall constitute or become liens in the same manner and to the same extent as other judgments and executions of the supreme court; provided, however, that the company whose franchise, real estate, rolling stock, and property, or any part thereof, has been so sold, and the mortgagee or mortgagees or any bondholder or other person having an interest in the estate and interest of the corporation or mortgagee which has been so sold, may, at any time within two years from and after any such sale, redeem the property so sold by tendering and paying to the purchaser or purchasers thereof the amount of the purchase money by him or them paid, together with interest thereon at the rate of ten per cent per annum."

P. 3329, par. 226, 1895; $15, Act 208,

General Statutes,

Mar. 27, 1888.

P. 3331, par. 233, G. S.. 1895; § 22,

1888.

"If any company shall be in default under this act in payment of the state tax aforesaid, any person having any interest in a mortgage or other lien on its fran- Act 208, Mar. 27, chises or property, may pay the state treasurer the amount of such state tax, and the interest due thereon, and receive from said treasurer a certificate of such payment, and such person shall thereupon be entitled to be repaid the amount of said tax and interest thereon at the rate of twelve per cent per annum, out of the first proceeds of any sale of the franchises or property of said company, and such tax and interest thereon shall continue a lien on the franchise and property of the company for the benefit of the holder of or person interested in such mortgage or lien until paid by said company from the sale of its franchises or property; if any proceedings have been taken by the attorney-general to enforce the payment of said tax and interest thereon, then such holder of or person interested in a mortgage or lien paying such tax and interest, shall pay such additional amount as a justice of the supreme court

P. 3331, par. 232. General Statutes,

shall certify to be proper and reasonable for the expenses and services of the proceedings, as far as they have progressed for the collection of said tax and interest thereon."

6. Remedies.

Railroad companies paying taxes imposed by this act on "any cars hired, leased, 1895: § 21, Act 208, run, or used on the roads of such companies in this state, shall have a right of action

Mar. 27, 1888.

P. 3326, par. 216, G.S., 1895; $5, Act

against the company or person owning such cars, for the taxes so paid, with interest thereon from date of payment, and may sue for and recover the same in any court of competent jurisdiction." But this does not avoid the obligation of any contract that may be between such owning and such hiring or using company.

The board must give companies interested a hearing as to their valuation and 208, Mar. 27,1888. assessment. They must meet on the first Monday in July at the statehouse in Trenton for this purpose, except when the first Monday falls on the 4th or 5th of the month, in which case the hearing must be on the first Tuesday in July. The board may adjourn from day to day, and may, if they see fit, require all arguments and communications to be presented in writing.

P.3328, par. 223, G. S., 1895; § 12,

1888.

The board meets to review its assessment on the third Monday of November at Act 208, Mar. 27, the statehouse in Trenton, and may adjourn from time to time until the hearing is finished. They review assessments upon the written complaint, stating the grievance made by any person or company so interested, or by the attorney-general on behalf of the state. The attorney-general must attend the meetings in person or by deputy. No complaint that any person or company has been assessed too low, or that any property has been omitted, may be acted upon until such person or company has been notified of such complaint by five days' notice, to be properly served. The board have the power to issue subpoenas, examine witnesses, and call for the production of books and papers, and may use their personal knowledge and judgment as to the value of the property. They must certify to the controller of the state all corrections made in any assessment, and "the proceedings provided for by this section shall be completed before the fifteenth day of January following the making of said assessment, and all complaints must be presented on or before the third Monday of November, or shall be deemed to have been waived."

P. 3328, par. 224, G. S.. 1895: § 13,

1888.

*

If any company or person assessed, the attorney-general on behalf of the state, Act 208, Mar. 27, or the authorities of any taxing district desire to contest the validity or amount of any tax under this act, it must be done by certiorari, "which may be granted on notice to the attorney-general or to the company or person assessed, on a proper case made on such terms as the justice or court granting the writ may impose, provided, that no writ of certiorari shall be granted unless the applicant has applied to said board of assessors to review the assessment, as provided for in this act, nor shall any writ of certiorari be granted after the expiration of three months from the final determination of said board." The excessiveness or insufficiency of the amount of the tax, as well as the loyalty of the principle on which it is levied, may be decided. If the writ is allowed, the court must correct the error or wrong, as may be just, "or refer it back to the board of assessors, who shall correct or reassess the same, in accordance with the instructions of the court; in any writ or proceeding, except on such certiorari, the certificate and report of the state board of assessors shall be conclusive, and shall have the force and effect of a judgment of a court of record having competent jurisdiction, and the proceedings whereon such certificate and report are founded shall not be inquired into; no assessment or tax shall be set aside for misnomer of the owner of the property assessed; but the name may be corrected at any time by the board of assessors or court; the prosecutor of a writ of certiorari shall pay eight cents per folio to the state board of assessors and controller for returns made by them of proceedings under this act.”

of

any

*

*

P. 3333, par.240,

General Statutes

1895; § 29, Act 208,

Mar. 27, 1888.

P. 3332, par.239, G. S., 1895; § 28,

1888.

A corporation assessed under this act and paying the tax at the time required by law or within fifteen days after the State Board of Assessors has made and declared their final revision of the valuations and assessments is not, by such payment or the lapse of time in making application for the writ, to be defeated in obtaining the writ of certiorari, if it bring its writ of certiorari within the time limited by the act, "provided, application for a writ of certiorari be made within six months after such question has been finally adjudicated, and no other question shall be considered on said writ." "In case any property railroad which has been or shall hereafter be in any year assessed by the local authorities of any taxing district has been Act 208, Mar. 27 or shall be also assessed by the state board of assessors as property used for railroad or canal purposes, the supreme court, or any three justices thereof, to be assigned by the chief justice, shail determine, in a summary manner, the character of the property and whether used for railroad or canal purposes, and by which assessors the same has been lawfully assessed, which determination shall be made whether the taxes in question have been paid or not, and whether a certiorari to review either assessment has been granted or not; such determination shall be made under an order to show cause at a time and place to be therein designated, which order shall be granted by the chief justice of the supreme court upon application ex parte by any of the parties interested, namely, by the attorney-general on behalf of the state, or by the owner of the property assessed, or by the authorities of the taxing district; and said order shall be served not less than ten days before the day fixed therein for the hearing, upon the said parties interested not making such application; depositions may be taken on two days' notice by either party, to be used on such hearing; the justices before whom the matter shall be heard, may, if they see fit, view the property in dispute to guide them in their decision; the judgment of the court shall direct the cancellation or reduction of either assessment, as the character of the property may require, and shall make such order as to the return to the taxpayer of any tax or any portion thereof, that may have been paid to the state, or to any taxing district not entitled thereto, as such court shall deem just; the payment of costs may be directed in such manner as the court may deem equitable; the said judgment shall be conclusive and final in all collateral proceedings, but may be reviewed on suit of error by the court of errors and appeals."

* * *

P. 3324, par. 212, G. S., 1895; § 1,

II. TAX ON PROPERTY NOT USED IN OPERATION OF A RAILROAD. It is provided that all "property of any railroad company not used for railroad purposes shall be assessed and taxed by the same assessors Act 208, Mar. 27, and in the same manner and at the same rate as the taxable property of other owners in the same municipal division or taxing district."

* *

*

It will be seen that the clause is an extract from the general act providing for the taxation of railroads and canals, but for the reason that this tax is distinctly a local tax―whereas the one above discussed is a state tax in name, and primarily and principally such in effect, though a part of the money collected thereunder is distributed to certain taxing districts therein set forth it is here set apart from the body of the general and inclusive act. The methods of assessment and taxation need not be explained, there being nothing peculiar about them, but both being regulated by the general law for the taxation of property belonging to others than railroads.

For the law relative to the settlement of differences arising between the state assessing authority and local assessing authorities, reference should be made to section 28 of Act 208, 1888, quoted under the general heading "Remedies" under the "state tax," above considered.

9563-PT v-04- -21

388.

P. 3335, par. 246,

General Statutes,

Apr. 18, 1884.

B. TAX ON SLEEPING-CAR AND SIMILAR CAR AND TRANSPORTA

TION COMPANIES.

1. Nature and Application.

Every palace, parlor, or sleeping-car company, together with telegraph, telephone, 1895; $1. Act 159, cable, electric-light, and certain other companies, is required to pay "an annual tax, for the use of the state, by way of a license for its corporate franchise, as hereinafter mentioned." This tax is at a stated rate on the gross receipts from fares or tolls for transportation of passengers within the state.

P.3335, par. 247, G. S.. 1895; § 2. Act 159, Apr. 18, 1884.

Act 76, 1892, amending the law, does not affect the above so far as palace, parlor, or sleeping-car companies are concerned.

2. Assessment.

This act applies only to the franchise of the company and the state tax thereon. The assessment or determination of the basis on which the tax is assessed is made by the company primarily in its returns, and only in default of such returns does the State Board of Assessors ascertain the basis or gross receipts.

The president, treasurer, or other proper officer of every palace, parlor, and sleeping-car company doing busines in the state must, on or before the first Tuesday of May annually, make a report to the State Board of Assessors, stating specifically "the gross amount of its receipts for fares or tolls for transportation of passengers within this state for the year preceding the first day of February prior to the making of such report.

$2, Act 76, Mar.

P. 3337, par. 258, G. S., 1895.

17, 1892.

P. 3335. par. 248,

G. S., 1895: § 3,

1884.

Act 76, 1892, amending the law, does not affect the above so far as palace, parlor, or sleeping-car companies are concerned.

Any officer of any company making a false statement in such a return is to be Act 159, Apr. 18, deemed guilty of perjury. In case of failure to make the return within the time, it is provided that the State Board of Assessors "shall ascertain and fix the amount of such receipts in such manner as may be deemed by them most practicable," and the amount fixed by them is to stand as the basis of taxation of such company under this act.

P.3337, par. 259, G. S., 1895.

P. 3335, par. 250,

G. S.. 1895; § 5,

§3, Act 76, Mar. 17, 1892.

Act 76, 1892, changes the wording of the above slightly, providing in case of failure to make the return within the time limited the State Board of Assessors "shall ascertain and fix the amount of the annual license fee or franchise tax and the basis upon which the same is determined in such manner as may be deemed by them most practicable." In other respects the section is the same as the above.

The State Board of Assessors further has power to require such reports or inforAct 159, Apr. 18, mation touching the business of the company as may be necessary to carry out the provisions of this act," may require the production of "abstracts of the books of such company, and may swear and examine witnesses in relation thereto."

1884.

P. 3335, par. 249,

G. S.. 1895; § 4.

1884.

Act 76, 1892, is identical with the above, except that the board is empowered to require the production of books of such companies, instead of abstracts of said books.

It is provided that every parlor, palace, or sleeping-car company shall pay to Act 159, Apr. 18, the state an annual license fee or franchise tax at the rate of two per centum upon the gross amount of its receipts so returned or ascertained." And it is further proP.3335. par. 250, vided that the state board of assessors shall certify and report to the comptroller Act 159, Apr. 18, of the state, on or before the first Monday of June in each year, a statement of the amount of gross receipts, as returned by each company to, or ascertained by, the

G. S.. 1895: $5,

1884.

said board, and the amount of tax due thereon respectively, at the rate fixed by this act." These are the only provisions having to do with the computation of the amount of the tax.

$5. Act 76, Mar. 17, 1892.

P.3339, par. 261, General Stat

The provisions of the amendatory Act 76, 1892, are identical with the above, so far as these companies are concerned, except that the utes, 1895. certificate provided for in section 5 is to be a statement of the basis of the annual license fee or franchise tax as returned by each company to, or ascertained by, the said board, and the amount of tax due thereon respectively, at the rates fixed by this act."

4. Payment of the Tax.

G. S., 1895; § 5,

1884.

The certificate of the basis and amount of the tax having been made by the State P.3335, par. 250, Board of Assessors to the comptroller, it is provided that such tax shall thereupon Act 159, Apr. 18, become due and payable, and it shall be the duty of the state treasurer to receive the same." $5, Act 76, Mar. 17, 1892.

In the above point there is no change by the amendatory Act 76,3339, par. 261,

1892.

5. Default of Payment.

It is provided that if the taxes of any company remain unpaid on July 1st after they become due, they shall bear interest at the rate of one per cent for each month until paid.

§ 5. Act 76, Mar. 17, 1892.

The above provision remains the same in the amendatory Act 76, P3339, par. 261, 1892.

P.3335, par. 251, G. S., 1895; § 6,

1884.

P.3335, par. 252, Act 159, Apr. 18,

G. S., 1895; § 7,

1884.

It is provided that the tax, when determined, shall be a debt due from the company to the state for which an action at law may be maintained after it has been in Act 159, Apr. 18, arrears for one month, and such tax shall also be a preferred debt in case of insolvency. It is further provided that, "in addition to other remedies for the collection of such tax, it shall be lawful for the attorney-general, either of his own motion or upon the request of the state comptroller, whenever any tax due under this act from any company shall have remained in arrears for a period of three months after the same shall have become payable, to apply to the court of chancery, by petition in the name of the state, on five days' notice to such corporation, which notice may be served in such manner as the chancellor may direct, for an injunction to restrain such corporation from the exercise of any franchise, or the transaction of any business within this state, until the payment of such tax and interest due thereon, and the costs of such application, to be fixed by the chancellor; the said court is hereby authorized to grant such injunction, if a proper case appear, and upon the granting and service of such injunction, it shall not be lawful for such company thereafter to exercise any franchise or transact any business in this state until such injunction be dissolved."

NEW MEXICO.

A.-GENERAL CONSIDERATIONS.

1. CONSTITUTIONAL LIMITATIONS.

There are no specific constitutional limitations upon railroad taxation. The general provisions of the constitution relative to revenue alone control.

II. GENERAL STATEMENT: SYSTEM AND DEVELOPMENT FROM 1890 TO 1900. Railroads are taxed like other corporations or persons, as the case may be, under laws generally applicable to the entire class, and not specifically differentiated for railroads. The tax is based upon the valuation of the general property.