firmative, and we need perhaps add but little more. In American Bible Society v. Marshall, 15 O. S. R., 541, this Court held that a foreign corporation might purchase and own real estate in Ohio, when not forbidden by express legislation, or the general policy of the law. The ownership of such property implies its use by the owner, and the nature of the use is to be determined by the nature of the property itself.

There is not only no law of Ohio prohibiting the ownership and use of railroads in the State, by foreign corporations, and no public policy of the State to be contravened thereby, but there is abundant legislation directly to the contrary. The legislation brought into review by the agreed statement in this case, abundantly shows, that the policy of the State has been, and is, not only to permit, but to invite and encourage such ownership and use, and to place foreign companies, in this respect, on a perfectly equal footing with domestic companies. It would be strange were it otherwise. To invite their co-operation in works of great public concern, and then discriminate against them, in point of right to use and enjoy their property in the State, would not only be unjust to them, but unwise for the State. If any discrimination does exist, it is in regard to the power of condemning and appropriating private property to the use of the roads. In this case, we find what we construe to be an express grant of that power. The Pennsylvania act incorporating the defendants gives them power to condemn and appropriate private property. By the 7th Section of an act of April 11th, 1861, it is provided, that "a corporation of another State possessing part of a railroad which is partly in such other State, and partly within this State, may exercise and enjoy within this State all its powers, privileges, facilities and franchises, for the purpose of said railroad and its business, not inconsistent with the laws of this State and the provisions of said act.” This provision clearly gives the right to condemn and appropriate private property in Ohio, to all railroad corporations of other States, which have the power of condemnation and appropriation given them in their charters of incorporation.

It follows, that a judgment of ouster will be entered against the defendants, as to the franchise of being a corporation of Ohio, and a judgment in their favor, as to the other franchises and privileges which they are charged with usurping.

Judgment accordingly.

Judge WEST, having been of counsel, did not sit in the case.

OPINION

OF

HON. R. P. RANNEY AND S. J. TILDEN.

ON

TAXATION OF OHIO STOCKHOLDERS.

Hon. G. W. Cass,

President P. F. W. & C. Ry. Co., New York :

DEAR SIR: We have examined with much care the question submitted to us, relative to the liability of the Stockholders of your Company, residing in Ohio, to taxation upon their shares of stock, in addition to the taxes levied upon the property of the Company, situated in that State. This question is supposed to arise upon a late decision of the Supreme Court of that State, in which it was held, that the Company was not a corporation of that State, but held and operated its property there in virtue of its corporate organization in other States; thus, as is claimed, making such owners of stock, stockholders in a foreign corporation. If we had not been informed to the contrary, we should never have anticipated that such a claim would be advanced, nor do we think that it will be persisted in. But, be this as it may, we have no hesitation in declaring such an absurd and unjust claim totally destitute of any legal foundation in the Constitution and laws of that State. By the Constitution it is provided that, "laws shall be passed, taxing by a uniform rule all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise; and also all real and personal property, according to its true value in money;" and that "the property of corporations now existing or hereafter enacted shall forever be subject to taxation, the same as the property of individuals."

These provisions require, 1st, the taxation of all property, whether belonging to individuals or corporations, at its true value in money; 2d, the same rate per cent. to be levied upon that value; and 3d, prohibit the burdening of one description of property more than another, either by valuing it at more than it is

worth, taxing it twice, or levying more than the uniform rate per cent. upon it.

The tax laws of the State were generally revised in 1859. As a general proposition, the owner of any property was required to return it upon oath to the assessor of his township or wards, in order that it might be returned upon the county duplicate for taxation. This was true of investments in the stock of associations and corporations, except when special provision was made in the act for their taxation. By the 3d section (S. & C., Stat. 1440), it is provided that "no person shall be required to include "in his statement of the personal property, etc., etc.," any share "or portion of the capital stock or property of any company or corporation, which is required to list or return its capital and "property for taxation in this State." The 16th section of the same act provided for the taxation of railroad and other companies, and requires the President, Secretary, or principal accounting officer of each of them, "whether incorporated by any "law of this State or not," to return to the respective county Auditors in the counties where their property was situated, "all "the personal property, which shall be held to include road-bed, "water and road stations, and such other realty as is necessary "to the daily running operations of the road, money and credits "of such company or corporations, within the State, at the actual "value in money." And again, in section 59, it is provided that no person shall be required to list for taxation any certificate of “the capital stock of any company, the capital stock of which is "taxed in the name of said company."

By a supplementary act, passed May 1, 1862, the 16th section of the act of 1859, above referred to, was so far changed and repealed as to constitute the "County Auditors of the several "counties in this State, in which any railroad company now has or hereafter may have its track and railway, or any part "thereof," * * * "a board of appraisers and assessors

*

"for such railroad company."

S. & S. Stat., 766, after providing for the proper organization of this board (prescribing their powers and duties in enforcing the attendance and examination of the officers of the corporation), and the apportionment of the assessment amongst the counties, towns and cities through which the road runs; the very case of a road partly within and partly out of the State is provided for in the 8th section. It is then enacted that "When any railroad

company has part of its road in this State and part thereof in any other State or States, the proper board shall take the value "of such property, moneys and credits of such company so "found and determined as aforesaid, and divide it in proportion to the length of such road in this State, bears to the whole length of such road, and determine the principal sum for the “ value of such road in this State accordingly, equalizing the rela“tive value thereof in this State, as provided in the fifth section "of this act." If any other statutory provision was needed, to show the status of this company and its stockholders, in respect to taxation by the laws of Ohio, it would be found in the 7th section of the re-organization act of 1861 (S. & S. Stat., 129), which, after conferring upon corporations of other States, possessing part of a railroad in this State, the most ample authority to exercise all their corporate powers in the maintenance and operation of the road situated here, expressly provides, "that such part "of the said railroad as is within this State shall be subject to taxation, and shall be subject to all regulation of laws in the 66 same manner as railroads of this State in like cases."

It is thus made evident, beyond a shadow of a doubt, that this company and its stockholders residing in Ohio, stand upon the same ground as every other railroad company, and its stock'holders, in that State; that there has not only been no attempt to discriminate against it or them in the matter of taxation, but that the corporation has been expressly made subject to taxation upon all the property held by it for its stockholders, found in the State, and the stockholders just as expressly relieved from all obligation to return their respective interests in the stock, in the return to be made by them. The fact that the road is owned by a corporation of another State is not of the slightest importance. Every Company owning the whole or any part of a road in the State, "whether incorporated by any law of this State or not,' "is required to list or return its capital and property for taxa"tion." And every owner of "any share or portion" of such capital and property is expressly relieved from it. Any other course would involve double taxation upon the same property, and, we have no hesitation in saying, would be in direct conflict with the Constitution of the State.

R. P. RANNEY.
S. J. TILDEN.

FEBRUARY 15, 1873.

THE DEEDS AND MORTGAGES.

1. TRUSTEES' AND MASTER COMMISSIONERS' DEED TO THE PURCHASING COMMITTEE.

THIS INDENTURE, made the nineteenth day of February, in the year of our Lord one thousand eight hundred and sixty-two, between JOHN FERGUSON and THOMAS E. WALKER, Trustees and Special Master Commissioners as hereinafter mentioned, of the first part, and JAMES F. D. LANIER, SAMUEL J. TILDEN, LOUIS H. MEYER, of the City and State of New York, JOHN EDGAR THOMSON, of the City of Philadelphia and the State of Pennsylvania, and SAMUEL HANNA, of the Town of Fort Wayne, and State of Indiana, of the second part.

WITNESSETH, that whereas the Pittsburgh, Fort Wayne and Chicago Railroad Company, a corporation existing under and by virtue of the laws of the States of Pennsylvania, Ohio, Indiana and Illinois, did cause to be made and delivered to the parties of the first part hereto, of the City, County and State of New York, a certain Deed, or Trust, or Mortgage, bearing date of the first day of January, A. D. 1857, whereby the said Company granted and conveyed unto the said parties of the first part thereto, their heirs and assigns, the entire railroad of the said Company from its terminus in the City of Pittsburgh to its terminus in the City of Chicago, and all the property and effects, rights and franchises in the said deed of trust or mortgage mentioned, and hereinafter particularly described, on the trusts, and for the purposes following (among others): that is to say, if the interest on the bonds therein mentioned should not be paid by the said Company when the same should fall due, and if such interest should remain in arrear for three months, then, at any time after such default, upon request of the holders of one hundred thousand dollars in amount of the said bonds, the said parties of the first part hereto should enter upon and take possession of and sell all and singular the said premises by the said deed of trust or mort