It includes all lands under water,1 and all buildings and other structures or things erected upon, affixed to, or growing on, the land. The term "property in lands," is not confined to title in fee, but is sufficiently comprehensive to include any usufructory interest, whether it be a leasehold or a mere right of possession. It is competent for the legislature to treat real estate Corporate Franchises. Corporate franchises are not realty. People v. Tax Com'rs, 104 N. Y. 240. 1. Lowell v. Middlesex County, 6 Allen (Mass.) 131. A reservoir dam, and land which it covers with water, are liable to be taxed. Pingree v. Berkshire County, 102 Mass. 76. In Lowell v. Middlesex County, 152 Mass. 372, it was held that land held in fee, lying under a canal, is taxable to the owner thereof. 2. Smith v. New York, 68 N. Y. 552; People v. Cassity, 46 N. Y. 46; Pennsylvania R. Co. v. Pittsburgh, 104 Pa. St. 522; Forbes v. Gracey, 94 U. S. 762. And see Quincy Bridge Co. v. Adams County, 88 Ill. 615; McGee 7. Salem, 149 Mass. 238; Chicago, etc., R. Co. v. Houston County, 38 Minn. 531; Lowell v. Middlesex County, 6 Allen (Mass.) 131. All things appurtenant or affixed to the realty are usually required to be taxed with it, and as a part of it. See Consolidated Coal Co. v. Baker, 135 Ill. 545; Boston, etc., Glass Co. v. Boston, 4 Met. (Mass.) 181; Com. v. Hamilton Mfg. Co., 12 Allen (Mass.) 298. And see infra, this title, Upon Whom Imposed. In Scully v. People, 104 Ill. 349, it was held that an assessment upon lands and also upon rents arising therefrom as a credit, is erroneous, the latter element of value being included in the former. Pipes and mains for water, gas, etc., laid in streets or elsewhere, are real estate and taxable as such. Willard v. Pike, 59 Vt. 202; Oskaloosa Water Co. v. Board of Equalization, 84 Iowa 407; In re Des Moines Water Co., 48 Iowa 324; Paris v. Norway Water Co., 85 Me. 330; Monroe Water Co. v. Frenchtown Tp. (Mich. 1894), 57 N. W. Rep. 268; Tide-water Pipe Line Co. v. Berry, 53 N. J. L. 212; State v. Berry, 52 N. J. L. 308; People v. Martin, 48 Hun (N. Y.) 193; Capital City Gas Light Co. v. Charter Oak Ins. Co., 51 Iowa 32. Bridges are taxable as real estate. Alexandria Canal Co. v. District of Columbia, Mackey (D. C.) 217; State v. Mississippi River Bridge Co., 109 Mo. 253; Hudson River Bridge Co. v. Patterson, 74 N. Y. 365; State v. Hannibal, etc., R. Co., 89 Mo. 98. In Cass County v. Chicago, etc., R. Co., 25 Neb. 348, and Chicago, etc., R. Co. v. School Dist. No. 1, 25 Neb. 359, it was held that a bridge was not taxable as part of the roadbed, right of way, or superstructure. Railways Street Railways. - Railways, either in streets or elsewhere, are lands, within the tax laws, and taxable as such. People v. Tax Com'rs, 23 Hun (N. Y.) 687; Neary v. Philadelphia, etc., R. Co. (Del. 1887), 9 Atl. Rep. 405; Appeal Tax Court v. Western Maryland, etc., R. Co., 50 Md. 274; Pennsylvania R. Co. v. Pittsburgh, 104 Pa. St. 522; South Nashville St. R. Co. v. Morrow, S7 Tenn. 406; People 7. Cassity, 46 N. Y. 46; Union Trust Co. v. Weber, 96 Ill. 346. So, also, the superstructure, etc., of elevated railroads. People v. Tax Com'rs, 82 N. Y. 459; People v. Tax Com'rs, 101 N. Y. 322. But as to the track of a street railway company, see State v. Ramsey County Court, 31 Minn. 354. Right of way, as used in a statute authorizing assessment and taxation, was held not to relate to a mere intangible right, but to the strip of land appropriated by the railway company. Keener v. Union Pac. R. Co., 31 Fed. Rep. 126. Telegraph Line.-In Western Union Tel. Co. v. State, 9 Baxt. (Tenn.) 509; 40 Am. Rep. 99, it was held that a telegraph line is taxable as real property although it has also paid a privilege tax. 3. State v. Moore, 12 Cal. 56; People v. Donnelly, 58 Cal. 144; People v. Shearer, 30 Cal. 645; Los Angeles v. Los Angeles City Water Works Co., 49 Cal. 638; People v. Tax Com'rs, 23 Hun (N. Y.) 687; Cincinnati College v. Yeatman, 30 Ohio St. 276; State v. Central Pac. R. Co., 21 Nev. 247; Carroll v. Safford, 3 How. (U. S.) 441; mortgages as interests in lands, for the purpose of taxation, and to give them a situs for that purpose, at the place where the mortgaged property is situated. Several persons may have a property which is subject to taxation in the same land. The interest of the occupant of a mining claim is property, and may be subjected to taxation.3 A mere license or right of entry is not taxable as real estate against the licensee.4 3. Occupations and Privileges. (See infra, this title, Occupation, Business,and Privilege Taxes.) 4. Instrumentalities of Government-a. IN GENERAL.-Speaking generally, it may be said that instrumentalities of government are not taxable; nor can the states tax instrumentalities of the federal government, or vice versa, this, on the principle that the government is not to be impeded in exercising its powers.5 b. OFFICES AND OFFICERS.—A public office or officer is not Providence Bank v. Billings, 4 Pet. (U. S.) 514; Taylor v. Robinson, 34 Fed. Rep. 678; Clove Spring Iron Works v. Cone, 56 Vt. 603. Rights in a reservoir of water are real estate, and taxable as such. Winnipiseogee Lake Cotton, etc., Co. v. Gilford, 64 N. H. 337. And the same rule applies to water power. State v. Minneapolis Mill Co., 26 Minn. 229. Lease for Ninety-nine Years. In Washington Market v. District of Columbia, 4 Mackey (D. C.) 416, a lease for ninety-nine years was held taxable as though held in fee; a statute providing that such leases should be considered as determinable fees. In Wilgus v. Com., 9 Bush (Ky.) 556, the lease for ninety-nine years was held not to be taxable as real property. 1. Detroit v. Board of Assessors, 91 Mich. 78; Knight v. Boston (Mass. 1893), 35 N. E. Rep. 86; State v. Jones, 40 N. J. L. 105. 2. State v. Moore, 12 Cal. 56; Consolidated Coal Co. v. Baker, 135 Ill. 545; In re Major, 134 Ill. 19; People v. Board of Assessors, 93 N. Y. 308. There may be several distinct tenements in the same building under the same roof, as well where one is over the other as where one is beside the other. Cincinnati College v. Yeatman, 30 Ohio St. 276; South Congregational Meeting House v. Lowell, I Met. (Mass.) 538; Loring v. Bacon, 4 Mass. 575; Cheeseborough v. Greene, 10 Conn. 318. See infra, this title, Upon Whom Imposed. 3. State v. Moore, 12 Cal. 56; People v. Shearer, 30 Cal. 645; People v. Donnelly, 58 Cal. 144; People v. Frisbie, 31 Cal. 146; People v. Cohen, 31 Cal. 210; People v. Black Diamond Coal Min. Co., 37 Cal. 54; Stuart v. Com. (Ky. 1893), 23 S. W. Rep. 367; Sanderson v. Scranton, 105 Pa. St. 469. The owner of land, who has conveyed it, reserving the coal thereunder, and the right to mine the same, may be taxed for such mining right, though there is no proof of the existence of any coal on the land. Major v. Pavey, 134 Ill. 19. Where coal or other minerals in the ground are sold or reserved separate from the land, they are not personal property, and cannot become such until severed from the land itself. Consolidated Coal Co. v. Baker, 135 Ill. 545 In Arizona,mining claims in government property are taxable as personal, not real, property; but mines for which patents have been issued are taxable as real estate. Waller v. Hughes (Arizona, 1886), II Pac. Rep. 122. 4. Hughes v. Vail, 57 Vt. 41; Clove Spring Iron Works 7. Cone, 56 Vt. 603. 5. McCulloch v. Maryland, 4 Wheat. (U. S.) 315, is perhaps the leading case upon this point, the holding being that a Maryland law imposing a tax on the operation of a branch of the United States Bank was unconstitutional and void. This case was followed by Osborn v. Bank of U. S., 9 Wheat. (U. S.) 738, and subsequent cases have recognized the principles expounded in these cases, as lying at the foundation of the law. For their application to various instrumentalities and things, see the following subdivisions of this section. taxable; neither can an officer's salary be taxed.1 These rules do not apply, however, to the taxation of the income of a mere employé of the government in common with other incomes,2 and persons licensed under the revenue laws of the United States are not such officers as are withdrawn from the operation of the taxing powers of a state.3 c. PROPERTY USED AS A MEANS OF GOVERNMENT.-Property used as a means of government, the title to which is vested in a state or in the United States, is within the rule exempting the instrumentality of one government from taxation by the other; 4 and public moneys,5 treasury notes and national bank notes,6 structures, ships, munitions of war, and other property devoted to public purposes, customhouses, post offices, arsenals, and other public buildings are within the rule.8 The property of an agent of the government, however, is taxable, with other like property, in the jurisdiction in which it is situated, unless Congress has interposed to protect it from such taxation.10 Though private property is employed by the government for governmental purposes, it is not thereby exempted from ordinary taxation in the absence of legislation declaring it to be exempt.11 Nor is the fact that the property was acquired or constructed, under the direction of Congress, for the uses and purposes of the government where the ownership is not in the government, sufficient in itself to exempt 1. First Nat. Bank v. Kentucky, 9 Wall. (U. S.) 353; Dobbins v. Erie County, 16 Pet. (U. S.) 435. Nor can a tax be imposed upon a valuation of the income of the office. Dobbins v. Erie County, 16 Pet. (U. S.) 435 2. Melcher v. Boston, 9 Met. (Mass.) 73. And see Cherry County v. Thacher, 32 Neb. 350. The office of president judge is taxable under the Pennsylvania Act of April 11, 1799. Northumberland County v. Chapman, 2 Rawle (Pa.) 73. 3. State v. Bell, 1 Phil. (N. Car.) 76. 4. People v. U. S., 93 Ill. 30; Fagan v. Chicago, 84 Ill. 227; McCulloch v. Maryland, 4 Wheat. (U. S.) 316; Wheeling, etc., Transp. Co. v. Wheeling, 99 U. S. 273; Nathan v. Louisiana, 8 How. (U. S.) 82. 5. But the rule is otherwise where the state diverts her funds from their proper destination, and applies them to traffic, or stock jobbing, within a state. Com. v. Morrison, 2 A. K. Marsh. (Ky.) 75 6. Horne v. Green, 52 Miss. 452; Mitchell v. Leavenworth County, 91 U. S. 206. In Montgomery County v. Elston, 32 Ind. 27; 2 Am. Rep. 327, the treasury, but not national bank 7. Desty on Taxation 68, citing Utica v. Churchill, 33 N. Y. 161; 43 Barb. (N. Y.) 550; Anonymous, 9 Op. Atty. Gen'l 291. And see Baltimore County v. Maryland Insane Hospital, 62 Md. 127. 8. Utica v. Churchill, 43 Barb. (N. Y.) 550; 33 N. Y. 161; McCulloch v. Maryland, 4 Wheat. (U. S.) 316; Osborn v. Bank of U. S., 9 Wheat. (U. S.) 738. 9. Thomson v. Union Pac. R. Co., 9 Wall. (U.S.) 579; Union Pac. R. Co. v. Pemston, 18 Wall. (U. S.) 5. Shares of a national bank are not exempt from taxation because owned by other national banks. National Bank of Redemption v. Boston, 125 U. S. 60. 10. Thomson v. Union Pac. R. Co., 9 Wall. (U. S.) 579; First Nat. Bank v. Kentucky, 9 Wall. (U. S.) 35311. Santa Clara County v. Southern Pac. R. Co., 18 Fed. Rep. 385. The franchise of a railroad company is property subject to taxation, and is not exempt from taxation by reason of its being a means or instrumentality employed by Congress to carry into it, though a state cannot tax a bank chartered by Congress as the fiscal agent of the government; 2 and a tax upon telegraphic messages sent by officers of the government, falls within the prohibition.3 d. OTHER GOVERNMENTAL AGENCIES.-The rule of exemption from taxation by a different government, extends to all other governmental agencies through which a government executes its constitutional powers, functions and duties.4 Thus a tax upon loans of the federal government is a tax upon the exercise of the power of Congress to borrow money on the credit of the United States.5 And a tax upon the stocks, bonds, or securities issued by the United States, or upon the income derived from such securities, is subject to the same objection. Even though property is otherwise taxable, if invested in securities of the federal government, a tax imposed upon it would be deemed an indirect tax upon such securities; though the exemption will not be allowed where money or property is exchanged for, or converted into, nontaxable notes or securities for the sole purpose of avoiding taxation.9 operation the powers of the general government. Central Pac. R. Co. v. State Board of Equalization, 60 Cal. 35. While the federal government cannot interfere with navigation upon canals or inland lakes or rivers, it may tax canal boats or any other property in the state. North River Steam boat Co. v. Livingston, 3 Cow. (N. Y.) 713. 1. Thomson v. Union Pac. R. Co., 9 Wall. (U. S.) 579; Union Pac. R. Co. v. Lincoln County, Dill. (U. S.) 314. 2. McCulloch v. Maryland, 4 Wheat. (U. S.) 316. The state cannot tax franchises of a corporation granted by the government of the United States. California v. Central Pac. R. Co., 127.U. S. 1. In Hylton v. U. S., 3 Dall. (U. S.) 171, however, it was said that franchises granted by a state are not necessarily exempt from federal taxation. 3. Western Union Tel. Co. v. Texas, 105 U. S. 466. 4. See National Commercial Bank v. Mobile, 62 Ala. 284; 34 Am. Rep. 15; Bulow v. Charleston, I Nott & M. (S. Car.) 527. 5. People v. Tax Com'rs, 2 Black (U. S.) 620; Banks v. New York, 7 Wall. (U. S.) 16; Weston v. Charleston, 2 Pet. (U.S.) 449; Utica v. Churchill, 33 N. Y. 161; Newark City Bank v. Assessors, 30 N. J. L. 13. And see Bank Tax Case, 2 Wall. (U. S.) 200; Van Allen v. Assessors, 3 Wall. (U. S.) 573. 6. People v. Tax Com'rs, 2 Black (U. S.) 620; Weston v. Charleston, 2 Pet. (U. S.) 449; Carroll v. Perry, 4 McLean (U. S.) 25; Bank Tax Case, 2 Wall. (U. S.) 200; Banks v. New York, 7 Wall. (U. S.) 16; Provident Inst. 7. Massachusetts, 6 Wall. (U. S.) 611; Campbell v. Centerville, 69 Iowa 439; Utica v. Churchill, 43 Barb. (N. Y.) 550; 33 N. Y. 161; State v. Haight, 34 N. J. L. 128; Newark City Bank v. Assessors, 30 N. J. L. 13; People v. Bradley, 39 Ill. 130. And see Newark City Bank v. Assessors, 30 N. J. L. 13; New York v. Tax Com'rs, 4 Wall. (Ŭ. S.) 244; Bradley v. Illinois, 4 Wall. (U. S.) 459. It is immaterial that the tax is on the aggregate of the taxpayer's property, and the stock is not taxed by name. New York v. Tax Com'rs, 2 Black (U. S.) 620. 7. Bank of Kentucky v. Com., 9 Bush (Ky.) 46. But see State v. Tax Collector, 2 Bailey (S. Car.) 654. 8. State v. Newark, 39 N. J. L. 380; State v. Rogers, 79 Mo. 283; St. Louis, etc., Bldg., etc., Assoc. v. Lightner, 42 Mo. 421; Chicago v. Lunt, 52 Ill. 414; German American Sav. Bank v. Burlington, 54 Iowa 609; Bank Tax Case, 2 Wall. (U. S.) 200; Provident Inst. v. Massachusetts, 6 Wall. (U. S.) 611. But see St. Louis Bldg., etc., Assoc. v. Lightner, 47 Mo. 393. 9. Mitchell v. Leavenworth County, 9 Kan. 344; Ogden v. Walker, 59 Ind. 460; State v. Assessor, 37 La. Ann. The public debt of a state and the obligations given therefor are taxable in the hands of a resident of another state, whether exempted by the indebted state or not.1 A tax upon a corporate franchise is valid even though some or all of the capital stock of the corporation is invested in national securites.2 State banks cannot be regarded as instrumentalities or agencies of state government.3 e. PUBLIC PROPERTY.-A state or other sovereign government may, if it sees fit, subject its property, and the property owned by its municipal divisions, to taxation in common with other property within its territory. But public property, without any express statutory exemption, is not within the general laws imposing taxation, the term "property" being confined to private property;5 the rule being the same whether the title to the property be in the state, or held in trust for and subject to the control of the 850; Shotwell v. Moore, 129 U. S. 590. And see Griffin v. Heard, 78 Tex. 607. 1. Appeal Tax Court v. Patterson, 50 Md. 354; Appeal Tax Court v. Gill, 50 Md. 377; People v. Home Ins. Co., 29 Cal. 533; Bonaparte v. Appeal Tax Court (U. S.), 21 Am. Law Reg. 290; Murray v. Charleston, 96 U. S. 432; Green v. Van Buskirk, 7 Wall. (U. S.) 150. 2. Home Ins. Co. v. New York, 134 U. S. 594; Philadelphia Contributorship, etc. v. Com., 98 Pa. St. 48. And see St. Louis Bldg., etc., Assoc. v. Lightner, 47 Mo. 393. 3. McCulloch v. Maryland, 4 Wheat. (U. S.) 316; Veazie Bank v. Fenno, 8 Wall. (U. S.) 548. And see Hylton v. U. S., 3 Dall. (U. S.) 171. But see Com. v. Morrison, 2 A. K. Marsh. (Ky.) 75. 4. Trustees of Public Schools v. Trenton, 30 N. J. Eq. 667; Louisville v. Com., 1 Duv. (Ky.) 295;85 Am. Dec. 624. And see Pittsburgh's Appeal, 123 Pa. St. 374; Chadwick v. Maginnis, 94 Pa. St. 117; Louisville Bridge Co. v. Louisville, 81 Ky. 189. Congress may subject the public domain to state taxation upon such conditions as it sees fit, and if taxed, it must be done subject to such conditions. State v. Central Pac. R. Co., 21 Nev. 247. 5. Trustees of Public Schools v. Trenton, 30 N. J. Eq. 667; People v. Doe, 36 Cal. 220; People v. McCreery, 34 Cal. 433; West Hartford v. Board of Water Com'rs, 44 Conn. 360; Pittsburgh's Appeal, 123 Pa. St. 374; Fagan v. Chicago, 84 Ill. 227; Rochester v. Rush, 80 N. Y. 302; Camden v. Cam den Village, 77 Me. 530; Baltimore County v. Maryland Insane Hospital, 62 Md. 127; Ensminger v. Powers, 108 U. S. 292; Directors of Poor v. School Directors, 42 Pa. St. 25; Miller v. Wilson, 60 Ga. 505; State v. Board of Assessors, 35 La. Ann. 651; Nashville v. Bank of Tennessee, I Swan (Tenn.) 269; Athens City Water Works Co. v. Athens, 74 Ga. 413; Colored Orphans' Assoc. v. New York, 38 Hun (N. Y.) 593; Wayland v. Middlesex County, 4 Gray (Mass.) 500; Worcester County v. Worcester, 116 Mass. 193; Cumru Tp. v. Berks County, 112 Pa. St. 264; People v. Donnelly, 58 Cal. 144; Durkee v. Greenwood County, 29 Kan. 697; Louisville v. Com., 1 Duv. (Ky.) 295; 85 Am. Dec. 624; People v. Board of Assessors, 47 Hun (N. Y.) 383; State v. Gaffney, 34 N. J. L. 133; Chicago, etc., R. Co. v. Davenport, 51 Iowa 451; Erie County v. Erie, 113 Pa. St. 360. But see Chadwick v. Maginnis, 94 Pa. St. 117. Lands on tide-waters below highwater mark, and entirely separate from fast land, the title being in the state, cannot be assessed for taxes. State v. Jersey City, 42 N. J. L. 349. A city is not subject to a county tax on its engine-house. Erie County v. Erie, 113 Pa. St. 360. A water company which supplies a city with water, whose rates are regulated by the city council, and which, by the terms of the ordinance conferring its powers, may be purchased at a fixed price by the city, is, nevertheless, a private corporation, and its property is subject to taxation. Des Moines Water Co.'s Appeal, 48 Iowa 324. And |