People v. Illinois Central Railroad (273 Ill. 220, 1916)

Mr, Justice Carter

delivered the opinion of the court:

The Illinois Central Railroad Company on October 5, 1913, filed a schedule of its stock, property and assets with the Auditor of Public Accounts, giving as the value of its property to be assessed for State taxes for that year the sum of $189,185,593.49. On January 5, 1914, the company received a notice of the disapproval of the values given in said schedule and a statement of re-valuation and" assessment prepared by and under the direction of said Auditor, fixing the valuation at $365,559,617.23. In the meantime the rate necessary to be levied to obtain the amount of tax required for State purposes had been fixed by the proper officers at seventy cents on the $100 valuation. The State Auditor, in levying the State taxes against said company, levied on the full amount last mentioned at the rate of seventy cents. From that assessment this appeal was taken by the company to this court. At its February term, 1914, this court appointed, with the approval of both parties, Hon. Leslie D. Puterbaugh as commissioner to take evidence and report the same, together with his conclusions as to the law and facts. Said commissioner proceeded to take evidence, and after full hearing of counsel for both parties made his report to this court at the February term, 1915, fixing the value of the property of said company at $117,466,638.94, which he found should be equalized at seventy per cent of such total value, or at the sum of $82,226,647.25, and that the State tax should be levied only on one-third of this equalized value, or $27,-408,883.4!, and that this last named amount should be assessed at seventy cents on each $100. To this report the State filed 133 exceptions in this court. The questions raised by these exceptions were thereafter fully argued in this court by counsel, both for the State and the company. We shall consider herein all questions that we deem essential to a decision of the points involved.

The General Assembly passed an act on February 10, 1851, incorporating the Illinois Central Railroad Company. March 19 of the same year the company, having been duly organized by the election of a board of directors, accepted this act of incorporation. This act is the charter of said company. It invested the company with “all the powers, privileges, immunities and franchises, and of acquiring by purchase or otherwise, and of holding and conveying, real and personal estate which may be needful to carry into effect fully the purposes and objects of this act;” authorized it to survey, locate, construct, complete, alter, maintain and operate a railroad, with one or more tracks or lines of rails, from the southern terminus of the Illinois and Michigan canal to a point at the city of Cairo, with a branch to the city of Chicago, on Lake Michigan, and also a' branch, via the city of Galena, to a point on the Mississippi river opposite the town of Dubuque, in the State of Iowa; gave it a right of way, not exceeding two hundred feet in width, for its entire length,. with the authority to use any lands, streams and materials of every kind for locating depots, constructing bridges, dams, embankments, station grounds, spoil banks, turn-outs, engine houses, shops and other buildings; fixed its capital stock at $1,000,000 and authorized a further increase from time to time, under certain conditions ; granted certain lands in the State to said company for the purpose of assisting in locating, constructing, maintaining and operating said road, granting to it, in addition to its right of way and other property, 2,595,000 acres of land. The sections of the act necessary to be particularly considered in passing on this question are 18 and 22 of said charter grant, and read as follows:

“Sec. 18. In .consideration of the grants, privileges and franchises herein conferred upon the said company for the purposes aforesaid, the said company shall, on the first Mondays of December and June, in each year, pay into the treasury of the State of Illinois five percentum on the gross or total proceeds, 'receipts, or income derived from said road and branches, for the six months then next preceding. The first payment of such percentage on the main trunk of said road to commence four years from the date of said deed of trust, and on the branches, six years from the date aforesaid, unless said road and branches are sooner completed, then from the date of completion. And for the purpose of ascertaining the proceeds, receipts or income aforesaid, an accurate account shall be kept by said company, a copy whereof shall be furnished to the Governor of the State of Illinois, the truth of which account shall be verified by the affidavits of the treasurer and secretary of such company. And for the purpose of verifying and ascertaining the accuracy of such account, full power is hereby vested in the Governor of the State of Illinois, or any other person' by law appointed, to examine the books and papers of said corporation, and to examine, under oath, the officers, agents and employees of said company, and other persons. And if any person, so examined by the Governor or other authority, shall, knowingly and willfully, swear falsely, or if the officers making such affidavits shall, knowingly and willfully, swear falsely, every such person shall be subject to the pains and penalties of perjury.”

“Sec. 22. The lands selected under said act of Congress, and hereby authorized to- be conveyed, shall be exempt from all taxation under the laws of this State, until sold and conveyed by said corporation or trustees, and the other stock, property and effects of said company shall be in like manner exempt from taxation for the term of six years from the passage of this act. After the expiration of six years, the stock, property and assets belonging to said company shall be listed by the president, secretary or other officer, with the Auditor of State, and an annual tax for State purposes shall be assessed by the Auditor upon all the property and assets of every name, kind and description belonging to said corporation. Whenever the taxes levied for State purposes shall exceed three-fourths of one percentum per annum, such excess shall be deducted from the gross proceeds or income herein required to be paid by said corporation to the State, and the said corporation is hereby exempted from all taxation of every kind, except as herein provided for. The revenue arising from said taxation, and the said five per cent of gross or total proceeds, receipts or income aforesaid, shall be paid into the State treasury in money, and applied to the payment of interest-paying State indebtedness, until the extinction thereof: Provided, in case the five per cent provided to be paid into the State treasury and the State taxes to be paid by the corporation, do not amount to seven per cent of the gross or total proceeds, receipts or income, then the said company shall pay into the State treasury the difference, so as to make the whole amount paid equal at least to seven per cent of the gross receipts of said corporation.” (Private Laws of 1851, pp. 71, 72.)

In 1859 the General Assembly passed an act which referred particularly to the method of assessing the property of said company for the State tax, as required under said section 22 of the charter. Said act of 1859 provided, among other things, that if the company should neglect or refuse to list with the Auditor, on or before the first day of April in eactqyear, the stock, property and assets owned by said company, as required by its charter, then it should be the duty of the Auditor to list the same and place a valuation thereon and assess thereon a tax, but he should only assess said property for State purposes, giving said Auditor an opportunity to inspect the books of the company and examine its officers, and providing further that if the company should list its stock, property and assets as required by its charter, and if the Auditor believed the valuation placed by said company too low or that the company had not included all of its property, he should notify the railroad company of his disapproval thereof and proceed to make out a list himself, and then continued:

“Sec. 4. That in order to make out the list herein provided to be made, the Auditor may either make out the same in the aggregate, or by specifications of the particular kinds of stock, property and assets, owned by said company, as provided in section twenty-two of the charter of said company.

“Sec. 5.' That in either case provided herein, when the Auditor shall make out the list and valuation, as herein provided, he shall notify said company thereof; and if said company shall be dissatisfied with such list and valuation, they shall be allowed to appeal from the decision of the" Auditor to the Supreme Court, notice of which appeal shall be filed with the Auditor, who shall thereupon transmit to the clerk of said Supreme Court a certified copy of said list and valuation, and it shall be the duty of said Supreme Court, at the term next succeeding the taking of such appeal, upon such evidence as may be presented by the State and said company, to hear and determine the aggregate value of the stock, property and assets owned by said company.

“Sec. 6. That whenever an appeal is taken to the Supreme Court and the question herein provided to be heard and determined by said court is determined, it shall be the duty of the clerk to certify the aggregate value, so found, to the Auditor of Public Accounts, who shall assess a tax thereon for State purposes.

“Sec. 7. That the Auditor of Public Accounts shall draw his warrant upon the State Treasurer for all ex-' penses incurred under and by virtue of this act: Provided, that in case of an appeal to the Supreme Court, by said company, then said company shall pay all costs made by said company.

“Sec. 8. That the terms ‘list’ and ‘valuation,’ as used in this act, shall be deemed and taken to mean the stock, property, assets and other things owned by said company, set down in a list or schedule for taxation, and the value placed thereon, as above provided.

“Sec. 9. This act is intended to supply omissions in the law as heretofore existing, so as to enable the State to enforce the listing of the property of the Illinois Central Railroad Company, and the valuation and assessment thereof, and to make it the duty of the Auditor to value and assess the stock, property and assets owned by said company, for the years eighteen hundred and fifty-seven and eighteen hundred and fifty-eight: And it is further provided, that all the provisions of this act shall apply to the listing, valuations and assessments of said years,' as well as to all future listings, valuations and assessments. This act shall be in force from and after the date of its passage.” (Laws of 1859, p. 206.)

Under said section 22 of its charter the company paid no taxes for the first six years of its incorporation. The proof in the record shows that in 1857 it listed its property with the Auditor, placing thereon the value of $19,711,-559-59- This valuation was accepted by the Auditor and the regular State tax rate of sixty-seven cents per $100 was assessed against it for the State tax of the company. In 1858 the company listed its property at $7,650,000, and, so far as appears from the record, the Auditor assessed no tax that year upon this list and valuation. In 1859 the company listed its property with the Auditor at a total valuation of $4,952,000. The Auditor, acting in accordance with the provisions of said act of 1859, notified the company that he disapproved of such valuation and proceeded himself to make out a list, valuing the property at $13,000,000, upon which valuation he assessed the rate of sixty-seven cents, on the $100. The company, on being notified of the Auditor’s disapproval of its valuation, took an appeal to the Supreme Court under the provisions of said act of 1859. The Auditor thereupon certified the valuations to this court. The court, upon that appeal, heard the evidence in open court, and upon such testimony fixed the value of the property at $4,952,000 and directed the clerk, to certify to the Auditor the aggregate value so found. An opinion does not seem to have been published in our Reports as to this hearing, but in an action of debt which was brought in 1859 to recover the tax assessed for 1857 this court found the issues for the defendant in pursuance of a stipulation between the State and the company that the court might find the value of the property for 1857 from the evidence introduced on the appeal from the assessment for 1859. (State v. Illinois Central Railroad Co. 27 Ill. 64.) The Auditor does not seem to have required, nor the company to have filed, a schedule of its property from the year 1859 until the year 1906, when, upon the Auditor’s request and upon blanks furnished by him, the company listed its property, and against the “assessed value” fixed by the Auditor the current State tax rate was extended, the Auditor first having requested and obtained from the then Attorney General, William IT. Stead, an opinion that the State tax rate should be extended, not against the full value of said property but against the assessed value, and that in assessing the stock, property and assets of said company, credits and deductions should be permitted on the same basis as was allowed other property owners under the general Revenue law. Similar lists were filed in the years from 1907 to 1912, inclusive, and the property was taxed at the equalized assessed value, allowing deductions as to credits in accordance with said opinion of the Attorney General. The company filed its schedule for the year 1913, and the Auditor disapproved and filed his list with a valuation, as heretofore stated. The evidence shows that the Auditor was advised by the present Attorney General to disapprove the valuation given in the schedule of the company, and that he also followed the advice of the Attorney General as to the course he should take in placing valuations upon the company’s property. The Auditor, when on the witness stand, admitted frankly that he himself had little knowledge of the value of the property and had trusted to the information given him by others as to the method of fixing the values and making the assessment. In a written opinion to the Auditor with reference to the method of assessing, the Attorney General said, among other things: “In 1906 the Attorney General advised the Auditor to allow the company the deductions provided for by the general Revenue law. It is unnecessary to discuss the question whether the view taken by the Attorney General was the correct one. The question is at least debatable, and under these circumstances the proper course for the Auditor is to follow strictly the provisions of the company’s charter and the act of 1859, leaving it to the company, if dissatisfied, to appeal to the Supreme Court, where the question may be authoritatively settled.” The Auditor assessed the property at its full cash value and not at one-third its value, as other property was assessed under the general Revenue law, and also refused to consider any deductions of debts from credits.

Under said sections 18 and 22 of its charter the company is required to pay the State, each„year, five per cent on the gross or total proceeds or income derived from its road and branches and in addition to pay “an annual tax for State purposes,” to “be assessed by the Auditor upon all the property and assets of every name, kind and description belonging to said corporation,” but when “the taxes levied for State purposes shall exceed three-fourths of one percentum per annum, such excess shall be deducted from the gross proceeds or income herein required to be paid by said corporation to the State,” and in any event it is provided that if the five per cent of the gross or total proceeds to be paid by the corporation, plus the annual State tax, “do not amount to seven per cent of the gross or total proceeds, receipts or income, then the said company shall pay into the State treasury the difference, .so as to make the whole amount paid equal at least to seven per cent of the gross receipts of said corporation.” Manifestly, the parties to this charter contract were of the opinion that the State taxes to be levied for any given year might be higher than three-fourths of one per cent per annum, and that the total amount raised by said levy for State taxes might amount in any given year to more than two per cent of the gross receipts of said corporation. The record shows that in the years 1857, 1858 and 1859, when the property was listed with and taxed by the Auditor, the tax assessed by said Auditor did not amount to more than two per cent of the gross receipts reported by the company to the Governor, and that therefore the amounts paid during all these years, when the property -was so listed with and taxed by the Auditor for State taxes, was seven per cent of the gross receipts of the company. While there is no definite proof in the record as to the reason why the property of the company was not listed with and taxed by the Auditor for State taxes from the years i860 to 1905, inclusive, it seems quite obvious that the failure to do this was due to the fact that the public authorities were of the opinion that two per cent of the gross proceeds would more than cover any amount of State taxes that could be levied, under the charter, on the property of the company. By the method of assessment adopted by the Auditor, under the advice of the Attorney General, for the year 1913 here under consideration, the assessment levied by the Auditor against the company for State taxes amounted to $2,558,917.32. Seven per cent of the gross receipts of the company for the year ending October 31, 1913, as reported by the company and paid into the State treasury, amounted to $i,355r 178.98. The item of State tax as thus assessed by the Auditor for the year here in question exceeded the entire two per cent of the gross receipts by $2,171,723.34, being, as can readily be seen by comparison, more than a million dollars in excess of the entire seven per cent of the gross receipts paid into the State treasury for that year.

Counsel for the State have cited other statutes which they argue bear on the proper construction to be given to the statutes already referred to. We do not consider it necessary to set out these statutes at length, as we do not deem that they materially change the construction that should be put upon the sections of the charter necessary to be construed.

State Tax.

One of the principal questions in dispute between counsel in this case is as to what was meant in said section 22 of the charter of the company by “an annual tax for State purposes.” Counsel for the company insist that by its charter it agreed to pay only the same State tax that other property owners were compelled by general law, from time to time, to pay, while counsel for the State insist that the company agreed to pay an annual tax for State purposes levied by the Auditor under the State charter, without any regard to the State taxes paid by other property owners. In support of their contention on this point, counsel for the State argue that the five per cent of the company’s gross receipts provided for in section 18 was compensation solely for grants, privileges and franchises secured to the company by said charter; that it had nothing to do with the company’s taxes and did not enter into and was not a part of the payment substituted for the payment of other taxes.

Counsel argue that the words “grants, privileges and franchises” were'not intended to include taxes of any kind. With this we cannot agree. Whatever doubt might have originally existed .as to the proper construction of sections 18 and 22 of the charter on this question has been settled by the decisions of this court in construing the charter of appellant. In Illinois Central Railroad Co. v. County of McLean, 17 Ill. 291, the court said (p. 294) : “Such we view the rule adopted with the plaintiff, by taking five per cent of the gross income in lieu of all taxes for a period of six years, as well as for the grants, privileges and franchises conferred, and after that period expires to put them upon the footing of an assessment equal to two per cent addition to the five per cent.” In Neustadt v. Illinois Central Railroad Co. 31 Ill. 484, the court said (p. 485) : “In consideration of the undertaking of the company to construct a great thoroughfare, which should involve the expenditure of millions and which was an experiment, and seven per cent of the gross amount of its receipts or income to be paid to the State, the company was relieved from the payment of all other than State taxes, to be assessed as provided for in this section. The language is plain and explicit,—‘the said corporation is hereby exempted from all taxation of every kind except as herein provided for.’ ” To the same effect as this last case is Illinois Central Railroad Co. v. Irvin, 72 Ill. 452. In People v. Illinois Central Railroad Co. 215 Ill. 177, this court said (p. 178) : “In consideration of the construction of appellee’s road and the payment by it of seven per cent of the gross amount of its receipts or income to the State, appellee has been relieved from payment of all other than State taxes, to be assessed as provided for in section 22 of its charter.” In State v. Illinois Central Railroad Co. 246 Ill. 188, the opinion said (p. 207) : “Beyond question, all of the revenue provided under this charter is based on a contract and in lieu of and intended as a fair equivalent for ordinary taxes.” And again, on page 220: “Clearly, the provisions of appellee’s charter as to revenue were inserted as a fair method of fixing an equivalent for a tax that would otherwise ordinarily be levied on the property of appellee,” etc.

The reasoning of this court in State v. Illinois Central Railroad Co. 27 Ill. 64, Hunsaker v. Wright, 30 id. 146, People v. Barger, 62 id. 452, Illinois Central Railroad Co. v. Goodwin, 94 id. 262, Donahue v. Illinois Central Railroad Co. 165 id. 640, and State Board of Equalization v. People, 229 id. 430, tends to support the conclusion reached in the other cases just quoted from, that the five per cent of the gross income of the company was paid, not only for the franchises of the road, as that word is ordinarily understood, but in part commutation for all other than State taxes. It is true, as stated in decisions cited by counsel for the State, such as Rochester Railway Co. v. Rochester, 205 U. S. 236, and Great Northern Railway Co. v. State, 216 id. 206, that an immunity or exemption from taxation has been frequently held not to be a grant, privilege or franchise. But in those cases, as in all others called to our attention, the decision turned upon the meaning of the language of the statute or contract right being construed. The word “privilege” has been used to include the privilege of exemption from taxation. (Tennessee v. Whitworth, 22 Fed. Rep. 75; Tomlinson v. Branch, 82 U. S. 460; 6 Words and Phrases, 5585; 3 id.—2d series,— 1207.) An “exemption is an immunity or privilege.” (State v. Smith, 158 Ind. 543.) “Words in a constitution, as well as words in a statute, are always to be given the meaning they have in common use, unless there are very strong reasons to the contrary. We find no such reasons in this case, and, as an exemption from taxation is a privilege in the popular sense of that term, we feel ourselves compelled to decide that both the Tennessee and Alabama company and the Central Southern company were granted such an exemption.” (Tennessee v. Whitworth, 117 U. S. 139.) Each case necessarily depends upon the wording of the contract or statute. It is quite common to describe the giving of an immunity from taxation as a “grant of the State.” Dutton v. Board of Review, 188 Ill. 386; 37 Cyc. 884, and cited cases; Humphrey v. Pegues, 16 Wall. 244.

When this charter was granted, the privilege or franchise to build this railroad was not considered of any special value. In the fifteen years, more or less, previous to the granting of this charter the public authorities had made several attempts to build a railroad similar to the one that was finally constructed by appellant company, and in one act the State had appropriated three and a half million dollars for that purpose. The Congress of the United States also in 1850 passed an act granting to the State of Illinois a right of way through the public lands and the ownership of every alternate section of land for more than six miles • in width on each side thereof,, to aid the State in constructing the railroad finally built by appellant. The history of a part of the legislation on this subject is found in State v. Illinois Central Railroad Co. 246 Ill. 188, on pages 196-198. In section 6 of article 10 of the constitution of 1848 it was provided that “the General Assembly shall encourage internal improvements, b'y passing liberal general laws of incorporation for that purpose.” In passing the Land Grant act, granting to the State the alternate sections of land afterward received by appellant company from the State, Senator Stephen A. Douglas in the United States senate said: “It is simply carrying out a principle •which has been acted upon for thirty years, by which you cede each alternate section of land and double the price of the alternate sections not ceded, so that the same price is received for the whole. These lands have been in the market from fifteen to thirty years. The average time is about twenty-three years. But they will not sell at the usual price of $1.25 per acre because they are distant from any navigable stream or a market for produce. A railroad will make the lands salable at double the usual price, 'because the improvement made by the State will make them valuable.” (21 Congressional Globe, April 29, 1850, part 1, p. 845.) The year this charter was granted, Gov. French, then chief executive of the State, said: “The constitution having wisely debarred the State from again involving its credit in wild and visionary schemes of internal improvement, their chance of success rests upon individual skill, capital and enterprise.” (Senate Journal, 1849-51, p. 20.) The valué of the grant to the appellant company of 2,595,000 acres of land is to be determined, not by what such land is worth now, but what it was worth at the time the charter was granted. It is a well known fact, as stated by Senator Douglas, that at that time land would not sell readily for $1.25 an acre. The land then granted to the company is now of great value, but in 1851, at the time the charter was granted, it was undeveloped and its ultimate value entirely problematical.

So far as the records and proof in this proceeding show, and so far as we are advised, this is the first time that anyone has ever questioned the fact that the- five per cent of the gross receipts in said section 22 was intended, in part, as a substitute payment for all other than State taxes. Not only have the public authorities and the officials of the company so construed these provisions of the charter, but, in the light of the history of the enactment of this charter, we think no other conclusion can be reached, if its provisions be fairly construed, than that heretofore reached by decisions of this court. We re-affirm what has already been said more than once by this court, that in consideration of the construction of appellant’s road and the payment by it of seven per cent of its gross income to the State it has been relieved from the payment of all other than State taxes, to be assessed as provided in its charter. Neustadt v. Illinois Central Railroad Co. 31 Ill. 484; Illinois Central Railroad Co. v. Irvin, 72 id. 452.

Is the State right in its contention that the State tax, so called, is in reality not a tax in the sense in which that term is used in the general Revenue law but only an agreed payment in lieu of the State tax, not to be determined or controlled by the general Revenue law of the State but only by the judgment of the State Auditor, limited by the provision in the charter that such State taxes shall not exceed three-fourths of one per cent, or seventy-five cents on the $100? The State tax provided for in section 22 is based upon a contract, (Illinois Central Railroad Co. v. County of McLean, 17 Ill. 291; People v. Barger, 62 id. 452; State v. Illinois Central Railroad Co. 246 id. 188;) and it is therefore not an ordinary tax, as that word is frequently used, but, being based on this charter contract, the State tax here in question must be governed by the provisions of that contract. Therefore such State tax can never be more than three-fourths of one per cent on the property of appellant. It is to be assessed and levied by a different officer from the public official who assesses and levies the ordinary State taxes, under the general Revenue law, on the property of other owners, and said State tax here in question, when collected, may be used for different purposes than ordinary State taxes should be used. Counsel for the company insist that with these exceptions the State tax assessed, levied and collected against its property must be governed by the general Revenue law of the State. Counsel for the State, on the other hand, contend that if such had been the intention, the statute under which the company was incorporated would have so stated in specific words.

The usual rule is, as stated by Cooley, that in the “exercise of the power to tax, the purpose always is that a common burden shall be sustained by common contributions, regulated by some fixed general rule and apportioned by the law according to some uniform ratio of equality. So the power is not arbitrary but rests upon fixed principles of justice, which have for their object the protection of the tax-payer against exceptional and invidious exactions, and it is to have effect through established rules operating impartially.” (i Cooley on Taxation,—3d ed.—4.) Again, the same author states: “Apportionment of the burden is a necessary element in all taxation.” (Ibid. 411.) In the absence of a constitutional restriction on the State legislature there is no requirement that all taxes bé uniform or on an equal basis. (Eurigh v. People, 79 Ill. 214; DuPage County v. Jenks, 65 id. 275.) The Federal courts have held that the requirement of uniformity which the constitution imposes upon Congress in the levy of excise taxes is not an intrinsic uniformity but mefely a geographical one. (Billings v. United States, 232 U. S. 261.) Section 2 of article 9 of the Illinois constitution of 1848 provided: “The General Assembly shall provide for levying a tax by valuation, so that every person and corporation shall pay a tax in proportion to the value of his or her property.” A similar provision is found both in the constitution of 1818 and that of 1870. By section 2 of article 9 of the constitution of 1848.it is further provided that “the General Assembly shall have power to tax peddlers, auctioneers, * * * toll bridges and ferries, and persons using and exercising franchises and privileges, in such manner as they shall, from time to time, direct.” A ' provision similar to this is found in the constitution of 1870, except that there was no requirement in the constitution of 1848, as in the present one, that this method of taxation should be by general law and that the taxation should be uniform as to the class upon which it operates. (Sterling Gas Co. v. Higby, 134 Ill. 557.) It is because of this last named provision of said section 2 of article 9 of the constitution of 1848 that this court upheld the provisions of this charter authorizing the substituted method of taxation in the nature of a commutation of taxes, in lieu of ordinary taxes. (Illinois Central Railroad Co. v. County of McLean, 17 Ill. 291;, Hunsaker v. Wright, 30 id. 146; People v. Barger, 62 id. 452; State Board of Equalization v. People, 229 id. 430; State v. Illinois Central Railroad Co. 246 id. 188.) It may be conceded for the purposes of this case that the legislature, in granting this- charter, not only could have departed from the rules of uniformity, equality and apportionment of value as to the requirements in.the payment of the five per cent and the two per cent on the gross income of the company, but could also have departed therefrom in levying a so-called State tax had they so desired. That, however, in .our judgment, is not the question here to be decided. The question is, did the legislature by the provisions of section 22, read in connection with the rest of the charter, intend to depart from such rules in levying oh the property of appellant the State tax provided for in said section 22 ?

The rule is elementary that the Authority to impose upon property an unusual tax, or revenue liability upon an exceptional basis of value, must be given, under the law, in clear and unmistakable terms. (Fidelity Co. v. Board of Review, 264 Ill. 11; People v. Griffith, 245 id. 532; Town of Drummer v. Cox, 165 id. 648.) We find nothing in the wording of the charter that supports the argument of counsel for the State on this point. .Said section 22 on this point reads, that “an annual tax for State purposes shall be assessed by the Auditor,” etc. The language, in' our judgment, is clear and unambiguous, and means that the property and assets of the company shall bear the burden of ordinary State taxes. The same idea is carried out in the remainder of the section wherever these taxes are referred to, as in the expression “whenever the taxes levied for State purposes shall exceed three-fourths of one percentum,” and in the term “revenue 'arising from said taxation.” The proviso also refers to “State taxes.” Said act of 1859, with reference to the methods of levying this State tax, is still in force, and the words “list,” “valuation,” “assess,” “taxation” and “tax for State purposes,” are used both in said charter and in said act of 1859. These words all had a common meaning in the Revenue law of that period. It is a rule of construction that the words of a statute must be taken in their plain, obvious and ordinary-signification as used in like statutes. (2 Sutherland on Stat. Const.—2d ed.—864.) The phrase “assessed by the Auditor,” in said section 22 of the charter, was common in the revenue statutes of that day. It was understood that it must be based upon valuation. In Town of Lebanon v. Ohio and Mississippi Railway Co. 77 Ill. 539, the court said: “It is indispensable there must be a valuation to support every levy or assessment of taxes.” No provision is made, either in the charter of said company or in said act of 1859, as to what method shall be pursued- by the Auditor in assessing and levying taxes. The natural and reasonable conclusion would be that the Auditor was to follow the same method and be governed by the same rules as used by other public officials in listing, assessing and levying State taxes. We find nothing in the wording of the charter or said act of 1859 that in any manner suggests anything to the contrary.

Counsel for the State argue that if the legislature had intended by section 22 to provide for the ordinary State tax, levied in the same manner as regular State taxes -are levied under the Revenue law, they could easily have inserted a provision in the proper place in said section to -the effect that the Auditor should fix the assessable- value -for this. tax in the same manner as may be provided by law for fixing the assessable value of other property -throughout the State, and that he should levy thereon in each year, in the manner provided by law, from time to time, the tax for State purposes at the same rate at which this tax is levied upon other property throughout the State. Undoubtedly, such a wording could have been inserted, but the fact that it was not does not support the argument of the State on this question. If this argument of the State be a sound one, then it might well be asked, by the same line of rea.soning, why the legislature did not, in referring to the State taxes, simply provide that such tax should not be levied in excess of three-fourths of one per cent per annum, instead of providing, as they did, “whenever the taxes levied for State purposes shall exceed three-fourths of one percentum per annum, such excess shall be deducted from the gross proceeds or income herein required to be paid.” If the Auditor, alone, could settle the rate of State taxes, without any reference to the State taxes levied on other property, why insert a useless provision that might result in levying more than three-fourths of one per cent on the dollar and then require the deduction of the excess over and above three-fourths of one per cent? Manifestly, this provision of the charter as to levying more than three-fourths of one per cent and deducting the excess can only be given a reasonable construction if it is understood to mean that the rate of State tax is fixed by some other authority than the Auditor, and that official then is required to take that rate in levying a State tax on the property of appellant company.

Counsel for the State further insist that the charter made a perpetual liability on the part of the company to pay a State property tax, and it must have been known to the State legislature, at the time the charter was granted, that all other property might be relieved, under the provisions of the constitution, from paying State taxes, and that therefore the legislature must have intended that the Auditor was not to be governed in any way by the general Revenue law in assessing and levying this tax. It is true, as stated by counsel, that a general property tax, such as a tax on personal property of the kind existing in this State and other States at the present time, is being done away with in other countries, yet up to the time this charter was granted a personal property tax was not only general in this country but in other countries of the world. It is true, some writers assert that there is reason for abolishing the personal property tax, similar to, our State tax on that kind of property, in all jurisdictions, and while under the constitution of 1848 authority was given to exempt from State tax by a substituted form of taxation, the members of the constitutional convention of 1870 doubtless had little thought of its being practicable ever to abolish State taxes, for they provided in section 6 of article 9 of our present constitution, that “the General Assembly shall have no power to release or discharge any county, city, township, town or district whatever, or the inhabitants thereof, or the property therein, from their or its proportionate share of taxes to be levied for State purposes, nor shall commutation for such taxes be authorized in any form whatsoever.” If State taxes are ever done away with in this State, by a constitutional change or otherwise, it will then be time enough to consider whether the doing away with State taxes on other property will render nugatory the provision of section 22 of the charter of appellant company as to the payment of State taxes. The question is not before us in this case and need not be here considered or decided.

The further argument of counsel for the State that this State tax was to be assessed, levied and collected by other officers than those who assessed, levied and collected other State taxes, does not, in our judgment, tend to support their argument as to the nature of the State taxes provided for in this section. Other taxes at that time were assessed and levied by the Auditor. (Act to provide for a general system of railroad incorporation, laws of 1849,— 2d session,—sec. 30, p. 30; Private Laws of 1851, sec. 14, p. 50.) This court has held that the assessing and levying of taxes by the Auditor did not affect the tax levied. Porter v. Rockford, Rock Island and St. Louis Railroad Co. 76 Ill. 561; People v. Commissioners of Cook County, 176 id. 576.

Under the rulings of this court, in construing the charter of the company we can reach no other conclusion than that the State taxes referred to in said section 22 were, under the restrictions provided for in said section, the regular State taxes that were to be levied on other property. In Illinois Central Railroad Co. v. County of McLean, 17 Ill. 291, it was said (p. 292) : “We feel authorized and required * * * to sustain the provisions of the twenty-second section of the act incorporating the plaintiffs, and that the payments provided for in the eighteenth section of their charter have been constitutionally substituted, under the second section of the constitution, in lieu of the general rule of uniformity and proportion fixed in its first clause.” In State v. Illinois Central Railroad Co. 27 Ill. 64, this court said (p. 67) : “If, then, the property is more valuable in 1859 or in i860 than as now found or in subsequent years, the taxes will be assessed accordingly, so that the injunction of the constitution ‘that every person and corporation shall pay a tax in proportion to the value of his or her property’ will be regarded.” In Neustadt v. Illinois Central Railroad Co. 31 Ill. 484, it was said that in consideration of the payment of said seven per cent the company was relieved from the payment of all other than State taxes. The same thing was again said in Illinois Central Railroad Co. v. Irvin, 72 Ill. 452, and again in People v. Illinois Central Railroad Co. 215 id. 177. The same thing was repeated, in substance, in State v. Illinois Central Railroad Co. 246 Ill. 188. The history of the payment of the seven per cent by the company on its gross receipts or income to the State and the levying and collecting of the State tax, as heretofore given in this opinion, shows that up to the present time all officials who have been charged with duties in connection with the payment of this revenue by the company to the State, as provided in its charter, have understood the State taxes to mean ordinary State taxes.

If it be assumed that the meaning that should be placed upon the charter provisions of appellant company here under consideration is doubtful, then the contemporaneous, uniform and long continued construction placed upon these charter provisions by public officials will have great weight with the court. (Nye v. Foreman, 215 Ill. 285; Cook County v. Healy, 222 id. 310.) “It was not only the immediate sense of the officers of the State, but their continued sense through a number of years, that the bank was exempt from all taxation, and when the right of taxation was asserted a license tax was not included. And we have authority for saying that a license tax was not demanded during a period of fifty-eight years, notwithstanding the many changes in the administrative officers of the State.” (Citizens’ Bank v. Parker, 192 U. S. 73.) For more than sixty years all departments of the State government have construed this provision of the charter to mean the ordinary annual State tax similar to that levied on the property of all other persons. This practice should not be lightly set aside. It should only be done if the language of the charter is so clear and unambiguous that such action would be required. As we have already seen, this is not the fact. In our judgment the language of the statute, fairly construed, can bear no other construction than that placed on it by all public officials, including this court, that the annual tax levied against the property of appellant company is the ordinary annual tax and is subject only to the limitations specifically set out in said charter.

Equalized Value.

The record shows by the testimony of the members of the State Board of Equalization, and also by that of other public officers called from sixty-five representative counties of the State, including county treasurers, county clerks, members of boards of assessors, and others having practical knowledge of the methods of assessment in the counties, that during the year 1913, and for years prior thereto, the uniform practice throughout said counties was to adopt as the full value of taxable property, not the full cash value but an amount not in excess of 70 per cent of the full cash value of such taxable property, with the exception that in most of the counties moneys and mortgages listed by owners were assessed at full value. The testimony shows, also, that from 1903 until 1913 the State Board of Equalization had taken this same standard,—that is, not to exceed 70 per cent of the full - cash value,—as the standard to be followed by that body in assessing that class of property required by law to be originally assessed by that board. In some of the years from 1903 to 1913 the record shows that the State Board of Equalization passed a resolution to that effect. The proof shows that the property of all other railroad companies in this State for the year 1913 and prior thereto was assessed by the State Board of Equalization in accordance with this standard,—that is, fixing the “full value” of the property of all other railroads on a basis not to exceed 70 per cent of the actual cash value. The Auditor, in levying the assessment here in question, levied it upon what he had fixed as the full cash value of the property, while the commissioner appointed by this court recommends that the tax should be levied on only one-third of the total equalized value and that such assessment should be governed by the requirements of the statute as to levying all other State taxes. (Hurd’s Stat. 1913, p. 2081.)

It is insisted by counsel for the State that the assessment should be levied on the basis of the full cash.value and not on the one-third value, and that the charter provision found in section 22 provides that the tax shall be “upon all the property and assets of every name, kind and description belonging to said corporationthat said act of 1859 requires the Auditor to assess the stock, property and assets upon the full value, and that when an appeal is taken to the Supreme Court the question to be heard and determined is “the aggregate value of the stock, property and assets owned by said company,” and the tax is to be levied upon such “aggregate value” so found. Until 1898 the statute of this State always required the State tax to be levied upon the full cash or actual value of property, but it is a matter of common knowledge that before tjiat act was passed property was not usually assessed at its full value. This court has always taken notice of that practice as being long in vogue, unchallenged and recognized by the public authorities. (Bureau County v. Chicago, Burlington and Quincy Railroad Co. 44 Ill. 229; City of Chicago v. Fishburn, 189 id. 367.) In this last case it was stated (p. 376) : “The assessor had always adopted some proportionate basis of value, and while it was necessary for him to determine the full value in order to take a certain proportion or share as the assessed value, he set down the assessed value, qnly.” This practice was recognized by the Revenue law of the State in 1898, which provided that the assessed value should be one-fifth of its actual cash value, (Hurd’s Stat. 1898, p. 13655,) and by the subsequent act of 1909, which provided that the assessed value shall be one-third of the full value. (Hurd’s Stat. 1909, p. 1882.)

Counsel for the State insist that, regardless of these statutes and regardless of the former practice that existed previous to the passage of these acts, the property of appellant should be assessed at its full cash value for these State taxes. With this we cannot agree. What we have already said with reference to these State taxes being the ordinary taxes levied on other property practically answers all the arguments urged by the State, but the question is so important that we deem it advisable to consider it further.

The words “the aggregate,” in the statute of 1859, in no way changed the duty of the Auditor in fixing the valuation or the duty of this court on appeal. In our judgment the fair meaning of these words is, that instead of finding the value of each separate item of the property the court shall find its total or aggregate value. They do not refer specifically to the finding of the equalized value or as to the duty of the court to decide whether the one-third of the full valuation should be the value upon which the assessment must be levied. Manifestly, however, in view of the issues raised in this case, it is the duty of the court to find whether the Auditor should extend the assessment for the State tax upon the full cash value or only upon one-third of the equalized value. This being an ordinary State tax, as already stated, t-he provision of the constitution of 1848, and of the present constitution, that the tax should be levied by valuation, “so that every person and corporation shall pay a tax in proportion to his, her or its property,” must control in levying this tax. This court, in discussing a similar question in Law v. People, 87 Ill. 385, said (p. 405) : “As we have seen, all other property in the State had been assessed at one-half its cash value. Under the law the State board had no .power to increase the aggregate valuation beyond one per cent on such aggregate assessed valuation. It became a question, what was to be done? Whatever may be the statutory injunction as to making valuations of property for taxation, the controlling authority as contained in the constitution is, it shall be so valued that every person and corporation shall pay a tax in proportion to his or its property. * * * A stfict observance of the statute * * * would have worked manifest injustice as well as a plain violation of that constitutional requirement that the burden of taxation should be made to bear equally upon all property, whether owned by private persons or by corporations. That which the constitution imposed was the higher duty, and the State board was not at liberty to disregard its provisions.” In Jack v. Weiennett, 115 Ill. 105, it was said (p. 109) : “In an exercise of the powe-r to tax, the purpose always .is that a common burden shall be sustained by common contributions regulated by some fixed general rule and apportioned by the law according to some uniform ratio of equality.” In City of Chicago v. Larned, 34 Ill. 203, it was said (p. 275) : “The framers of our constitution have taken unexampled pains by these separate sections to affirm the principles of ‘equality’ and ‘uniformity’ as indispensable to all legal taxation, whether general or local.” In Primm v. City of Belleville, 59 Ill. 142, the opinion said (p. 143) : “Equality and uniformity of taxation have been repeatedly recognized and enforced by this court. They must be applied, not only to the rate of taxation and to the district to be taxed, but also to all the property subject to taxation.” In Ex parte Ft. Smith and VanBuren Bridge Co. 36 S. W. Rep. 1060, the Supreme Court of Arkansas said (p. 1062) : “How, then, was the county court to afford relief to appellant? The only relief it could have afforded was to reduce the valuation so as to make it conform to the standard adopted in the valuation of other real property in the county or the average valuation of such property. Why should not this relief be granted ? * * * By granting it a constitutional right will be enforced and by denying it will be withheld.” In Cummings v. National Bank, 101 U. S. 153, the court said (p. 158) : “In construing this provision of the constitution the Supreme Court of Ohio has said that ‘taxing by uniform rule requires uniformity not only in the rate of taxation but also uniformity in the mode of the assessment upon the taxable valuation. Uniformity in taxing implies equality in the burden of taxation, and this equality of burden cannot exist without uniformity in the mode of the assessment as well as in the rate of taxation. * * * It must be extended to all property subject to taxation, so that all property must be taxed alike, equally, which is taxing by a uniform rule.’ ” In Chicago and Alton Railroad Co. v. Livingston County, 68 Ill. 458, this court said (p. 460) : “So the evidence shows the valuation returned by the company to have been a fair and correct one on the basis of one-third of the actual value, yet the board doubled this valuation, so that the property of this company was assessed at twrothirds of the actual value while that of natural persons in the county was assessed at only one-third of its actual value. This cannot be done under our constitution. Taxation must be uniform. There can be no discrimination against persons. They must be taxed alike.” In Bureau County v. Chicago, Burlington and Quincy Railroad Co. 44 Ill. 229, the evidence disclosed that the property of the company had been valued at a much higher ratio than had been used in valuing other property. The court said (p. 238) : “The question is before us in all its length and breadth, can a railroad company, by any action of the corporate authorities of a county, be required to pay more than its fair share of taxes as compared with those paid by individuals ? Does the power exist anywhere to destroy the cardinal principle of uniformity of taxation so forcibly and prominently insisted upon by the constitution ? * * * Regarding uniformity as the vital principle,—the dominant idea of the constitution,—where can the power reside to produce its opposite ? Where is the power lodged, in view of this principle, to compel A to pay, on his land or personal property of no more value than the same kind of property belonging to B, forty per cent more taxes than are assessed against B? We affirm such a power nowhere exists, and if it did it would be so revolting, in its exercise, to the lowest sense of justice with which our species is imbued as to justify any and every lawful expedient for relief against it. * * * It is an admitted fact on both sides to this controversy that the property of no one owner in the county of Bureau has been taxed on its real value, and that the per cent added by the board of supervisors to the valuation of the property of appellees imposes on them a greater proportionate burden than the law requires them to bear. We are of this opinion, and therefore consider the action of the board unfounded in justice and in direct opposition to the constitution. The great and attractive feature of uniformity has been disregarded by the board and appellees victimized.” In Chicago and Northwestern Railway Co. v. Boone County, 44 Ill. 240, where the same question was considered, the court said (p. 242) that the county board was not authorized “to withdraw the property of appellants from the protection of this constitutional principle of. uniformity, and, by the addition of twenty per cent on their rolling stock and of fifty per cent on their fixed and stationary personal property, compel them to pay, thereby, more taxes on the valuation.of their property than the individual citizen paid on his.” This court, in discussing the statute of 1898 fixing one-fifth of the actual value as the basis for the assessment, said in City of Chicago v. Fishburn, 189 Ill. 367, on page 375: “The meaning of the term ‘assessment’ in connection with taxation is well understood. It is an official valuation of property for the purpose of fixing the proportion of taxes which each one shall pay. Judge Cooley, in his work on the Law of Taxation, defines it as follows: ‘An assessment, strictly speaking, is an official estimate of the sums which are to constitute the basis of an apportionment of a tax between the individual subjects of taxation within the district. As the word is more commonly employed, an. assessment consists in the two processes of listing the persons, property, etc., to be taxed and of estimating the sums which are to be the guide in an apportionment of the tax between them.’ ”

To assess implies more than to fix the full valuation at a given rate. It means to impose a tax according to some method or upon a basis of assessed valuation which may be provided by law and which does not violate the mandate of the constitution that every person and corporation shall pay a tax in proportion to the value of his or its property. It includes all the steps which the law requires to subject the property to the tax. The State tax levied under the provisions of section 22 of appellant company’s charter being practically an ordinary State tax, to levy it on a basis of full value when the State taxes on all other property were levied at a much less value would, be violative of every principle of uniformity and equality of taxation as laid down in the constitution. This should not be done, even though the standard or basis fixed by the public authorities for the assessed valuation is.less than that fixed by the statute. The requirements of the constitution that there shall be uniformity and equality in taxation must control over any statute or practice of assessing officers, so that the properties of persons and corporations shall pay a tax in proportion to their respective values.

The separate section to the constitution of 1870 which provides that no contract obligation or liability .whatever of the Illinois Central Railroad Company shall ever be released, suspended, modified, altered or omitted, does not in any way change the obligations of the charter of the company. If that section had not been adopted, the liability of the company to pay the State tax under existing legislation would be just as it is at the present time. The charter prescribes the tax to be assessed upon a valuation, which under our construction of the charter obligations and the laws bearing on the subject means that this tax is to 1 be assessed in just proportion under the provisions of the constitution. Before the constitution of 1870, the State, in levying this tax, was bound to do so with due recognition of the rule that every person and corporation should pay a tax in proportion to his or its property, and since the tax must have been so levied before 1870 so must it now be, because of this particular section to which reference is made by counsel.

Deducting Debts from Credits.

The further question is raised as to whether appellant company, in having its property assessed, is entitled to the deduction of its bona fide debts from the credits listed by it, as provided by the general Revenue law of the State. Section 3 of the Revenue law provides that personal property shall be valued at its fair cash value, less such deductions as shall be allowed by law to be made from credits. Credits, whether payable in money, labor or property, are taxable under the second paragraph of section 3 of the Revenue act of 1872. (Hurd’s Stat. 1913, p. 2025.) Section 27 of this last named act provides that “in making up the amount of credits which any person is required to list for himself, or for any other person, company or corpora-' tion, he shall be entitled to deduct from the gross amount of credits the amount of all bona fide debts owing by such person, company or corporation to any other person, company or corporation, for a consideration received,” etc. Section 28 provides that “no person, company or corporation shall be entitled to any deduction from the amount of any bonds, stocks, or money loaned,” etc., requiring that all intangible property be assessed under the description of capital stock, the actual valuation of which must necessarily take into account the balance between the credits and debts. (Hurd’s Stat. 1913, chap. 120, secs. 48, 108, pp. 2033, 2043.) This court, in First Nat. Bank v. Holmes, 246 Ill. 362, said (p. 369) that “it is not within the power of the legislature t