The opinion
I dissent, and adhere to the former decision and to the opinion then delivered; and I desire to add only the following, which seems to be too obvious to be surmounted by any kind of reasoning: The word "railroad" is frequently used in the constitution without any other defining or qualifying phrase, and where the meaning of the word, standing alone, comes in question in determining the application of some provision of the law, it is no doubt occasionally difficult to decide whether, in the particular matter involved, it should be construed to include "street railroad." But in the provision here in question — "all railroads operated in more than one county in this state" — the word "railroads" does not stand alone; the important, significant, and controlling part of the phrase is "operated in more than one county." The thought in the minds of the framers of the constitution, as shown by the language used, was to provide for the assessment of a railroad, with its rolling-stock, franchises, etc., running through and being operated in more than one county. And the thing intended to be provided for is in its very nature applicable to any railroad which is operated in more than one county.
I do not see the force of the suggestion that the dense population of a city makes a mile of track within it more valuable than a mile in a more sparsely settled country outside of the city. The same fact exists as to all railroads. The great overland railroads pass through counties which are thickly settled and cities having dense populations, and also through almost entirely unsettled mountain and desert regions, and the parts of these railroads lying within the former are more valuable than those lying within the latter. If they were divided, for the purpose of taxation, into sections corresponding with county and city lines, cities and some counties would receive more revenue from taxation of these roads than they *Page 234
do now. But under that system other evils would occur; and the constitutional convention, after a full consideration of the whole matter, determined that the more practicable, just, and equitable way was to tax each railroad operated in more than one county, with its rolling-stock, etc., as a whole. This being the rule declared by the constitution, it cannot be disregarded on the ground that it is not the best way to assess such a railroad.
Henshaw, J., concurred with McFarland, J.
The following is the opinion of the court in Bank rendered on the 1st of July, 1903, referred to in the dissenting opinion of Mr. Justice McFarland: —