The opinion
McFarland, J., dissenting
I dissent. Passing other questions it is sufficient to say that, in my opinion, the assessment in question is void under the decisions of the supreme court of the United States in the cases of California v. Central Pac. R. R. Co., and State of California v. Southern Pac. R. R. Co., 127 U. S. 1 , because it includes a federal franchise, and thus attempts to tax “ one of the means or instrumentalities employed by the United States government for carrying into effect its sovereign powers.” That this cannot be done by a state has been the established law ever since the decision of the United States supreme court in McCulloch v. Maryland, 4 Wheat. 316 , which was rendered in 1819. The principle was fully recognized and declared by this court in San Benito County v. Southern Pac. R. R. Co., 77 Cal. 518 , and San Francisco v. Western Union Tel. Co., 96 Cal. 140 .
The only difference between the above-mentioned cases in 127 United States and the case at bar is that in the former the trial court found that the state board of equalization included in the assessment the value of ‘‘ all franchises and corporate powers held and exercised by the defendant”; while in the case at bar the court below found that said board, in making the assessment for the year 1887, “ did not include in its said assessment any federal franchise.” But the assessment in both instances was exactly the same, namely: “ the franchise” of the railroad. In the former cases it does not appear that the trial court received any evidence on the question as to what “the franchise” included; and it is probable that the finding was based upon the language of the assessment alone. In the case at bar the court did receive evidence as to what the members of the board intended by the words “the franchise”; and it appears in the *599 record that the court, after having concluded that “ from a preponderance of evidence before it the federal franchise of defendant was not assessed or included in the assessment,” proceeded to say that “ if, by a preponderance of such evidence, defendants could have shown that the state intended to and did include the federal franchise in the assessment, I think the court would have to disregard it as incompetent. The effect of such parol evidence would be to contradict the record, which cannot be done.” Now, if it was competent to introduce testimony to show the intent of the members of the board when they made the assessment, then the court clearly erred in ruling out certain evidence offered on that point by appellant. Upon that theory the offered evidence of Maslin, secretary of the board for many years, was clearly admissible and material; and so were the questions asked by appellant in cross-examination of the witness Wilcoxen. On the other hand, if the record of the board should be alone considered, then it simply appears that “ the franchise” was assessed; and I cannot possibly see how that phrase can be construed to mean any thing else than the whole franchise of the railroad—all the franchise belonging to it. It means just what the lower court had found it to mean, as above quoted, in said cases in 127 United States. The words “the franchise” clearly, in my judgment, includes the right of appellant to do business—and the whole of that right. That right is a unit and inseparable. The court below found that the board “ did assess as a unit, and not separately, the franchise, roadway,” etc. And I cannot conceive how a court can, first, separate it, or second, if it could, how it could determine which part to throw away. Moreover, the main foundation of the doctrine of McCulloch v. Maryland, 4 Wheat. 316 , is that the power to tax includes the power to destroy; and thus a state might, under the guise of taxation, destroy or materially cripple an instrumentality of the federal government. And is it not manifest that in the case at bar that principle protects the instrumentality here in *600 volved from injury or destruction under the pretense that only that part of the unity which comes from the state is taxed? Are not the effects and consequences the same?
In my opinion, therefore, without discussing the other questions involved, the judgment should be reversed.
Rehearing denied.