[552] HENSHAW, J.-This action was brought to recover taxes paid by plaintiff under protest as having been illegally exacted. Judgment passed for plaintiff and the defendant as state treasurer appeals.

Plaintiff is a California corporation and owns a railroad running from the town of Truckee to the town of Tahoe in the state of California. At Truckee its railroad connects with the Southern Pacific railroad. It also owns four steamers which are operated on Lake Tahoe and which carry goods and passengers between California points on the lake, between Nevada points on the lake, and between interstate points on the lake. It has a traffic arrangement with the Southern Pacific Company by which rail passengers of the latter may be conveyed over the railroad of the plaintiff and upon its steamers to designated points on Lake Tahoe in either California or Nevada. It therefore publishes and files, as required by law, with the railroad commission of the state of California and with the interstate commerce commission, official tariff sheets indicating these facts and specifying its charges for transportation. The steamers are not only owned by but operated by the corporation plaintiff. Forty-five per cent of the gross receipts from the operation of the steamers is obtained from purely local trafic. In the winter months the railroad entirely suspends operations, but the steamers continue in business carrying passengers, mail, freight, and express. No part of the receipts of the steamer transportation is received as compensation for railroad service, and conversely, no part of the receipts from the railroad transportation is received as compensation for steamer service.

As required by law the plaintiff filed with the state board of equalization its report of the matters and things required for purposes of taxation for the year 1912. Subsequently, pursuant to a request of the board and under protest, it furnished a statement of its gross receipts from the operation [553] of its steamers. This consisted of the total amount of receipts from the business of the steamers beginning and ending within the state of California, and a proportion of the interstate business based upon the relation of the mileage of such business conducted within the state to the entire mileage of the interstate business as provided in section 14 of article XIII of the constitution. The board of equalization levied a tax amounting to $908.68 against plaintiff upon the steamer earnings. Plaintiff paid this tax under protest and subsequently brought its action for the recovery thereof. The court found that the steamers were not used exclusively in the operation of the railroad business of the plaintiff, in whole or in part, and they were not and are not properly, reasonably, or at all necessary

for the use by plaintiff exclusively in the operation of its railroad business. The court therefore concluded that the steamers were not subject to taxation under the gross revenue system but were subject at the hands of local assessors to ad valorem taxes which they had paid.

The question thus presented is an extremely simple one, resting as it does, solely upon the meaning of the language of section 14 of article XIII of the constitution, which declares, that based upon gross revenue railroad companies shall pay a tax to the state upon certain enumerated properties "and other property, or any part thereof, used exclusively in the operation of their business in this state." The brief statement of facts above set forth shows conclusively that the steamboats of the plaintiff were not used exclusively in their railroad business, and with equal conclusiveness it shows that no severable part of the steamers is used exclusively in the operation of the business, for manifestly a steamer in operation being a single, indivisible fabric, while it may be said that it is partly used for a given purpose, it cannot be said, as the constitution declares, that "any part thereof" is so used.

But appellant argues that the tax commission which framed this constitutional provision, and the legislature which proposed it, were composed of men of experience and knowledge "who ought not to be charged even by inference with having intended when indicating the character of the property to be taxed in the manner proposed, to have deliberately used language with a view to the result that would necessarily follow" from the most natural construction of that language above [554] indicated. Therefore, appellant argues that the language does not mean what it says but does mean that if any property is partly used for railroad purposes, that partial use to the extent of its value estimated upon the business' gross returns, is subject to be thus taxed. To the inference of the experience and intelligence of the tax commission and of the legislature we may give ready assent, but it is precisely for this reason and because these constitutional provisions were thus prepared with care by men understanding the plain use of plain language that the construction for which appellant contends may not be sustained. Appellant, while arguing for the intelligence of the framers of this constitutional provision, asks us to declare that their language does not mean what it says, but something radically and essentially different from what it says. Thus, if the framers of this provision had meant that any piece of property partially used in the railroad business should be partially taxed they would have said so. But what they have said is that only property

exclusively used, or only some part of it exclusively used, should be so taxed, with the result that when not so exclusively used the old form of local taxation should still obtain. If confirmation of this meaning of plain language were required it will be found in the practical difficulties which would arise from the construction contended for by appellant, difficulties which, if that construction was ever contemplated by the framers of the constitutional provision, they would have removed by provisions of law. To illustrate, if this substituted percentage tax based on revenue is to apply to a single piece of property partly used for railroad purposes, that indivisible portion of it not so partly used must be subject to local taxation by local assessors under the strict ad valorem tax, or it escapes taxation altogether. How shall a local assessor assess a portion of a steamboat? What portion shall be assess and what shall be the ad valorem value placed upon the portion which he does assess? All these would be practical questions under appellant's contention and would require answer at the hands of the law. The fact that these manifest contingencies have not been provided for by law is additional evidence that the framers of the constitution meant what they said, namely, that only property used exclusively, or only a severable part of property used exclusively in the operation of the business of the company, should be included in the list of property [555] whose sole and only tax is covered by the gross revenue percentage, and that the earnings of cther properties not so exclusively used in whole or in part are not an element in the admeasurement of this tax.

The cases uniformly so hold. Thus, in Chicago, etc. R. Co. v. Rhein, 135 Ia. 404, 112 N. W. 823, the statute declared that the railway property taxed should include all property "real or personal, exclusively used in the operation of such railway." The supreme court held that the telegraph lines of the railroad which were used in the ordinary transaction of its railroad business but which were also leased to the Western Union Telegraph Company were not exclusively used in the railroad business and therefore were not within the purview of the statute. In Herter v. Chicago, etc. R. Co. 114 Ia. 330, 86 N. W. 266, it was decided that while grain elevators, operated by a railroad, were necessary and proper in the conduct of the road, they were not exclusively used in such conduct within the taxing statute if they were used by others. And to like effect is the decision of the supreme court of Illinois in Illinois Cent. R. Co. v. People, 119 Ill. 137, 6 N. E. 451.

Further, it is argued that the steamboats are a necessary part of plaintiff's business and "to say that they are not a necessary part

is to say that plaintiff would carry as many passengers over its rails to Tahoe if no way existed for those passengers to reach other points on the lake besides Tahoe. We doubt if any one would deny that the operation of the steamboats on the lake stimulates and increases plaintiff's rail receipts and induces travel over its rails that would not be gained if Tahoe was the only destination." All this may be conceded but it is in no sense determinative of the question here, which is one of exclusive use. Thus, in Illinois Cent. R. Co. v. Irvin, 72 Ill. 452, where the precise question was whether a steamboat owned by a railroad was railroad property, it was said that "The only purpose and use of the steamboat is to facilitate and extend appellant's business as a common carrier to and from points south of Cairo," and the court declared that the boat was not railroad property and that the fact that the use of it added greatly to the revenue of the company was not relevant to prove that the boat was railroad property. In the same way the supreme court of Minnesota in Hennepin County v. St. Paul, etc. R. Co. 42 [556] Minn. 238, 44 N. W. 63, decided that a hotel owned by the railroad company on the shores of Lake Minnetonka, over ninety per cent of the guests of which came over defendant's railroad and which thus largely contributed to its business and income, bore no other relation to the operation of the railroad than did any other enterprise which might tend to improve the latter's business. And to the same effect is Milwaukee, etc. R. Co. v. Crawford County, 29 Wis. 116.

We need not be at pains to discuss the proviso in the act of the legislature of 1911 (Stats. 1911, chap. 335, subd. 8) which defines operative property. If the definition is in harmony with the language of the constitution it does not affect the discussion hereinbefore had. If the definition does violence to the language of the constitution to that extent it cannot be upheld for the definition of the constitution itself must prevail. San Diego, etc. R. Co. v. State Board of Equalization, 165 Cal. 564, 132 Pac. 1044.

That these steamers may not be classed as ferryboats under section 3643 of the Political Code is manifest from a reading of the section, as well as from the authority of Illinois Cent. R. Co. v. Irvin, 72 IN. 452.

For these reasons the judgment appealed from is affirmed.

Lorigan, J., Sloss, J., Shaw, J., and Melvin, J., concurred.

NOTE.

The reported case, in construing a constitutional provision declaring a state tax on

An ore dock and merchandise dock constructed by a railroad company at a lake terminal, equipped with the proper appliances "necessary" to enable the railroad to properly handle freight, constitute an integral part of the railroad system, and cannot be separated from it for the purpose of taxation, even though a considerable part of the ore dock was used to transfer ore to lake carriers; the word "necessary" meaning reasonably required in the exercise of sound business prudence.

[See note at end of this case.] Same.

The taxation of an ore and merchandise dock, which are a necessary part of the terminal facilities of a railroad by local authorities, at a higher rate than the balance of the railroad's property under the ad valorem law, is a violation of the constitutional rule of uniformity.

[See note at end of this case.] Same.

The exception in St. 1913, § 51.02, subsec. 7, of "ore docks and merchandise docks" from taxation under the state ad valorem law, must be held to include such docks only when they are not necessarily used by the railroad as a common carrier.

[See note at end of this case.]

Action to set aside taxes levied. Minneapolis, St. Paul and Sault Ste. Marie Railway Company, plaintiff, and Douglas County et al., defendants. Judgment for defendants. Plaintiff appeals. REVERSED.

[409] The facts in brief are these: The appellant company owns and operates between three and four thousand miles of railroad, extending from Superior to the grain fields of Minnesota and the Dakotas, as well as the iron ranges of Minnesota and the mining regions of Northeastern Wisconsin and Michigan. In August, 1910, it obtained from the Wisconsin railroad commission a certificate of convenience and necessity, authorizing it to build its ore railroad, commencing at its then main track and extending northerly through the city of Superior to the harbor line on the southerly side of St. Louis Bay. It built this ore railroad, including the elevated structure known as the approach to the dock, and the dock itself extending into St. Louis Bay or river to the government dock line, and this dock is the dock mentioned in the complaint, and situ ated upon the lands there described. The dock is 1,800 feet in length, about eighty feet in height, and has 300 pockets which hold approximately 300 tons each. The railroad tracks are laid on top and the full length of the [410] dock, and it has always been owned and operated by the appellant exclusively for its own use in temporary storing and delivering of ore by it to boats, which in turn carried the ore to Eastern markets. At the time the appellant built this dock there were no other facilities at Superior which it could use for the purpose of storing, handling, or loading into lake carriers the ore which it transported. When the appellant built its railroad into Superior there were two merchandise docks there, one operated by the Great Northern Railway Company, which was insufficient in capacity to handle the business of that company, and the other operated by the Omaha Railway company, located on Allouez Bay, several miles from any point on the appellant's road. Private capital has never furnished any docks or other terminal facilities at Superior for the transfer from rail to lake or lake to rail of either ore or merchandise. The appellant constructed a merchandise dock at Superior at the north end of Connor's Point, near the Interstate bridge, it being 1,000 feet long, eighty feet wide, with a water slip on one side, and four railroad tracks, for the service of the dock, immediately adjoining the other side, and it continued to own and operate this merchandise dock and tracks laid thereto for the purpose of temporary storage of freight hauled by it over its railroad, and loaded from the dock to vessels on the water side,

and in receiving from the vessels freight coming in by water and destined to points upon the appellant's railroad.

No other use is made of the appellant's ore and merchandise docks except to receive ore and freight coming into Superior over appellant's lines and temporarily store and deliver the same to lake carriers, and to receive from lake carriers merchandise and freight destined for transportation over the appellant's railway lines, and temporarily store and load the same on cars for such transportation. The ore dock is elevated about eighty feet above the water and is furnished [411] with large pockets, the ore being dumped into the pockets, where it remains until a lake carrier is ready to receive it, when it is loaded into the carrier by gravity.

By ch. 540 of the Laws of 1911, sub. 3 of sec. 1212, Stats. (now sub. (7) of sec. 51.02, ch. 51, Stats. 1913), being the ad valorem railway taxation act, was amended so as to read as follows:

"3. The term 'property of the railroad company,' as used in this act, shall include all franchises, right of way, roadbed, tracks, stations, terminals, rolling stock, equipment and all other real and personal property of such company, used or employed in the operation of the railroad or in conducting its business, and shall include all title and interest in such property as owner, lessee or otherwise. Real estate not adjoining its tracks, stations or terminals; grain elevators used in transferring grain between cars and vessels, coal docks, ore docks and merchandise docks and real estate not necessarily used in operating the railroad are excepted, and shall be subject to taxation like the property of individuals."

Claiming to act under this section, the city officers of the city of Superior listed the appellant's said ore dock and merchandise dock, including the lands on which they stand, for taxation, placed the same upon the assessment roll, and levied taxes thereon like other real estate in the city in the year 1912. The taxes not being paid, the lands were returned as delinquent and will be sold at tax sale unless such sale be restrained. The rate of taxation applied to the plaintiff's railroad by the tax commission for the year 1912 under the ad valorem railway taxation act was .01108 plus, the rate of taxation on property in the city of Superior for that year was .02678, and the said docks were taxed at that rate.

The circuit court concluded that the docks were essentially wharf property, and might be assessed and taxed separately from the railroad itself, and dismissed the complaint. From this judgment the plaintiff appeals.

Luse, Powell & Luse, A. H. Bright and J. A. Murphy for appellant.

Arch'd McKay and H. V. Gard for respondents.

C. H. Van Alstine, amicus curiae.

[412] WINSLOW, C. J.-The question in this case is whether the ore and merchandise docks can be separated from the balance of the plaintiff's property for purposes of taxation and subjected to a different tax rate. The answer to this question must unquestionably be in the negative, and the propositions on which that answer is based are simple.

1. The property of a public-service corporation, like a railway, including its franchises, terminals, and real and personal property, reasonably necessary to be used and in fact used in the performance of its duties to the public, is an entirety and is not to be separated for the purpose of taxation. State v. Anderson, 90 Wis. 550, 63 N. W. 746; Washburn v. Washburn Waterworks Co. 120 Wis. 575, 98 N. W. 539; Chicago, etc. R. Co. v. State, 128 Wis. 553, 619, 108 N. W. 557.

2. Terminal facilities, such as freight houses, grain elevators, and warehouses, owned by the carrier, equipped with the proper appliances necessary to enable the railroad to perform its full duty of transportation and delivery of freight of all kinds, either to the consumer, the dealer, or a connecting carrier, constitute property necessarily used in the operation of a railroad, and hence become part of the entirety. The word "necessary" here does not mean "inevitable" on the one hand, nor merely "convenient" or "profitable” on the other, but a stage of utility or mate riality to the carrier's business less than the first but greater than the latter of these expressions. Perhaps the phrase "reasonably required in the exercise of sound business prudence" would express the idea fairly well. [413] Chicago, etc. R. Co. v. Douglas County, 122 Wis. 273, 99 N. W. 1030; Chicago, etc. R. Co. v. Bayfield County, 87 Wis. 188, 58 N. W. 245; Superior Board of Trade v. G. N. R. Co. 1 Wis. R. R. Comm. Rep. 619.

3. Both the ore dock and the merchandise

dock in the present case come within the definition given in the last paragraph and are an integral part of the appellant's railway system. The fact that a considerable art of the ore-dock structure was made necessary in order to facilitate the transfer of the ore to lake carriers does not logically divest it of its character as a railway terminal. Necessarily it is a terminal facility of a specialized character, but just as truly a ter minal facility.

4. The constitutional command that the rule of taxation shall be uniform is violated if a part of the property of a railroad company reasonably necessary to be used and in fact used in the operation of the railroad, like the docks in the present case, be separated

from the balance of the property and subjected to local taxation at a higher rate than that to which the balance of the property is subjected under the ad valorem law. Chicago, etc. R. Co. v. State, 128 Wis. 553, 108 N. W. 557.

5. The exception in sub. 3, sec. 1212, Stats. 1911 (now sub. (7) of sec. 51.02, ch. 51, Stats. 1913), viz. "grain elevators used in transferring grain between cars and vessels, coal docks, ore docks and merchandise docks," must be held to include only those elevators and docks which are not a part of the railway property, because not necessarily used by the railroad in the performance of its duties as a common carrier, as are the docks in question in the present case.

BY THE COURT.-Judgment reversed, and action remanded with directions to render judgment for the plaintiff in accordance with the prayer of the complaint.

NOTE.

The reported case in announcing the view that an ore and merchandise dock, which is part of the property of a railroad company, should be valued as an integral part of the railroad system and not as a separate property assessable like that of an individual, while unique, conforms to the general rule with respect to the valuation of railroad property for the purpose of taxation. For a collection of cases passing on that point see the note to Northern Pacific R. Co. v. State, reported ante, this volume, at page 1166.

Appeal from Circuit Court, Jefferson county; Common Pleas Branch, Third Division.

Action for damages. Rogers et al., plaintiffs, and Illinois Central Railroad Company, defendant. Judgment for plaintiffs. Defendant appeals. The facts are stated in the opinion. REVERSED.

Trabue, Doolan & Cox, S. Lyman Barber and R. V. Fletcher for appellant. Thomas C. Mapother for appellees.

[535] HANNAH, J.--On February 4, 1914, in the Jefferson Circuit Court, Rogers & Thomas obtained a verdict and judgment against the Illinois Central Railroad Company in the sum of $219.10 for damages to a shipment of livestock which was delivered by them to and accepted by the railroad company at Leitchfield on April 29, 1913, for transportation to Louisville.

It was shown in evidence by the plaintiff's that they loaded a mixed car of live stock at Leitchfield in three separate compart ments; in one end of the car, some calves and sheep; in the other end, eight head of cattle; and in the middle, and separated by partitions at either end, a lot of hogs. It was further shown that on arrival of the car at Louisville two hogs were dead, one cow crippled and three or four others somewhat injured.

The duty of doing the loading was assumed by the shippers; they loaded the car themselves without assistance of any of the carrier's agents; and the agent at Leitchfield did not examine the car after it was loaded. [536] It was shown by the crew of the train which handled the car that at Kroft's, a station some twenty-five miles from Leitchfield, they discovered that there was something wrong in the car, and made an inves tigation, which disclosed that one hog was dead and another badly injured; one cow was down and three or four others injured; that about fifteen hogs were in the same compartment with the cattle; that they must have been loaded that way, as the partition between the cattle and the remainder of the hogs was intact. The trainmen knocked this partition out, thus allowing all the hogs to be in the same compartment with the cattle.

1. The court instructed the jury that it was the duty of the railroad agent at Leitchfield to see that the live stock was properly loaded before receiving it for shipment; and that if they believed from the evidence that the railroad company accepted the shipment not properly loaded, but in good condition, and that the live stock was injured or damaged or depreciated in value on delivery at destination, they should find for the plain