ness tax and a privilege tax was recognized [ dependent government. Therefore the Legand applied in Nebraska Telephone Co. v. islature, subject to constitutional restrictions, City of Lincoln, 82 Neb. 59, 117 N. W. 284, may tax all property or only certain kinds 28 L. R. A. (N. S.) 221. of property, all occupations or only certain occupations, and all privileges or only certain privileges. Constitutional provisions relating to the power of taxation do not operate as grants of the power of taxation to the government, but instead merely constitute limitations upon a power which would other itations fixed by our state Constitution are (1) that all taxes levied on property shall be by valuation; and (2) that all excise taxes levied (a) on business, or (b) on persons using a privilege, shall be by general law, uniform as to the class upon which it operates. The Legislature may classify businesses for the purpose of taxation, but, when the classification is made, all, which by the existence of the facts on which the classification is made fall within it, must be subjected to the tax imposed. Pullman Palace Car Co. v. State, 64 Tex. 274, 53 Am. Rep. 758; Auditor v. Walker, 128 Ky. 1, 107 S. W. 254; Mutual Reserve Fund Life Ass'n v. Augusta, 109 Ga. 73, 35 S. E. 71. A state has the right to prohibit a foreign insurance company from exercising any part or all of its charter powers within its borders, to impose such terms and conditions upon its right to do business in the state as it may see fit, or to entirely exclude it from the state. Alpena Portland Cement Co. v. Jen-wise be practically without limit. The limkins & Reynolds Co., 244 Ill. 354, 91 N. E. 480; Hartford Fire Ins. Co. v. City of Peoria, 156 Ill. 420, 40 N. E. 967. The privilege of doing an insurance business in this state accorded to a foreign corporation being distinct and different from the privilege accorded to a domestic corporation, the Legislature, in fixing the tax on the privilege of doing business, has the power to place foreign corporations in one class and domestic corporations in another (Hughes v. City of Cairo, 92 Ill. 339), and also to subdivide foreign corporations into different classes. (Home Ins. Co. v. Swigert, 104 Ill. 653). On the other hand, in exercising its power to tax a business, the Legislature is specifically | required by section 1 of article 9 of our state Constitution to tax "by general law, uniform as to the class upon which it operates," and under the Fourteenth Amendment to the federal Constitution the state cannot "deny to any person within its jurisdiction the equal protection of the laws." These provisions apply to a foreign corporation which has complied with all the conditions of admission prescribed by the state and which has been granted the privilege of engaging in business within the state. The law is settled that after a foreign corporation gets into the state its burden shall be no more onerous than those of domestic corporations for exercising the same character of privileges. 8 Fletcher's Cyc. of Corporations, § 5755; Southern Railway Co. v. Greene, 216 U. S. 400, 30 S. Ct. 287, 54 L. Ed. 536, 17 Ann. Cas. 1247; Security Savings & Loan Ass'n v. Elbert, 153 Ind. 198, 54 N. E. 753. The question of making classifications for the purpose of enacting laws concerning matters within its jurisdiction is primarily for the legislative department, and it can be come a judicial question only when the action of the law-making body is clearly unreasonable, arbitrary, and discriminatory. | But such classifications must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circum-ance, to be valid, must operate alike upon all stanced shall be treated alike. McGrath v. City of Chicago, 309 Ill. 515, 141 N. E. 299; Royster Guano Co. v. Commonwealth of Virginia, 253 U. S. 412, 40 S. Ct. 560, 64 L. Ed. 989. The power of taxation is an essential and inherent attribute of sovereignty, belonging, as a matter of right, to every in The Hanover Fire Insurance Company derives its receipts from premiums paid on policies issued on the following among other classes of insurance: (1) Fire; (2) lightning; (3) tornado; (4) navigation and transportation; (5) fire apparatus and damage by same; (6) crop and live stock; (7) explosion; and (8) automobile. Domestic insurance companies derive their receipts from identically the same classes of insurance business. Casualty companies, both domestic and foreign, write insurance covering four of the same classes, namely, fire apparatus, crop and live stock, explosion, and automobile. Unincorporated entities permitted by the laws of this state to do an insurance business under regulations prescribed by law are engaged in the same insurance business as the incorporated companies mentioned in section 30. In transacting the business of insurance, these four groups of persons or corporations are in direct competition with each other in this state, and under the authorities cited all of them are entitled to the equal protection of the laws of this state. Every tax levied on the business of insurance, under the limitation fixed by the second division of section 1 of article 9 of our Constitution, must be "by general law, uniform as to the class upon which it operates." An occupation tax on the business of insur persons or corporations engaged in the same class of insurance business. Section 30, operating upon insurance companies incorporated by the authority of other states or governments and licensed to do business in this state, and not upon insurance companies incorporated under the laws of this state and (148 N.E.) other companies, and persons doing identical- of held and owned on the 1st day of April ly the same class of insurance business, con- or 1st day of May of each year. Their cash, travenes the federal and state Constitutions or practically all of it, was sent out of the and is void. state before the day named in the statute for listing and valuing the same arrived, and the net profits or net gains they had accumulated from the business they transacted in the state, which the Legislature deemed unfair and unjust to the local insurance companies of the same class, as well as to the people of the state. Hence section 30 was passed, and every provision of it shows clearly that it was the intention of the Legislature to tax both local and foreign insurance companies therein mentioned, upon substantially the same character of property, equally and uniformly, and without discrimination. DUNCAN, C. J. (dissenting). Section 30, the result was such corporations were evadaforesaid, is a valid enactment, as I viewing and escaping practically all taxation on it, and does not contravene any provision of our state or federal Constitution, when properly construed with subsequent acts of the Illinois Legislature. At the time this statute was passed personal property was required by law to be listed and taxed at its cash value. Such property is now required by law to be listed at its cash value, and is taxed at one-half its cash value. In my judgment the court has erred in its present and in some of its previous decisions in holding, in effect, that subsequent acts of the Legislature requiring personal and other property to be listed at cash value and taxed at one-third or one-half the cash value thereof had no application to the taxing of net receipts of foreign insurance companies under section 30. This tax as to the local insurance company was a personal property or other property tax, because such net annual gains or profits had their situs here in the shape of money, or other property, if the money had been invested. As to the foreign insurance com ceipts or net profits or net gains, that might or might not have a situs here, because most of such had been sent out of the state in the form of cash or money. Nevertheless, both companies were taxed, and are taxed, equally and uniformly, and without discrimination, or as nearly so as is possible to be done, on the same property or its representative— the net annual gains or net accumulations or profits realized from the business annually transacted in the state. The statute shows clearly and unequivocally that the objects and purposes and results of taxation of insurance companies, local and foreign, have been and will continue to be as above stated, if the statute itself is followed, and the subsequent acts of the Legislature aforesaid applied, and which by necessary implication should be applied by the taxing authorities. The act itself specifically provides that the amount of the net receipts of such agency for the preceding It will not aid us in the least in undertak-pany of that class, it was a tax on net reing to define and classify the taxes that are collected under section 30. We know such taxes are not poll taxes, and it does not aid us if it is positively demonstrated that such taxes are excise taxes. What we really need to understand, it seems to me, is the object and purpose of the act and the necessity therefor, in order to tax such foreign insurance companies in substantially the same manner as our local and resident insurance companies of the same class are taxed. Our resident insurance companies of the class mentioned in said section had to pay an annual tax, not only on all the personal and real property actually possessed and owned by them in this state, but they also had to pay the same character of tax on their net annual gains or accumulations from the business transacted by them every year. We may very properly call it a tax on their net annual gains or net profits. Such net gains or profits were taxed as money or other property, depending upon wheth-year shall be entered on the tax lists of the er or not the local insurance companies had county, town and municipality, and subject invested their net receipts in other personal to the same rate of taxation, for all puror real property or were held as cash or poses-state, county, town, and municipal— money. If they complied with the law, it that other personal property is subject to at was not possible for resident insurance com- the place where located. It cannot be subpanies to escape such taxes, unless they in- ject to the same rate of taxation, if such net vested the net cash so received in property receipts bear twice the amount of taxes as in some other state. The tax as to resident the local insurance companies' net gains insurance companies was a tax on money or bear. The very language of the act forbids property here in the state. The foreign in- that such net receipts be assessed at full surance companies of the same class accu- value, while property now is taken at only mulated their net profits or net gains as cash, half value for taxation. The statute was and they were avoiding practically all tax valid, and violated no provision of the Conthereon in this state, because of the provi- stitution, state or federal, when enacted, and sions of our taxing laws that cash as well is still the same valid act, intending to deal as other personal property was to be listed with equal and exact justice with both forand taxed on the amount and value there-eign and domestic insurance companies of 5. Eminent domain 270-Date of filing of waiver of right to require railroad to institute condemnation proceedings and election to accept compensation for property appropriated treated as date of appropriation. the class aforesaid. It is only prevented | for other industries without paying for quarfrom doing so by the interpretation now plac-ry owners' license from village, or for use of ed upon it by the court, which I believe was their private lands. not only never intended, but is expressly disavowed by the language of the act. By necessary implication of the subsequent acts and by the language of section 30 such net receipts of foreign insurance companies must be taxed at half value and "subject to the same rate of taxation that other personal property is subject to at the place where located," as expressly provided in section 30. (317 III. 334) * Where successors in interest of quarry owners who had constructed switch track unfor railroad's appropriation of license from der agreement with railroad in suit to recover village and right of way filed waiver of right to require institution of condemnation proceedings, and elected to accept compensation for property appropriated, held, appropriation should be considered as made date waiver and VON OVEN et al. v. CHICAGO, B. & Q. R. election were filed, and that accounting for CO. (No. 16249.) (Supreme Court of Illinois. April 24, 1925 Rehearing Denied June 10, 1925.) 1. Railroads 225-Industrial switch track subject to regulation. Railroad and private owner of industry cannot by agreement between themselves build a switch track and limit its use to certain shippers, but must, when it is constructed, open it to public use and regulation without regard to who paid cost of construction. 2. Railroads 216-Agreement not affecting public use of industrial switch track not contrary to public policy. Though railroad and owner of industry cannot limit use of switch track built by them, a private agreement or arrangement between owner of industry who builds connecting switch and railroad, not affecting public use, is not prohibited by law nor contrary to public policy. 3. Evidence 352(I)-Entries on railroad's books held not competent evidence as to arrangement under which switch track was operated on private property. In action by successors in interest of quarry owners, who had constructed connecting switch, to require railroad to make compensation for use after cessation in operation of quarry and to account for charges made to other shippers, evidence, consisting of entry in railroad's books referring to letter written by general superintendent and indicating cancellation of agreement under which track had been constructed pursuant to arrangement with one whose authority to act for plaintiffs was not established, held inadmissible. charges made of other shippers using track Appeal from Circuit Court, Du Page County; John K. Newhall, Judge, Action by Frederick W. Von Oven and others against the Chicago, Burlington & Quincy Railroad Company. Judgment for defendant, and plaintiffs appeal. Reversed and re manded. Harry S. Mecartney, of Chicago (Edmund J. Reynolds, of Chicago, of counsel), for appellants. J. A. Connell, of Chicago, for appellee. FARMER, J. Appellants filed their bill in the circuit court for partition and other relief. The property involved is certain lots in the village of Naperville, Du Page county, and a license granted by the village of Naperville for the construction and operation of a switch from the main track of appellee, the Chicago, Burlington & Quincy Railroad Company, to certain stone quarries of those who secured the license to build the track. For a better understanding of the case at the outset, we may here say the track was built, the quarry owners paying all the expenses of it except for the rails, splices, fishplates, and bolts, in accordance with the contract hereafter mentioned. The bill alleged appellee has wrongfully appropriated the license and right of way granted to the quarry owners by the village, and also the right of way over the property of appellants, without condemnation or paying compensation therefor. Appellants filed a waiver of Where quarry owners under license from the right to require the institution of convillage contracted with railroad for construc- demnation proceedings, and an election to tion of switch track over village streets and accept compensation for the property so apprivate property owned by them, and agreed to propriated by appellee, damages to remainpay part of cost of construction, interest on ing lands and for past use and occupation. railroad's investment, and cost of maintenance, Part of the relief prayed for was that apheld, railroad did not become owner of such track and right of way on theory that under pellee account to appellants for the number of law it became part of railroad system subject cars of others than quarry owners moved to public use, so as to entitle it, on cessation in over the switch track, and for an injunction. operation of quarry, to continue using track The answer neither admitted nor denied For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 4. Eminent domain 270-Switch track constructed under agreement held not to become property of railroad. (148 N.E.) eth: "That whereas, for the accommodation of parties of the second part and for the promotion of their interests, party of the first part has constructed and laid a certain side track at Naperville, Du Page county, Illinois, upon land owned or furnished by parties of the second part, said side track being described as follows: Beginning at the heel of frog on the south side of the south main track of party of tenths (351.8) feet easterly from milepost No. the first part three hundred fifty-one and eight29, measured on the center line of said south main track; thence westerly and southerly to the intersection of Douglas avenue and Ewing street; thence south in Ewing street to Jefferson avenue; thence southerly and easterly through block 2, original town of Naperville, to the intersection of Jackson avenue and Mill street; thence east in Jackson avenue to a point between Webster and Main streets. The total length of said side track from heel of frog to end of track being four thousand three appellants' title to the lots described in the, first part, and J. Salfisberg, Boecker & Von bill, but denied appellants, or any of them, Oven, and the Chicago & Naperville Stone owned the license granted by the ordinance Company, parties of the second part, witnessof the village of Naperville. The answer admits appellee has for many years moved cars over the switch track in the discharge of obligations imposed upon it by law; avers the village of Naperville had no authority to grant private individuals the right to lay a railroad track in its streets, and that when the track was constructed and connected with appellee's lines it became its legal duty to furnish cars to and from industries along said track; admits entering into the agreement set out in the bill, and sets out a list of industries, other than appellants' quarries, located along the line of the switch track, and avers that it does not appear from the bill that the owners of those industries have not acquired the right from appellants' predecessors in title to have cars shipped over the switch; denies appellee ever entered into a verbal contract with the quarry owners to pay them for every car switch-hundred seventy-five and four-tenths (4.375.4) ed over the track for other shippers; denies it ever paid the quarry owners one dollar per car, or any other sum, for cars shipped over the switch track, and avers that any contract to do so would be unlawful and void. The answer sets up and relies upon the statute of frauds and the ten and five year statutes of limitations. The decree finds appellants own the lots described in the bill over which the switch track is constructed, subject to the easement of appellee, to continue so long as it operates the track, and that the track was laid under the authority of the Naperville ordinance, partly upon streets and partly on private property; that it was constructed under a contract entered into by the then quarry owners and appellee, each paying a portion of the cost, the quarry owners to pay an annual rental upon that part of the cost paid by appellee and also to pay for the maintenance of the track. The claims of appellants for compensation for the easement and license under the ordinance and for an accounting were denied for want of equity. Partition of the lots was decreed, subject to the easement of appellee to operate the switch track. That appellants own the title to the lots is not in dispute, but that they own the license granted by Naperville by ordinance to lay the track is denied, and the decree finds the claim was without equity. The switch track was built under the contract entered into July 1, 1889, between appellee, as party of the first part, and J. Salfisberg, Boecker & Von Oven and the Chicago & Naperville Stone Company, as parties of the second part, owners of the quarries, and is as follows: "This agreement, made this 1st day of July, A. D. 1889, between the Chicago, Burlington & Quincy Railroad Company, party of the 148 N.E.-3 feet; and whereas parties of the second part did make the grade and place the road-bed in proper condition to receive said side track and did also furnish the ties, spikes, and timbers necessary in the construction of the same, and did pay for the labor expended in the construction thereof; and whereas party of the first part did furnish the rails, splices, fishplates, bolts, etc., used in the construction of said side track at a cost to party of the first part of one thousand eight hundred five and 88/100 dollars ($1,805.83): "Now, therefore, in consideration of the premises and of the undertakings and promises herein set forth, it is agreed as follows: "I. Parties of the second part hereby agree to pay to party of the first part for the use of said side track the sum of one hundred fortyfour and 47/100 dollars ($144.47) per annum, said sum being eight (8) per cent. interest per annum on the cost of material furnished by party of the first part in the construction of said track. Said rental to be paid quarterly in advance. "II. Parties of the second part hereby agree to keep said roadbed and track in such repair as shall be required by the superintendent of party of the first part. If parties of the second part shall not within fifteen (15) days after notice from party of the first part that certain repairs are needed make the same, then party of the first part may, at its option, make such repairs at the expense of parties of the second part or declare this contract terminated, and all rights of parties of the second part hereunder shall thereupon be forfeited. In case such repairs are made by party of the first part the expense thereof shall be refunded and paid by the parties of the second part to party of the first part on demand; and parties of the second part hereby agreed to reimburse and indemnify party of the first part for all damages sustained by it or for which it may be liable by reason of the imperfect condition of said side track. "III. It is further agreed by parties of the second part that party of the first part shall have the privilege of using said side track free of charge: Provided, however, that such use shall not materially interfere with the business of parties of the second part. "IV. In case it is desired by other persons engaged in business in the vicinity of said side track to connect therewith or extend the same by building additional tracks from said side track to their own warehouses, manufactories or premises, then such other persons shall have the right to make such connection and to use the said side track upon paying therefor such sum to parties of the second part as rental as may be deemed reasonable by the superintend ent of party of the first part. "V. Parties of the second part hereby agree that they will execute no mortgage or other lien upon the portion of land upon which said side track is laid which will become a lien upon the rails, splices, fishplates, bolts, etc., furnished and owned by party of the first part in said side track. Parties of the second part further agree that party of the first part shall have the right, upon the termination of this contract by expiration of time or by notice, to enter upon said premises and remove therefrom all property belonging to party of the first part. "VI. It is further understood and agreed that for any default on the part of parties of the second part in any of their agreements expressed in this contract or for failure to perform any of their undertakings as set forth, party of the first part may terminate this contract by giving parties of the second part thirty (30) days' notice of such termination. "VII. It is further understood and agreed that parties of the second part shall not transfer or assign this contract nor grant any interest herein or in said side track to any person or corporation without first obtaining the written consent of party of the first part. "This contract shall continue for the term of five (5) years from said 1st day of July, A. D. 1889, subject to cancellation as aforesaid. "In witness whereof the party of the first part by its proper officer, and the parties of the second part, have hereunto set their hands and seals the day and year first above written. "Executed in duplicate." trustee was authorized to convey to Salfisberg, Thomas P. Phillips, Bernard B. Boecker, and Ernest Von Oven all rights of way, power, and privileges granted by the original ordinance. Pursuant to the ordinance the conveyance was made June 26, 1889. As we understand, Phillips represented the Chicago & Naperville Stone Company, and appellants have succeeded to whatever rights were acquired by the quarry owners by virtue of the ordinances and the contract of July 1, 1889. There is no question that ap pellee claims the right of an easement over appellants' lots and the license to operate the switch track in the streets of Naperville. It denies liability to pay compensation for either, and insists upon its right to operate the track independent of any right or claim of appellants, which it is now doing. The operation of the quarries was discontinued in 1905. In 1906 the spurs leading into the quarries were taken up by appellee, and the main switch track has now no connection with the quarries. Appellants claim the right to compensation for the right of way over their lots, for the right of way license to operate the switch track over its entire length, and damage to land not taken. From 1890 to 1901 appellee paid the quarry owners, presumably as owners of the switch track, $1 per car for cars shipped over the switch by other shippers than the three quarry owners. No charge was made against the quarry owners for cars shipped by them over the track. Neither appellants nor their predecessors in title have conveyed or leased to appellee any interest or right they have in the switch track right of way or any private property over which the track runs. re Appellee's position is that the switch track, when built, became under the law a part of its railroad, and that the effect of the ordinance of Naperville was to grant to the No other contract was entered into upon quarry owners the right, if they desired to its expiration, but the parties continued to exercise it, to lay a track in the streets and operate as they had under the contract of over such other ground as they might have July, 1889. Appellants are successors in or acquire the right to lay the track over, title to the titles of the quarry owners who to connect their quarries with appellee's railwere parties to the contract. Before the road; that the village had no authority to track was built, Naperville by ordinance grant the quarry owners the right to lay a granted a license to William King, trustee, railroad track on its streets unless the track his successors and assigns, to lay, maintain, connected with appellee's railroad; that the and operate a single-track railroad, with grant by the village of the right to use the necessary sidings and turnouts, in and upon streets for the track was on condition that certain streets named, and any other land the quarry owners should secure the right of the trustee, his successors, or assigns, might way over other property necessary to conacquire, subject to all ordinances of the vil- nect the switch with appellee's road, and the lage. The ordinance imposed a condition right of way over private property is an easethat the trustee, his successors, or assigns ment granted by the quarry owners by the should permit any person or corporation au- acceptance of the ordinances and constructthorized by ordinance to build intersecting ing the switch, which easement is perpetual tracks within the village to carry property and not limited to the time the quarries are to the railroad from other industries situat-operated. Appellee insists appellants may ed within 1,000 feet of the railroad upon open up their quarries any day they desire making reasonable compensation therefor. and use the switch. By an ordinance adopted April 15, 1889, the It is insisted by appellee that the right to |