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Vol. I.)

DE Lancey v. INSURANCE COMPANY.

(No. 2.

exception to, any general act whatever. If the legislature had intended, by the private act, to make so serious a change in the general law of insurance as to exempt one insurance company from its operation, there is some reason to expect they would have explicitly referred to the general law, or used, in the title or body of the private act, some express words of exemption or exception. But, while the seventh section of the amendatory act is, “ The fifth and seventh sections of the act to which this is in addition are hereby repealed,” the general clause repealing all acts and parts of acts inconsistent with this act, which clause was inserted in the act of 1855, and is usually inserted in all acts supposed to be repugnant to existing statutes not particularly repealed, was omitted in the act of 1862.

The third section of the act of 1862 is a substitute for the repealed seventh section of the charter, which provided that the said company may make insurance for any term not exceeding seven years ; and any policy of insurance issued by said company, signed by the president, and countersigned by the secretary, shall be deemed binding on said company in all cases."

The third section of the act of 1862 provides that said company may make insurance for any term not exceeding seven years; and any policy of insurance issued by said company, signed by the president, and countersigned by the secretary, shall be deemed valid and binding on said company in all cases where the assured has a title, in fee simple, unincumbered, to the building, buildings, or property insured, and to the land covered by said buildings; but if the assured have a less estate therein, or if the property or premises are incumbered, policies shall be void, unless the true title of the assured, and the incumbrances on the same, be expressed therein."

A literal construction of the repealed section would have made every policy“ binding on said company,” that had been “issued by said company, signed by the president, and countersigned by the secretary.” A literal construction of the substituted section would make every such policy “valid and binding on said company,” where the title of the assured is “ in fee simple, unincumbered.” No construction could be more unreasonable or more unacceptable to the defendants than that. There were many cases where policies “issued by said company, signed by the president, and countersigned by the secretary," would have been void under the repealed section ; and there are many cases where such policies would now be void under the substituted section, even if the title of the assured were “in fee simple, unincumbered.” The literal construction of either section is wholly inadınissible. The repealed section would be held to operate in harmony with and in subjection to the general law applicable to duly executed policies of insurance. Such a qualification was necessarily implied and understood. And, to a great extent, the defendants would of course claim that the substituted section should be taken with the same qualification. But the defendants claim that no such qualification can be attached to the express provision that policies shall be void when the assured has a less estate than a fee simple, unincumbered, unless his true title is expressed in the policy; and it is argued that such a qualification would render that provision nearly a nullity, and would con

Vol. I.)

DE LANCEY v. INSURANCE COMPANY.

[No. 2.

flict with the purpose of the lien (given by the preceding section) on the property insured, for assessments. Forcibly as the defendants' argument is presented, it seems to us to be overcome by the reasons for the contrary conclusion, which we have considered. Due weight being given to all the reasons on both sides of the question, the qualification, necessarily implied in the repealed section, making policies valid, not in all cases, according to the literal terms of that section, but in all cases where duly executed policies would be valid by the general law, — which qualification is also necessarily implied in the substituted section “in all cases where the assured has a title in fee simple, unincumbered," — must, we think, also be implied in the latter section, in cases where the assured has not such a title. The implied qualification is in the repealed section and in the substituted section; and, on the grounds already stated, we think it must be held to apply to all cases under the latter section, as it applied to all cases under the former.

This construction undoubtedly leaves the substituted section open to the criticism of not being a very felicitous composition, or a very important amendment; but the opposite construction would expose it to objections far more serious than infelicity of style and immateriality of substance. A literal construction makes the act of 1862 repugnant to the act of 1855; but the repugnancy is removed by applying to all cases the qualification which must be applied to many cases; and it is much easier thus to remove the repugnancy than to remove the objections to the construction which raises it.

The defendants further claim, that the act of 1862 being made a part of the contract, the plaintiff is bound by it as by a waiver of the act of 1855. But, if it is binding upon him as a part of the contract, it is binding in accordance with its legal construction, which, as we hold, makes it operate in harmony with, and subject to the general law under which the plaintiff's policy is not “ void by reason of any error, mistake, or misrepresentation, unless it shall appear to have been intentionally and fraudulently made.” The third section of the act of 1862 did not exempt the defendants, in any case, from the operation of the sixth section of the act of 1855.

Judgment for the plaintiff. . HIBBARD, J. I concur in the result which is reached in the foregoing opinion, but do not think it can be sustained upon the ground stated. It seems to me that, upon a true construction of the plaintiff's application, the insurance was not on the whole house, but on the undivided half which the plaintiff owned in fee simple, the value of which was found by the jury to be more than sufficient to justify the sum insured upon it. If this view is correct, the question, so ably discussed in the opinion, does not arise. The provisions of the application which tend to favor this construction are not contained in the statement of facts preceding the opinion ; and it would not be useful to occupy space in reciting or considering them, nor in assigning reasons for disagreeing with the doctrine of the opinion.

Vol. I.)

HUNTINGTON v. Cent. Pac. R. R. Co.

[No. 2.

CIRCUIT COURT U. S. - DISTRICT OF CALIFORNIA.

[January 7, 1874.]

ASSESSMENT OF RAILROAD. - CLOUD UPON TITLE BY SALE FOR ILLEGAL

TAX. INJUNCTION TO PREVENT CLOUD BEING CAST UPON TITLE.

HUNTINGTON v. CENT. PAC. R. R. CO.

Discussion of the mode of assessing railroads and especially of the manner prescribed

by the statutes of California. The act of the State of California is such that a sale of realty for taxes casts a cloud

upon the title, and if the tax for the collection of which the sale is about to be made is unlawful, equity will enjoin the sale. Where a tax is invalid, and other equitable circumstances are shown to exist, an injunction may issue, in effect restraining the collection of the tax.

SAWYER, C. J., delivered the opinion of the court.

Bill in equity to restrain the sale of the Central Pacific Railroad for the taxes levied in the various counties through which the said railroad extends, for state and county purposes for the year 1872–3.

There are two grounds upon which the application for an injunction is rested. First, on the ground that the Central Pacific Railroad is an instrumentality constructed in pursuance of acts of Congress, and employed by the national government in the exercise of its constitutional powers in providing for the transportation of the mails, the armies of the United States, munitions of war, &c., and, as such instrumentality of the general government, exempt from state taxation. Secondly. That the said taxes have not been assessed in the mode or upon the principles prescribed by the statute, and for that reason the assessment is void.

The first ground has recently been disposed of adversely to the complainants by the supreme court of the United States, in the case of The Union Pacific Railroad Co. v. Peniston, Treasurer, fe., decided at the present term, and it requires no further consideration.

As to the second ground; section 3617 of the Political Code of California defines the term “ real estate,” as used in the statute for the purposes of taxation, as follows:

“First, the term 'real estate ’includes

“1. The ownership of, claim to, possession of, or the right to the possession of land; . .

“3. Improvements.
“Second. The term improvements includes

“1. All buildings, structures, fixtures, fences, and improvements erected on, upon, or affixed to the land.”

The term, "real estate," then, includes both the land and the improvements on the land, and the Central Pacific Railroad is real estate made up of both these classes. First, the ownership, &c., or right to the possession of the land upon which the track is laid, location of enginehouses, stations, water tanks, &c., - in other words, the right of way,

Vol. I.)

HUNTINGTON v. CENT. Pac. R. R. Co.

[No. 2.

&c.; and, secondly, “ Improvements,” as engine-houses, station-houses, fences, water tanks, ties, rails, &c., which are either buildings, structures, fixtures, fences,” or, “ improvements erected upon or affixed to the land.”

So, also, the interest of the company in the railroad is real estate under the general principles of the law, without reference to the statute, as held after a full discussion of a similar question by the supreme court of California, in N. B. & M. R. R. Company's Appeal, in the matter of widening Kearney Street, 32 Cal. 505.

Section 3650 of the Political Code, provides that:

" The assessor must prepare an assessment book with appropriate headings, alphabetically arranged, in which must be listed all property within the county, and in which must be specified in separate columns under the head

** 1. The name of the person to whom the property is assessed ;

“ 2. Land by township, range, section, or fractional section; and when such land is not a congressional division or subdivision, by metes and bounds, or other description sufficient to identify it, giving an estimate of the number of acres, locality, and the improvements thereon ;

“ 3. City and town lots, naming the city or town, and the number, block, according to the system of numbering in such city or town, and improvements thereon ;

" 4. All personal property, showing the number, kind, amount, and quality ; but a failure to enumerate in detail such personal property does not invalidate the assessment;

" 5. The cash value of real estate, other than city or town lots ;
“6. The cash value of improvements on such real estate ;
“7. The cash value of city and town lots;
"8. The cash value of improvements on city and town lots.”

Section 3651 gives the form of the assesment books to be used, ruled into separate columns, one column for each particular specified in the preceding section, with the appropriate headings, among which is one column with the heading “ Value of real estate other than city or town lots," and immediately following, another headed, “ Value of improvements thereon.There is no special provision of the statute for a different mode of assessing railroads. There is no provision at all for assessing railroads, as railroads. The only provisions pointing out any exceptional mode of assessing the property owned by railroad companies relates to the rolling stock, which is as follows, to wit:

“Section 3663. Where the railroad of a railroad corporation lies in several counties, its rolling stock must be apportioned between them, so that a portion thereof may be assessed in each county, and each county's portion must bear to the whole rolling stock the same ratio which the number of miles of the road in such county bears to the whole number of miles of such road lying in this State.”

In relation to equalization of assessments by the State Board of Equalization, section 3693 provides :

“When the property is found to be assessed above or below its full cash value, the board must add to, or deduct from, the valuation of —

“1. The real estate ;

Vol. I.)

HỤNTINGTON v. Cent. Pac. R. R. Co.

(No. 2.

6 3. .

2. Improvements upon such real estate ;

“Such per centum respectively as is sufficient to raise or reduce it to the full cash value."

Under these provisions of the law, railroads must be assessed like any other real estate. They fall clearly within the statutory definition of real estate. The lands and the improvements on them must also be assessed separately, and the land, not being congressional division or subdivision, must be described by “metes and bounds, or other description sufficient to identify it, giving an estimate of the number of acres, locality, and the improvements thereon.” Unless so assessed, the state board cannot equalize the assessment in the mode required by section 3693, which must also equalize each separately by adding to or deducting “from the valuation of, 1. The real estate; 2. Improvements upon such real estate.” This may be an unsatisfactory way of assessing railroads, but if so, the wisdom of the legislature has so provided, and the mode must be pursued or the assessment will be void. It cannot be said that this was inadvertently done, for railroads were not overlooked, the mode of assessing the rolling stock having been carefully provided for. The bill alleges that the several county assessors,“ in making their assessments, did not assess the right of way separately as land consisting of so many acres of such or such a value per acre, nor did they describe it by reference to township, or range, or section, or fractional section, or by metes and bounds, or by other description, except as hereinafter stated, nor did they assess separately the improvements, or iron and ties constituting said superstructure, as improvements of such or such a value, according to the cash value of said ties and iron, nor did they value said lands at their cash value as lands, or as of the same value as other adjoining lands of like quality. On the contrary, they assessed said right of way and superstructure together as constituting one thing, and described them as so many miles of railroad of such or such a value per mile, without regard to the width of the right of way.

And further :

" That in ascertaining the valuation of said road, said assessors and board of equalization were not governed by the value of the land considered as land, and of the same value as adjoining lands of like quality, nor by the value of ties and iron considered as ties and iron, as new or old, or depreciated in value by use ; but on the contrary, they lumped said lands and superstructure and considered them as one thing, and ascertained their value by taking into account the franchises of said company and their value, the cost of construction, fills, embankments, tunnels, cuts, and snowsheds, and the fact that said road extended from San Jose, in the State of California, to Ogden, in the Territory of Utah, — a distance of about eight hundred and seventy-five miles, - and there formed a junction with the Union Pacific, and constitutes a part of a line of railroads extending from the Pacific to the Atlantic Ocean, and the amount of business transacted by said plaintiff on said road, and the profits derived by said plaintiff therefrom ; all of which, as complainants aver, was contrary to the rules prescribed by the statute of said State in such case made and provided."

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