Opinion of the Court.

sufficient in law and true in fact. Upon general principles of the common law, regulating the practice and procedure of courts of justice, it must be held that the judgment here in question was rendered upon the merits of the case, is final in its form and nature, and must have the effect of a bar to the present action upon the same cause.

If its effect is to be determined by the statutes of Nevada, the same conclusion will be reached. The Civil Practice Act of that state, passed March 8, 1869, Gen. Stat. Nevada, 1885, § 3173, is as follows:

"An action may be dismissed or a judgment of non-suit entered in the following cases: First. By the plaintiff himself at any time before trial, upon the payment of costs, if a counter-claim has not been made. If a provisional remedy has been allowed, the undertaking shall thereupon be delivered by the clerk to the defendant, who may have his action thereon. Second. By either party upon the written consent of the other. Third. By the court when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal. Fourth. By the court, when upon trial and before the final submission of the case the plaintiff abandons it. Fifth. By the court, upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case for the jury. The dismissal mentioned in the first two subdivisions shall be made. by an entry in the clerk's register. be entered accordingly.

Judgment may thereupon

In every other case the judgment

shall be rendered on the merits."

It thus appears that there are five instances in which the dismissal of an action has the force only of a judgment of non-suit; "in every other case," the statute provides, “the judgment shall be rendered on the merits." If the case at bar is not included among the enumerated cases in which a dismissal is equivalent to a non-suit, it must, therefore, be a judgment on the merits. In the present case the suit was not dismissed by the plaintiff himself before trial, nor by one party upon the written consent of the other, nor by the court for the plaintiff's failure to appear on the trial, nor by the court at the trial for an abandonment by the plaintiff of his cause; neither was

Syllabus.

it a dismissal by the court upon motion of the defendant, on the ground that the plaintiff had failed to prove a sufficient case for the jury at the trial. The judgment was rendered upon the evidence offered by the defendants, which could only have been after the plaintiff had made out a prima facie case. That evidence was passed upon judicially by the court, who determined its effect to be a bar to the cause of action. This was confirmed by the consent of the attorney representing the United States. The judgment of dismissal was based on the ground of the finding of the court, as matter of fact and matter of law, that the subject-matter of the suit had been so adjusted and settled by the parties that there was no cause of action then existing. This was an ascertainment judicially that the defence relied upon was valid and sufficient, and consequently was a judgment upon the merits, finding the issue for the defendants. Being, as already found, for the same cause of action as now sued upon, it operates as a bar to the present suit by way of estoppel.

The judgment is affirmed.

HUNTINGTON v. WORTHEN.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF ARKANSAS.

LITTLE ROCK & FORT SMITH RAILWAY v.

WORTHEN.

ERROR TO THE SUPREME COURT OF ARKANSAS.

Submitted January 6, 1887.- Decided January 24, 1887.

The statute of Arkansas of March 31, 1883, § 46, which directs the board of railroad commissioners not to include the embankments, tunnels, cuts, ties, trestles, or bridges of railroads in the schedule of the property of railroad companies, prepared by them for the purpose of assessment of taxes, is in conflict with the provisions in the Constitution of the State of 1874, relating to the assessment and taxation of property within the state; but, the unconstitutional part of the act being separable from the remainder, the latter continues valid.

VOL. CXX-7

Statement of Facts.

THE following is the case stated by the court.

In the first of the above-entitled cases the plaintiff, the Little Rock and Fort Smith Railway, is a corporation created under the laws of Arkansas, and operates a railroad from Little Rock to Fort Smith in that state, running through several counties in its route. The defendants are the sheriffs of those counties, and ex officio collectors of taxes therein. The suit was brought to enjoin them from collecting certain taxes assessed and levied for the year 1885 on what is termed in the revenue act of the state as the "railroad track" of the corporation, upon the alleged ground that the Board of Railroad Commissioners of the state exceeded its powers by including unauthorized elements in the estimate of its value. That term "railroad track" embraces all fixed railroad property of the corporation, and is assessed for purposes of taxation as real

estate.

In the second of the above-entitled cases the plaintiffs, who are citizens of Massachusetts, and trustees under a mortgage executed by the railway company upon its railroad and land grant, filed their bill of complaint against the same collectors to restrain the collection of the same taxes. Subsequently the bill was amended by joining the county clerks of the several counties on the line of the railway as defendants, with prayers for injunctions restraining them from doing the several acts which the revenue act requires them to perform in connection with and subsequently to the sale of the railroad track.

By a statute of Arkansas, passed in 1883, the Governor, Secretary of State, and Auditor of Public Accounts were constituted a Board of Railroad Commissioners for the state, and required on the first Monday of April of each year to ascertain the value of all property, real and personal, of every railroad company existing under the laws of the state, including therein the railroad track, rolling-stock, water and wood stations, passenger and freight depots, offices, and furniture. And it was made the duty of the company in March, 1883, and every second year thereafter when required, to prepare and file with the Secretary of State a statement or schedule.

Statement of Facts.

showing the length of its main and side-tracks, switches and turn-outs in each county, in which the road is located, and in each city and town through or into which its road may run; also the value of all improvements, stations and structures, including the railroad track located on the right of way; but the statute declares that "such schedule shall not include, nor value, embankments, tunnels, cuts, ties, trestles, or bridges.”

The statute also required the Board of Railroad Commissioners to meet on the first Monday of April in each year, at the office of the Secretary of State, and examine the lists or schedules of the description and value of the railroad track of the railroad companies filed with the Secretary of State; and if the schedules are made out in accordance with the provisions of the act, and, in the opinion of the Board, the valuation of the railroad track is fair and reasonable, it shall appraise the same, and the Secretary of State shall certify to the assessor of each county, in which the railroad is located, so much of the list as values the railroad track located in the county and in any city or town thereof; and the assessors shall list and assess the same as real estate.

The Little Rock and Fort Smith Railway, under this statute, made a return of the length of its main and side-tracks; and of the value thereof; and of the improvements and structures, including the railroad track on its right of way, but omitted in its estimate the value of the embankments, tunnels, cuts, ties, trestles, and bridges, following in this respect the directions of the statute.

At a subsequent meeting, the Board passed a resolution declaring that all property of railroad companies in the state should be assessed at its true value, without regard to the restrictions and limitations mentioned, by which the value of the embankments, tunnels, cuts, ties, trestles, and bridges is excluded from the schedule of their property; that, after full examination and consultation, it had determined that such limitations and restrictions were unconstitutional, and that it was not bound thereby. The several railroad companies were, therefore, requested to render full statements of their property of whatever kind or description, and the true value thereof,

Opinion of the Court.

without regard to the restrictions and limitations mentioned. A hearing was accorded to the companies by the Board; but its conclusion was not changed, and it proceeded to include in the assessment of the railroad track the value of the embankments, tunnels, cuts, ties, trestles, and bridges. The assessment was thereby largely increased. The plaintiff thereupon commenced the present suit to restrain the collection of the taxes, setting forth the matters above mentioned, and alleging that it was unable to state to what extent the assessment of its property was increased by this action of the Board, as the increase was incapable of separation from the whole. It charged, therefore, that the whole assessment was vitiated and rendered void by this unlawful action of the Board, and prayed an injunction to restrain the collection of the taxes based upon it.

The defendants appeared in the suit and demurred to the complaint. The court in which the suit was commenced sustained the demurrer and dismissed the suit. The Supreme Court of the state, on appeal, affirmed the decree of the court below, and the case is now brought here for review.

In the second suit -the one from the Federal court - the defendants appeared and pleaded in bar the decree in the above case in the state court, and also, by leave of the court, demurred to the complaint. The court sustained the demurrer and dismissed the bill. From its decree the case is brought here on appeal.

Mr. C. W. Huntington for appellants and plaintiff in error.

Mr. Daniel W. Jones, Attorney General of Arkansas, for appellees and defendants in error.

MR. JUSTICE FIELD, after stating the case as above, delivered the opinion of the court.

The constitution of Arkansas of 1874 provides that "all property subject to taxation shall be taxed according to its value, to be ascertained in such manner as the general assembly shall direct, making the same equal and uniform through