The boundary line between the States of Illinois and Iowa is the
middle of the main navigable channel of the Mississippi River, but
whether, in assessing taxes in Illinois on a bridge running from
one state to the other, in crossing that bridge, the dividing line
was improperly located is a question of fact the finding of which
by a state court is not reviewable here.
The same may be said concerning the contention as to whether the
bridge was assessed at more than its value, and not at the same
proportion of its value as other property was.
The tax on the capital stock was not a tax on franchises
conferred by the federal government, but on those conferred by the
state, and as such is not open to objection here.
The tax was not a tax on interstate commerce
Page 175 U. S. 627
As to the objection that the entire capital stock was assessed
by the state board of equalization, it is enough to say that the
question that the action of that board was in violation of the
Constitution of the United States, except so far as it was claimed
to be an interference with interstate commerce, was not raised, and
therefore cannot be considered here for the first time.
No opinion is intimated on the contention that the judgment was
erroneous because the assessment, in effect, included the entire
capital stock of plaintiff in error as a consolidated
The case is stated in the opinion of the Court.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
This is a writ of error to review the judgment of the Supreme
Court of Illinois affirming a judgment of the County Court of
Hancock County, in that state, for delinquent taxes assessed
against the Keokuk and Hamilton Bridge Company for the year
The Keokuk and Hamilton Bridge Company was incorporated by an
act of the general Assembly of the State of Illinois in 1857, with
power to build, maintain, and use a bridge for railroad and other
purposes over the Mississippi River from or near the Town of
Hamilton, in the County of Hancock, to Keokuk, in the State of
Iowa, and was authorized to connect the bridge by railroad or
otherwise with any railroad or railroads terminating thereat or
approximately thereto, and to consolidate with any railroad or
other company or companies in Illinois or any other state. A
similar corporation was organized under the laws of the State of
Iowa, and the two corporations consolidated, with the main office
Authority to construct and maintain the bridge was granted the
two companies by the Act of Congress of July 25, 1866, 14 Stat.
244, c. 246.
Page 175 U. S. 628
The record discloses that the company objected to the assessment
of its tangible property as made by the assessor of the township in
which the Illinois end of the bridge was situated, and applied to
the township board of review for a reduction, protesting that the
property was overvalued;
"that the Fourteenth Amendment to the Constitution of the United
States has been violated in that equal justice and protection to
property of the said bridge company has been denied; . . . that the
property assessed and described by the assessor lies partly in the
State of Iowa and is not subject to taxation in Illinois,"
etc. The board of review denied the relief asked, and the bridge
company appealed to the Board of Supervisors of Hancock County,
which also refused to change the assessment. The Collector of
Hancock County then applied to the county court at its May term,
1895, for judgment on the delinquent tax list, including the
assessment against the bridge company, to which the company filed
its objections, rehearsing the proceedings which had been
theretofore taken, the objections made, and the evidence adduced.
Before a hearing on these objections was had, the parties
stipulated that the collector might "insert in his application for
judgment the capital stock tax for the year 1894 levied by the
state board of equalization against said company," which was
The bridge company thereupon filed its objections to any
judgment for the capital stock tax, as follows:
"Objections by 'the Keokuk and Hamilton Bridge Company' to
judgment against its bridge and approach."
"The original objections filed to said May term covering the
application as there made."
"The application was amended in June by adding claims for
capital stock tax of 1894, $1,029.90."
"This objection is to the proposed judgment against said
property for said claimed tax on the capital stock of said company
"1st. Because said bridge company is consolidated corporation of
the States of Illinois and Iowa, one-half in each of said states,
and its entire business is that of interstate commerce, and any tax
thereon is a tax upon such
Page 175 U. S. 629
interstate commerce, and is without authority of law and
"2d. Such claimed capital stock tax is levied upon the whole
capital stock, when only one-half thereof, if any, is assessable in
"3d. The only tax assessable against said property is upon its
tangible property in Illinois."
"4th. Said pretended assessment of capital stock is wholly void
because not made in the manner required by law nor according to the
rules of the state board of equalization."
Considerable evidence was introduced, including the proceedings
of the state board of equalization, from which it appeared that the
capital stock of the bridge company was returned at $1,000,000;
that the total amount of its indebtedness except for current
expenses, and excluding from such expenses the amount paid for the
purchase or improvement of property, was $1,000,000, with unpaid
interest thereon amounting to $900,000; that the assessed valuation
of lands and structure was $218,000, and that the state board of
equalization placed the valuation for assessment of capital stock
at $30,080. The tax on the tangible property was $2,708,61, and on
the capital stock, $1,019.17. Judgment was rendered by the county
court for those amounts and interest. From this judgment, the case
was carried on appeal to the supreme court, and there affirmed.
Among the errors assigned in that court were that
"the court erred in overruling defendant's (appellant's)
objections to the rendition of judgment of the capital-stock tax
(so-called) and rendering judgment thereon. Among the reasons for
said error are the following:"
"a. Said capital stock tax is a tax on personal, not on real,
property, and is chargeable only at the place of the main office
and place of business of defendant (appellant) -- Keokuk, in the
State of Iowa -- and is made in violation of the rights of
defendant (appellant), contrary to the laws regulating commerce
between the states and contrary to the Constitution and laws of the
"b. If any part of said capital stock of defendant
Page 175 U. S. 630
is taxable in Illinois, it can only be that portion thereof that
would correspond to the length of the bridge in Illinois as
compared to the whole length of bridge, represented by said capital
stock -- not exceeding one-half of said stock -- yet the judgment
is rendered for the tax assessed against the whole of the capital
stock of defendant (appellant) as though all was located in
that the judgment was against the evidence as to the length of
the bridge in Illinois, and that the court ignored the act of
Congress fixing the western boundary of Illinois.
In the opinion of the Supreme Court of Illinois, Keokuk
& Hamilton Bridge Co. v. The People,
167 Ill. 15, it is
"The grounds of reversal are first, the assessments were
fraudulently made; second, the whole of the capital stock is
assessed in this state, whereas an undivided half of it is taxable
in Iowa; third, the judgment is upon an assessment upon a part of
appellant's bridge, not in the State of Illinois, but in the State
of Iowa. The facts upon which the first two grounds are based are
substantially the same as those upon which similar objections were
urged in cases between the same parties in 145 Ill. 596 and 514,
and are disposed of adversely to appellant by those decisions."
The last point was disposed of on the ground that the county
court was justified on the evidence in finding that no part of the
bridge assessed was in the State of Iowa.
In Keokuk & Hamilton Bridge Company v. The People,
145 Ill. 596, it was held that when the middle of a navigable river
becomes the boundary line between two states, the middle of the
current or channel of commerce will be regarded as the boundary
line; that an assessor in Illinois, in assessing a bridge over a
navigable river forming the boundary of the state for the purpose
of taxation, has no right to assess any part of such bridge that is
located beyond such boundary line, and that unless the property has
been fraudulently assessed more than its fair cash value, the
courts cannot interfere with the action of the assessor. The
judgment in that case was reversed because the assessor had
assessed several hundred
Page 175 U. S. 631
feet of the bridge as in Hancock County, Illinois, which was
located beyond the boundary line of the state.
In Keokuk &c. Bridge Co. v. People,
161 Ill. 132,
it was ruled that in fixing the value for taxation the assessor
acts judicially, and the courts cannot revise his assessment on the
mere ground of erroneous valuation; that, on an application for
judgment for delinquent taxes, it may be shown that the tax is
unauthorized by law, or is assessed on property not subject to
taxation, or that the property has been fraudulently assessed at
too high a rate; that the capital stock of a corporation formed by
the consolidation of corporations of different states is properly
taxable in one of said states so far as the corporation of that
state is concerned; that the kind of property denominated in the
revenue law of Illinois "capital stock" does not mean shares of
stock, either separate or in the aggregate, but designates the
property of the state corporation subject to taxation as a
homogeneous unit partaking of the nature of personalty, and subject
to the burdens imposed on it by the State of its creation. The
judgment was reversed because the assessment was illegal in
including a certain number of feet of the bridge which was located
in the State of Iowa.
In Same v. Same, id.,
514, the rulings in the prior
case so far as involved were affirmed.
The foregoing are the decisions to which reference is made in
the opinion of the state supreme court in the case before us.
The errors assigned in this Court are in substance that part of
the bridge assessed was in the State of Iowa; that the bridge was
assessed at more than its value, and not in the same proportion as
other property was assessed; that no part of the capital stock was
assessable, because a tax on it was in effect a tax on interstate
commerce, and was a tax on franchises conferred by the federal
government, and that the whole of the capital stock was assessed,
although one-half of the bridge was located in the State of
1. In Iowa v. Illinois, 147 U. S.
, it was adjudged that the boundary line between the
two states was "the middle of the main navigable channel of the
Mississippi River." Where
Page 175 U. S. 632
that line divided the bridge was a question of fact, and it is
not within our province to review the findings of the courts below
in regard to the part assessed in Illinois.
2. For the same reason, the contention as to whether the bridge
was assessed at more than its value, and not at the same proportion
of its value as other property was, need not be considered. Perhaps
we may properly add that we perceive no adequate ground to question
the conclusion that the county court did not err in declining, on
the evidence, to set aside the determinations of the boards of
review sustaining the action of the assessor.
3. The tax on the capital stock was not a tax on franchises
conferred by the federal government, but on those conferred by the
state, and as such not open to objection. Central Pacific
Railroad Company v. California, 162 U. S.
; Henderson Bridge Company v. Kentucky,
166 U. S. 150
was the tax a tax on interstate commerce. This was so ruled in
Henderson Bridge Co. v. Kentucky, 166
U. S. 153
. It was there said:
"The company was chartered by the State of Kentucky to build and
operate a bridge, and the state could properly include the
franchises it had granted in the valuation of the company's
property for taxation. Central Pacific Railroad Company v.
California, 162 U. S. 91
. The regulation of
tolls for transportation over the bridge considered in
Covington & Cincinnati Bridge Company v. Kentucky,
154 U. S.
, presented an entirely different question."
"Clearly the tax was not a tax on the interstate business
carried on over or by means of the bridge, because the bridge
company did not transact such business. That business was carried
on by the persons and corporations which paid the bridge company
tolls for the privilege of using the bridge. The fact that the tax
in question was to some extent affected by the amount of the tolls
received, and therefore might be supposed to increase the rate of
tolls, is too remote and incidental to make it a tax on the
And see Henderson Bridge Co. v. Henderson, 173
U. S. 622
Page 175 U. S. 633
4. As to the objection that the entire capital stock was
assessed by the state board of equalization, it is enough to say
that the question that the action of that board was in violation of
the Constitution of the United States, except so far as it was
claimed to be an interference with interstate commerce, was not
The Supreme Court of Illinois had repeatedly sustained the
assessment on the whole capital stock as being an assessment on the
capital stock of the corporation created by the State of Illinois.
But in none of the cases in which the question of the validity of
such capital stock assessments arose was the point considered that
they were contrary to the Constitution of the United States.
In this case, and as to the tangible property, the objection was
made that the assessment by the assessor of that tangible property
was in contravention of the Fourteenth Amendment. But this was
before the township board of review and the board of supervisors,
and had no relation to the assessment of capital stock, which by
the laws of Illinois was dealt with solely by the board of
equalization. In the county court, the objections made in the
township board of review and in the board of supervisors as to the
tangible property were repeated as to that property, but the
objections to the assessment on the capital stock were independent
of and distinct from those, and raised no question in respect of
the Constitution of the United States except that as to interstate
commerce. And this was true as to the assignments of error in the
state supreme court.
In Dewey v. Des Moines, 173 U.
, it was held that where a federal question is
raised in the state courts, the party who resorts to this Court
cannot raise another federal question not connected with it which
was not raised in any of the courts below.
To justify our taking jurisdiction, the federal question must be
specially set up or claimed in the state court; the party must have
the intent to invoke for the protection of his rights the
Constitution or some statute or treaty of the United States, and
such intention must be declared in some unmistakable
Page 175 U. S. 634
manner. Oxley Stave Company v. Butler County,
166 U. S. 648
"In other words, the Court must be able to see clearly from the
whole record that a provision of the Constitution or act of
Congress is relied upon by the party who brings the writ of error,
and that the right thus claimed by him was denied. . . . Although
no particular form of words is necessary to be used in order that
the federal question may be said to be involved, within the meaning
of the cases on this subject, there yet must be something in the
case before the state court which at least would call its attention
to the federal question as one that was relied on by the party, and
then, if the decision of the court, while not noticing the
question, was such that the judgment was by its necessary effect a
denial of the right claimed or referred to, it would be sufficient.
It must appear from the record that the right set up or claimed was
denied by the judgment, or that such was its necessary effect in
law. . . . It is not enough that there may be somewhere hidden in
the record a question which, if raised, would be of a federal
nature. Hamilton Company v.
6 Wall. 632. In order to be
available in this Court, some claim or right must have been
asserted in the court below by which it would appear that the party
asserting the right founded it in some degree upon the Constitution
or laws or treaties of the United States. In such case, if the
court below denied the right claimed, it would be enough, or if it
did not in terms deny such right, if the necessary effect of its
judgment was to deny it, then it would be enough. But the denial,
whether expressed or implied, must be of some right or claim
founded upon the Constitution or the laws or treaties of the United
States, which had in some manner been brought to the attention of
the court below. The record shows nothing of the kind in this case.
A claim or right which has never been made or asserted cannot be
said to have been denied by a judgment which does not refer to it.
Hamilton Company v. Massachusetts, supra.
A point that was
never raised cannot be said to have been decided adversely to a
party who never set it up or in any way alluded to it. Nor can it
be said that the
Page 175 U. S. 635
necessary effect in law of a judgment which is silent upon the
question is the denial of a claim or right which might have been
involved therein, but which in fact was never in any way set up or
173 U. S. 173
U.S. 198, 173 U. S.
We are confined, then, to the only federal questions which this
record presents, and in disposing of these as we have, no opinion
is intimated on the contention that the judgment was erroneous
because the assessment, in effect, included the entire capital
stock of plaintiff in error as a consolidated corporation.