“ Taxation is a burden, and may be laid so heavily as to destroy the thing taxed, or render it valueless. At Chief Justice Marshall said in McCulloch v. Maryland, 'the power to tax involves the power to destroy.' Recollecting the fundamental principle that the constitution, laws, and treaties of the United States are the supreme law of the land, it seems to us almost absurd to contend that a power given to a person or corporation by the United States may be subjected to taxation by a state. ”

“ If the state franchise should be voluntarily surrendered by the company to the state, or forfeited by the state, yet the United States, through the federal franchise, could still operate the road in California. And, on the other hand, should plaintiff in error in any manner be deprived of its federal franchise, it would not thereby be prevented from operating in California under its state franchise. The right and privilege, or franchise, of being a corporation, is of value to its members, and is considered as property separate and distinct from the property which the corporation may acquire ”

“ It seems very clear that the state of California can neither take them away, nor destroy nor abridge them, nor cripple them by onerous burdens. Can it tax them? It may, undoubtedly, tax outside visible property of the company situated within the state. That is a different thing.
'But may it tax franchises which are the grant of the United States? In our judgment, it cannot. What is a franchise? ”

“ Every tax levied by a state withdraws from the reach of federal taxation a portion of the property from which it is taken, and to that extent diminishes the subjects upon which federal taxes may be laid. The states are, and they must ever be, co-existent with the national government. Neither may destroy the other. Hence the federal constitution must receive a practical construction. ”

“ Generalized, and divested of the special form which it assumes under a monarchical government based on feudal traditions, a franchise is a right, privilege, or power of public concern, which ought not to be exercised by private individuals at their mere will and pleasure, but should be reserved for public control and administration, either by the government directly, or by public agents, acting under such conditions and regulations as the government may impose in the public interest, and for the public security. Such rights and powers must exist under every form of society. ”

“ When we consider that plaintiff in error returned its franchise for assessment, declined to resort to the remedy afforded by the state laws for the correction of the assessment as made, if dissatisfied therewith, or to pay its tax and bring suit to recover back the whole or any part of the tax which it claimed to be illegal, we think its position is not one entitled to the favorable consideration of the court ”

“ It is obvious that the right to operate its railroad cannot, by virtue of the state's taxing powers, be taken from the Central Pacific Railroad Company, or conferred upon any other corporation or individual. ”

“ If the subsequent acts of congress had the effect of creating a federal franchise to operate the road, that merely rendered the state right subordinate to the federal right, and did not destroy the state right, nor merge it into the federal right, and no authority is cited to sustain any such proposition. ”

“ In aid of the great work thus inaugurated, railway corporations by the states through which the overland railroad projected was to pass were called into existence. If rights, powers, privileges, and immunities were conferred by state authority upon these state corporations, they constituted a portion of their franchises, subordinate to those conferred by the general government, and comprised with those of that government an essential part of the means for the efficiency and usefulness of the auxiliary corporations. ”

“ I have also shown that the United States hold a lien, constituting a first mortgage on the whole line of the railroad and telegraph, together with the rolling stock, fixtures, and property of every kind and description, as security for certain subsidy bonds issued to the company ”

“ If the state can tax the right so derived from itself, it can levy a tax upon it as it pleases, and may sell the right assessed, in case of nonpayment of the tax. There can be no such thing as taxable property which cannot be sold for the tax, and the title to which cannot be transferred to the purchaser. ”

“ Such rights and powers must exist under every form of society. Under our system, their existence and disposal are under the control of the legislative department of the government, and they cannot be assumed or exercised without legislative authority. ”

“ Except as to railroad and other quasi public corporations, in case of debts so secured, the value of the property affected by such mortgage, deed of trust, contract, or obligation, less the value of such security, shall be assessed and taxed to the owner of the property, and the value of such security shall be assessed and taxed to the owner thereof, in the county, city, or district in which the property affected thereby is situate. The taxes so levied shall be a lien upon the property and security, and may be paid by either party to such security ”