This is a bill in equity filed by the Baltimore & Ohio Railroad Company, a corporation created by the laws of Maryland, and a citizen of that state, against the appellants, who were defendants below, of whom Allen is auditor of public accounts; Revely, treasurer of the state of Virginia; and Hamilton, treasurer of Augusta county, in that state; and all citizens of Virginia. The complainant is the lessee in possession of certain railway lines in Virginia,--the winchester & Potomac, the Winchester & Strasburg, and the Strasburg & Harrisonburg Railroads,--and also operates a railroad belonging to the Valley Railroad Company in that state.
It is alleged in the bill that, 'by the twentieth and twenty-first sections of an act of the general assembly of Virginia, approved on the twenty- econd day of April, 1882, and entitled 'An act for the assessment of taxes on persons, property, income, and licenses, and imposing taxes thereon for the support of the government and free schools, and to pay the interest on the public debt,' provision was made for the assessment and taxation of the railroads within the state; the board of public works, acting upon the reports of the officers of the railroad companies, and upon the best and most reliable information that could be procured, being authorized and required to ascertain and assess the value of the real and personal property of such companies for taxation at the rate of forty cents on every hundred dollars of the estimated value thereof and said act further provides that it shall be the duty of every railroad company so assessed, to pay into the treasury of the state, within sixty days after receipt of notice of such assessment, the tax imposed by law; and a company failing to pay the tax assessed upon its property, shall be immediately assessed under the direction of the auditor of public accounts, by any person appointed by him for the purpose, rating their real estate and rolling stock at $20,000 per mile, and a tax thereon levied of forty cents on the $100 of such fixed value; and the amount so assessed shall be collected by any treasurer to whom the auditor may deliver the assessment, who is authorized to distrain and sell any personal property of such company for the amount of such taxes.'
It is further alleged that on November 22, 1882, the board of public works assessed said railroads for taxation at the rate of $15,000 per mile, of which notice was given to the complainant, on January 17, 1883, as the party liable by law for the payment of the taxes assessed upon them; that on March 16, 1884, within 60 days thereafter, the complainant obtained from the auditor of public accounts warrants to pay into the treasury the several amounts charged as to each of said railroads, which the treasurer of the commonwealth, by indorsement thereon, required to be paid into a specified bank in the city of Richmond, that being the only mode recognized by law for making such payments; that, at that time, the complainant, being the owner and holder of the requisite amount of coupons for interest, cut from bonds of the state of Virginia, issued under the act of March 20, 1871, entitled 'An act to provide for the funding and payment of the public bebt,' and receivable by virtue thereof in payment of taxes, tendered the same, with coin sufficient exactly to make the required amounts, to the said bank in Richmond, in discharge of said warrants; that said coupons were refused, and the same having been set apart, whe complainant brings the same into court, subject to its order in payment of said taxes; that similar tenders were made to the auditor of public accounts, and to the treasurer of state, on the same day, each of whom refused to receive the same; that thereupon the defendant Allen, the auditor of public accounts, proceeded to assess the said railroads upon their real estate, not having any rolling stock, at $20,000 per mile, as being in default for non-payment of the taxes assessed by the board of public works; and placed copies of said assessment in the hands of the defendant Hamilton, as treasurer of Augusta county, for collection, in pursuance of which he levied upon certain cars and locomotives belonging to the complainant, used in operating said railroads, for part of said taxes, and threatens to make further levies upon other cars and engines, to be sold for payment of said taxes so assessed by the auditor of public accounts.