Page:Federal Reporter, 1st Series, Volume 3.djvu/118

 V. F. BT. CO. V. B. ds X. B. S. CO. HT HXB. 111 �It has been held by the supreme court of the United States that the Pacific Eailroad is sabject to state taxation. The Railroad Company v. Peniston, 18 Wall. 5. It was insisted in that case that the Pacific Eailroad was created by congress for public and national purposes, and that, like a national bank, it was an instrument of the general government, and not Bubject to state jurisdiction for purposes of taxation. But this position was not sustained. It is difficult to see upon what principle property can be held to be so exclusively within the federal jurisdiction as to be beyond the reach of the state's power of eminent domain, and yet subject to state taxation. �2. It is suggested that the statute under consideration was intended to apply only to domestic railway corporations created under the laws of the state, and such foreign corpora- tions as might by state legislation be authorized to extend their roads into the state. Upon this point it is only neces- sary to say that the statute in terms applies to "every rail- road company," which must be held to mean every such Com- pany operating a railroad within the state. It is not to be presumed that it was intended to exempt the Union Paciiic Eailway from the operation of the act, since to do so would bô to prohibit the Crossing of its Une by other roads, and thus to prevent the operation of an unbroken line of railway com- munication between northern and southem Nebraska. �3. It is insisted that the award of the commissioners is Toid because only four of the six commissioners concurred in and signed it, although they ail took part in the prooeedings and deliberations. The law upon this subject is that where authority is vested in three or more persons to determine a public question or matter of public concem, a majority have power to decide, provided ail act on the matter. If the mat- ter be one of private concern ail must concur, unless provis- ion is made for a decision by a less number. Schenck v. Peay, 1 Wool. 176, 187; Young v. Buckingham, 5 Ohio, (Ham- mond,) 485-490; Ex parte Rogers, 7 Cow. 526, and note a; Gruger v. Railroad Co. 12 N. Y. 190. �That the condemnation of a right of way in the exercise of the power of eminent domain is a public matter, within the ����