APPEAL FROM THE COURT OF APPEALS FOR THE EIGHTH CIRCUIT.
MR. JUSTICE SHIRAS delivered the opinion of the court.
The St. Joseph and Grand Island Railroad Company, in its petition filed in the Circuit Court of the United States for the District of Kansas against R. M. Steele, sheriff of Doniphan County, Kansas, alleged that the controversy in the case involved the construction of an act of Congress approved July 14, 1870, granting to the St. Joseph and Denver City Railroad Company the right to build a bridge and maintain the same across the Missouri River at or near St. Joseph, Missouri; and also of an act of Congress approved March 5, 1872, authorizing and empowering the St. Joseph Bridge Building Company to construct a bridge across the Missouri River at or near St. Joseph, Missouri; that said bridge was built under these acts, and that all of its revenue-producing facilities were derived therefrom, and that the controversy was over the right to tax this bridge.
But the other allegations of the bill disclose the case of a dispute arising under the taxing laws of the State of Kansas. One half of said bridge is within Doniphan County. On May 16, 1892, the railroad company returned to the auditor of the State a list and schedule of its property and railroad, including that part of said bridge. Thereupon the state board of railroad assessors for the State of Kansas duly assessed, for the purposes of taxation for the year 1892, all the property of
said railroad company; the county commissioners of Doniphan County, in pursuance of law, duly fixed and determined the amount of the tax which the railroad company was to pay for the year 1892; and the company duly paid the same to the treasurer of Doniphan County. Subsequently one George Manville, as trustee and assessor of Washington township in Doniphan County, made an assessment of that part of said bridge lying within said township, claiming that the same was subject to taxation in said township as an independent structure and as a toll bridge. Thereupon the county commissioners of Doniphan County, at their regular meeting in the month of June, 1892, acted upon said assessment, and, against the protest of the railroad company, levied upon said portion of the bridge lying within Washington township a tax for the year 1892.
The railroad company alleges in its bill that neither the county nor township authorities of Doniphan County have or had any authority or jurisdiction to assess and levy and taxes whatever upon the bridge property of the company in Doniphan County, but that the said state board of railroad assessors of Kansas had exclusive jurisdiction for assessing the said property of the company in said county, and asks for an injunction restraining the sheriff of said county from selling or offering for sale the said bridge property for the taxes so assessed against the same for the year 1892 by the local authorities of Doniphan County.
It thus appears that the railroad company does not claim that, by virtue of any provisions of the several acts of Congress under which the bridge was built, the company is exonerated from paying taxes on the same within the jurisdiction of the State of Kansas, but its contention is that the bridge is to be regarded as a component part of its railroad, and as such is only taxable by the state board of railroad assessors, and that the county and township authorities cannot legally tax the bridge as a toll bridge for local purposes. The question thus presented, as we understand it, is one to be decided by and under the laws of the State of Kansas. The power of that State to tax the bridge property is not denied, but the argument is made that
the theory and true meaning of the state taxing laws is to restrict the exercise of that power to the state board of railroad assessors. The contention on the other side is that under the taxing laws of the State of Kansas it was proper for the state board to assess the railroad as an entirety, and for the county authorities to assess the bridge as an independent structure or toll bridge. This position is based on the dual character of the bridge, used, as it is, for both carrying the trains of the railroad company and vehicles and passengers who pay tolls. To give a Federal aspect to this question it is urged that the franchise to exact tolls was conferred on the original builders of the bridge by act of Congress. But this would not raise a Federal question unless it were claimed that, by reason of such grant, the bridge was exempted from state taxation. But the bill and argument of the railroad company, as we have seen, concede the right of the State to tax the bridge, but find fault with the method by which the taxing authorities, state and county, assessed the taxes for 1892, a question to be decided under the laws of Kansas.
We cannot accede to the proposition that, because the acts of Congress, which authorized the construction of the bridge in question, gave the right to build a railroad and toll bridge, the conceded power of the State to tax did not extend to the bridge in both aspects. Nor can we agree that the making of such a contention raised a Federal question of a character to confer original jurisdiction in the Circuit Court of the United States. Not every mere allegation of the existence of a Federal question in a controversy will suffice for that purpose. There must be a real substantive question, on which the case may be made to turn. Nor can jurisdiction be inferred argumentatively from the averments in the pleadings, but the averments should be positive. Hanford v. Davies, 163 U.S. 273, 279.
Finding no Federal question actually presented in the bill on which the Circuit Court could base the exercise of jurisdiction, we are now to inquire whether such jurisdiction can be found in the character of the ...