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mestic corporations, which elected to have voked on the day when copy of the petition their places of business and works outside for the writ of error was served on opof the state, and all foreign corporations posing counsel, and more than two months coming into the state, on the same footing before the writ was issued. in respect of the service of process, and Appeal—distinction between appeal and writ the law operated on all these alike.

of error. Such a classification was reasonable, and

2. Appeal, and not writ of error, is the not open to constitutional objection. Orient proper method of obtaining a review in the Ins. Co. v. Daggs, 172 U. S. 557, 563, 43 L. final order of the supreme court of the Phil

Supreme Court of the United States of a ed. 552, 554, 19 Sup. Ct. Rep. 281; Waters-ippine Islands in a habeas corpus case, un. Pierce Oil Co. v. Texas, 177 U. S. 43, 44 L. der the act of July 1, 1902, (32 Stat. at L ed. 663, 20 Sup. Ct. Rep. 518; Central Loan chap. 1369, pp. 691, 695, U. S. Comp. Stat. & T. Co. v. Campbell Commission Co. 173 U. Supp. 1905, p. 154), g 10, providing that S. 84, 43 L. ed. 623, 19 Sup. Ct. Rep. 346; judgments and decrees of the latter court National Council, J. 0. U. A. M. V. State can only be reviewed "in the same manner, Council of Virginia, 203 U. S. 151, 51 L. ed. under the same regulations, and by the 132, 27 Sup. Ct. Rep. 46; Northwestern Nat. final judgments and decrees of the circuit

same procedure, as far as applicable, as the L. Ins. Ço. v. Riggs, 203 U. S. 243, 51 L. ed. courts." 168, 27 Sup. Ct. Rep. 126; Brannon, 14th Amendment, chap. 16.

[No. 214.] It is true that the prior law left it to the corporation to appoint an attorney to Argued October 9, 10, 1906. Decided Decemrepresent it, and that the act of February,

ber 3, 1906. 1905, changed this so as to make the auditor such attorney, but this, at the most, was no

I

N ERROR to the Supreme Court of the more than an amendment as to the appoint- Philippine Islands to review a denial ment of an agent, and when the St. Mary's of an application for a writ of habeas corCompany accepted its charter it did so sub-pus. Dismissed. ject to the right of amendment. And we The facts are stated in the opinion. agree with the state court that the require- Messrs. Frederic R. Coudert and Howard ment of the payment of $10 to the auditor Thayer Kingsbury for plaintiffs in error. for the use of the state does not amount to a Solicitor General Hoyt for defendants in taking of property without due process, or error. an unjust discrimination. Charlotte, C. & A. R. Co. v. Gibbes, 142 U. S. 386, 35 L. ed. Mr. Chief Justice Fuller delivered the 1051, 12 Sup. Ct. Rep. 255; New York ex opinion of the court: rel. New York Electric Lines Co. v. Squire, Application for the writ of habeas corpus 145 U. S. 175, 36 L. ed. 666, 12 Sup. Ct. Rep. was made to the supreme court of the Phil. 880. If the act is valid, that is.

ippine Islands, August 2, 1905, on behalf of The objections going to the expediency or one Barcelon, seeking to be discharged from the hardships and injustice of the act, and alleged illegal detention in the province of its alleged inconsistency with the state Con- Batangas. An order to show cause was stitution and laws, are matters with which granted, returnable August 4, to which rewe have nothing to do on this writ of error, turn was made, the cause heard, and the ap. and the question whether the provision that plication denied on the ground that the the corporation shall not be required to pay writ of habeas corpus had been suspended, any fee to anyone theretofore appointed an and that the action of the Philippine auattorney is invalid or not requires no consid- thorities in that regard was not open to eration on this record.

judicial review. Judgment affirmed.

Petition for the allowance of a writ of error from this court, dated October 19, and

service of copy thereof acknowledged by reFRED C. FISHER and Charles C. Cohn, on spondents the same day, was filed January Behalf of Felix Barcelon, Plffs. in Err., 3, 1906, and the writ of error thereupon al

lowed and issued on that day. COLONEL DAVID J. BAKER, JR., and Cap- The second clause of § 9 of article 1 of the tain John Doe Thompson.

Constitution of the United States provides:

“The privilege of the writ of habeas corpus Appeal--moot question.

1. The validity of the action of the shall not be suspended, unless when, in cases Philippine authorities in suspending the of rebellion or invasion, the public safety writ of habeas corpus is a moot question, may require it.” which does not call for determination by the

The 7th paragraph of § 5 of the act of Supreme Court of the United States on Congress of July 1, 1902 (32 Stat. at L. writ or error, where the suspension was re-'chap. 1369, pp. 691, 692), reads: "That the

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privilege of the writ of habeas corpus shall conduct preliminary investigations before not be suspended, unless when, in cases of justices of the peace and other judicial rebellion, insurrection, or invasion, the pub- officers: lic safety may require it; in either of which "In the interest of the public safety, it is events the same may be suspended by the hereby ordered that the writ of habeas corPresident,' or by the governor, with the ap- pus is from this date suspended in the proval of the Philippine Commission, where provinces of Cavite and Batangas.” ever, during such period, the necessity for But we must take notice of the fact that such suspension shall exist.”

on October 19, 1905, the civil governor isThe record discloses that on January 31, sued a proclamation revoking that of Jan1905, the Philippine Commission adopted the uary 31, 1905, as follows: following resolution:

"Whereas the ladrone bands which, up to “Whereas certain organized bands of la- a recent date, infested the provinces of Cadrones exist in the provinces of Cavite and vite and Batangas, have been practically deBatangas, who are levying forced contribu- stroyed, and the members thereof killed or tions upon the people, who frequently re- captured or have surrendered, so that the quire them, under compulsion, to join their necessity for the continuance of the suspenbands, and who kill or maim in the most sion of the writ of habeas corpus in the barbarous manner those who fail to respond aforesaid provinces, which was made necesto their unlawful demands, and are there- sary by the conditions therein prevailing on fore terrifying the law-abiding and inoffen- the 31st day of January last, no longer ex. sive people of those provinces; and

ists: "Whereas these bands have, in several in- "Now, therefore, I, Luke E. Wright, gov. stances, attacked police and constabulary de ernor general of the Philippine Islands, being tachments, and are in open insurrection duly authorized and empowered thereto by against the constituted authorities; and the Philippine Commission, do hereby pro

“Whereas it is believed that these bands claim the revocation of the suspension of have numerous agents and confederates liv- the writ of habeas corpus in the provinces ing within the municipalities of the said of Cavite and Batangas which was made by provinces; and

me on the 31st day of January last.” "Whereas, because of the foregoing condi- This proclamation wiped out the basis tions, there exists a state of insecurity and of the decision sought to be reviewed on the terrorism among the people which makes it day when the copy of the petition for writ impossible in the ordinary way to conduct of error was served on opposing counsel, and preliminary investigations before justices of more than two months before the writ of the peace and other judicial officers:

error was issued. The question ruled by the "Now, therefore, be it resolved, “That, the court below, and solely argued before us, bepublic safety requiring it, the civil governor came, in effect, a moot question, not calling is hereby authorized and requested to sus- for determination here. Mills v. Green, 159 pend the writ of habeas corpus in the prov-U. S. 651, 40 L. ed. 293, 16 Sup. Ct. Rep. inces of Cavite and Batangas."

132. Whereupon, on the same day, the civil But the disposition of this writ of error governor issued the following proclamation: must be rested on another ground.

"Whereas certain organized bands of la- The proceeding is in habeas corpus, and is drones exist in the provinces of Cavite and a civil, and not a criminal, proceeding. Batangas, who are levying forced contribu-Cross v. Burke, 146 U. S. 82, 88, 36 L. ed. 896, tions upon the people, who frequently re. 898, 13 Sup. Ct. Rep. 22. Section 10 of the quire them, under compulsion, to join their Philippine act of July 1, 1902, (32 Stat. at bands, and who kill or maim in the most L. chap. 1369, pp. 691, 695, U. S. Comp. Stat. barbarous manner those who fail to respond Supp. 1905, p. 154), provides: to their unlawful demands, and are there- “That the Supreme Court of the United fore terrifying the law-abiding and inoffen. States shall have jurisdiction to review, resive people of those provinces; and

vise, reverse, modify, or affirm the final judg. “Whereas these bands have, in several in- ments and decrees of the supreme court of the stances, attacked police and constabulary Philippine Islands in all actions, cases, causdetachments, and are in open insurrection es, and proceedings now pending therein or against the constituted authorities, and it is hereafter determined thereby in which the believed that the said bands have numerous Constitution or any statute, treaty, title, agents and confederates living within the right, or privilege of the United States is municipalities of the said provinces; and involved, or in causes in which the value in

"Whereas, because of the foregoing con- controversy exceeds twenty-five thousand ditions, there exists a state of insecurity dollars, or in which the title or possession of and terrorism among the people which real estate exceeding in value the sum of makes it impossible in the ordinary way to 'twenty-five thousand dollars, to be ascertained by the oath of either party or of | ing that it was no purpose of the act of other competent witnesses, is involved or 1891 to change the forms of remedies therebrought in question; and such final judg- tofore pursued. Re Lennon, 150 U. S. 393, 37 ments or decrees may and can be reviewed, L. ed. 1120, 14 Sup. Ct. Rep. 123; Nishimura revised, reversed, modified, or affirmed by Ekiu v. United States, 142 U. S. 651, 35 L. said Supreme Court of the United States on ed. 1146, 12 Sup. Ct. Rep. 336; Gonzales v. appeal or writ of error by the party ag- Cunningham, 164 U. S. 612, 41 L. ed. 572, grieved, in the same manner, under the same 17 Sup. Ct. Rep. 182.” regulations, and by the same procedure, as Writ of error dismissed. far as applicable, as the final judgments and decrees of the circuit courts of the United States." Final orders of the circuit or district

STATE OF NEW JERSEY, Appt., eourts of the United States in habeas corpus

V. can only be reviewed by appeal, and not by WILLIAM F. ANDERSON, Trustee of Cos. writ of error. Re Morrissey (Morrissey v.

mopolitan Power Company. Perry) 137 U. S. 157, 158, 34 L. ed. 644, 645, Bankruptcy-preferences—franchise tax. 11 Sup. Ct. Rep. 57; Rice v. Ames, 180 U. S. 1. The claim of the state of New Jer. 371, 373, 45 L. ed. 577, 581, 21 Sup. Ct. Rep. sey against the estate of a bankrupt cor406, 407. In the latter case the court said: poration organized under the laws of that

“Motion is made to dismiss the appeal state, but doing no business and having no upon the ground that there is no provision property there, for the "annual license fee of law allowing an appeal in this class of or franchise tax” on its outstanding capital cases. Prior to the court of appeals act of stock, imposed under N. J. Gen. Stat. 1895, 1891, provision was made for an appeal to $S 251, 252, 257, 258, 260, is for a tax legal

ly due and owing to the state, which, under the circuit court in habeas corpus cases the bankrupt act of July 1, 1898 (30 Stat. at 'from the final decision of any court, justice, L. 563, chap. 541, U. S. Comp. Stat. 1901, p. or judge inferior to the circuit court' (Rev. 3447), § 6a, must be paid in advance of Stat. $ 763, U. S. Comp. Stat. 1901, p. 594); dividends to creditors. and from the final decision of such circuit Bankruptcy--preferences-franchise tax. court an appeal might be taken to this court 2. The finding of the state board of as. (Rev. Stat. $ 764, as amended March 3, 1885, sessors as to the amount of outstanding capchap. 353, 23 Stat. at L. 437, U. S. Comp. ital stock of a corporation, made for the Stat. 1901, p. 595).

purpose of fixing the amount of the annual "The law remained in this condition until J. Gen. Stat. 1895, 88 251, 252, 257, 258, 260

license fee or franchise tax imposed by N. the court of appeals act of March, 1891 [26 is not conclusive on the bankruptcy court, Stat. at L. 828, chap. 517, U. S. Comp. Stat. in view of the provisions of the bankrupt 1901, p. 549], was passed, the 5th section of act of July 1, 1898, § 64a, that, in case any which permits an appeal directly from the question arises as to the amount or legaldistrict court to this court 'in any case in ity of any tax entitled to priority of pay. which the constitutionality of any law of ment under that section, the same shall be the United States, or the validity or con

heard and determined by the court. struction of any treaty made under its au Bankruptcy-preferences—franchise tax. thority, is drawn in question. In this con

3. The franchise tax assessed under N. nection the appellee insists that an appeal J. Gen. Stat. 1895, 88 251, 252, 257, 258, 260 on will not lie, but that a writ of error is the the basis of the capital stock of a corporaproper remedy. In support of this we are January preceding the making of the return, cited to the case of Bucklin v. United States, is "legally due and owing" within the 159 U. S. 680, 40 L. ed. 304, 16 Sup. Ct. Rep. meaning of the bankrupt act of July 1, 1898, 182, in which the appellant was convicted of $ 64a, providing that taxes must be paid in the crime of perjury, and sought a review of advance of the payment of dividends to the judgment against him by an appeal, creditors, although such tax may not have which we held must be dismissed, upon the been collectible until after the corporation ground that criminal cases were reviewable

was adjudged a bankrupt. here only by writ of error. Obviously that

[No. 49.] case has no application to this, since, under the prior sections of the Revised Statutes, Argued and submitted October 19, 1906. Deabove cited, which are taken from the act

cided December 10, 1906. of 1812, an appeal was allowed in habeas Corpus cases. The observation made in the APPEAL from the United States Circuit that act to abolish the general distinction, cuit to review a judgment which affirmed a at common law, between an appeal and a judgment of the District Court for the writ of error, may be supplemented by say. Northern District of Illinois, which had, in turn, affirmed the finding of a referee in | ing capital stock in the sum of $2,500.00, in bankruptcy, denying vo the state of New accordance with the return of the company Jersey a preference for alleged franchise filed on May 1, 1903. taxes due from the estate of a bankrupt On February 12, 1904, the state of New corporation. Reversed and remanded to the Jersey filed its motion before the referee District Court for further proceedings. for the payment of said taxes as a prefer

See same case below, 70 C. C. A. 388, 137 ential debt. The referee disallowed the 1903 Fed. 858.

tax altogether, and allowed the 1902 tax as

a general claim against the estate for the Statement by Mr. Justice Day:

sum of $4,945.08. This reduction was made This is an appeal from the judgment of from the assessment for the year 1902, bethe circuit court of appeals for the seventh cause the state board had made the assesscircuit, affirming the order of the district ment upon the basis of $40,000,000 of outcourt, which affirmed the finding of the standing capital stock, whereas, in fact, only referee in bankruptcy, denying to the state $10,000,000 was then issued and outstandof New Jersey a preference for alleged fran- ing, upon which basis the referee made the chise taxes from the estate of a bankrupt, allowance. The district court affirmed the the Cosmopolitan Power Company.

order of the referee. Upon appeal to the On December 21, 1903, the claim for the circuit court of appeals that court modified state was filed, under the provisions of the judgment of the district court so as to 64a of the bankrupt law. [30 Stat. at L. allow the taxes claimed for the year 1903, 563, chap. 541, U. S. Comp. Stat. 1901, p. as a general debt, and in other respects 3447.] The claim is set forth as follows: affirmed the district court. 70 C. C. A. 388,

137 Fed. 858. The case was then brought Tax-1902

$5,750 00

here. Interest to October 15, 1903

891 25 Messrs. Edward D. Duffield, Robert H. McCosts on injunction pro

Carter, and Levy Mayer for appellant. ceedings, because of

Messrs. Frederick D. Silber and Horace nonpayment of taxes.. 26 15 Kent Tenney for appellee. Tax-1903

2,500 00 Interest to October 15,

Mr. Justice Day delivered the opinion of 1903

87 50 the court:

The provisions of the bankrupt law gove $9,254 90 erning the payment of taxes are found in s

64a, act of 1898 (30 Stat. at L. 563, chap. The Cosmopolitan Power Company is a 541, U. S. Comp. Stat. 1901, p. 3447), which corporation organized under the laws of the reads: state of New Jersey on April 30, 1900, for “Sec. 64a. The court shall order the trusthe purpose of dealing in engines, machines, tee to pay all taxes legally due and owing etc. By its charter it had power to do bus. by the bankrupt to the United States, state, iness in any state or territory of the Unit- county, district, or municipality, in advance ed States. While it had its principal office of the payment of dividends to creditors, in the state of New Jersey, located under and, upon filing the receipts of the proper the terms of its certificate of incorporation, public officers for such payment, he shall it had no property in that state, and con- be credited with the amount thereof, and in ducted its business in the state of Illinois. case any question arises as to the amount

The capital stock of the corporation on or legality of any such tax, the same shall January 1, 1902, was forty millions of dol- be heard and determined by the court.” lars, of which there was ten millions out- The statute of the state of New Jersey standing. On May 13, 1902, its capital stock, (Gen. Stat. 1895, SS 251, 252, 257, 258, 260) pursuant to the laws of New Jersey, was by its title undertakes to provide for the reduced to $2,500,000. The company was ad- imposition of state taxes upon certain corjudicated a bankrupt on April 23, 1903, upon porations, and for the collection thereof. It an involuntary petition filed in the district requires the corporation to make return to court for the northern district of Illinois. the state board of assessors on or before the

On November 7, 1902, the state board of first Tuesday in May of each year, and to assessors of New Jersey, the company hav- pay an annual license fee or franchise tax ing failed to make return, levied an assess- of a certain per cent on its capital stock ment for the license or franchise tax in ques- issued and outstanding on January 1 of tion for the year 1902 in the sum of $5,750.- each year, up to and including $3,000,000; a 00. On June 1, 1903, there was assessed different per cent on sums in excess of $3,against the company for the year beginning 000,000, and not exceeding $5,000,000, and on January 1, 1903, a similar tax on outstand-T outstanding capital stock exceeding $5,000,000, $50 per million or any part thereof. In taxes legally due and owing, without discase the corporation shall fail to make re- tinction between the United States and the turn the state board shall ascertain and fix state, county, district, or municipality. the amount of the annual license fee or An argument is made as to the alleged in. franchise tax, and shall report to the comp-justice of this requirement, in that it may troller on or before the first Monday in take away from the local creditors in the June the basis and amount of the tax as re- state where the property of the corporation turned by each company to, or ascertained is situated practically all the assets of the by, the board, which shall then become due corporation in favor of the state where the and payable, and it shall be the duty of corporation is organized, but has no busithe state treasurer to receive the same. If ness or property. And it is urged that to the tax remains unpaid on July 1st after the permit a state, under such circumstances, to same becomes due it shall thenceforth bear have a preference in the payment of taxes, interest at the rate of 1 per cent per month. would give to it an advantage which it could That the tax shall be a debt due from the not otherwise obtain for want of charge or company to the state, for which it may lien upon the property. But considerations maintain an action at law for recovery of this character, however properly adthereof, after the same shall have been in dressed to the legislative branch of the govarrears for the period of one month, and the ernment, can have no place in influencing tax shall be a preferred debt in cases of in- judicial determination. It is the province solvency, and in cases of arrears for three of the court to enforce, not to make, the months the state may apply for an injunc- laws, and, if the law works inequality, the tion to restrain the company from exercis- redress, if any, must be had from Congress. ing its corporate franchise; and that if any The question is, Is the claim a tax legally corporation shall be delinquent for two due and owing to the state of New Jersey ? years its charter shall be void, unless further We have been cited to many cases in the time be given for the payment of taxes. state of New Jersey, some of which, 10 is

It is contended for the appellee that these alleged, maintain the theory of the appellant provisions do not entitle the state to the that this is a tax, and some the contrary payment of its claim as a preferred tax view. within the meaning of the bankrupt act. It Without undertaking to analyze these is insisted, in the first place, that a proper numerous cases or to harmonize the views construction of the act of 1898 does not re-expressed by different judges, we think the quire the payment of taxes to a state where weight of judicial decision in that state in the bankrupt has no property, and the favors the view that this is a tax imposed state no means of collecting the tax from upon the right of the corporation to continue property within its jurisdiction. And it is to be a corporation, with power to exercise urged that the taxes to be paid are those its corporate franchises, based upon the legally due and owing to the United States, amount of its capital stock issued and outstate, county, district, or municipality, which standing. does not contemplate payment to any and In Hancock v. Singer Mfg. Co. 62 N. J. L. all states, but only to THE state, which, 289, 42 L.R.A. 852, 41 Atl. 846, it was said: it is insisted, should be interpreted with the "The act of 1884 (Pamph. L. p. 232) is enlimitation stated.

titled 'An Act to Provide for the Imposition It is to be noted that there is a very sig- of State Taxes upon Certain Corporations nificant difference in this respect, in the act and for the Collection Thereof.' of 1898, from the provisions of the bankrupt "In this act this imposition is called a act of 1867 (14 Stat. at L. 530, chap. 176), yearly license fee or tax. the law in force last before, and doubtless "In a supplement passed to the act of in the view of Congress when the present 1884 (Pamph. L. 1891, p. 150) it is styled law was drafted. That act of 1867 gave 'a tax.' priority of payment to all debts due to the “In a further supplement, passed in 1892 United States, and all taxes and assess-(Pamph. L. p. 136), it is called 'an annual ments under the laws thereof, all debts due license fee or franchise tax.' to the state in which the proceedings in “It is wholly immaterial what name may bankruptcy were pending, and all taxes and be given to it. The fact that it is called a assessments made under the laws of such license fee' or 'franchise tax' cannot validate state, and provided that nothing contained it. It is levied under an act passed 'to au. in the act should interfere with the assess thorize the imposition of state taxes,' and it ment and collection of taxes by the author- is none the less an interdicted imposition ity of the United States or any state. [having reference to the charter then being

The requirement of the present law is a considered], and none the less a tax because wide departure from the act of 1867, and it is given a new name. specifically obliges the trustee to pay all “Although under our adjudications, it is

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