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plaints for offenses under said chap. 7, the claimant being the chief supervisor of elections, to whom, he, as commissioner, certified the complaints. Item 20 is for filing and entering similar complaints, in civilrights proceedings, where the warrants were returned unexecuted by the marshal. Item 23 is for drawing depositions for complaints in similar proceedings, where "no warrant issued as the result of scrutiny of lists of voters by commissioner and inquiries at residences." These are the disallowed claims brought here by this appeal.
the compensation for all the services was entire.
The first item is not for the whole service of drawing the complaints. It admits the receipt of 15 cents per folio and demands 5 cents more on the strength of cases decided after the claimant had been paid upon his former account. United States v. Ewing, 140 U. S. 142, 35 L. ed. 388, 11 Sup. Ct. Rep. 743; United States v. Barber, 140 U. S. 164, 35 L. ed. 396, 11 Sup. Ct. Rep. 749. These cases being decisions under Rev. Stat. § 847, are not in point. But, if that be in any way material, they had the effect of inducing the applicant to open his account. The present is called a new account in argument, to be sure. But it is hard to conceive a more distinct opening than the demand of money in addition to sums received at the time as full payment for indivisible items. On the claimant's own view of his rights, there were not two charges for each folio, one for 15 cents and another for 5. He asserted one indivisible right on which he had been paid 15 cents in full, and he now said that that was not enough. The United States, by way of counterclaim to this attempt to get additional pay, demanded the sums already paid to the claimant contrary to the principle that we have laid down, and the court of claims allowed an offset of $3,120, found to have been paid by mistake, against the larger sum that it found due to the claimant. We see no reason to doubt the right of the United States, or the legality of its asserting that right by counterclaim. Wisconsin C. R. Co. v. United States, 164 U. S. 190, 41 L. ed. 399, 17 Sup. Ct. Rep. 45; United States v. Burchard, 125 U. S. 176, 31 L. ed. 662, 8 Sup. Ct. Rep. 832; McElrath v. United States, 102 U. S. 426, 26 L. ed. 189. It is urged that the account was approved by the United States circuit court. The account was approved, "subject to revision by the accounting officers of the United States Treasury" only. On the findings on which the case comes before us this qualified apporval has
By Rev. Stat. § 1986, U. S. Comp. Stat. 1901, p. 1265, district attorneys and others mentioned are to be paid for their services under the provisions for enforcing said chap. 7 "the same fees as are allowed to them for like services in other cases." The sentence then goes on: "and where the proceedings are before a commissioner he shall be entitled to a fee of ten dollars for his services in each case, inclusive of all services incident to the arrest and examination.” It is established and admitted that this fee is not earned (because there is not a "case" within the meaning of the section) unless there be an arrest and an examination. Southworth v. United States, 151 U. S. 179, 185, 38 L. ed. 119, 121, 14 Sup. Ct. Rep. 274, 161 U. S. 639, 40 L. ed. 835, 16 Sup. Ct. Rep. 694. And again, it is plain that the fee, when it is earned, covers all services; as sufficiently appears from the contrast to the allowance of the usual fees to others in the earlier part of the same sentence and from the final words of the entitling clause. These two propositions granted, it seems to us not to need argument to conclude that unless the fee is earned the commissioner gets no other. This section having supplanted the usual provisions of §§ 823, 828 (U. S. Comp. Stat. 1901, pp. 632, 635), § 847 for the cases to which it refers, cannot be held to leave open a resort to § 847 when the conditions attached to the substituted compensation are not fulfilled. This disposes of all items except 11, which stands on a different ground. | no weight. One portion of the counterclaim As to that a few words are enough. By Rev. Stat. § 2027, it was the claimant's duty as commissioner to forward the original complaint, etc. to the chief supervisor for the judicial district. As he was supervisor as well as commissioner this section merely required a change in the character of his custody. No certificate was necessary, and if the complaints were certified it can have been only for the purpose of charging fees. But further, if that duty had been added to the others in connection with cases covered by 1986, the mere fact that the addition was by a later statute would not break in upon the rule established by § 1986, that
is for dates later than the filing of the claim. But, in view of the broad language of the statutes ("all set-offs, counterclaims, claims for damages, whether liquidated or unliquidated, or other demands whatsoever," Rev. Stat. § 1059, U. S. Comp. Stat. 1901, p. 734, clause 'second;' act of March 3, 1887, chap. 359, § 1, 24 Stat. at L. 505, U. S. Comp. Stat. 1901, p. 752, clause 'second'), we are of opinion that it properly was allowed with the rest.
The case was elaborately argued at the bar, and is discussed at length in printed briefs. We have examined all the details of the latter, but do not deem it necessary
to add more to the careful consideration that the case received in the court of claims. Judgment affirmed.
CHICAGO, BURLINGTON, & QUINCY
F. C. BABCOCK, As Treasurer of Adams
ROBERT O. FINK, Treasurer of Douglas
Taxation of railroad property-collateral at-
Messrs. John N. Baldwin, Maxwell Evarts, and R. S. Lovett for appellant in No. 341. Messrs. William T. Thompson, Norris Brown, and M. F. Stanley for appellees.
Mr. Justice Holmes delivered the opinion of the court:
These are bills to declare void assessments of taxes made by the state board of equalization and assessment for the year 1904, and to enjoin the collection of the same beyond certain sums tendered. The bills allege that the board, coerced by political clamor and its fears, arbitrarily determined in advance to add about nineteen million dollars to the assessment of railroad property for the previous year, and then pretended to fix the values of the several roads by calculation. They allege that the assessments were fraudulent, and void for want of jurisdiction, and justify these general alle
1. The members of a state board of equalization and assessment should not be subjected to a cross-examination, in a proceeding for equitable relief against the tax-gations by more specific statements. One ation of railroad property, with regard to the operation of their minds in arriving at the valuation of such property for tax purposes. Injunction against taxation-methods of valuation.
2. Injunctive relief against the taxation 2. Injunctive relief against the taxation of railroad property because of the methods adopted by the state board of equalization and assessment in arriving at the valuation of such property for tax purposes will not be given in a Federal court except in a case of fraud or a clearly shown adoption of a fundamentally wrong principle. Injunction against taxation-inequality of valuation.
3. A Federal court will not enjoin the collection of state taxes on railroad property because of undervaluation of the other taxable property in the state, where such inequality is not the result of a scheme or agreement among the taxing officers.* Taxation of railroad property-valuation—including property outside of state.
4. A state may tax that portion of the property of an interstate railroad company İying within the state at its value as an organic portion of the entire road.†
[Nos. 215, 341.]
is that other property in the state, especially land, was valued at a lower rate than that of the railroads. Another, of more importance, is to the effect that the board adopted a valuation by stock and bonds, and then taxed the appellants upon the proportion of the value so reached that their mileage within the state bore to their total mileage, without deducting a large amount of personal property owned outside the state, or specially valuable terminals, etc., east of the Missouri river. The principle of this last objection was sanctioned in Fargo v. Hart, 193 U. S. 490, 48 L. ed. 761, 24 Sup. the Constitution, art. 1, § 8, but later cases Ct. Rep. 498, under the commerce clause of have decided that tangible property permahave decided that tangible property permanently outside the jurisdiction is exempted from taxation by the 14th Amendment (Delaware, L. & W. R. Co. v. Pennsylvania, 198 U. S. 341, 49 L. ed. 1077, 25 Sup. Ct. Rep. 669; Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194, 50 L. ed. 150, 26 Sup. Ct. Rep. 36), and the 14th Amendment alone, somewhat inadequately referred to, is the foundation of these appeals. Demurrers to the bills were overruled, mainly, if not wholly, on the ground
Argued January 21, 22, 1907. Decided Feb- of the charges of duress and fraud.
ruary 25, 1907.
swers then were filed denying the material allegations, and, after a hearing on evidence,
APPEALS from the Circuit Court of the the bills were dismissed.
United States for the District of Nebraska, to review decrees dismissing bills to declare void certain assessments of taxes on railroad property and to enjoin the collection of the same beyond certain sums tendered. Affirmed.
The facts are stated in the opinion. Messrs. Charles J. Greene, James E. Kelby, and Charles F. Manderson for appellant in No. 215.
The dominant purport of the bills is to charge political duress, so to speak, and a consequent scheme of fraud, illustrated by the specific wrongs alleged, and in that way to make out that the taxes were void. As the cases come from the circuit court, other questions beside that under the Constitution are open, and, therefore, it is proper to state at the outset that the foundation for the bills has failed. The suggestion of political
*Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, § 1234 tEd. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, § 653.
duress is adhered to in one of the printed | 18 L.R.A. 729, 33 N. E. 421. In Fargo briefs, but is disposed of by the finding of v. Hart, 193 U. S. 490, 496, 497, 48 L. ed. the trial judge, which there is no sufficient 761, 764, 24 Sup. Ct. Rep. 498, there was reason to disturb. The charge of fraud, even no serious dispute as to what was the prinif adequately alleged (Missouri v. Dockery, ciple adopted. 191 U. S. 165, 170, 48 L. ed. 133, 134, 24 Sup. Ct. Rep. 53), was very slightly pressed at the argument, and totally fails on the facts. Such charges are easily made and, it is to be feared, often are made without appreciation of the responsibility incurred in making them. Before the decree could be reversed it would be necessary to consider seriously whether the constitutional question on which the appeals are based was not so pleaded as part of the alleged fraudulent scheme that it ought not to be considered unless that scheme was made out. Eyre v. Potter, 15 How. 42, 56, 14 L. ed. 592, 598; French v. Shoemaker, 14 Wall. 314, 335, 20 L. ed. 852, 857; Hickson v. Lombard L. R. 1 H. L. 324.
When we turn to the evidence there is equal ground for criticism. The members of the board were called, including the governor of the state, and submitted to an elaborate cross-examination with regard to the operation of their minds in valuing and taxing the roads. This was wholly improp
Again, this board necessarily kept, and evidently was expected by the statutes to keep, a record. That was the best evidence, at least, of its decisions and acts. If the roads had wished an express ruling by the board upon the deductions which they demanded, they could have asked for it, and could have asked to have the action of the board or its refusal to act noted in the record. It would be time enough to offer other evidence, when such a request had been made and refused. See Fargo v. Hart, 193 U. S. 490, 498, 48 L. ed. 761, 764, 24 Sup. Ct. Rep. 498; Cleveland, C. C. & St. L. R. Co. v. Backus, supra; Havemeyer v. Cook County, 202 Ill. 446, 66 N. E. 1044. However, as the foregoing objections were not urged, and as the cases were discussed upon all the testimony, we shall proceed to consider them in the same way.
The facts that appear from any source are few. The board voted first, as a preliminary step toward ascertaining the actual value of all property to be assessed, to make an estimate of the tangible property of the railroads, to be taken as one of the factors in making up the total assessment of the roads. Schedules were prepared, and it is objected that the board added 25 per cent to cer
If this be true, and it is not admitted that any figures were more than tentative, the addition seems to have been made on personal judgment and on a theory that the values given were the values the property was insured for. If mistaken, a mistake does not affect the case. The main point comes on the final assessment, to which we turn at once.
In this respect the case does not differ from that of a jury or an umpire, if we assume that the members of the board were not entitled to the possibly higher immunities of a judge. Buccleuch v. Metropolitan Bd. of Works, L. R. 5 H. L. 418, 433. Jury-tain items as furnished by the companies. men cannot be called, even on a motion for a new trial in the same case, to testify to the motives and influences that led to their verdict. Mattox v. United States, 146 U. S. 140, 36 L. ed. 917, 13 Sup. Ct. Rep. 50. So, as to arbitrators. Buccleuch v. Metropolitan Bd. of Works, L. R. 5 H. L. 418, 457, 462. Similar reasoning was applied to a judge in Fayerweather v. Ritch, 195 U. S. 276, 306, 307, 49 L. ed. 193, 213, 214, The board expressed its result in another 25 Sup. Ct. Rep. 58. A multitude of cases vote. "Having given full and due considwill be found collected in 4 Wigmore on Evi- eration to the returns furnished said board dence, § 2348, 2349. All the often-repeated by the several railroad companies, and havreasons for the rule as to jurymen applying taken into consideration the main track, with redoubled force to the attempt, by exhibiting on cross-examination the confusion of the members' minds, to attack in another proceeding the judgment of a lay tribunal, which is intended, so far as may be, to be final, notwithstanding mistakes of fact or law. See Coulter v. Louisville & N. R. Co. 196 U. S. 599, 610, 49 L. ed. 615, 618, 25 Sup. Ct. Rep. 342; Central P. R. Co. v. California, 162 U. S. 91, 107, 108, 117, 40 L. ed. 903, 908, 909, 16 Sup. Ct. Rep. 766, 105 Cal. 576, 594, 38 Pac. 905; State Railroad Tax Cases, 92 U. S. 575, 23 L. ed. 663; Cleveland, C. C. & St. L. R. Co. v. Backus, 133 Ind. 513, 542,
side track, spur tracks, warehouse tracks, roadbed, right of way, and depot grounds, and all water and fuel stations, buildings, and superstructures thereon, and all machinery, rolling stock, telegraph lines, and instruments connected therewith, all material on hand and supplies, moneys, credits, franchises, and all other property of said railroad companies, and having taken into consideration the gross and net earnings of said roads, the total amount expended in operation and maintenance, the dividends paid, the capital stock of each system or road and the market value thereof and the total amount of secured and unsecured indebted
ness [we] do hereby ascertain and fix, for the purposes of taxation, the full actual value, the average value per mile, and the assessable value per mile of the several roads as follows:" with a list.
formal action properly before us, did vote to request of the Union Pacific, among other things, "an itemized statement of the several bonds and stocks owned by said company, for which they are legally entitled to The roads supplement the record by evi- receive credit on offset, in estimating the dence that the state treasurer, a member of value of said Co. for assessment." This recthe board, on the objection being made to a ognizes the true principle, almost in terms. paper said to exhibit the stock, bonds, and Beyond a speculation from figures, and a floating debt of the Union Pacific, that the few statements improperly elicited from one stock and bonds of other companies owned or two members of the board, there is nothby the Union Pacific had not been deducted, ing to contradict the inference from this answered, "the board has decided that it can- vote except the above alleged statement of not make deductions for property outside the treasurer, met by his and others' testiof the state." This answer was in the pres-mony that a proper deduction was made. ence of the other members of the board. It is agreed that the paper referred to was prepared for the use of the board. It shows a column of figures marked "Deductions for locally assessed," and amounting, when added, to 1,152,230. Then, under the head "Earnings," are the figures 398,474,068, from which is subtracted 1,152,230, giving 397,321,838, which is divided by 6,104, giving 65,092 as the quotient. This dividend is said to be shown, by the coincidence of figures, to have been made up of the market value of the stock of the Union Pacific, its mortgage bonds and other indebtedness, less the property locally assessed in the state, but without the deduction to which we have referred and to which the road alleges that it was entitled. The divisor is the total number of miles of the road. It is true that the valuation ultimately reached was $55,000 a mile instead of $65,092, but this is said to have been an arbitrary reduction, and did not reduce the amount sufficiently, if we were to assume that this paper furInished the basis of the tax.
But no such assumption can be made. The board considered the paper, no doubt, but so they considered a capitalization of what they understood to be the net earnings in the state, and the value of the tangible property apart from its outside connections. Exactly what weighed in each mind, and even what elements they purported to consider in their debates, is little more than a guess. There is testimony which cannot be neglected that, in this very matter of valuing the road by stocks and bonds, etc., the board, from another table furnished by the company, valued it at over $540.000,000, and did deduct from that sum the stocks and bonds owned by the road, and valued by the board at over $140,000,000, prior to the subsequent reduction to $55,000 a mile. It is said that this valuation is absurd and due to misunderstanding of the table. But we have nothing to do with complaints of that nature, or with anything less than fraud, or a clear adoption of a fundamentally wrong principle. The board, in its
Evidently the board believed that the figures furnished by the roads were too favorable and were intended to keep the taxes as low as they could be kept. Evidently, also, the members or some of them used their own judgment and their own knowledge, of which they could give no very good account on cross-examination, but which they had a right to use, if honest, however inarticulate the premises. It would scem from the testimony, as might have been expected, that the valuations fixed were a compromise and were believed by some members to be too low, as they seemed to one too high. It is argued to us, on expert testimony, that they are too low. The result of the evidence manifests the fruitlessness of inquiries, which, as we have said, should not have been gone into at all. We have adverted more particularly to the case of the Union Pacific, but that of the Chicago, Burlington, & Quincy Railroad stands on similar and no stronger ground, and what we have said disposes of the main contention of both. If the court below had found the other way it would have been difficult to say that the finding was sustained by competent evidence. There certainly is no sufficient reason for disturbing the finding as it stands.
A point less pressed than the foregoing was that the other property in the state was greatly undervalued and that thus the rule of uniformity prescribed by the Constitution of Nebraska had been violated. Upon this matter it is enough to say that no scheme or agreement on the part of the county assessors, who taxed the other property, was shown, or on the part of the board of equalization and assessment, and to refer to Coulter v. Louisville & N. R. Co. 196 U. S. 599, 49 L. ed. 615, 25 Sup. Ct. Rep. 342.
Again, it was said that, inasmuch as the present Union Pacific Company, a Utah corporation, acquired its road by foreclosure of a mortgage from a preceding corporation chartered by the United States, it appeared from admissions in testimony or followed from the board's taxing the Ne
Land & Town Co. v. National City, 174 U. S. 739, 754, 43 L. ed. 1154, 1160, 19 Sup. Ct. Rep. 804, in order to warrant these appeals to the extraordinary jurisdiction of the circuit court.
Mr. Justice Peckham and Mr. Justice McKenna dissent.
braska portion of the road as a going con- on the principle laid down in San Diego cern that it was taxing United States franchises, contrary to the decision in California v. Central P. R. Co. 127 U. S. 1, 32 L. ed. 150, 2 Inters. Com. Rep. 153, 8 Sup. Ct. Rep. 1073. This, also, although stated, was not pressed. It does not appear that the present Union Pacific has any United States franchises that were taxed, and, if it has any that were considered in estimating the value of the road, it does not appear that they were considered improperly under the later decisions of this court. Central P. R. Co. v. California, 162 U. S. 91, HENRY F. IGLEHART and Mary I. Polk, 40 L. ed. 203, 16 Sup. Ct. Rep. 766, 105 Cal. 576, 590, 38 Pac. 905. See Adams Exp. Co. v. Ohio State Auditor, 166 U. S. 185, 41 L. ed. 965, 17 Sup. Ct. Rep. 604. And the same thing may be said as to the interstate business of the roads. Adams Exp. Co. v. Ohio State Auditor, 165 U. S. 194, 41 L. ed. 683, 17 Sup. Ct. Rep. 305, 166 U. S. 185, 41 L. ed. 965, 17 Sup. Ct. Rep. 604. The board had a right to tax all the property in the state, and to tax it at its value as an organic portion of a larger whole.not forbidden because § 1023 of such Code, Western U. Teleg. Co. v. Missouri, 190 U. S. 412, 47 L. ed. 1116, 23 Sup. Ct. Rep.
J. HOWARD IGLEHART, Executor of the
Statutes-repeal by implication-general and special legislation.
1. The trusts for the perpetual maintenance of cemetery lots and of monuments and other structures erected thereon, expressly authorized by D. C. Code, § 669, are
prohibiting perpetuities and restraints upon
2. A testamentary trust in favor of the
Various arguments were addressed to us upon matters of detail which would afford no ground for interference by the court, and which we do not think it necessary to state at length. Among them is the suggestion of arbitrariness at different points, such as the distribution of the total value set upon the Chicago, Burlington, & Qunicy system, among the different roads making it up. But the action does not appear to have been arbitrary except in the sense in which many honest and sensible judgments are so. They express an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions,-impressions which may lie beneath consciousness without losing their worth. The board was created for the purpose of using its judgment and its knowledge. State Railroad Tax Cases, 92 U. S. 575, 23 L. ed. 663; State ex rel. Bee Bldg. Co. v. Savage, 65 Neb. 714, 768, 769, 91 N. W. 716; Re Cruger, 84 N. Y. 619, 621; San José Gas Co. v. January, 57 Cal. 614, 616. Within its jurisdiction, except, as we have said, in the case of fraud or a clearly shown adoption of wrong principles, it is the ulti- Argued January 15, 16, 1907. Decided Febmate guardian of certain rights. The state has confided those rights to its protection
3. Costs on the affirmance by the Federal Supreme Court of a decree of the court of appeals of the District of Columbia which affirmed a decree of the supreme court of the District in a suit to construe a will, upholding all the disputed provisions, will be taxed against the unsuccessful appellants, where the executor did not appeal from the original decree nor from the decree of affirmance by the court of appeals. [No. 158.]
ruary 25, 1907.
PPEAL from the Court of Appeals of the
and has trusted to its honor and capacity District of Columbia to review a decree
as it confides the protection of other social relations to the courts of law. Somewhere which affirmed a decree of the Supreme there must be an end. We are of opinion Court of the District in a suit to construe that, whatever grounds for uneasiness may a will, upholding all the disputed provibe perceived, nothing has been proved so sions. Affirmed. clearly and palpably as it should be proved,
See same case below, 26 App. D. C. 209.