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plaints for offenses under said chap. 7, the the compensation for all the services was claimant being the chief supervisor of elec- entire. tions, to whom, he, as commissioner, certi- The first item is not for the whole service of fied the complaints. Item 20 is for filing drawing the complaints. It admits the reand entering similar complaints, in civil ceipt of 15 cents per folio and demands rights proceedings, where the warrants were 5 cents more on the strength of cases dereturned unexecuted by the marshal. Item cided after the claimant had been paid upon 23 is for drawing depositions for complaints his former account. United States v. Ewing, in similar proceedings, where “no warrant 140 U. S. 142, 35 L. ed. 388, 11 Sup. Ct. issued as the result of scrutiny of lists of Rep. 743; United States v. Barber, 140 U. voters by commissioner and inquiries at res- S. 164, 35 L. ed. 396, 11 Sup. Ct. Rep. 749. idences. These are the disallowed claims These cases being decisions under Rev. Stat. brought here by this appeal.

$ 847, are not in point. But, if that be By Rev. Stat. § 1986, U. S. Comp. Stat. in any way material, they had the effect of 1901, p. 1265, district attorneys and others inducing the applicant to open his account. mentioned are to be paid for their services The present is called a new account in arunder the provisions for enforcing said chap. gument, to be sure. But it is hard to con7 "the same fees as are allowed to them for ceive a more distinct opening than the delike services in other cases.” The sentence mand of money in addition to sums received then goes on: “and where the proceedings at the time as full payment for indivisible are before a commissioner he shall be en-items. On the claimant's own view of his titled to a fee of ten dollars for his serv- rights, there were not two charges for each ices in each case, inclusive of all services folio, one for 15 cents and another for 5. incident to the arrest and examination.” It He asserted one indivisible right on which is established and admitted that this fee is he had been paid 15 cents in full, and he not earned (because there is not a "case" now said that that was not enough. The within the meaning of the section) unless United States, by way of counterclaim to there be an arrest and an examination. this attempt to get additional pay, deSouthworth v. United States, 151 U. S. 179, manded the sums already paid to the claim185, 38 L. ed. 119, 121, 14 Sup. Ct. Rep. ant contrary to the principle that we have 274, 161 U. S. 639, 40 L. ed. 835, 16 Sup. laid down, and the court of claims allowed Ct. Rep. 694. And again, it is plain that an offset of $3,120, found to have been paid the fee, when it is earned, covers all serv- by mistake, against the larger sum that it ices; as sufficiently appears from the con- found due to the claimant. We see no reatrast to the allowance of the usual fees to son to doubt the right of the United States, others in the earlier part of the same sen- or the legality of its asserting that right tence and from the final words of the en- by counterclaim. Wisconsin C. R. Co. v. titling clause. These two propositions United States, 164 U. S. 190, 41 L. ed. 399, granted, it seems to us not to need argu- 17 Sup. Ct. Rep. 45; United States v. Burment to conclude that unless the fee is chard, 125 U. S. 176, 31 L. ed. 662, 8 Sup. earned the commissioner gets no other. This ct. Rep. 832; McElrath v. United States, section having supplanted the usual pro-102 U. S. 426, 26 L. ed. 189. It is urged visions of $$ 823, 828 (U. S. Comp. Stat. that the account was approved by the United 1901, pp. 632, 635), § 847 for the cases to States circuit court. The account was apwhich it refers, cannot be held to leave open proved, "subject to revision by the accounta resort to § 847 when the conditions at-ing officers of the United States Treasury" tached to the substituted compensation are only. On the findings on which the case not fulfilled. This disposes of all items ex- comes before us this qualified apporval has cept 11, which stands on a different ground. no weight. One portion of the counterclaim As to that a few words are enough. By is for dates later than the filing of the claim. Rev. Stat. § 2027, it was the claimant's duty But, in view of the broad language of the as commissioner to forward the original statutes (“all set-offs, counterclaims, claims complaint, etc. to the chief supervisor for for damages, whether liquidated or unliquithe judicial district. As he was supervisor dated, or other demands whatsoever," Rev. as well as commissioner this section merely Stat. § 1059, U. S. Comp. Stat. 1901, p. 734, required a change in the character of his clause 'second;' act of March 3, 1887, chap. custody. No certificate was necessary, and 359, § 1, 24 Stat. at L. 505, U. S. Comp. if the complaints were certified it can have Stat. 1901, p. 752, clause 'second'), we are been only for the purpose of charging fees. of opinion that it properly was allowed with But further, if that duty had been added to the rest. the others in connection with cases covered The case was elaborately argued at the by § 1986, the mere fact that the addition bar, and is discussed at length in printed was by a later statute would not break in briefs. We have examined all the details upon the rule established by § 1986, that of the latter, but do not deem it necessary

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to add more to the careful consideration Messrs. John N. Baldwin, Maxwell Evarts, that the case received in the court of claims. and R. S. Lovett for appellant in No. 341. Judgment affirmed.

Messrs. William T. Thompson, Norris Brown, and M. F. Stanley for appellees.

Mr. Justice Holmes delivered the opinion CHICAGO, BURLINGTON, & QUINCY of the court: : RAILWAY COMPANY, Appt.,

These are bills to declare void assessments V. F. C. BABCOCK, As Treasurer of Adamszation and assessment for the year 1904,

of taxes made by the state board of equaliCounty, Nebraska, et al. (No. 215.)

and to enjoin the collection of the same beUNION PACIFIC RAILROAD COMPANY, yond certain sums tendered. The bills alAppt.,

lege that the board, coerced by political v.

clamor and its fears, arbitrarily determined ROBERT O. FINK, Treasurer of Douglas in advance to add about nineteen million

County, Nebraska, et al. (No. 341.) dollars to the assessment of railroad propTaxation of railroad property-collateral attended to fix the values of the several roads

erty for the previous year, and then pretack on valuation.

1. The members of a state board of by calculation. They allege that the assessequalization and assessment should not be ments were fraudulent, and void for want of subjected to a cross-examination, in a pro-jurisdiction, and justify these general alleceeding for equitable relief against the tax- gations by more specific statements. One ation of railroad property, with regard to is that other property in the state, especialthe operation of their minds in arriving at ly land, was valued at a lower rate than the valuation of such property for tax pur- that of the railroads. Another, of more imposes.

portance, is to the effect that the board Înjunction against taxation-methods of adopted a valuation by stock and bonds, and valuation.

then taxed the appellants upon the propor2. Injunctive relief against the taxation of railroad property because of the methods tion of the value so reached that their mileadopted by the state board of equalization age within the state bore to their total mileand assessment in arriving at the valuation age, without deducting a large amount of of such property for tax purposes will not personal property owned outside the state, be given in à Federal court except in a case or specially valuable terminals, etc., east of of fraud or a clearly shown adoption of a the Missouri river. The principle of this fundamentally wrong principle.

last objection was 'sanctioned in Fargo v. Injunction against taxation-inequality of Hart, 193 U. S. 490, 48 L. ed. 761, 24 Sup. valuation, 3. A Federal court will not enjoin the the Constitution, art. 1, § 8, but later cases

Ct. Rep. 498, under the commerce clause of erty because of undervaluation of the other have decided that tangible property permataxable property in the state, where such nently outside the jurisdiction is exempted inequality is not the result of a scheme or from taxation by the 14th Amendment agreement among the taxing officers. * (Delaware, L. & W. R. Co. v. Pennsylvania, Taxation of railroad property-valuation-198 U. S. 341, 49 L. ed. 1077, 25 Sup. including property outside of state. Ct. Rep. 669; Union Refrigerator Transit

4. A state may tax that portion of the Co. v. Kentucky, 199 U. S. 194, 50 L. ed. property of an interstate railroad company 150, 26 Sup. Ct. Rep. 36), and the 14th lying within the state at its value as an Amendment alone, somewhat inadequately organic portion of the entire road.†

referred to, is the foundation of these ap[Nos. 215, 341.]

peals. Demurrers to the bills were overruled, mainly, if not wholly, on the ground

AnArgued 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,

A the bil.. merendismissed

United States for the District of Nebras- The dominant purport of the bills is to ka, to review decrees dismissing bills to charge political duress, so to speak, and a declare void certain assessments of taxes consequent scheme of fraud, illustrated by on railroad property and to enjoin the col- the specific wrongs alleged, and in that way lection of the same beyond certain sums to make out that the taxes were void. As tendered. Affirmed.

the cases come from the circuit court, other The facts are stated in the opinion. questions beside that under the Constitution

Messrs. Charles J. Greene, James E. Kel- are open, and, therefore, it is proper to state by, and Charles F. Manderson for appel at the outset that the foundation for the lant in No. 215.

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 Again, this board necessarily kept, and Sup. Ct. Rep. 53), was very slightly pressed evidently was expected by the statutes to at the argument, and totally fails on the keep, a record. That was the best evidence, facts. Such charges are easily made and, at least, of its decisions and acts. If the it is to be feared, often are made without roads had wished an express ruling by the

iation of the responsibility incurred board upon the deductions which they dein making them. Before the decree could manded, they could have asked for it, and be reversed it would be necessary to consider could have asked to have the action of the seriously whether the constitutional ques-board or its refusal to act noted in the tion on which the appeals are based was record. It would be time enough to offer not so pleaded as part of the alleged fraud other evidence, when such a request had ulent scheme that it ought not to be con- been made and refused. See Fargo v. Hart, sidered unless that scheme was made out. 193 U. S. 490, 498, 48 L. ed. 761, 764, 24 Eyre v. Potter, 15 How. 42, 56, 14 L. ed. Sup. Ct. Rep. 498; Cleveland, C. C. & St. 592, 598; French v. Shoemaker, 14 Wall. L. R. Co. v. Backus, supra; Havemeyer v. 314, 335, 20 L. ed. 852, 857; Hickson v. Lom-Cook County, 202 Ill. 446, 66 N. E. 1044. bard L. R. 1 H. L. 324.

However, as the foregoing objections were When we turn to the evidence there is not urged, and as the cases were discussed equal ground for criticism. The members upon all the testimony, we shall proceed to of the board were called, including the gov- consider them in the same way. ernor of the state, and submitted to an The facts that appear from any source are elaborate cross-examination with regard to few. The board voted first, as a preliminary the operation of their minds in valuing and step toward ascertaining the actual value of taxing the roads. This was wholly improp- all property to be assessed, to make an eser. In this respect the case does not differ timate of the tangible property of the railfrom that of a jury or an umpire, if we roads, to be taken as one of the factors in assume that the members of the board were making up the total assessment of the roads. not entitled to the possibly higher immuni-Schedules were prepared, and it is objected ties of a judge. Buccleuch v. Metropolitan that the board added 25 per cent to cerBd. 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 If this be true, and it is not admitted that a new trial in the same case, to testify to any figures were more than tentative, the the motives and influences that led to their addition seems to have been made on perverdict. Mattox v. United States, 146 U. sonal judgment and on a theory that the S. 140, 36 L. ed. 917, 13 Sup. Ct. Rep. 50. values given were the values the property So, as to arbitrators. Buccleuch v. Metro- was insured for.

was insured for. If mistaken, a mistake politan Bd. of Works, L. R. 5 H. L. 418, does not affect the case. The main point 457, 462. Similar reasoning was applied to comes on the final assessment, to which a judge in Fayerweather v. Ritch, 195 U. we turn at once. 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 ex- side track, spur tracks, warehouse tracks, hibiting on cross-examination the confusion roadbed, right of way, and depot grounds, of the members' minds, to attack in another and all water and fuel stations, buildings, proceeding the judgment of a lay tribunal, and superstructures thereon, and all mawhich is intended, so far as may be, to be chinery, rolling stock, telegraph lines, and final, notwithstanding mistakes of fact or instruments connected therewith, all malaw. See Coulter v. Louisville & N. R. Co. terial on hand and supplies, moneys, credits, 196 U. S. 599, 610, 49 L. ed. 615, 618, 25 franchises, and all other property of said Sup. Ct. Rep. 342; Central P. R. Co. v. railroad companies, and having taken into California, 162 U. S. 91, 107, 108, 117, 40 consideration the gross and net earnings of L. ed. 903, 908, 909, 16 Sup. Ct. Rep. 766, said roads, the total amount expended in op105 Cal. 576, 594, 38 Pac. 905; State eration and maintenance, the dividends paid, Railroad Tax Cases, 92 U. S. 575, 23 the capital stock of each system or road L. ed. 663; Cleveland, C. C. & St. L. and the market value thereof and the total R. Co. v. Backus, 133 Ind. 513, 542, l amount of secured and unsecured indebted,



ness [we] do hereby ascertain and fix, for formal action properly before us, did vote the purposes of taxation, the full actual to request of the Union Pacific, among other value, the average value per mile, and the things, "an itemized statement of the sevassessable value per mile of the several eral bonds and stocks owned by said comroads as follows:" with a list.

pany, 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 Evidently the board believed that the is agreed that the paper referred to was figures furnished by the roads were too faprepared for the use of the board. It shows vorable and were intended to keep the taxes a column of figures marked "Deductions for as low as they could be kept. Evidently, locally assessed," and amounting, when add- also, the members or some of them used ed, to 1,152,230. Then, under the head their own judgment and their own knowl“Earnings,” are the figures 398,474,068, from edge, of which they could give no very good which subtracted 1,152,230, giving account on cross-examination, but which

397,321,838, which is divided by 6, 104, giv- they had a right to use, if honest, however ing 65,092 as the quotient. This dividend is inarticulate the premises. It would scem said to be shown, by the coincidence of from the testimony, as might have been ex. figures, to have been made up of the market pected, that the valuations fixed were a comvalue of the stock of the Union Pacific, its promise and were believed by some members mortgage bonds and other indebtedness, less to be too low, as they seemed to one too the property locally assessed in the state, high. It is argued to us, on expert testibut without the deduction to which we have mony, that they are too low. The result referred and to which the road alleges that of the evidence manifests the fruitlessness it was entitled. The divisor is the total of inquiries, which, as we have said, should number of miles of the road. It is true that not have been gone into at all. We have the valuation ultimately reached was $55,- adverted more particularly to the case of 000 a mile instead of $65,092, but this is the Union Pacific, but that of the Chicago, said to have been an arbitrary reduction, Burlington, & Quincy Railroad stands on and did not reduce the amount sufficiently, similar and no stronger ground, and what if we were to assume that this paper fur- we have said disposes of the main contennished the basis of the tax.

tion of both. If the court below had found But no such assumption can be made. the other way it would have been difficult to The board considered the paper, no doubt, say that the finding was sustained by combut so they considered a capitalization of petent evidence. There certainly is no suffiwhat they understood to be the net earnings cient reason for disturbing the finding as it in the state, and the value of the tangible stands. property apart from its outside connections. A point less pressed than the foregoing Exactly what weighed in each mind, and was that the other property in the state even what elements they purported to con- was greatly undervalued and that thus the sider in their debates, is little more than rule of uniformity prescribed by the Cona guess. There is testimony which cannot stitution of Nebraska had been violated. be neglected that, in this very matter of Upon this matter it is enough to say that valuing the road by stocks and bonds, etc., no scheme or agreement on the part of the the board, from another table furnished by county assessors, who taxed the other propthe company, valued it at over $540.000,000, erty, was shown, or on the part of the board and did deduct from that sum the stocks and of equalization and assessment, and to refer bonds owned by the road, and valued by to Coulter v. Louisville & N. R. Co. 196 U. the board at over $140,000,000, prior to the S. 599, 49 L. ed. 615, 25 Sup. Ct. Rep. 342. subsequent reduction to $55,000 a mile. It Again, it was said that, inasmuch as the is said that this valuation is absurd and present Union Pacific Company, a Utah cordue to misunderstanding of the table. But poration, acquired its road by foreclowe have nothing to do with complaints of sure of a mortgage from a preceding corpothat nature, or with anything less than ration chartered by the United States, it fraud, or a clear adoption of a fundamen- appeared from admissions in testimony or tally wrong principle. The board, in its' followed from the board's taxing the Ne

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braska portion of the road as a going con- on the principle laid down in San Diego cern that it was taxing United States fran- | Land & Town Co. v. National City, 174 chises, contrary to the decision in Califor- U. S. 739, 754, 43 L. ed. 1154, 1160, 19 nia v. Central P. R. Co. 127 U. S. 1, 32 L. Sup. Ct. Rep. 804, in order to warrant these ed. 150, 2 Inters. Com. Rep. 153, 8 Sup. appeals to the extraordinary jurisdiction of Ct. Rep. 1073. This, also, although stated, the circuit court. was not pressed. It does not appear that Decrees affirmed. the present Union Pacific has any United States franchises that were taxed, and, if Mr. Justice Peckham and Mr. Justice Mcit has any that were considered in estimat- Kenna dissent. ing 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.

Appts., 576, 590, 38 Pac. 905. See Adams Exp. Co. v. Ohio State Auditor, 166 U. S. 185, 41 L. J. HOWARD IGLEHART, Executor of the

Last Will and Testament of Annie E. I. ed. 965, 17 Sup. Ct. Rep. 604. And the

Andrews, Deceased. same thing may be said as to the interstate business of the roads. Adams Exp. Co. v. Statutes-repeal by implication-general Ohio State Auditor, 165 U. S. 194, 41 L. and special legislation. ed. 683, 17 Sup. Ct. Rep. 305, 166 U. S. 1. The trusts for the perpetual mainte185, 41 L. ed. 965, 17 Sup. Ct. Rep. 604. nance of cemetery lots and of monuments The board had a right to tax all the prop- and other structures erected thereon, ex

a erty in the state, and to tax it at its value pressly authorized by D. C. Code, & 669. are

not forbidden because $ 1023 of such Code, as an organic portion of a larger whole.

prohibiting perpetuities and restraints upon Western U. Teleg. Co. v. Missouri, 190 U. alienation, does not in terms make an exS. 412, 47 L. ed. 1116, 23 Sup. Ct. Rep. ception in favor of the trusts provided for 730.

in the earlier section. Various arguments were addressed to us Conflict of laws-perpetuities-comity. upon matters of detail which would afford 2. A testamentary trust in favor of the no ground for interference by the court, and Greenwood Cemetery Company of Brooklyn, which we do not think it necessary to state permitted by the laws of New York, for the at length. Among them is the suggestion perpetual maintenance of a cemetery lot and of arbitrariness at different points, such as upheld in the courts of the District of Co

monument, will, on principles of comity, be the distribution of the total value set upon lumbia, although the testatrix was domithe Chicago, Burlington, & Qunicy system, ciled in the District at the time of her among the different roads making it up. death, and the funds to be applied to such But the action does not appear to have been trust arose from property owned by her in arbitrary except in the sense in which many the District at that time, since, under D. honest and sensible judgments are so. They c. Code, & 669, grants on similar trusts are

. express an intuition of experience which out permitted to domestic corporations. runs analysis and sums up many unnamed Appeal-costs in suit to construe will.

3. Costs on the affirmance by the Fedand tangled impressions,-impressions which

eral Supreme Court of a decree of the court may lie beneath consciousness without losing of appeals of the District of Columbia which their worth. The board was created for the affirmed a decree of the supreme court of purpose of using its judgment and its knowl-the District in a suit to construe a will, upedge. State Railroad Tax Cases, 92 U. S. holding all the disputed provisions, will be 575, 23 L. ed. 663; State ex rel. Bee Bldg. taxed against the unsuccessful appellants, Co. v. Savage, 65 Neb. 714, 768, 769, 91 N. where the executor did not appeal from the W. 716; Re Cruger, 84 N. Y. 619, 621; San original decree nor from the decree of af. José Gas Co. v. January, 57 Cal. 614, 616. firmance by the court of appeals. Within its jurisdiction, except, as we have

[No. 158.] 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

ruary 25, 1907. has confided those rights to its protection

and has trusted to its chiomor and capacity APPEAIc from the Court of Appeals of the

it protection of

District Columbia 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.

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