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Hepburn Russell, W. D. Ellis, and Ellis, , an order commanding appellants, and each Wimbish, & Ellis for appellees.
of them, to desist from enforcing the ad
vance. All of the appellants except the Mr. Justice McKenna delivered the opin- Macon & Birmingham Railway Company ion of the court:
filed a joint and several answer, in which This is an appeal from a decree of the they traversed the allegations of the peticircuit court of appeals affirming a de- tion and pleaded justification by the condicree of the circuit court for the southern tions affecting the roads and the traffic. district of Georgia, adjudging an advance They also alleged that the Georgia Saw in freight rates made by appellants, to be Mill Association, to which appellees beeffective June 22, 1903, upon yellow pine longed, was a combination in restraint of lumber, of 2 cents per 100 pounds over trade and commerce, and that, therefore, rates previously in force, to be unjust and appellees did not "come before the Commisunreasonable, and enjoining the appellants, sion with clean hands.” A great deal of jointly and severally, from maintaining the testimony was taken on the issues presentsame, "in so far as they apply to shipments ed, and the Commission found and conof lumber from points in Georgia to Ohio cluded that the advance in rates "was not river destinations and points basing there warranted by the testimony, and that the on."
increased rates put in force June 22, 1903, The original bill was filed April 14, 1903, were unreasonable and unjust.” The speby appellees, to enjoin such advance in cific findings and conclusions of the Comrates, and a temporary restraining order mission are reported in 10 Inters. Com. Rep. was issued and notice to appellants to show | 548. After the petition was filed before cause why an injunction should not issue. the Interstate Commerce Commission, but On May 8 the bill was amended. On May before final action, appellees filed an amend12 the appellants filed a demurrer to the ed bill and again moved the circuit court for amended bill for want of jurisdiction in an injunction. In the amended bill it was the court as a court of equity and as a alleged that appellants, after the dissolution court of the United States, and the South of the restraining order, filed with the Ineastern Freight Association filed an answer. terstate Commerce Commission and gave Appellants also filed a response to the or- public notice that on June 22, 1903, the adder to show cause. On May 16 the demur.vance in sales on lumber would be estabrer was overruled. The temporary injunc- lished and put in effect, and such advance tion was, however, dissolved, but the follow became effective June 22, 1903. The appeling condition was expressed:
lants, in a joint and several answer, admit“In case the respondents shall enforce ted the averments of the amended bill, but the rates complained of, and the complain- reserved the benefit of their demurrer to ants shall make proper application to the the original bill. The motion for an inInterstate Commerce Commission to redress junction was dismissed. 123 Fed. 789. their alleged grievances, the court will en- The Commission made its order hereintertain a renewed application on the record before referred to on the 7th of February, as made, and such appropriate additions 1905, and on March 17, 1905, the appellees thereto as may be proposed by either party, presented a petition to the circuit court for enoining the enforcement of such rates stating the substance of the findings of the pending the investigation of the Commis- Commission, and attaching a copy of its sion, unless otherwise dissolved, and, on report and opinion. presentation to the court of the report of An order to show cause was issued. On the Commission, such other action be taken June 3, 1905, appellants filed a joint and as will be conformable to law and the prin several answer, which was verified. The ciples of equity.” 138 Fed. 756.
Southeastern Association answered sepaThe appellants took the steps prescribed rately. The appellees also filed a suppleby the interstate commerce act to put the mental bill, the purpose of which was to advanced rates into effect, and the appel- obtain restitution of the excess of rates lees, on June 23, 1903, filed a petition be charged over those which it was alleged fore the Interstate Commerce Commission, were reasonable. To this bill a demurrer e ging that “in promulgating said tariff was filed. o increased rates, and maintaining and en- It was stipulated by counsel of the reforcing the same,” the appellants were act- spective parties that the testimony, including "in concert with each other and with ing exhibits taken before the Interstate other lumber-carrying roads,” who, with Commerce Commission, should be filed in them, were "comembers of the Southeastern the case, subject only to objections to its Freight Association.” The petition also relevancy. In addition to such testimony charged that the advance was “arbitrary, other evidence was submitted to the cirunreasonable, and unjust," and prayed for 'cuit court, and that court rendered a decree July, 1905, that the advance in rates "frommerce act, a suit in equity is also forlumber-shipping points within the state of bidden to prevent a filing or enforcement Georgia to Cincinnati, Louisville, Evans- of a schedule of unreasonable rates or a ville, Cairo, and points on the Ohio river or change to unjust or unreasonable rates. crossings was and is excessive, unreason. The circuit court granted no relief prejable, and unjust, and in violation of the udicial to appellants on the original bill. provisions of the act of Congress known as It sent the parties to the Interstate Comthe act to regulate commerce, and the merce Commission, where, upon sufficient amendments thereto, and that the rates and pleadings, identical with those before the charges resulting from said advance are court, and upon testimony adduced upon likewise excessive, unreasonable, and un- | the issues made, the decision was adverse just, and in violation of the act to regulate to the appellants. This action of the Comcommerce." The appellants were enjoined, mission, with its findings and conclusions, as we have already said, from enforcing the was presented to the circuit court, and it advance.
was upon these, in effect, the decree of the The decree also directed an order of ref. court was rendered. There was no demurerence to the standing master of the plead- rer to that petition, and the testimony takings and evidence in the cause, with instruc- en before the Commission was stipulated intions to ascertain the sum total of the in- to the case, and the opinion of the court crease in rates paid by each of the appellees recites that, "with equal meritorious purand other members of the Georgia Saw pose, counsel for the respective parties Mill Association to either or all of the ap- agreed that this would stand for and be pellants since the rate went into effect. the hearing for final decree in equity." This was done, the decree recited, in pur- It was certainly competent for the apsuance of a stipulation made by the re- pellees to proceed in the circuit court unspondents (appellants) in open court that, der § 16 of the interstate commerce act in case the complainants (appellees) pre- (24 Stat. at L. 379, chap. 104, U. S. Comp. vailed, decree of restitution might be made. Stat. 1901, p. 3154) and to apply by petition 138 Fed. 753. The decree was affirmed by to the circuit court, “sitting in equity," the circuit court of appeals without an
an for the court to hear and determine the opinion.
matter “as a court of equity,” and issue an On the merits, as distinguished from the injunction "or other proper process, mandaquestions which concern the jurisdiction and tory or otherwise,” to enforce the order of procedure in the circuit court, this case is, the Commission. We think that, under the though variant in some detail of facts, sim- broad powers conferred upon the circuit ilar in principle and depends upon the same court by $ 16 and the direction there given legal considerations as Illinois C. R. Co. v. to the court to proceed with efficiency, but Interstate Commerce Commission, just decid- without the formality of equity proceedings, ed. [206 U. S. 441, 51 L. ed. — 27 Sup. Ct. "but in such manner as to do justice in the Rep. 700.] The advance here involved grew premises,” and in view of the stipulation out of the same action by the railroads of the parties, recited in the decree of the there considered, and is the advance there court, the appellants are precluded from referred to as having been made west of the making the objection that the court did not Mississippi. This case was argued and sub- have jurisdiction to entertain the petition mitted with that and depends on the same and grant the relief prayed for and deultimate contentions. We need not repeat creed. the discussion of those contentions, nor But objection is made to the extent trace out or dwell upon the many sub- of the decree. Indeed, the objection may be sidiary considerations which the assign- said to go farther back, and is based on the ments of error and the elaborate briefs of bill itself, on the ground that "pecuniary counsel present.
reparation was demanded” in it, and "such In the case at bar, however, there are as- payment necessarily involves a trial by signments of error based on the objections jury, guaranteed by the Constitution of the to the jurisdiction of the circuit court. United States.” And further, that each These might present serious questions in complainant is separately interested in any view of our decision in Texas & P. R. Co. amount which may be recovered. The speV. Abilene Cotton Oil Co. 204 U. S. 426, 51cific part of the decree which is objected to L. ed. 553, 27 Sup. Ct. Rep. 350, upon a dif- is as follows: ferent record than that before us. We are “Third. That an order be taken referring not required to say, however, that because to the standing master of this court, J. N. an action at law for damages to recover Talley, Esquire, the pleadings and evidence unreasonable rates which have been exact- in this cause, with instructions to ascertain ed in accordance with the schedule of rates the sum total of the increase in rates paid as filed, is forbidden by the interstate com-' by each of the complainants and other
members of the Georgia Saw Mill Associa- , case, however, which precludes the parties, tion to either or all of the defendant com- after action by the Commission declaring panies, since the rate went into effect, and rates unreasonable, from stipulating in the to the end of the litigation, and report such proceedings prosecuted under § 16 that the amount to the court in order that, pursuant court adjudge the amount of reparation. to the stipulation made by the respondents By the action of the Commission the founin open court, in case the complainants dation for reparation, as provided in the prevailed, decree of restitution may be interstate commerce act, was established, made."
and the inquiry submitted to the court The errors assigned against this part of was but of its amount, and had the the decree are: (a) That there is nothing in natural and justifiable inducement to the pleadings or the evidence to justify any end all the controversies between the parreference. (b) The master should only have ties without carrying part of them to anbeen ordered to ascertain the sum total of other tribunal. We do not understand that the advance paid by each of the appellees as the assignment of errors questions the truth is unreasonable and unjust. (c) That no of the recital in the decree that the refmembers of the Georgia Saw Mill Associa- erence was made in pursuance of the stipution except the complainants (appellees) | lation in open court, and it is upon the had themselves been made parties to the stipulation we rest our decision. It is said, cause prior to the rendition of the decree of however, that it was stipulated that resJuly 8, 1905, and, therefore, no reference titution should only be made in the event should have been made to ascertain the the appellees prevailed. Necessarily it was amounts paid by such other members. (d) so dependent. So was every part of the The master should not have been ordered to relief prayed by the appellees. The dereport any amount at all. (e) No stipula- cree was the first judgment that they tion was made by appellants that a decree should prevail, and properly provided for of restitution should be made except “in the satisfaction of all the relief dependent the event that complainants (appellees) fin- upon their success. Of course, what was ally prevail, and whether they finally pre- granted by the decree was subject to review vail cannot be known until the determina- and change or defeat in the circuit court of tion of this appeal.”
appeals and in this court. But it equally In support of these contentions appellants was subject to affirmance, and was put in rely on Texas & P. R. Co. v. Abilene Cot- such form and made such provision as made ton Oil Co. supra. In that case the Abilene it ready to be executed upon affirmance. Cotton Oil Company sued in one of the The objection that the reference is too courts in Texas to recover the excess of broad is not of substance. What the court what it alleged to be an unjust and unrea- may award upon the coming in of the resonable charge on shipments of car loads port of the master we cannot know. Preof cotton seed. The defense was that the sumably it will make the reparation aderates were charged according to the sched-quate for the injury, and award only the ule of rates filed under the interstate com- advance on the old rate, and to those who merce act, and that the court had no juris- are parties to the cause. diction to grant relief upon the basis that Decree affirmed. the established rate was unreasonable, when it had not been found to be so by the In- Mr. Justice Moody took no part in the terstate Commerce Commission. The de decision of this case. fense prevailed in the trial court, but did not prevail in the court of civil appeals, Mr. Justice Brewer dissented. where judgment was rendered in favor of the cotton oil company. The judgment was reversed by this court on the ground that the state courts had no jurisdiction to en- / JAMES BUCK, Trustee under the Will of tertain a suit based on the unreasonableness
Job M. Nash, Deceased, Plff. in Err., of a rate as published in advance of the ac
WILLIAM E. BEACH, Treasurer of Tippetion of the Interstate Commerce Commis
canoe County, Indiana. sion adjudging the rate unreasonable. And it was in effect held that reparation after Taxes--situs-property of nonresident. such action for the excess above a reason
The state of Indiana cannot, consistable rate must be by a proceeding before ently with due process of law, tax debts the Commission, “because of a wrong en
evidenced by notes given and payable in
Ohio, by residents of that state, to a residured during the period when the unreason
dent of New York, for loans made in Ohio able schedule was enforced by the carrier
on lands there situated, merely because, in and before its change and the establishment the attempt to escape proper taxation in of a new one.” There is nothing in that Ohio, such notes, together with mortgages
securing their payment, were sent to an In- | the state of Ohio. From this fund, in the diana agent of the payee, there to be held hands of Buck, the defendant in error asked by him until they were needed in Ohio to to have the taxes paid which had been ashave payments of interest indorsed, or to sessed, as above stated, and which he . be delivered up if the principal were paid.
claimed were due the state. This was re
fused, and this action was thereupon com[No. 14.]
menced. Argued March 22, 1907. Decided May 27,
A former action had been brought by the 1907.
trustees for relief by injunction against the predecessor of the defendant in error to
State of Indiana to review a judgment with the trust fund for the payment of the which affirmed a judgment of the Warren taxes in dispute, and in that action the Circuit Court, in that state, sustaining a trustees had been unsuccessful. Buck v. tax on certain intangible property of a non-Miller, 147 Ind. 586, 37 L.R.A. 384, 62 Am. resident. Reversed and remanded for fur- St. Rep. 436, 45 N. E. 617, 47 N. E. 8, dether proceedings.
cided in 1896. See same case below, 164 Ind. 37, 108 The amount assessed on the estate of Am. St. Rep. 272, 71 N. E. 963.
decedent upon the "Ohio notes” from 1891
to 1893, on account of omitted assessments Statement by Mr. Justice Peckham: during those years, aside from the penalties
Judgment against the plaintiff in error for nonpayment, was $36,357.71. (who was defendant below) was recovered During the above-mentioned years, while in a state circuit court in Indiana, which the deccdent was, as stated, a resident of was affirmed by the supreme court of the the state of New York, he had a large sum state (164 Ind. 37, 108 Am. St. Rep. 272, of money invested in the states of Ohio and 71 N. E. 963), and the plaintiff in error Indiana, approximating $750,000. The monbrings the case here to review that judg-ey loaned by him in Ohio was evidenced by ment. The predecessor of the defendant in Ohio notes, made by the borrowers, who error, being at the time treasurer of Tip were residents of Ohio, the payment of the pecanoe county, in the state of Indiana, money borrowed being secured by mortgages brought this action in 1897 against the on lands situated in Ohio.
The moneys plaintiff in error to subject funds in his loaned in Ohio were loaned through an hands to the payment of taxes alleged to agent of Mr. Nash, residing in Cincinnati. be due from the estate of one Job M. Nash, The notes were dated and payable in Cindeceased, which taxes had been assessed in cinnati, to the order of Mr. Nash, but were above county and state in 1894, after the not indorsed by him, and all renewals and death of Nash, on personal property of the payments on account of them were made to deceased that had been omitted from the his agent in Cincinnati. All moneys paid tax list in his lifetime, during the years upon or by reason of these notes were de1881 to 1893, both inclusive.
posited in a bank in Cincinnati to the credThe point in dispute between the parties it of Mr. Nash, and no part thereof was relates to the assessment for omitted prop- sent to Indiana. The Cincinnati agent comerty on what are called the "Ohio notes," menced loaning decedent’s money about the plaintiff in error insisting that such as- 1860, and, upon the removal of decedent to sessment was illegal as beyond the juris- New York in 1870, and until his death, in diction of the state to impose.
1893, the agent made investments on deceThe material facts are not really in dis- dent's behalf in Ohio, collected the principal pute. It appears that Nash died in 1893, and interest upon his mortgage loans, and at that time, and for more than twenty had general charge of his financial interests years prior thereto, a resident of the city in that state. and state of New York. He left a will James Buck was the agent of decedent at which was admitted to probate in Hamilton Lafayette, in the state of Indiana, for many county, Ohio, and his executors qualified years preceding the death of Mr. Nash. there. They thereafter refused to pay the The Ohio notes were sent to him from Cintax imposed upon the Ohio notes in Indiana. cinnati by the agent there, during the years By the terms of the will a trust was cre- in question, together with the mortgages ated, and part of the personal property con- securing the payment of the notes, and stituting such trust (more than enough to they were kept in a safe at Lafayette, Inpay the taxes in dispute) was turned over diana, by Mr. Buck, but no business was to James Buck, plaintiff in error and one of transacted in regard to them nor any use the two trustees named in the will. He resid- made of them in Indiana, otherwise than ed in Lafayette, in the state of Indiana, and that a short time before the interest on the other trustee resided in Cincinnati, in or principal of the notes became due they
were sent to the Ohio agent to have the regard to the taxability of the Ohio notes interest payments made to him indorsed in the state of Indiana. upon them, or to be delivered up if the The plaintiff in error asserts that the principal were paid.
simple physical presence of the Ohio notes Nothing else was done in Indiana in re- in Indiana, payable to, and not indorsed by, gard to the notes, except that a few days the decedent, did not constitute taxable prior to the 1st day of April in each year property there, because such notes were (which is the day upon which assessments given and were payable and were paid in for taxes are, by law, made in the state of Ohio, by residents of Ohio, and to a nonIndiana) Mr. Buck sent the notes and mort- resident of Indiana, and for loans made in gages to the Ohio agent, and a few days Ohio, the capital represented by such notes . subsequent .to that day in each year the never having been used in business in Insame were returned by the Ohio agent to diana, and he insists that a tax upon such Mr. Buck, who retained them in his posses-capital or upon the notes themselves as sion.
representing that capital, is an illegal tax, When the Ohio notes and mortgages were and that to take property in payment of sent from Cincinnati to Mr. Buck by the such an illegal tax is to take it without Ohio agent, Mr. Buck made a record of their due process of law, and constitutes a vioreceipt in a book kept by him for that pur- lation of the 14th Amendment. pose, showing the dates and amounts of If the facts in this case constituted the the notes and when due, and whenever pay- debts evidenced by the Ohio notes property ment or renewal of said notes was reported in the jurisdiction of the state of Indiana by the Ohio agent to the Indiana agent, he at the time when such taxes were imposed, made entries of the facts in the register then the tax was valid, if there were statukept by him.
tory authority of that state for the same. Mr. Buck also had possession of the notes The state court has held that there was and mortgages given to Mr. Nash for mon- such authority (Buck v. Miller, 147 Ind. eys loaned in the state of Indiana, and 586, 37 L.R.A. 384, 62 Am. St. Rep. 436, 45 such moneys were invested and reinvested N. E. 647, 47 N. E. 8; Buck v. Beach, 164 in that state during these years, and the Ind. 37, 108 Am. St. Rep. 272, 71 N. E. 963, taxes thereon were duly paid.
being the case at bar), and that construcMr. Buck transacted no business directly tion of the statute concludes this court with the makers of the Ohio notes or mort- (Delaware L. & W. R. Co. v. Pennsylvania, gages, but, as stated, sent the notes to the 198 U. S. 341, 352, 49 L. ed. 1077, 1081, 25 Ohio agent for any business to be done in Sup. Ct. Rep. 669). regard to them.
The sole question, then, for this court, During Mr. Buck's agency money was is whether the mere presence of the notes sometimes sent to him at Lafayette from in Indiana constituted the debts of which Cincinnati to be invested, which money was
the notes were the written evidence propplaced on deposit in the bank in Indiana erty within the jurisdiction of that state,
so that such debts could be therein taxed. and loaned for Mr. Nash. Such moneys have nothing to do with the “Ohio notes” subject of taxation, must be within the ju
Generally, property, in order to be the in issue in this action.
risdiction of the power assuming to tax. During these years, at least from 1886, State Tax on Foreign-held Bonds, 15 Wall. Mr. Buck was authorized by virtue of a 300, 21 L. ed. 179; New York, L. E. & W. power of attorney from Mr. Nash to sat- R. Co. v. Pennsylvania, 153 U. S. 628, 646, 38 isfy when due and when the money was L. ed. 846, 852, 14 Sup. Ct. Rep. 952; Savpaid all notes and mortgages; but, so far ings & L. Soc. v. Multnomah County, 169 as the Ohio notes and mortgages were con-U. S. 421, 427, 42 L. ed. 803, 805, 18 Sup. cerned, he never assumed to satisfy any of Ct. Rep. 392; Louisville & J. Ferry Co. v. them or receive payment for the same. Kentucky, 188 U. S. 385, 47 L. ed. 513, 23 That was all done by the Ohio agent at Sup. Ct. Rep. 463; Delaware, L. & W. R. Co. Cincinnati.
v. Pennsylvania, 198 U. S. 342, 49 L. ed.
1077, 25 Sup. Ct. Rep. 669; Union RefrigerMessrs. Byron W. Langdon and W. H. H. ator Transit Co. v. Kentucky, 199 U. S. 194, Miller for plaintiff in error.
50 L. ed. 150, 26 Sup. Ct. Rep. 36; MetroMessrs. Will R. Wood, Cassius C. Hadley, politan L. Ins. Co. v. New Orleans, 205 U. and J. Frank Hanly for defendant in error. S. 39., 51 L. ed. 853, 27 Sup. Ct. Rep. 499.
In regard to tangible property the old Mr. Justice Peckham, after making the rule was mobilia sequuntur personam, by foregoing statement, delivered the opinion which personal property was supposed to of the court:
follow the person of its owner, and to be The only question involved here is in subject to the law of the owner's domicil.