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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 advance. All of the appellants except the

Mr. Justice McKenna delivered the opin- Macon & Birmingham Railway Company ion of the court:

This is an appeal from a decree of the circuit court of appeals affirming a decree of the circuit court for the southern district of Georgia, adjudging an advance in freight rates made by appellants, to be effective June 22, 1903, upon yellow pine lumber, of 2 cents per 100 pounds over rates previously in force, to be unjust and unreasonable, and enjoining the appellants, jointly and severally, from maintaining the same, "in so far as they apply to shipments of lumber from points in Georgia to Ohio river destinations and points basing thereon."

filed a joint and several answer, in which
they traversed the allegations of the peti-
tion and pleaded justification by the condi-
tions affecting the roads and the traffic.
They also alleged that the Georgia Saw
Mill Association, to which appellees be-
longed, was a combination in restraint of
trade and commerce, and that, therefore,
appellees did not "come before the Commis-
sion with clean hands." A great deal of
testimony was taken on the issues present-
ed, and the Commission found and con-
cluded that the advance in rates "was not
warranted by the testimony, and that the
increased rates put in force June 22, 1903,
were unreasonable and unjust."
The spe-
cific findings and conclusions of the Com-
mission are reported in 10 Inters. Com. Rep.
548. After the petition was filed before
the Interstate Commerce Commission, but
before final action, appellees filed an amend-
ed bill and again moved the circuit court for
an injunction. In the amended bill it was
alleged that appellants, after the dissolution
of the restraining order, filed with the In-
terstate Commerce Commission and gave
public notice that on June 22, 1903, the ad-
vance in sales on lumber would be estab-

The original bill was filed April 14, 1903, by appellees, to enjoin such advance in rates, and a temporary restraining order was issued and notice to appellants to show cause why an injunction should not issue. On May 8 the bill was amended. On May 12 the appellants filed a demurrer to the amended bill for want of jurisdiction in the court as a court of equity and as a court of the United States, and the Southeastern Freight Association filed an answer. Appellants also filed a response to the order to show cause. On May 16 the demurrer was overruled. The temporary injunc-lished and put in effect, and such advance tion was, however, dissolved, but the following condition was expressed:

"In case the respondents shall enforce the rates complained of, and the complainants shall make proper application to the Interstate Commerce Commission to redress their alleged grievances, the court will entertain a renewed application on the record as made, and such appropriate additions thereto as may be proposed by either party, for enoining the enforcement of such rates pending the investigation of the Commission, unless otherwise dissolved, and, on presentation to the court of the report of the Commission, such other action be taken as will be conformable to law and the principles of equity." 138 Fed. 756.

The appellants took the steps prescribed by the interstate commerce act to put the advanced rates into effect, and the appellees, on June 23, 1903, filed a petition before the Interstate Commerce Commission, eging that "in promulgating said tariff o increased rates, and maintaining and enforcing the same," the appellants were acting "in concert with each other and with other lumber-carrying roads," who, with them, were "comembers of the Southeastern Freight Association." The petition also charged that the advance was "arbitrary, unreasonable, and unjust," and prayed for

became effective June 22, 1903. The appellants, in a joint and several answer, admitted the averments of the amended bill, but reserved the benefit of their demurrer to the original bill. The motion for an injunction was dismissed. 123 Fed. 789.

The Commission made its order hereinbefore referred to on the 7th of February, 1905, and on March 17, 1905, the appellees presented a petition to the circuit court stating the substance of the findings of the Commission, and attaching a copy of its report and opinion.

An order to show cause was issued. On June 3, 1905, appellants filed a joint and several answer, which was verified. The Southeastern Association answered separately. The appellees also filed a supplemental bill, the purpose of which was to obtain restitution of the excess of rates charged over those which it was alleged were reasonable. To this bill a demurrer was filed.

It was stipulated by counsel of the respective parties that the testimony, including exhibits taken before the Interstate Commerce Commission, should be filed in the case, subject only to objections to its relevancy. In addition to such testimony other evidence was submitted to the circuit court, and that court rendered a decree

July, 1905, that the advance in rates "from lumber-shipping points within the state of Georgia to Cincinnati, Louisville, Evansville, Cairo, and points on the Ohio river or crossings was and is excessive, unreasonable, and unjust, and in violation of the provisions of the act of Congress known as the act to regulate commerce, and the amendments thereto, and that the rates and charges resulting from said advance are likewise excessive, unreasonable, and unjust, and in violation of the act to regulate commerce." The appellants were enjoined, as we have already said, from enforcing the advance.

merce act, a suit in equity is also forbidden to prevent a filing or enforcement of a schedule of unreasonable rates or a change to unjust or unreasonable rates. The circuit court granted no relief prejudicial to appellants on the original bill. It sent the parties to the Interstate Commerce Commission, where, upon sufficient pleadings, identical with those before the court, and upon testimony adduced upon the issues made, the decision was adverse to the appellants. This action of the Commission, with its findings and conclusions, was presented to the circuit court, and it 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 pursuance of a stipulation made by the respondents (appellants) in open court that, in case the complainants (appellees) prevailed, decree of restitution might be made. 138 Fed. 753. The decree was affirmed by the circuit court of appeals without an opinion.

On the merits, as distinguished from the questions which concern the jurisdiction and procedure in the circuit court, this case is, though variant in some detail of facts, similar in principle and depends upon the same legal considerations as Illinois C. R. Co. v. Interstate Commerce Commission, just decided. [206 U. S. 441, 51 L. ed., 27 Sup. Ct. Rep. 700.] The advance here involved grew out of the same action by the railroads there considered, and is the advance there referred to as having been made west of the Mississippi. This case was argued and submitted with that and depends on the same ultimate contentions. We need not repeat the discussion of those contentions, nor trace out or dwell upon the many subsidiary considerations which the assignments of error and the elaborate briefs of counsel present.

In the case at bar, however, there are assignments of error based on the objections to the jurisdiction of the circuit court. These might present serious questions in view of our decision in Texas & P. R. Co. v. Abilene Cotton Oil Co. 204 U. S. 426, 51 L. ed. 553, 27 Sup. Ct. Rep. 350, upon a different record than that before us. We are not required to say, however, that because an action at law for damages to recover unreasonable rates which have been exacted in accordance with the schedule of rates as filed, is forbidden by the interstate com

It was certainly competent for the appellees to proceed in the circuit court under § 16 of the interstate commerce act (24 Stat. at L. 379, chap. 104, U. S. Comp. Stat. 1901, p. 3154) and to apply by petition to the circuit court, "sitting in equity," for the court to hear and determine the matter "as a court of equity," and issue an injunction "or other proper process, mandatory or otherwise," to enforce the order of the Commission. We think that, under the broad powers conferred upon the circuit court by § 16 and the direction there given to the court to proceed with efficiency, but without the formality of equity proceedings, "but in such manner as to do justice in the premises," and in view of the stipulation of the parties, recited in the decree of the court, the appellants are precluded from making the objection that the court did not have jurisdiction to entertain the petition and grant the relief prayed for and decreed.

But objection is made to the extent of the decree. Indeed, the objection may be said to go farther back, and is based on the bill itself, on the ground that "pecuniary reparation was demanded" in it, and "such payment necessarily involves a trial by jury, guaranteed by the Constitution of the United States." And further, that each complainant is separately interested in any amount which may be recovered. The specific part of the decree which is objected to is as follows:

"Third. That an order be taken referring to the standing master of this court, J. N. Talley, Esquire, the pleadings and evidence in this cause, with instructions to ascertain the sum total of the increase in rates paid by each of the complainants and other

L

members of the Georgia Saw Mill Associa-, case, however, which precludes the parties,
tion to either or all of the defendant com-
panies, since the rate went into effect, and
to the end of the litigation, and report such
amount to the court in order that, pursuant
to the stipulation made by the respondents
in open court, in case the complainants
prevailed, decree of restitution may be
made."

|

after action by the Commission declaring rates unreasonable, from stipulating in the proceedings prosecuted under § 16 that the court adjudge the amount of reparation. By the action of the Commission the foundation for reparation, as provided in the interstate commerce act, was established, 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) (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 (e) No stipula- cree was the first judgment that they tion was made by appellants that a decree of restitution should be made except "in the event that complainants (appellees) finally prevail, and whether they finally prevail cannot be known until the determination of this appeal."

should prevail, and properly provided for the satisfaction of all the relief dependent upon their success. Of course, what was granted by the decree was subject to review and change or defeat in the circuit court of appeals and in this court. But it equally was subject to affirmance, and was put in such form and made such provision as made it ready to be executed upon affirmance.

The objection that the reference is too broad is not of substance. What the court may award upon the coming in of the report of the master we cannot know. Presumably it will make the reparation ade

advance on the old rate, and to those who are parties to the cause.

Decree affirmed.

In support of these contentions appellants rely on Texas & P. R. Co. v. Abilene Cotton Oil Co. supra. In that case the Abilene Cotton Oil Company sued in one of the courts in Texas to recover the excess of what it alleged to be an unjust and unreasonable charge on shipments of car loads of cotton seed. The defense was that the rates were charged according to the sched-quate for the injury, and award only the ule of rates filed under the interstate commerce act, and that the court had no jurisdiction to grant relief upon the basis that the established rate was unreasonable, when it had not been found to be so by the Interstate Commerce Commission. The defense prevailed in the trial court, but did not prevail in the court of civil appeals, 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 entertain a suit based on the unreasonableness of a rate as published in advance of the action of the Interstate Commerce Commission adjudging the rate unreasonable. And it was in effect held that reparation after such action for the excess above a reason

able rate must be by a proceeding before
the Commission, "because of a wrong en-
dured during the period when the unreason-
able schedule was enforced by the carrier
and before its change and the establishment
of a new one." There is nothing in that

Mr. Justice Moody took no part in the decision of this case.

Mr. Justice Brewer dissented.

JAMES BUCK, Trustee under the Will of
Job M. Nash, Deceased, Plff. in Err.,
WILLIAM E. BEACH, Treasurer of Tippe-
canoe County, Indiana.

V.

Taxes-situs-property of nonresident.

The state of Indiana cannot, consistently with due process of law, tax debts evidenced by notes given and payable in Ohio, by residents of that state, to a resident of New York, for loans made in Ohio on lands there situated, merely because, in the attempt to escape proper taxation in Ohio, such notes, together with mortgages

securing their payment, were sent to an Indiana agent of the payee, there to be held by him until they were needed in Ohio to have payments of interest indorsed, or to be delivered up if the principal were paid.

[No. 14.]

Argued March 22, 1907. Decided May 27, 1907.

N ERROR to the Supreme Court of the State of Indiana to review a judgment which affirmed a judgment of the Warren Circuit Court, in that state, sustaining a tax on certain intangible property of a nonresident. Reversed and remanded for further proceedings.

See same case below, 164 Ind. 37, 108 Am. St. Rep. 272, 71 N. E. 963.

the state of Ohio. From this fund, in the
hands of Buck, the defendant in error asked
to have the taxes paid which had been as-
sessed, as
sessed, as above
above stated, and which he
claimed were due the state. This was re-
fused, and this action was thereupon com-
menced.

A former action had been brought by the trustees for relief by injunction against the predecessor of the defendant in error to enjoin him from seizing upon or interfering with the trust fund for the payment of the taxes in dispute, and in that action the trustees had been unsuccessful. Buck v. Miller, 147 Ind. 586, 37 L.R.A. 384, 62 Am. St. Rep. 436, 45 N. E. 647, 47 N. E. 8, decided in 1896.

The amount assessed on the estate of decedent upon the "Ohio notes" from 1884 to 1893, on account of omitted assessments during those years, aside from the penalties for nonpayment, was $36,357.71.

During the above-mentioned years, while the decedent was, as stated, a resident of the state of New York, he had a large sum of money invested in the states of Ohio and Indiana, approximating $750,000. The mon

Statement by Mr. Justice Peckham: Judgment against the plaintiff in error (who was defendant below) was recovered in a state circuit court in Indiana, which was affirmed by the supreme court of the state (164 Ind. 37, 108 Am. St. Rep. 272, 71 N. E. 963), and the plaintiff in error brings the case here to review that judg-ey loaned by him in Ohio was evidenced by ment. The predecessor of the defendant in error, being at the time treasurer of Tippecanoe county, in the state of Indiana, brought this action in 1897 against the plaintiff in error to subject funds in his hands to the payment of taxes alleged to be due from the estate of one Job M. Nash, deceased, which taxes had been assessed in above county and state in 1894, after the death of Nash, on personal property of the deceased that had been omitted from the tax list in his lifetime, during the years 1881 to 1893, both inclusive.

The point in dispute between the parties relates to the assessment for omitted property on what are called the "Ohio notes," the plaintiff in error insisting that such assessment was illegal as beyond the jurisdiction of the state to impose.

The material facts are not really in dispute. It appears that Nash died in 1893, at that time, and for more than twenty years prior thereto, a resident of the city and state of New York. He left a will which was admitted to probate in Hamilton county, Ohio, and his executors qualified there. They thereafter refused to pay the tax imposed upon the Ohio notes in Indiana. By the terms of the will a trust was created, and part of the personal property constituting such trust (more than enough to pay the taxes in dispute) was turned over to James Buck, plaintiff in error and one of the two trustees named in the will. He resided in Lafayette, in the state of Indiana, and the other trustee resided in Cincinnati, in

The moneys

Ohio notes, made by the borrowers, who
were residents of Ohio, the payment of the
money borrowed being secured by mortgages
on lands situated in Ohio.
loaned in Ohio were loaned through an
agent of Mr. Nash, residing in Cincinnati.
The notes were dated and payable in Cin-
cinnati, to the order of Mr. Nash, but were
not indorsed by him, and all renewals and
payments on account of them were made to
his agent in Cincinnati. All moneys paid
upon or by reason of these notes were de-
posited in a bank in Cincinnati to the cred-
it of Mr. Nash, and no part thereof was
sent to Indiana. The Cincinnati agent com-
menced loaning decedent's money about
1860, and, upon the removal of decedent to
New York in 1870, and until his death, in
1893, the agent made investments on dece-
dent's behalf in Ohio, collected the principal
and interest upon his mortgage loans, and
had general charge of his financial interests
in that state.

James Buck was the agent of decedent at Lafayette, in the state of Indiana, for many years preceding the death of Mr. Nash. The Ohio notes were sent to him from Cincinnati by the agent there, during the years in question, together with the mortgages securing the payment of the notes, and they were kept in a safe at Lafayette, Indiana, by Mr. Buck, but no business was transacted in regard to them nor any use made of them in Indiana, otherwise than that a short time before the interest on or principal of the notes became due they

were sent to the Ohio agent to have the interest payments made to him indorsed upon them, or to be delivered up if the principal were paid.

regard to the taxability of the Ohio notes in the state of Indiana.

The plaintiff in error asserts that the simple physical presence of the Ohio notes in Indiana, payable to, and not indorsed by, the decedent, did not constitute taxable property there, because such notes were given and were payable and were paid in Ohio, by residents of Ohio, and to a non

Nothing else was done in Indiana in regard to the notes, except that a few days prior to the 1st day of April in each year (which is the day upon which assessments for taxes are, by law, made in the state of Indiana) Mr. Buck sent the notes and mort-resident of Indiana, and for loans made in gages to the Ohio agent, and a few days subsequent .to that day in each year the same were returned by the Ohio agent to Mr. Buck, who retained them in his possession.

Ohio, the capital represented by such notes. never having been used in business in Indiana, and he insists that a tax upon such capital or upon the notes themselves as representing that capital, is an illegal tax, and that to take property in payment of such an illegal tax is to take it without. due process of law, and constitutes a vio

When the Ohio notes and mortgages were sent from Cincinnati to Mr. Buck by the Ohio agent, Mr. Buck made a record of their receipt in a book kept by him for that pur-lation of the 14th Amendment. pose, showing the dates and amounts of the notes and when due, and whenever payment or renewal of said notes was reported by the Ohio agent to the Indiana agent, he made entries of the facts in the register kept by him.

Mr. Buck also had possession of the notes and mortgages given to Mr. Nash for moneys loaned in the state of Indiana, and such moneys were invested and reinvested in that state during these years, and the taxes thereon were duly paid.

Mr. Buck transacted no business directly with the makers of the Ohio notes or mortgages, but, as stated, sent the notes to the Ohio agent for any business to be done in regard to them.

During Mr. Buck's agency money was sometimes sent to him at Lafayette from Cincinnati to be invested, which money was placed on deposit in the bank in Indiana and loaned for Mr. Nash. Such moneys have nothing to do with the "Ohio notes"

in issue in this action.

During these years, at least from 1886, Mr. Buck was authorized by virtue of a power of attorney from Mr. Nash to satisfy when due and when the money was paid all notes and mortgages; but, so far as the Ohio notes and mortgages were concerned, he never assumed to satisfy any of them or receive payment for the same. That was all done by the Ohio agent at Cincinnati.

If the facts in this case constituted the debts evidenced by the Ohio notes property in the jurisdiction of the state of Indiana at the time when such taxes were imposed, then the tax was valid, if there were statutory authority of that state for the same. The state court has held that there was such authority (Buck v. Miller, 147 Ind. 586, 37 L.R.A. 384, 62 Am. St. Rep. 436, 45 N. E. 647, 47 N. E. 8; Buck v. Beach, 164 Ind. 37, 108 Am. St. Rep. 272, 71 N. E. 963, being the case at bar), and that construction of the statute concludes this court (Delaware L. & W. R. Co. v. Pennsylvania, 198 U. S. 341, 352, 49 L. ed. 1077, 1081, 25 Sup. Ct. Rep. 669).

The sole question, then, for this court, is whether the mere presence of the notes in Indiana constituted the debts of which the notes were the written evidence property within the jurisdiction of that state,

so that such debts could be therein taxed.

subject of taxation, must be within the juGenerally, property, in order to be the risdiction of the power assuming to tax. State Tax on Foreign-held Bonds, 15 Wall. 300, 21 L. ed. 179; New York, L. E. & W. R. Co. v. Pennsylvania, 153 U. S. 628, 646, 38 L. ed. 846, 852, 14 Sup. Ct. Rep. 952; Savings & L. Soc. v. Multnomah County, 169 U. S. 421, 427, 42 L. ed. 803, 805, 18 Sup. Ct. Rep. 392; Louisville & J. Ferry Co. v. Kentucky, 188 U. S. 385, 47 L. ed. 513, 23 Sup. Ct. Rep. 463; Delaware, L. & W. R. Co. v. Pennsylvania, 198 U. S. 342, 49 L. ed. 1077, 25 Sup. Ct. Rep. 669; Union Refriger

Messrs. Byron W. Langdon and W. H. H. ator Transit Co. v. Kentucky, 199 U. S. 194, Miller for plaintiff in error.

Messrs. Will R. Wood, Cassius C. Hadley, and J. Frank Hanly for defendant in error.

Mr. Justice Peckham, after making the foregoing statement, delivered the opinion of the court:

50 L. ed. 150, 26 Sup. Ct. Rep. 36; Metropolitan L. Ins. Co. v. New Orleans, 205 U. S. 395, 51 L. ed. 853, 27 Sup. Ct. Rep. 499.

In regard to tangible property the old rule was mobilia sequuntur personam, by which personal property was supposed to 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.

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