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(45 S.Ct.)

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many other cir*cumstances. Thus, the Execu-
tive Council assesses the value of railways
in the state directly. It acts only as an
equalizing tribunal, however, upon assess-
ments on farm lands as between counties.
This distinction does not prevent equitable
relief. Even if the taxing tribunals were
different boards and if the complaining tax-
were intentionally
payers
against by the united action of two parts of
the taxing machinery of the state, relief
could be granted as shown in the authorities
above cited.

discriminated

there is an intentional systematic underval- Code Supplement of 1913, a railway is obliged uation by state officials of Iowa of other tax- to submit to the Council for its information able property of the same class, when the many details concerning its property, tangicomplainant's property is assessed and taxed ble and intangible, upon which to base an at a much higher rate. In such cases, the estimate of the value of the total property. federal authorities render it clear that the These include the par and market values of complainants may have the remedy by in- the stocks and bonds, its net income and junction in equity to prevent the taxation of their property at any higher rate than that imposed upon the property of those in whose favor the discrimination exists. Cummings v. National Bank, 101 U. S. 153, 160, 25 L. Ed. 903; Greene v. Louisville & Interurban R. Company, 244 U. S. 499, 516, 37 S. Ct. 673, 61 L. Ed. 1280, Ann. Cas. 1917E, 88; Taylor v. Louisville & Nashville R. R. Co., 88 F. 350, 31 C. C. A. 537. See, also, Sioux City Bridge Company v. Dakota County, Nebraska, 260 U. S. 441, 445, 43 S. Ct. 190, 67 L. Ed. 340, 28 A. L. R. 979; Sunday Lake Iron Company v. Wakefield Tp., 247 U. S. 350, 352, 38 S. Ct. 495, 62 L. Ed. 1154. It is not enough, in these cases, that the taxing officials have merely made a mistake. It is not enough that the court, if its judgment were properly invoked, would reach a different conclusion as to the taxes *imposed. There must be clear and affirmative showing that the difference is an intentional discrimination and one adopted as a practice. [5] In Iowa the value of farm lands is as-gible and intangible, were not assessed by the sessed by local assessors, who fix the value of the properties under section 1305 of the Code Supplement of 1913, in the various taxing districts. Their assessments are submitted to the local board of review of the taxing district, and that board hears the complaints on the part of the property owner or the part of the public, and makes its find-concluded they could not find that there was ings. This action is submitted to the county board of supervisors, which as a board of equalization adjusts and equalizes the findings between the taxing districts of the county. The results of action by the county supervisors are sent to the State Auditor, and

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[6] It was agreed between the parties that the average value for assessing farm lands was 61 per cent. The railway companies contended that the rate as fixed by the Council was very much higher than this for them. The three judges in the District Court found that the Executive Council might reasonably and without arbitrary or intentional discrimination reach the conclusion that the properties of the two companies in Iowa, tan

Executive Council in proportion to their actual value substantially more than the 61 per cent. imposed on farm lands. The court pointed out that railroad values were very difficult to fix and there was a wide range within which reasonable men might differ, and after an examination of the evidence,

any arbitrary and unconscionable difference between the values assessed upon the two kinds of property. One circumstance to which the judges below gave weight was the value ascribed to the properties of these two railway companies in Iowa by their own admissions in what is known as Ex parte 74,

an investigation by the Interstate Commerce Commission under the Transportation Act of 1920 (Comp. St. Ann. Supp. 1923, § 100711⁄4 et seq.).

It would take a very clear case upon the record to justify this court in setting aside the conclusion of a court of three judges

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by him are laid before the Executive Council sitting as a state board of equalization, which equalizes them so that there may be as nearly as possible uniformity as between the counties. By section 1350 of the Code, real estate is listed and valued each odd numbered year. Railway properties are valued for assessment in a different way from real estate under the provisions of section | under section 266 upon what is solely a *ques1336 of the Code of 1897. They are made upon the taxable value of the entire railway within the state and are made every year, and are distributed proportionately to the counties. In case a railway lies partly in the state and partly without it, the estimate of the value of its entire rolling stock and movable property is made after taking into consideration the proportion which the business of that part of the railway lying within the state bears to the business of the railway without the state. By section 1334 of the

tion of fact and an exercise of sound judicial discretion as to the just balance of convenience in granting or withholding a temporary suspension of the operation of a state law in the collection of taxes. This court must respect in the fullest degree the sensitiveness of Congress in hedging about the sovereign power of taxation by the states and precluding temporary federal judicial interference with it save in clear cases. present cases are not of that character. Affirmed.

The

(266 U. S. 209)

rule of the Roman civil law seems to have been the same as that of the common law. Such was the conclusion of the Supreme Decided Nov. 17, Court of Louisiana in a case which was

PANAMA R. CO. v. ROCK. (Submitted Oct. 6, 1924.

1924.)
No. 4.

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No private cause of action arises from death of human being in Panama, under Civ. Code Panama, § 2341, providing that one guilty of an offense or fault is obliged to repair it. Mr. Justice Holmes, Mr. Chief Justice Taft, Mr. Justice McKenna, and Mr. Justice Brandeis dissenting.

In Error to the United States Circuit Court of Appeals for the Fifth Circuit.

Action by James Rock against the Panama Railroad Company to recover damages for death of his wife. From a judgment of the Circuit Court of Appeals (272 Fed. 649) affirming a judgment for plaintiff, defendant brings error. Reversed.

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*Messrs. Walter F. Van Dame, of Enumclaw, Wash., J. Blanc Monroe, of New Orleans, La., and Albert C. Hindman, of Boise, Idaho, for plaintiff in error.

discussed with great fullness and learning
at the bar and well considered by that court
upon its original presentation and upon re-
hearing. Hubgh v. N. O. & C. R. Co., 6 La.
Ann. 495, 509-511.

maintainable under article 2341 of the Civil
Code of Panama, which became operative
in the Canal Zone by executive order of
May 9, 1904. That article reads:

But it is contended that the action is

"He who shall have been guilty of an offense
or fault, which has caused another damage, is
obliged to repair it, without prejudice to the
the fault or offense committed."
principal penalty which the law imposes for

The applicable passage of the Executive
Order is:

"The laws of the land, with which the inhab-
itants are familiar, and which were in force on
February 26, 1904, will continue in force in the
Canal Zone *
until altered or annulled

by the said Commission.

212

*The Act of Congress of August 24, 1912, c. 390, § 2, 37 Stat. 560, 561 (Comp. St. § 10038), had the effect of confirming this article as valid and binding within the Canal Zone.

The provision under consideration apparently was adopted from the Code of Chile by Mr. Wm. C. Todd, of Cristobal, Canal the several states of Colombia, the adoption Zone, for defendant in error.

Mr Justice SUTHERLAND delivered the opinion of the Court.

This is an action brought in the District Court for the Canal Zone by James Rock to recover damages for the death of his wife, alleged to have resulted in 1918 from the negligence of the railroad company, while she was being transported as a passenger. Upon the verdict of a jury, final judgment was rendered for plaintiff, which was affirmed by the Circuit Court of Ap

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peals. 272 F. 649. The sole question presented for our determination is whether, under the law of the Canal Zone then in force, there was a right of action.

by Panama being in 1860. The contention
is that the provision in the Chilean Code, in
substance, was taken from the Code Napo-
léon, and is to be found, also, in the Civil
Code of Spain; that both the French and
the Spanish courts had interpreted it as
justifying an action such as we are here
reviewing; and the familiar rule is invoked
that a provision adopted by one country
from the laws of another country is presum-
ed to carry with it the meaning which it had
acquired by the known and settled construc-
sions of the French courts were to the effect
tion of the latter. Undoubtedly the deci- .

stated. La Bourgogne, 210 U. S. 95, 138, 28 S.
Ct. 664, 52 L. Ed. 973. It must be borne in
mind, however, that the South American
[1] It is settled that at common law no
countries named were predominantly Span-
private cause of action arises from the death ish in race and language, and therefore it
of a human being. Insurance Co. v. Brame, may scarcely be doubted that the statute
95 U. S. 754, 756, 24 L. Ed. 580. The right
was taken directly from the Spanish and not
of action, both in this country and in Eng- the French Code. It follows that the pre-
land, depends wholly upon statutory author-sumption that the French construction was
ity. Dennick v. Railroad Co., 103 U. S. 11. adopted with the adoption of the statute
21, 26 L. Ed. 439; Seward v. The Vera Cruz. cannot be indulged. Texas & Pacific R. Co.
L. R. 10 App. Cas. 59. 70. This court, also
after elaborate consideration, held that no
such action could be maintained in the courts
of the United States under the general mari
time law. The Harrisburg, 119 U. S. 190
7 S. Ct. 140, 30 L. Ed. 358. And the general

"That all laws, orders, regulations, and ordirances adopted and promulgated in the Canal Zone by order of the President for the government and sanitation of the Canal Zone and the construction of the Panama Canal are hereby ratified and conirmed as valid and binding until Congress shall herwise provide."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(45 S.Ct.)

v. Humble, 181 U. S. 57, 65, 21 S. Ct. 526, 45 L. Ed. 747. Moreover, there is nothing in any of the circumstances called to our attention to support an inference that the statute was adopted with knowledge of the French construction. See Hunter v. Truckee Lodge, 14 Nev. 24, 38-40. The earliest decision of the Spanish courts of which we are informed was in 1894. Borrero v. Compañia

ma.

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Anonyma de la Luz Electrica, 1 Porto Rico Fed. 144, 147, long after the adoption of the statute by either Chile, Colombia, or PanaThe presumption in respect of the adoption of the Spanish construction, therefore, has no foundation upon which to rest and must, likewise, be rejected. Stutsman County v. Wallace, 142 U. S. 293, 312, 12 S. Ct. 227, 35 L. Ed. 1018.2 We are not advised that the courts of Chile had construed the provision prior to its adoption by Panama; and it is asserted, and not denied, that prior to its adoption by the executive order and congressional act, there had been no decision on the question by either the courts of Colombia or Panama.

It remains, then, only to inquire whether the asserted right of action exists in virtue of the language of the statute independently construed. Upon that question decisions of the various Spanish-speaking countries are of persuasive force only; and even that is overcome or greatly diminished when it is shown that the cognate statute in Porto Rico, and, for aught that appears to the contrary, in the other Spanish-speaking countries, is supported by procedural or other provisions lending aid to its construction

as a death statute. In the Borrero Case (page 146) it is said:

"Under the practice formerly existing in Porto Rico, in a proper case the law provided for, not only criminal proceedings, but for indemnification on account of the unlawful act to those entitled to it, all in the same proceeding; but those entitled to the civil indemnity could decline to proceed with the criminal action, and yet sue for civil liability. Article 16 of the Penal Code provided that one liable for a misdemeanor was also liable civilly. Both the penal and civil liability could be determined in the same proceeding; and article 123 provided: "The action to demand restitution, reparation, or indemnification is also transmitted to the heirs of the person injured.'"

#214

The Supreme Court of Louisiana in the Hubgh Case, supra, considering the similar provision in the Louisiana Code, held that it did not include a civil action for death. This conclusion was reached after submitting the language to the test of civil law as well as common law principles.

in the Canal Zone the laws of the land "with which the inhabitants are familiar," and this, in effect, was ratified by the act of Congress of 1912. Immediately following, the native population disappeared and the inhabitants of the Canal Zone since, largely American, have been only. employees of the Canal and of those doing business in the Zone, who it is to be presumed were familiar with the rule of the common law rather than the construction said to have been put upon the statute by the various Spanishspeaking countries. As early as 1910, the Supreme Court of the Canal Zone declared that the courts of the Zone were "in duty bound to follow the rules of statutory construction of the courts of common law and ascertain by them the meaning and spirit of the codes." Kung Ching Chong v. Wing Chong, 2 Canal Zone Supreme Court, 25, 30. In the later case of Fitzpatrick v. Panama Railroad Co., Id., 111, decided in 1913, the same court said (page 121):

"*** If there is doubt or uncertainty as to the construction and interpretation of the laws here existing prior to February 26, 1904, the courts of the Canal Zone should accept and adopt that construction which more clearly harmonizes with the recognized principles of jurisprudence prevailing in the United States."

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clude the right of action here asserted. It would not be difficult to find generalizations of the common law quite as comprehensive in terms as the provision now under review, as, for example, "There is no wrong without a remedy."3 But nevertheless, under the principles of the common law, it has required specific statutes to fix civil liability for death by wrongful act; and it is this requirement, rather than the construction put upon the statute in civil law countries, that the inhabitants of the Canal Zone are presumed to be familiar with, and which affords the rule by which the meaning and scope of the statute in question are to be determined.

Judgment reversed.

Mr. Justice HOLMES (dissenting). There is no dispute that the language of the Civil Code of Panama, § 2341, which has been quoted, is broad enough on its face to give an action for negligently causing the death

The executive order continued in force of the plaintiff's wife. Taken literally it

We have the authority of the Hubgh Case for the statement that the earlier Spanish law was to the contrary effect. 6 La. Ann. 510, 511.

The maxim was applied in Like v. McKinstry, 41 Barb. (N. Y.) 186, 188, to support a right of action for slander of title to personal property.

(266 U. S. 175)

HOUSE v. ROAD IMPROVEMENT DIST.
NO. 2 OF CONWAY COUNTY,
ARK., et al.

gives such an action in terms. The article
of the Code Napoléon from which it is said
to have been copied is construed by the
French Courts in accord with its literal
meaning. La Bourgogne, 210 U. S. 95, 138,
139, 28 S. Ct. 664, 52 L. Ed. 973. It would
seem natural and proper to accept the inter-
pretation given to the article at its source, | (Argued Oct. 17, 20, 1924. Decided Nov. 17,

SAME v. ROAD IMPROVEMENT DIST. NO.
5 OF CONWAY COUNTY, ARK., et al.

1924.)

Nos. 92 and 93.

396 (7)-To sustain writ of error in United States Supreme Court to Supreme Court of state, challenge of state statute must be distinct and substantial.

and by the more authoritative jurists who
have had occasion to deal with it, irrespec-
tive of whether that local interpretation was
before or after its adoption by Spanish. Courts
States, so long as nothing seriously to the
contrary is shown. The only thing that I
know of to the contrary is the tradition of
the later common law. The common law
view of the responsibility of a master for his
servant was allowed to help in the interpre-

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tation of an ambiguous statute in *Panama R. Co. v. Bosse, 249 U. S. 41, 45, 39 S. Ct. 211, 63 L. Ed. 466, for reasons there stated. But those reasons have far less application here, even if we refer to the common law apart from statute, and in any case are not enough to override the plain meaning of statutory words.

The common law as to master and servant, whatever may be thought of it, embodied a policy that has not disappeared from life But it seems to me that courts in dealing with statutes sometimes have been too slow

to recognize that statutes even when in terms covering only particular cases may imply a policy different from that of the common law. and therefore may exclude a reference to the common law for the purpose of limiting their scope. Johnson v. United States, 163 F. 30, 32, 89 C. C. A. 508, 18 L. R. A. (N. S.) 1194. Without going into the reasons for the notion that an action (other than an appeal) does not lie for causing the death of a human being, it is enough to say that they have disappeared. The policy that forbade such an action, if it was more profound than the absence of a remedy when a man's body was hanged and his goods confiscated for the felony, has been shown not to be the policy of present law by statutes of the United States and of most if not all of the states

In such circumstances it seems to me that we should not be astute to deprive the words

of the Panama Code of their natural effect.

The decision in the Hubgh Case, 6 La. Ann. 495, stands on nothing better than the classic tradition that the life of a free human being, (it was otherwise with regard to slaves,) did not admit of valuation, which no longer is true sentimentally, as is shown by the statutes, and which economically is false.

I think that the judgment should be affirmed.

The CHIEF JUSTICE, Mr. Justice McKENNA, and Mr. Justice BRANDEIS concur in this opinion.

To sustain writ of error in United States

Supreme Court directed to a state Supreme
Court, challenge below of state statute as re-
pugnant to Const. U. S. Amend. 14, must be
distinct and substantial.

2. Constitutional law 289 - Highways
90-Arkansas act establishing road district
held not to violate due process clause, as fail-
ing to prescribe sufficient notice.

Road Laws Ark. 1919, No. 245, establishing
road districts No. 2 and 5 of Conway county,
does not violate due process of law clause of
Const. U. S. Amend. 14, in that it prescribes in-
sufficient notice and description of assessed

lands.

3. Courts 398(1)-Record should show on
writ of error to state court that objection
was placed on federal ground in court below.
On writ of error in United States Supreme
Court, directed to state Supreme Court, rec-
ord should show that objection to state statute
was placed on federal ground in court below.
4. Highways 90-Arkansas statute creat-
ing highway improvement district held not
arbitrary and beyond power of Legislature.

Road Laws Ark. 1919, No. 245, establishing
road district No. 5 of Conway county, held not
arbitrary and beyond power of Legislature, be-
cause proposed improvement could not benefit
plaintiff's lands, while other lands actually

benefited were not included.

In Error to the Supreme Court of the
State of Arkansas.

Suits for injunction by Mrs. M. L. House
against Road Improvement Districts Nos. 2
and 5, Conway County, Ark., respectively.
From decrees of the Supreme Court of Ar-
kansas (158 Ark. 330, 357, 251 S. W. 12, 21),
affirming a decree for defendants, plaintiff
brings error. Writs dismissed.

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*Messrs. Joseph M. Hill and Henry L. Fitzhugh, both of Fort Smith, Ark., for plaintiff in error.

Messrs. S. Lasker Ehrman, D. H. Cantrell,
and J. F. Loughborough, all of Little Rock,
Ark., W. P. Strait, of Morrillton, Ark., and
A. W. Dobyns, of Little Rock, Ark., for de-
fendant in error Road Improvement Dist.
No. 2.

Messrs. George B. Rose, D. H. Cantrell, and
J. F. Loughborough, all of Little Rock, Ark.,
W. P. Strait, of Morrillton, Ark., and A. W.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(45 S.Ct.)

Dobyns, of Little Rock, Ark., for defendant point was properly made, we think it is clearin error Road Improvement Dist. No. 5.

Mr. Justice McREYNOLDS delivered the opinion of the Court.

Both of these writs must be dismissed.

No. 92.

[1] The only ground suggested to sustain the writ in this cause is that Act No. 245, Arkansas Legislature of 1919, which established road district No. 2 of Conway county, was duly challenged as repugnant to the Fourteenth Amendment. Such a challenge must be distinct and substantial.

[2] The act undertook to create the district with boundaries which include plaintiff's lands and specified the proceedings for assessing benefits to meet necessary costs. Her lands were assessed as provided. Some months thereafter, by a bill in equity, she claimed insufficient notice and asked relief

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from both assessment and consequent *penalties; also that the commissioner's plans should be declared null and she be heard as to the merits of any assessment. She offered to pay any sum the court might find just and equitable.

The bill alleges that the statute authorized and the commissioners gave only 17 · days' notice of the assessment, by publication, that she had no actual notice, and that the publication failed sufficiently to describe her lands. For these reasons she maintained the act did not provide due process of law and violated the Fourteenth Amendment.

The Supreme Court, having considered the objections, held that the statute allowed twenty-eight, days after the first publication during which time petitioner might have objected to the assessment, and declared this was adequate; also that when read in connection with the statute the notice sufficiently described the lands. Plaintiff in error now insists that the act is null because it prescribes insufficient notice and description of the assessed lands.

Accepting the statute as construed by the state court, the suggested objections to its validity appear to us wholly wanting in merit.

No. 93.

[3, 4] This cause grew out of the creation of district No. 5, Conway county, by act No. 245, and assessment for benefits thereunder. With one exception the questions now raised

are the same as those in cause No. 92. As an additional ground for challenging the statute plaintiff in error claims that it is arbitrary and beyond the power of the Legislature because the proposed improvement could not benefit plaintiff's lands, while other lands actually benefited were not includ

ed. The record does not show that this objection was placed upon any federal ground

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ly without merit. *Houck v. Little River District, 239 U. S. 254, 265, 36 S. Ct. 58, 60 L. Ed. 266; Miller & Lux v. Sacramento Drainage District, 256 U. S, 129, 130, 41 S. Ct. 404, 65 L. Ed. 859; Valley Farms Co. v. Westchester County, 261 U. S. 155, 163, 164, 43 S. Ct. 261, 67 L. Ed. 585.

(266 U. S. 285)

ENDICOTT-JOHNSON CORPORATION v. ENCYCLOPEDIA PRESS, Inc.

(Submitted Oct. 7, 1924. Decided Nov. 17, 1924.)

No. 41.

I. Constitutional law 251, 315-"Due process of law" means course of legal proceedings according to rules established for protection and enforcement of private rights.

"Due process of law" means course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for protection and enforcement of private rights, but does not require that defendant, who has been granted opportunity to be heard and has had his day in court, should after judgment have further notice and hearing before supplemental proceedings are taken to reach his property in satisfaction of judgment.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Due Process of Law.]

315-Execution

2. Constitutional law 2-Statute authorizing issuance of garnishment execution without notice does not deny "due process of law."

Code Civ. Proc. N. Y. § 1391, authorizing issuance of garnishment execution without giving notice to judgment debtor or affording him hearing, does not deny due process of law. 3. Constitutional law 276-New York statute permitting garnishment execution not unlawful interference with liberty of contract.

Code Civ. Proc. N. Y. § 1391, authorizing garnishment execution against wages due, does not interfere with liberty of contract between debtor and garnishee, within meaning of due process clause.

4. Execution 2-Statute permitting garnishment execution does not impair substantial constitutional right of garnishee.

Code Civ. Proc. N. Y. § 1391, authorizing garnishment execution, does not impair any substantial constitutional right of garnishee, because he may be put to some additional expense of bookkeeping.

5. Courts 394 (3)-Contention state statute is contrary to public policy does not present federal question.

Contention that section of state Code is Contrary to public policy does not present federal question.

In Error to the Supreme Court of the State in the courts below; but, assuming that the of New York.

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