Opinion of the Court.

oral testimony of witnesses offered to establish this uniformity of assessment could do so; and if it could, how it was competent to do it in the face of the fact that the board had no such

power.

In regard to the deduction of their bona fide indebtedness, claimed on the part of certain owners of shares in the plaintiff bank from the assessment levied upon such shares, the court finds that no demand was made therefor "either by the complainant or by any of its shareholders until the 17th day of December, A.D. 1885, a date prior to the commencement of this action, at which time the entire process of the appraisement and equalization of the value of said shares for taxation had been completed, and the tax duplicate for said year had been delivered in accordance with law to the treasurer of said county for the collection of said taxes; but the laws of Ohio make no provisions for the deduction of the bona fide indebtedness of any shareholder from the shares of his stock and provide no means by which said deduction can be secured."

Under the decision in Hills v. Exchange Bank, 105 U. S. 319, we are of opinion that the bank was entitled to relief in the cases of all the shareholders named in the bill, (except James A. Barnett, Robert L. Chamberlain, and James Parmalee,) and that the fact that they did not make an earlier demand for the deduction of their indebtedness from the assessed value of the shares of their bank stock does not defeat their right to have it made by this bill in chancery, for the reason that the court expressly finds that "the laws of Ohio make no provision for the deduction of the bona fide indebtedness of any shareholder from the shares of his stock and provide no means by which said deduction can be secured."

This was precisely the case in regard to Hills v. Exchange Bank, in which this court said: "We are of opinion that, considering the decision of the Court of Appeals of New York, the action of the assessors in the case of Williams, and their own testimony in this case, it is entirely clear that all affidavits and demands for deduction which could and might have been made would have been disregarded and unavailing, and that the assessors had a fixed purpose, generally known to all

Syllabus.

persons interested, that no deduction for debts would be made in the valuation of bank shares for taxation. It is, therefore, not now essential to show such an offer when it is established that there were debts to be deducted, and when the matter is still in fieri, the tax being unpaid."

In regard to all of the shareholders claiming this deduction, except Barnett, Chamberlain, and Parmalee, the court finds that the allegations of the bill are true, but that as to them they are untrue. It, therefore, granted relief by the injunction as to all of them except these three, as to which it was denied. It is to be observed, however, that the bank takes no appeal from the part of the decree denying relief to these three shareholders.

These principles require the affirmance of the decree of the Circuit Court; and while there will be found in them a sufficient answer to the questions certified by the judges of that court, we do not think it necessary to make a more specific answer to each of them.

The decree is affirmed.

PEORIA AND PEKIN UNION RAILWAY COMPANY v. CHICAGO, PEKIN AND SOUTHWESTERN RAILROAD COMPANY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

No. 210. Argued April 6, 1888. - Decided April 23, 1888.

A railroad company, all whose stock was owned by four other companies, whose roads connected, having obtained a lease of another connecting railroad, and improved the terminal facilities, made a contract with the four companies, by which they should have the use of its tracks and terminal facilities for fifty years, each paying the same fixed rent and certain terminal charges, and any other company with the same terminus might, by entering into a similar contract, acquire like privileges upon paying the same rent and similar charges; and demanded the making of such a contract by the receiver of another company, who previously had the use of the road now leased, and of its terminal facilities, upon terms

Opinion of the Court.

agreed on between him and the company owning that road. The receiver objected that the terms demanded were exorbitant and oppressive, and could not be assented to by him without an order of the court which appointed him; and it was thereupon agreed that his company should enjoy like privileges, paying the like terminal charges as the four companies, and such rent as the judge should award, and meantime should pay at the same rate as before. The judge declining to act as an arbitrator, the receiver was excluded from the use of the tracks. Held, that he had not assented, and was not liable, to pay the same rent as the four companies, during the time that he used the tracks and terminal facilities of the first company.

THIS was a petition by an intervenor in a suit to foreclose a railway mortgage, in order to compel the receiver of the mortgaged property to pay rent. Decree dismissing the petition, from which the petitioner appealed. The case is stated in the opinion.

Mr. Wager Swayne for appellant. Mr. C. Walter Artz was

with him on the brief.

Mr. Thomas S. McClelland for appellee.

MR. JUSTICE GRAY delivered the opinion of the court.

Pending a suit in equity by the Farmers' Loan and Trust Company against the Chicago, Pekin and Southwestern Railroad Company, to foreclose a mortgage of its road, the Peoria and Pekin Union Railway Company filed this intervening petition to compel the receiver of the defendant company, appointed in that suit, to pay to the petitioner the sum of $16,231.55 for rent of tracks and terminal facilities at Peoria from February 1, 1881, to March 1, 1882.

From the documents in the record, and the very argumentative and somewhat conflicting affidavits of Cohr, the vice-president and general counsel of the petitioner, and of Hinckley, formerly the president and now the receiver of the defendant, the material facts appear to be as follows:

Peoria and Pekin are ten miles apart, on opposite sides of the Illinois River, and connected by two lines of railway tracks, that of the Peoria and Springfield Railroad Company on the

Opinion of the Court.

east side of the river, and that of the Peoria, Pekin and Jacksonville Railroad Company on the west side of the river, and each crossing the river on a bridge. Connecting with these at Peoria or at Pekin are the lines of four other railroad companies, the Wabash, St. Louis and Pacific Railway Company, the Indiana, Bloomington and Western Railway Company, the Peoria, Decatur and Evansville Railway Company, and the Peoria and Jacksonville Railroad Company.

The petitioner was organized in 1880, its whole capital stock being owned by these four companies, one quarter by each. On February 1, 1881, the petitioner, having obtained a lease of the Peoria and Springfield Railroad, and acquired by purchase the Peoria, Pekin and Jacksonville Railroad, and having improved the terminal accommodations and facilities at Peoria, entered into a contract in writing with the four companies aforesaid, by which it leased to them for fifty years the tracks between Pekin and Peoria, with the use of its terminal accommodations and facilities at Peoria; and each of the four companies agreed to pay a yearly rent of $22,500 and a proportionate share of the expenses of maintaining the terminal accommodations at Peoria and of terminal services, according to the business done by each; and it was further agreed as follows:

"Eighth. Any other railroad company, whose road shall now or hereafter run into said city of Peoria, or that shall desire to procure an entrance into said city, shall be allowed to acquire the same rights and privileges as the said several lessees, but no other, and upon no less rental, upon entering into a like contract hereto with the party of the first part, except as to representation in the board of directors of the party of the first part and ownership in its capital stock."

Before February 1, 1881, the trains of the defendant company had been run over the road of the Peoria and Springfield Railroad Company, at a rate of compensation fixed by agreement between the receivers of those two companies.

On February 1, 1881, Cohr, in behalf of the petitioner, demanded of Reed, then the receiver of the defendant company, that he should enter into or contract to pay, during his receivership, the same rent and other charges as the four companies,

Opinion of the Court.

and insisted that he had no authority to allow the use of the petitioner's tracks on any other terms. Reed objected that the terms demanded were exorbitant and oppressive, and that he had no authority to assent to them without an order of the court; and it was thereupon agreed that the defendant company should enjoy the use of the tracks and the terminal facilities, and should pay the like terminal charges as the four companies, and should also pay such rent from February 1, 1881, as should be determined by Judge Drummond, upon an application to be forthwith made by Reed, and that until such determination the defendant company should pay at the same rate as formerly paid to the receiver of the Peoria and Springfield Railroad Company, and should pay the residue, if any, when the judge should so determine.

Pursuant to this agreement, Reed made an application in writing to Judge Drummond, who, as Cohr testifies, in December, 1881, or early in 1882, informed him that he declined to decide upon it, and that, unless the defendant settled with the petitioner by March 1, 1882, the petitioner might shut out the defendant from its tracks. Upon notice to that effect, Reed declined to pay, and on March 1, 1882, ceased to use the tracks of the petitioner.

The defendant paid the petitioner for the use of its tracks and terminal facilities from February 1, 1881, to March 1, 1882, at the same rate as previously paid to the receiver of the Peoria and Springfield Railroad Company, amounting to $17,537.83. The petitioner claimed for the same period the sum of $9394.38 for terminal expenses, and the sum of $24,375 for rent, and applied the sum received from the defendant to the payment in full of the first of these claims, and in part of the second, leaving $16,231.55, which the petitioner now sought to recover.

The master, to whom the petition was referred, reported that there was nothing before him which enabled him "to report the amount of compensation which the petitioner should have, except as the result of the conditions upon which the receiver continued to use the property after the attempted making of a contract between the parties resulting in the notice