⚫499

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or upon any track it has control of or the right to use in this state, it shall be guilty of extortion."

it does not therefore follow that it was the legislative intention, without any expression thereof in terms, to repeal so important a provision.

In Louisville & N. R. Co. v. Com. 99 Ky. 132, 33 L. R. A. 209, 35 S. W. 129, this sec- Was the provision repealed by necessary tion was considered. The court held that implication? "We say by necessary implithe section could not be enforced as a penal cation, for it is not sufficient to establish statute for want of certainty, and said: that subsequent laws cover some or even all "That this statute leaves uncertain what of the cases provided for by it [the prior shall be deemed a 'just and reasonable rate law]; for they may be merely affirmative, or of toll or compensation' cannot be denied, cumulative, or auxiliary." Story, J., Wood and that different juries might reach differ-v. United States, 16 Pet. 362, 10 L. ed. 995. ent conclusions, on the same testimony, as to whether or not an offense has been committed, must also be conceded.

"The criminality of the carrier's act, therefore, depends on the jury's view of the reasonableness of the rate charged; and this latter depends on many uncertain and complicated elements.

"That the corporation has fixed a rate which it considers will bring it only a fair return for its investment does not alter the nature of the act. Under this statute it is still a crime, though it cannot be known to be such until after an investigation by a jury, and then only in that particular case, as another jury may take a different view, and, holding the rate reasonable, find the same act not to constitute an offense. There is no standard whatever fixed by the statute, or attempted to be fixed, by which the carrier may regulate its conduct; and it seems clear to us to be utterly repugnant to our system of laws to punish a person for an act the criminality of which depends, not on any standard erected by the law which may be known in advance, but on one erected by a jury. And especially so as that standard must be as variable and uncertain as the views of different juries may suggest, and as to which nothing can be known until after the commission of the crime."

Repeals by implication are not favored, and are only allowed to the extent that repugnancy exists, and, in order to give an act not clearly intended as a substitute for an earlier one the effect of repealing it, the implication of the intention to do so must necessarily flow from the language used, bearing in mind the necessity and occasion of the law. And where it is plain that the new law is in aid of the purposes of the old law, the latter will not be held to be abrogated except so far as there is palpable inconsistency.

We do not think that it was intended to repeal the provision of § 819 requiring indictments to be found only on the recommendation or request of the commission, and still less that it was intended to circumscribe in this particular the general duty of the commission to see that the laws relating to railroads should be faithfully executed.

Dealing as we are with the statutes of Kentucky, we are gratified to find these views confirmed by the court of appeals of that commonwealth, in Illinois C. R. Co. v. Com. decided October 25, 1901, its opinion having been furnished us at the close of the argument, and since reported in 23 Ky. L. Rep. 1159, 64 S. W. 975.

In that case the railroad company was indicted under § 820, and fined for charging more for a shorter than a longer haul. The indictment was returned before the railroad commission had determined whether the company should be exonerated as provided by that section. The judgment was reversed, and Hobson, J., speaking for the court, said:

The court referred to and quoted from Chicago, B. & Q. R. Co. v. Jones, 149 Ill. 361, 24 L. R. A. 141, 4 Inters. Com. Rep. 683, 37 N. E. 247; and Chicago, B. & Q. R. Co. v. People, 77 Ill. 443, in which it was held under a similar statute that the want of certainty in lack of reference to a standard under its 1st section was obviated by "In the construction of statutes the carits 8th section providing for the making by dinal aim of the court is to arrive at the the railroad and warehouse commissioners intention of the legislature. The court of schedules of reasonable and maximum will presume that the legislature meant rates, which, being done, the supreme court something by all the provisions of the stat of Illinois said: "There will be a standard ute, and will endeavor to give them all a of what is fair and reasonable, and the stat- fair effect. If the legislature had intended ute can be conformed to and obeyed." indictments to be found for each offense, regardless of action by the railroad commission, we see no reason why the section might The mischief to be cured in respect of ex-not have stopped with the first sentence detortion, as defined by § 816, was the want of certainty, and the remedy provided was the fixing of the rates by the railroad commission.

Such being the state of the law, the act of March 10, 1900, was passed.

In so providing, the act, while repeating many of the provisions of § 819, did, indeed, omit reference to an action by way of information and to liability in damages, and it also omitted the provision that indictments should be made only on the recommendation or request of the railroad commission; but

fining the offense and providing for its pun-
ishment, for by the next section (Ky. Stat.
§ 821) it is made the duty of the commis-
sion 'to see that the laws relating to all rail-
roads, except street, are faithfully execut-
ed;" and under this provision it would be
the duty of the commission to see to viola-
tions of the preceding section.
From the section as a whole it is clear that
the legislature had in mind providing for
the exoneration of the railroad from its pro-

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*502

visions in proper cases, and exempting the UNITED STATES TRUST COMPANY OF carrier from criminal liability to this extent. It therefore provided for an investigation by the railroad commission, a determination by it whether it deemed it proper to exonerate the railroad, and for the enforcement of its decision by indictment by the grand jury in case the railroad was not exonerated. To allow the carrier to be indicted in advance of any action by the railroad commission under this section would be to deprive it of all opportunity for exoneration. The legislature had no such result in mind, but clearly aimed to secure to the carrier a hearing on this question.

7. The penalty of 25 per cent imposed by N. M. Comp. Laws 1897, 4035, upon any person who fails to render a true list of his prop erty for taxation, will not be enforced in a proceeding to establish a lien for unpaid

taxes, where no such penalty is claimed in the petition.

Interest on unpaid taxes prior to a decree establishing liability therefor, in an action to collect such taxes, is properly refused where the assessment was made in gross upon 60.7 miles of railroad, only 55 miles of which were subject to taxation, since under such circumstances the owners were justified In contesting their liability to such assessment and taxation in gross, and until there was an identification of the property subject to taxation, and a determination of the amount of taxes due, it would have been inequitable to charge penalties for nonpayment.

[Nos. 181, 182.]

Argued October 30, 31, 1901. Decided uary 6, 1902.

ance.

shall be presented for allowance, and filed within six months after the first publication by the receiver of a notice to the holders of such claims to present the same for allow The receiver shall publish such notice at least once a week for the period of six weeks, in one or more newspapers published in Albuquerque, New Mexico, Prescott, Arizona, and Los Angeles, California, upon the request of any purchaser or purchasers after delivery of the possession of the property to them; and any such claims which shall not be so presented or filed within the period of six months after the first publication of such notice shall not be enforceable against said receiver nor against the property sold, nor against the purchaser or purchasers, his or their successors or assigns."

On May 3, 1897, a sale was made under the decree to A. F. Walker, R. Somers Hayes, and Victor Morawetz. On May 4 the sale was Jan-confirmed. The order of confirmation contained substantially the same provisions respecting payment of obligations as the decree, and added, "including also any taxes which may finally be adjudged to be a lien upon the property sold under the decree aforesaid."

CROSS APPEALS from the Supreme Court of the Territory of New Mexico to review a decision modifying a decree of the District Court of the Second Judicial District establishing a tax lien. Affirmed. See same case below, 62 Pac. 987.

Statement by Mr. Justice Brewer:

According to an affidavit filed in the case this clause was entered at the suggestion of counsel for the territory, and upon notice in open court of his intention to present a claim for the taxes hereinafter referred to. On July 16, 1895, the United States Trust On June 22, 1897, the purchasers conveyed Company of New York filed its bill in the the property to the Santa Fe Pacific Railoffice of the clerk of the district court of road Company, and on July 1, 1897, the rethe second judicial district of the territory ceiver delivered possession of the property. of New Mexico, praying foreclosure of a On October 4, 1898, he was by order of the mortgage given by the Atlantic & Pacific court discharged as receiver. He failed to Railroad Company. On January 10, 1896, give the notice required by the decree for the Charles W. Smith was appointed receiver. purpose of cutting off claims against the On April 10, 1896, a decree of foreclosure was property, and on application of the Santa Fe entered. The decree provided that the pur- Pacific Railroad Company, the grantee of the chaser or purchasers, and his or their succes- purchasers, on December 19, 1898, an order sors or assigns, should, as part consideration was entered directing the clerk of the court and purchase price of the property pur- to publish the notice, and a notice was pubchased, and in addition to the sum bid, pay—lished that on or before October 23, 1899, all "any indebtedness and obligations or liabil- claims against the receiver must be presented ities which shall have been legally contracted or they would be barred. On June 10, 1897, or incurred by the receiver before delivery after the confirmation of the sale, but while or possession of the property sold, including the property was in possession of the re the receiver's notes or certificates hereinbe- ceiver, the territory of New Mexico, by leave, fore mentioned, and also any indebtedness filed an intervening petition claiming a lien and liabilities contracted or incurred by said for and payment by the receiver of certain defendant railroad company in the operation taxes upon part of the railroad property in of its railroad prior to the appointment of the county of Valencia. To this petition the receivers, which are prior in lien to said first trust company and receiver, on June 23, 1897, mortgage, and which shall not be paid or filed joint and several pleas. On the same satisfied out of the income of the property in day, without passing upon the sufficiency of the hands of the receiver, upon the court ad- the pleas, the court ordered the intervening judging the same to be prior in lien to said petition dismissed on the ground that the mortgage, and directing payment thereof, "matters and things therein set up" were "not provided that suit be brought for the en- sufficient to entitle the said intervening petiforcement of such indebtedness, obligation, tioner to the relief sought by its petition." or liability within the period allowed by any On appeal to the supreme court of the terstatute of limitations applicable thereto. ritory this order of dismissal was affirmed. From such decision the territory appealed to this court, which upon the first hearing affirmed the rulings below (172 U. S. 171, 186, 43 L. ed. 407, 412, 19 Sup. Ct. Rep. 128), but on a petition for rehearing reversed the order and remanded the case for further pro

"Any such claim for indebtedness, obligations, or liabilities which shall not have been presented in writing to the receiver or filed with the clerk of this court prior to the time of delivery of possession of such property

989.

ceedings. 174 U. S. 545, 43 L. ed. 1079, 19 Sup. Ct. Rep. 784.

Messrs. C. N. Sterry, E. D. Kenna, and Robert Dunlap for appellants.

Mr. Frank W. Clancy for appellee.

Mr. Justice Brewer delivered the opinion of the court:

The mandate having been returned and presented to the trial court on August 4, 1899, proceedings were there had which culminated, on October 5, 1899, in a finding that the territory was entitled to a tax lien upon The district court dismissed the intervena portion of the railroad property for $74,- ing petition on the ground that it presented 168.70, and a decree establishing such lien. Do claim against the property or the parties. From this decree both parties appealed to the The reversal by this court of such order is an supreme court of the territory, which, on adjudication that upon the face of the peAugust 23, 1900, modified the decree by re-tition a valid claim was presented, and is ducing the amount to $61,922.73, and award- conclusive of such prima facie validity, not ing interest at the rate of 6 per cent per an- merely against objections which were in fact num from October 5, 1899, the date of the de- made, but also against those which might cree in the district court. 62 Pac. 987. have been made. Cromwell v. Sac County, From this decision both parties have ap- 94 U. S. 351, 352, 24 L. ed. 195, 197; Nesbit pealed to this court. v. Independent Dist. 144 U. S. 610, 618, 36 L. ed. 562, 565, 12 Sup. Ct. Rep. 746. We start in this inquiry then with the adjudicated fact that upon the face of the intervening petition was presented a valid claim for the taxes therein specified.

A statement of facts agreed to by the parties was filed in the district court, and upon this statement the decree was founded. This agreed statement contains a narrative of facts, transcripts of records and the testimony which certain witnesses would have The case was heard in the district court given if they had been produced and sworn. upon an agreed statement of facts, which This statement of facts was incorporated in was thereafter certified by the supreme court the record transmitted to the supreme court of the territory as a statement of facts under of the territory, and is the only portion of the act of April 7, 1874. We have had several the record showing the facts presented on the occasions to consider the effect of an agree hearing in the district court. After the de- ment of the parties as to the facts. See Wilson eision by the supreme court of the territory, v. Merchants' Loan & T. Co. 183 U. S. 121, both parties having signified an intention ante, 55, 22 Sup. Ct. Rep. 55, and cases cited to appeal to this court, the territory applied in the opinion. An agreed statement of facts for a statement of facts in accordance with may be the equivalent of a special verdict or a the act of Congress of date April 7, 1874, in finding of facts upon which a reviewing court reference to practice in territorial courts and may declare the applicable law, if such appeals therefrom (18 Stat. at L. 27, chap. agreed statement is of the ultimate facts, 80), which application was resisted by the but if it be merely a recital of testimony or counsel for the trust company and the re-evidential facts, it brings nothing before an ceiver on the ground that the case had been tried in the court below upon an agreed statement of facts, whereupon the supreme court made this entry of record:

appellate court for consideration. The same rule obtains in cases of appeals from territorial courts under the act of 1874. That act in terms provides that

made and certified by the court below." Stringfellow v. Cain, 99 U. S. 610, 25 L. ed. 421; Idaho & 0. Land Improv. Co. v. Bradbury, 132 U. S. 509, 33 L. ed. 433, 10 Sup. Ct. Rep. 177.

"Being willing and desirous that the re"On appeal, instead of the evidence at spective parties be allowed to get their ap-large, a statement of the facts of the case in peals before the Supreme Court of the United the nature of a special verdict, and also the States in such shape as their counsel deem rulings of the court on the admission or reproper, the court hereby certifies for usejection of evidence when excepted to, shall be upon the appeal of the said The United States Trust Company of New York and C. W. Smith, receiver, that this case was tried in the court below upon an agreed statement of facts, which agreed statement of facts was made part of the record in the district court and part of the record upon appeal to this court, and is to be a part of the record on appeal to the Supreme Court of the United States; that the said agreed statement sets out the facts of this case which were heard or considered by this court upon said appeal, and the same is hereby adopted by this court as its statement of such facts for use upon the appeal aforesaid, without here repeating the same.

"And the court further certifies for use upon the appeal of the said territory of New Mexico, in accordance with the prayer of the said appellant, the following statement of facts.'

Following this was a special statement of facts, certified to under the hand of the Chief Justice.

Tested by the various authorities just cited, the certified statement of facts is insufficient, and presents nothing for our examination. This disposes of most of the questions discussed by counsel.

When the mandate from this court was filed in the district court, a motion to dismiss and also pleas in abatement and in bar were successively filed, argued, and overruled. We shall not attempt to notice in detail the va rious matters presented in the motion and pleas. It will be sufficient to state our conclusions upon the important questions.

There was no invalidity in the fact of additional assessments. Indeed the claim in the petition was wholly for taxes based upon additional assessments for prior years, and when this court adjudged that that petition upon its face showed a tax claim against the

689.

|tion to proceed to an inquiry as to the va lidity of the tax lien. The reversal of the order of dismissal by this court reinstated the proceeding in the trial court as of the date of the order of dismissal. If the decres

of the property, it may then become necessary to order a retaking of possession.

property, it was an adjudication in favor of the validity of such additional assessments. The filing of the intervening petition and the final adjudication thereon were in time. It is true the petition was not filed until after the sale had been confirmed and the mas-is not complied with by the present owners ter's deed executed, and that by the decree of confirmation the receiver was directed to then turn over the property to the purchasers. It may be also conceded as generally true that a retention by a receiver, after the time for the delivery of the property in his hands, is as agent of the purchasers. Very v. Watkins, 23 How. 469, 474, 16 L. ed. 522, 523. But the filing of the petition, as well as the mandate from this court, was within the time expressly named in the decree, as follows:

"Any such claim for indebtedness, obligations, or liabilities which shall not have been presented in writing to the receiver, or filed with the clerk of this court prior to the time of delivery of possession of such property, shall be presented for allowance and filed within six months after the first publication by the receiver of a notice to the holders of such claims to present the same for allow

ance."

Indeed the petition was filed while the property was still in the hands of the receiver, and that would seem to bring the action of the intervener within the terms of the 1st clause of the quotation just made. At any rate, everything in the district court, even its final adjudication, was before October 23, 1899, the time fixed in the notice for the cutting off of claims against the property given at the instance of the grantee of the purchasers, to wit, the Santa Fe Pacific Railroad Company. That the receiver had been discharged before such mandate was filed or final proceedings had is immaterial, as the grantee of the purchaser (the present owner of the property) had made itself a party to the record by coming in and praying for the publication of a notice to cut off claims.

Neither can the Sante Fe Company claim that is was misled in any way as to its liability for these taxes, for not only by the terms of the decree was the sale to be made subject to any indebtedness that might subsequently be charged against the property prior in lien to that of the mortgages foreclosed, but also, on the confirmation of the sale and before it took title from the purchasers at such sale, the order specifically included within the obligations which must be assumed any taxes which might "finally be adjudged to be a lien upon the property."

While the description in the intervening petition of the property sought to be subjected to the taxes may be indefinite, the property is sufficiently described in the decree, and it must be assumed that the testimony warranted the description.

These are all the matters we deem it neces sary to notice, and are of opinion that in the record, so far as we are at liberty to examine it, is disclosed no error prejudicial to the rights of the appellants.

On its cross appeal the territory, which had obtained a properly certified statement of facts sufficient for the questions it presents, contends that it was entitled to recover the amount of the tax upon 60.7 miles of road, as fixed by the assessments, whereas the court found that there were only 55.5 miles subject to taxation, and made the award upon the basis of assessments upon that extent of road. It insists that the assessments were conclusive of the amount due because no appeals to correct them were taken, as permitted by law. It further says that in any event the statement made in the pleas and sworn to by the solicitor for the trust company and the receiver, "that about 58 miles of said right of way in said county and territory was and is through land which was not government land, but which belonged to private individuals or corporations, and was acquired by the railroad company under and through the right conferred upon it by said act of Congress," should be held conclusive as to the number of miles subject to taxation. The trial court found, as stated, that there were 55.5 miles so subject. This finding was approved by the supreme court, and is conclusive upon us as to the fact; and if in truth there were only so many miles of road subject to taxation, it would be inequi table to adjudge a greater liability, for that would be enforcing taxes upon property which was not subject to taxation.

Again, it is contended that the territory was entitled to a 25 per cent penalty under § 4035 of the Compiled Laws of New Mexico, 1897, which reads:

"If any person liable to taxation shall fail to render a true list of his property as required by the preceding three section, the assessor shall make out a list of the property of such person, and its value, according to the best information he can obtain; and such person shall be liable, in addition to the tax so assessed, to the penalty of 25 per cent thereof, which shall be assessed and collected as a part of the taxes of such person."

No order was necessary for retaking possession. By the terms of the decree the court, although the actual possession was surrendered, retained a constructive control which it could enforce whenever its orders were not complied with, and the present proceeding was to establish that the property It is enough to say that no such penalty was subject to these taxes. The proceeding was claimed in the intervening petition. was initiated, not only when there was a Penalties are not favored in equity, and selqualified control, but also an actual posses- dom will a chancellor enforce penalties in sion of the property, and no subsequent or- favor of a party who does not ask for them. ders of the court put an end to its jurisdic- | Again, by the terms of the section the pen