holders would escape taxation altogether, | from the taxable value of national bank although participating in the profits of two banking institutions.

shares because the bank happens to hold stock in another national bank is not only contrary to the clear intent of section 5219, but is inconsistent with all previous decisions of this court bearing upon the point, especially those that have denied a similar deduction because of tax-exempt securities held by the bank, or because of real estate taxed against it.

Mr. Justice BRANDEIS and Mr. Justice CLARKE concur in this dissent.

(248 U. S. 497)

BANK OF CALIFORNIA, NATIONAL
ASS'N, v. ROBERTS, Treasurer of
State of California.

1919.) No. 115.

As we have seen, the decisions of this court establish that under section 5219 the holder of shares in a national bank is not entitled to have the estimate of their taxable value reduced by reason of the fact that the capital and surplus of the bank are invested in securities that are exempted from state taxation. It also is clear that while the section in terms permits the real property of the bank to be taxed against it, this does not entitle the shareholder to an allowance from the assessed value of his shares by reason of the fact that the bank is thus taxed. It is true that many of the states, when authorizing the taxation of real estate against the bank, make an allowance for this by deducting the value thus taxed when computing the amount at which the shares shall be taxed; but this is not because of (Submitted Oct. 14, 1918. any requirement in the federal statute. In Commercial Bank v. Chambers, 182 U. S. 556, 561, 21 Sup. Ct. 863, 45 L. Ed. 1227, this court expressly so held with respect to a claim for a deduction from the value of national bank shares because of real estate owned by the bank situate outside of the taxing state. In People's Natl. Bank v. Marye (C. C.) 107 Fed. 570, 579, it was held that section 5219 contemplates that the tax on real estate may be imposed independently *of the tax upon the shares of the stockholder (affirmed upon another ground, 191 U. S. 272, 24 Sup. Ct. 68, 48 L. Ed. 180). And in Amoskeag Savings Bank v. Purdy, 231 U. S. 373, 34 Sup. Ct. 114, 58 L. Ed. 274, we sustained a tax imposed upon a shareholder under a statute that, while not exempting the real estate of the bank situate in the same state, allowed no deduction of its value in the computation of the taxable value of the shares.

It seems to me that to allow a deduction

|

Decided Jan. 27,

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

Action by the Bank of California, National Association, against E. D. Roberts, State Treasurer of California. Judgment for plaintiff was reversed by the Supreme Court of California (173 Cal. 398, 160 Pac. 225), and plaintiff brings error. Reversed and remanded.

Mr. E. S. Pillsbury, Mr. F. D. Madison, Mr. Alfred Sutro, and Mr. Oscar Sutro, all of San Francisco, Cal., for plaintiff in error.

For

*PER CURIAM. This case is controlled by the opinion in Bank of California v. Richardson. 248 U. S. 476, 39 Sup. Ct. 165, 63 L. Ed. 372, briefs upon the briefs filed in that case. just decided. Indeed, it was submitted without the reasons stated in the previous case, therefore, the judgment here must be reversed and the case remanded for further proceedings not inconsistent with this opinion.

*498

*499

3. PLEADING 214(4)—ALLEGATIONS ADMIT- be put and oil stored without violating the TED BY DEMURRER.

4. EXPLOSIVES 3 STORING DANGEROUS from the United States. Patterson v. Ken

[3-5] Then as to the allegation that plaintiff's plant is safe and does not threaten the *Mr. Justice HOLMES delivered the opin- damages that led to the ordinance being passion of the Court. ed, there are limits to the extent to which such an allegation can be accepted, even on

This is a complaint brought by the plaintiff

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

4. CONSTITUTIONAL LAW 233-EQUAL PROTECTION OF LAWS SIMILARITY OF CONDITIONS.

Similarity of situation and conditions not being shown, a cemetery association cannot be said to be deprived of equal protection of the laws because its grounds were placed with other lands in a sewer district, while grounds of other such associations were placed in districts by themselves.

5. CONSTITUTIONAL LAW ◊≈290(3)—Due Pro-*

demurrer; as in the old case of a plea that | larger district, is for decision of the local authe defendant threw stones at the plaintiff thorities, and their judgment is conclusive, in molliter and that they fell upon him molli- the absence of arbitrary action. ter, "for the judges say that one cannot throw stones molliter." 2 Rolle's Abr. 548, Trespass, (G) 8. As was well observed by the Court below "we may take judicial notice that disastrous explosions have occurred for which no satisfactory explanations have been offered. The unexpected happens." 127 Ark. 43, 191 S. W. 405. Indeed the answer admits some possible combustion but undertakes to limit its possible effects. If it were true that the necessarily general form of the law embraced some innocent objects, that of itself would not be enough to invalidate it or to remove such an object from its grasp. Purity Extract & Tonic Co. v. Lynch, 226 U. S. 192, 204, 33 Sup. Ct. 44, 57 L. Ed. 184; Hebe Co. v. Shaw, Jan. 7, 1919, 248 U. S. 297, 39 Sup. Ct. 125, 63 L. Ed. 255. Whether circumstances might make an exception from this principle need not be considered here. Reinman v. Little Rock, 237 U. S. 171, 35 Sup. Ct. 511, 59 L. Ed. 900. It is enough to say that the allegations do not raise the question. The fact that the removal to the present situation was made at the city's re

quest does not import a contract not to leg
islate if the public welfare should require it,
and such a contract if made would have no

effect. Boston Beer Co. v. Massachusetts, 97
U. S. 25, 24 L. Ed. 989; Texas & New Or-
leans R. R. Co. v. Miller, 221 U. S. 408, 414,
31 Sup. Ct. 534, 55 L. Ed. 789.
Decree affirmed.

(248 U. S. 501)

MT. ST. MARY'S CEMETERY ASS'N v.

MULLINS.

CESS OF LAW-NOTICE AND HEARING-SEW-
ER DISTRICTS.

Due process of law is not denied because prior to creation of sewer districts, authorized by legislative authority, owner of land included is not given notice or afforded opportunity to be heard; it having had full opportunity to be heard in judicial proceedings to enforce the tax bills levied, and its contentions of arbitrary action and lack of benefits being considered and decided.

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

Suit by William C. Mullins against the Mt. for plaintiff was affirmed by the Supreme St. Mary's Cemetery Association. Judgment Court of Missouri (268 Mo. 691, 187 S. W. 1169), and defendant brings error. Affirmed.

*Mr. Wm. Moore and Mr. Clarence S. Palmer, both of Kansas City, Mo., for plaintiff in

error.

Mr. Matthew A. Fyke, of Kansas City, Mo., for defendant in error.

Mr. Justice DAY delivered the opinion of the Court.

This suit was begun in the circuit court of Jackson county, Mo., to enforce the liens of tax bills upon land of the Mt. St. Mary's (Argued Nov. 15 and 18, 1918. Decided Jan. Cemetery Association. The tax bills were as

27, 1919.)

No. 56.

1. CONSTITUTIONAL LAW 290(1) DUE PROCESS-SEWER ASSESSMENT.

sessed in part payment of the cost of two district sewers constructed in a sewer district in Kansas City, Mo. The Mt. St. Mary's Cemetery Association is a corporation orA cemetery association is not deprived of ganized under the laws of the state of Misdue process of law by a holding that, hotwithsouri for the purpose of acquiring and mainstanding sale of certain lots for burial purposes, it has title to the entire tract which is the subject of assessment for sewer construction. 2. MUNICIPAL CORPORATIONS 439 - SEWER CONSTRUCTION BENEFIT SUPPORTING AS

SESSMENT.

Unless an assessment for sewer construction is arbitrary and unreasonable, the extent of the benefit, essential to justify the assessment, is a matter within the control of the local authorities.

3. MUNICIPAL CORPORATIONS

taining a cemetery, subdividing it into lots, selling, disposing of, and managing the same. The net proceeds after providing for expenses and a maintenance fund are applied to the Support of Catholic orphan asylums.

The case has been three times in the Supreme Court of Missouri. In 239 Mo. 681, 144 S. W. 109, it was held that the cemetery land was liable to assessment under the Constitution and laws of Missouri and the charter of Kansas City. In 259 Mo. 142, 168 S. 450(4)-SEW-W. 685, the court held that the land was chargeable with its share of the cost of con

ER DISTRICT-DETERMINING EXTENT. Whether a cemetery should be made a sew-structing the sewer; that the holder of a er district of itself, rather than included in a lot in the cemetery had no title or interest

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

*502

in the lot except a mere easement or burial a ten-foot fill near the northwest corner of right subordinate to the ownership of the the cemetery, and placed a ten-inch pipe so cemetery by the corporation; that the spe- as to lead the water from the cemetery into cial tax bills were properly issued against the manhole at that point, thus preventing the entire grounds of the cemetery; that the formation of a pond; that there are two fraud in laying out the sewer district, if water-closets in the cemetery grounds not such there were, was not a defense to the connecting with these sewers; that the Assoaction on the tax bills unless the alleged ciation has an eight-inch pipe about 400 feet fraud was known to the contractor who did long laid in the cemetery for the purpose of the work. In the third case, 268 Mo. 691, 187 | drawing the water to the west; that about S. W. 1169, the court affirmed a judgment in one-half of the land in the cemetery had been favor of Mullins against the Cemetery Asso- disposed of in lots for burial purposes. Othciation, holding that the presumption was in er facts, not essential to be considered in the favor of the reasonableness of an ordinance disposition of the Federal questions were which included a cemetery in the sewer dis- found. trict, and assessed its property with the cost of lateral sewers laid in the alleys and streets adjacent to the cemetery, and that such presumption must be satisfactorily overcome by proof in order to be defeated; that when it was shown that the sewer for which the tax bills were issued served to carry away the surface water in the cemetery, and there was no evidence that the sewers were not beneficial in the sanitation of the cemetery, it would be presumed that the city council was fully informed upon the subject, and that its ordinance was reasonable; that the tax, though large, must stand in the absence of a showing that it was unreasonable; that it was not reversible error to exclude evidence that the city in two other cases had made cemetery associations separate sewer districts in the absence of a showing that this was done under a state of facts like those then presented; that such assessments required no notice of the proceedings unless required by some charter, ordinance, or statutory provision; that the sewer tax bills could be issued against the land in its entirety, such ownership being in the Association.

So far as the judgment of the Supreme Court of Missouri turns upon matters of state law it is conclusive. The final judgment is here upon writ of error because of the contention that it violates the Fourteenth Amendment to the federal Constitution in that its effect is to deprive the plaintiff in error of its property without due process of law, and to deny to it the equal protection of the laws. In passing upon the case the Supreme Court of Missouri, *in the decision under review, found that the sewer district contained about 407 acres; that the Ceme tery Association owned about 34 acres of land in said district which was assessed for sewer purposes; that the effect of the sewers was to drain the surface water from some of the land of the Association; that there were no openings in the sewer pipes for house connections, but the evidence showed that such openings were often made by the plumbers when the connections were made; that the grading contractor in grading a street on the west side of the cemetery, made

[1] The plaintiff in error contends that it was deprived of its property without due process of law in as much as about one-half of the tract of 34 acres belonging to the Cemetery Association had before the assessment been conveyed for burial lots; that the assessment against the entire tract had the effect to impose a lien upon much of its property arbitrarily as the burial lots had been conveyed to others. But the Supreme Court of Missouri held that the fee in the title to the burial lots, which had been sold or leased, was still in the Association, with an easement of the right of burial in the lot purchasers. We see no deprivation of due process of law in this holding, making the ownership of the Association the subject of, assessment. The right of burial, which was all that the lot purchasers or lessees *acquired, for obvious reasons could not be put upon the market and sold to pay assessments. The Association had a title which the court held might be and was the subject of assess ment.

[2] It is urged that the Cemetery Association was not benefited by the assessment. But the court found, with evidence to support its conclusion, that the sewers served to carry away surface water; and that there was no evidence to show that the cemetery would not have been benefited as to sanitation as a result of the construction of the sewers. It is well settled that unless such assessment is arbitrary and unreasonable the extent of the benefit, essential to justify the assessment, was a matter within the control of the local authorities. Spencer v. Merchant, 125 U. S. 345, 356, 8 Sup. Ct. 921, 31 L. Ed. 763; Wagner v. Baltimore, 239 U. S. 207, 36 Sup. Ct. 66, 60 L. Ed. 230.

This case is not within the principle of Myles Salt Co. v. Drainage District, 239 U. S. 478, 36 Sup. Ct. 204, 60 L. Ed. 392, where it was sought to embrace property in nowise benefited within the limits of a drainage district.

[3] It is contended that the Cemetery Association might have been made a sewer district of itself and not have been included in so large a district. Again, this was a matter for the local authorities to decide, and in

$505

the absence of arbitrary action, their judg- of Act Feb. 8, 1887, confirming to it, with ment is conclusive. Spencer v. Merchant, certain exceptions and on certain conditions, supra; Wagner v. Baltimore, supra; Houck the grant, was bound by its unfavorable proviv. Little River District, 239 U. S. 254, 36 Sup. Ct. 58, 60 L. Ed. 266.

Withdrawal from sale and entry by the Secretary of the Interior of land within the inThree suits by the United States against demnity limits of the grant by Act March 3, 1871, in aid of railroad construction was in- the New Orleans Pacific Railway Company effectual; the statute providing for it only as and others; Josephine Brown intervening in to land within the primary limits. the first suit, William R. Turner in the sec2. PUBLIC LANDS 83-RAILROAD GRANT ond, and Stephen N. Grant in the third. -CONFIRMATION TO ASSIGNEE-ACCEPTANCE. Decrees for defendants were affirmed by the The assignee of a land grant in aid of rail- Circuit Court of Appeals (235 Fed. 841, 846, road construction having accepted the provisions | 149 C. C. A. 153, 158), and interveners and

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