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(199 U. S. 48) them to taxation, while their competitors, PEOPLE OF THE STATE OF NEW YORK operating under the surfaces of many of the ed rel. BROOKLYN CITY RAILROAD same streets, are to be exempted."

COMPANY, Piff. in Err., The first specification is answered by the conclusion that we have reached in respect STATE BOARD OF TAX COMMISSIONto the claim of an impairment of contract

ERS. obligations; for if there was no such impairment, the fact that the companies have

Contracts-exemption from taxation-validescaped the burden for these many years is

ity of tax on special franchises-due prootheir good fortune, and in no manner dis

ess of laro in valuation. charges them from the ordinary burdens of taxation which the present law imposes.

1. With respect to the second, it may be ob

The contract arrangement for the payment

to a municipality of a license fee on each served that the lump sum is so obviously a

street car, modified as to the amount of such payment for the franchise that it cannot be

fees under the authority of a statute acconsidered in any just sense as possessing cepted by the street railway company, statthe nature of a tax. It is not even rental. ing that such fees should be taken "in full

satisfaction for the use of the streets or It is like money paid for a tract of land,

avenues,” does not exempt the company from part of the purchase price. It does not, like

the tax imposed, under N. Y. Laws 1899, a percentage of the gross receipts, vary with chap. 712, on its franchise. the changes of business, has no resemblance 2. A street railway company cannot claim to to a continuing discharge of the obligation have been denied due process of law in the which property is under for contribution to

valuation of its franchise for the purpose of

the special franchise tax imposed by N. Y. the support of the government. Further,

Laws 1899, chap. 712, on the theory that it this whole matter of allowing a reduction

was ascertained by speculation and guesson account of that which is spoken of as "in work, where such valuation is required to be the nature of a tax," is a matter of grace on maile by the state board of tax commisthe part of the legislature. The franchises sioners, to which the owner of the franchise granted were, as we have held, subject to

is required to furnish a written report, and

notice and hearing are accorded such owner, taxation, and the fact that, upon equitable

and a review of the assessment by certiorari considerations, the state has consented that Is afforded a certain reduction shall, in some cases, be made, does not entitle every holder of a

[No. 79.] franchise to a like reduction. It is akin to an exemption, and there is nothing in the Federal Constitution to prevent a state from Argued April 17, 18, 19, 1905. Decided May

29, 1905. granting exemptions from taxation. Bell's Gap R. Co. v. Pennsylvania, 134 U. S. 232, 33 L. ed. 892, 10 Sup. Ct. Rep. 533.

N ERROR to the Supreme Court of the With regard to the third contention, it

State of New York to review a judgment may be said that there is a difference be sustaining an assessment of a street railway tween surface and subsurface street rail- franchise, entered pursuant to the mandate roads sufficient to justify a diversity in the of the Court of Appeals of that state, which mode and extent of taxation. In Savannah,

had reversed a judgment of the Appellate DiT. & I. of H. R. Co. v. Savannah, 198 U. s. vision of the Supreme Court for the Third ante, 690, 25 Sup. Ct. Rep. 690, just decided, Department, which had, in turn, reversed the taxation of a street railroad was challenged judgment of the Supreme Court entered at a on the ground that a steam railroad which special term held in and for the county of ran into the city and along its streets, and Albany on a writ of certiorari to review the ran into the city and along its streets, and action of the state board of tax commissionthere did some of the same kind of work as

ers. Affirmed. the ordinary street railroad, was not subject

See same case below in Appellate Division to the same tax, and, referring to this con- of Supreme Court, 79 App. Div. 183, 80 N. Y. tention, is this declaration by Mr. Justice Supp. 85; in Court of Appeals, 174 N. Y. Holmes: “The difference between the two 417, 63 L. R. A. 884, 67 N. E. 69. railroads is obvious, and warrants the diversity in the mode of taxation.” Further,

Statement by Mr. Justice Brewer: the condition of the title to the only sub

This case, like the preceding, involves the surface road in the city of New York clear- special franchise tax law of New York. The ly puts it in a class by itself.

facts are these: On December 22, 1853, the These are all the questions we deem it im- relator was authorized by the city of Brookportant to consider. We find no error in the lyn to construct, maintain, and operate decision of the Supreme Court of New York, street surface

railroads upon

upon specified and it is affirmed.

streets, and required to enter into a good and sufficient bond conditioned for the faith- Mr. Justice Brewer delivered the opinion ful performance of all the terms and stipu- of the court: lations in the resolutions granting the Do these license fees stand as an equivaauthority. On December 30 of that year a lent for property taxes so that a stipulation bond in the sum of $200,000 was duly ex- in respect to them relieves the property from ecuted by the relator, and has ever since liability to ordinary taxation? This certain. been kept in force. The terms and stipu- ly would not be the general rule. A license lations as to the construction and operation fee is understood to be a charge for the of the railroad need not be mentioned. The privilege of carrying on a business or ocresolutions contained these

contained these further pro- cupation, and is not the equivalent or in visions:

lieu of a property tax. Take the vast “The rates of fare for each passenger and volume of occupations which are subject to the license fee for each car to be paid licenses from either the nation or the states. annually into the city treasury shall be on Who supposes that, in the absence of some the respective lines above mentioned: express stipulation, the fees charged for

"1. Furnam street route, fare not to ex- those licenses operate to relieve the property ceed 5 cents, license fee, $50. 2. Court employed in the business from the ordinary street route, fare not to exceed 4 cents, burdens of property taxation? The precise license fee, $20. 3. Powers street route, question as to the effect of an ordinance imfare not to exceed 5 cents, license fee, $20.posing a license fee for cars used on a street 4. Flatbush avenue route, fare not to exceed railroad was before the court of appeals in 5 cents, license fee, $20. 5. Fulton avenue New York v. Broadway & S. Ave. R. Co. 97 route, fare not to exceed 4 cents, license fee, N. Y. 275, in which, on page 282, the court $20. 6. Myrtle avenue route, fare not to said: exceed 4 cents, license fee, $20. 7. Sands "The contract of the defendant arises from street route, fare not to exceed 5 cents, the provisions of its charter by which it license fee, $10. 8. Front street route, fare agrees to pay a certain sum reserved there. not to exceed 5 cents, license fee, $10.” in in consideration of the privileges con

This action of the city of Brooklyn was ferred thereby. It is neither a tax nor is it validated by the state legislature. Other a penalty; and hence the technical rules as contracts were made by the city of Brooklyn to penal actions or suits to recover a tax with other companies. Those companies which are invoked by the appellant have no were subsequently consolidated with the re-application.” lator, which, on the 1st of January, 1900, Further, in the statute modifying the held forty-five similar contracts with the license fees, which was accepted by the remunicipalities for the construction, main- lator, it was expressly stated that they tenance, and operation of street surface rail should "be taken in full satisfaction for the roads in the present boroughs of Brooklyn use of the streets or avenues.” Clearly, and Queens. Some of these contracts re- therefore, the fees being imposed for a quired the annual payment of a certain per- specific purpose, they cannot exempt the centage of the gross receipts. Subsequently, relator's property from the tax imposed by under due legislative authority, the con- the special franchise tax law. tract arrangements between the relator and

It is further objected that there was a the city were modified in respect to the failure of due process of law in that the amount of the annual license fee. The special franchise tax law did not indicate statute authorizing the modification con any principle or method for ascertaining the tains this clause:

value of the intangible property included “The said license fees shall be taken in in the special franchise, and that the state full satisfaction for the use of the streets or board did not make any separate valuation avenues, but the same shall not release said of the tangible property, and did not adopt company from any obligations required by or proceed upon any principle or method in law to keep such streets or avenues, or any valuing the totality of the tangible and inpart thereof, in repair, which said obli- tangible property, but necessarily indulged gations and the contracts, laws, or ordi- in mere speculation and guesswork instead nances creating and enforcing the same, are of exercising judgment in making the valuhereby continued in full force and operation. ation.”

We are of opinion that this objection is

without merit. The sections relating to the Messrs. Charles A. Collin and William taxation of special franchises were enacted F. Sheehan for plaintiff in error.

as amendments to and part of the general Messrs. Julius M. Mayer and Louis tax law of the state, and are to be construed Marshall for defendant in error.

accordingly. By one section the valuation

v.

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(199 U. S. 53) is to be determined by the state board of tax PEOPLE OF THE STATE OF NEW YORK commissioners. By another the owner of

en rel. TWENTY-THIRD STREET RAILevery such franchise is required to make a

WAY COMPANY, Plff. in Err., written report to the state board, containing

V. a full description of the franchise, a copy STATE BOARD OF TAX COMMISSIONof the special grant, ordinance, or contract

ERS. (No. 75.) under which it is held, or, if possessed or enjoyed under a general law, a reference to PEOPLE OF THE STATE OF NEW YORK such law, a statement of any condition, obli

es rel. CENTRAL CROSSTOWN RAILgation or burden imposed upon the franchise,

ROAD COMPANY, Piff. in Err., together with such other information as the state board may require; and that board STATE BOARD OF TAX COMMISSION. is authorized to require, from time to time,

ERS. (No. 76.) further reports containing information upon such matters as it may specify. Not only PEOPLE OF THE STATE OF NEW YORK that; after making the valuation the state

ex rel. CONSOLIDATED GAS COMboard is required to give notice in writing

PANY, Piff. in Err., to the owner of the franchise, stating the valuation, and that on a day specified, not STATE BOARD OF TAX COMMISSION. less than twenty nor more than thirty days

ERS. (No. 77.) thereafter, it will meet to hear and de

PEOPLE OF THE STATE OF NEW YORK termine any complaint against such assess

ex rel. NEW AMSTERDAM GAS COMment, and this notice must be served at least

PANY, Piff. in Err., ten days before the day fixed for the hearing. At the hearing the owner may file a statement under oath, specifying the respect in STATE BOARD OF TAX COMMISSION.

ERS. (No. 78.) which the valuation is incorrect; testimony may be taken and a full investigation had.

PEOPLE OF THE STATE OF NEW YORK Another section provides for a review of the

ew rel. CONEY ISLAND & BROOKLYN assessment by writ of certiorari. These

RAILROAD COMPANY, Piff. in Err., provisions were all complied with. Notice

V. was given to the relator, and on the day STATE BOARD OF TAX COMMISSIONfixed for the hearing it appeared and filed

ERS. (No. 80.) its objections. Thereafter it took out a writ of certiorari to review the proceedings of the

Contracts-impairment of obligation-validtax board. Surely by this due process of law

ity of tax on special franchises-due proc. was secured. It will not do to say that the

ess of law-equal protection of the laws valuation of a piece of property is mere guesswork.

True, it is often largely a mat- These cases are governed by the decisions in ter of opinion, and mathematical exactness

People es rel. Metropolitan Street R. Co v. is not always possible. Various elements State Board of Tax Comrs, and People en rel. enter into and affect an opinion respecting

Brooklyn City R. CO. V. State Board of Tag

Comrs., ante, 705, 713. the value of a given piece of property, and all that can be required is that the assessing

[Nos. 75, 76, 77, 78, 80.] board exercise an honest judgment, based upon the information it possesses or is able

Argued April 17, 18, 19, 1905. Deo ded May to acquire. That valuation is of the proper

29, 1905. ty as a totality, and it is unnecessary in making an assessment to disintegrate the various elements which enter into it, and IN ERROR to the Supreme Court of the

State of New York to reviev a judgment ascribe to each its separate fraction of value. sustaining assessments of special franOftentimes the combination itself is no in-chises entered pursuant to the mandate of considerable factor in creating the value. the Court of Appeals of that state, which We are of the opinion that the relator was had reversed a judgment of the Appellate Di. not denied due process of law in the valu. vision of the Supreme Court for the Third ation and assessment of its franchise.

Department, which had, in turn, reversed the We see nothing else in the record calling judgment of the Supreme Court entered at for notice, and the judgment of the Supreme a special term held in and for the county of Court of New York is affirmed.

Albany on a writ of certiorari to review the action of the state board of tax commissioners. Affirmed.

See same cases below in Appellate Division of Supreme Court, 79 App. Div. 183, 80 N. Y. Supp. 85; and in Court of Appeals, 174 N. Y. 417, 63 L. R. A. 884, 67 N. E. 69.

Messrs. William D. Guthrie, Elihu Root, and Frank H. Platt for plaintiffs in error.

Messrs. Julius M. Mayer and Louis Marshall for defendants in error.

verse successfully the application for a patent by the junior locator, since the latter's right, under U. S. Rev. Stat. § 2326, U. S. Comp. Stat. 1901, p. 1430, to a patent, which would exist in case of the failure of the owner of a subsisting senior location either to adverse the application or to prosecute such adverse if one was made, must also arise from the forfeiture of the claim of the senior locator before the junior locator's application for a patent was made, and the consequent inability of the senior locator to adverse successfully after the forfeiture is complete.

Mr. Justice Brewer delivered the opinion of the court:

While these cases differ in some details from the two preceding, in which opinions

[No. 120.] Argued January 11, 12, 1905. Decided May

29, 1905.

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the reasoning of those opinions. Therefore, affirmed a judgment of a District Court in the judgments in them are affirmed.

and for the County of Salt Lake, in that state, in favor of defendants in an action to

try title to conflicting mining claims. Af(198 U. S. 443)

firmed. GIOVANNI LAVAGNINO, Piff. in Err., See same case below, 26 Utah, 1, 99 Am.

St. Rep. 808, 71 Pac, 1046. EDMUND H. UHLIG, Alexander McKernan, and The St. Joe Mining Company.

Statement by Mr. Justice White:

Uhlig and McKernan, two of the defend. Error to state court Federal question — ants in error, by locations alleged to have

mining claims - conflicting locations been made on January 1, 1889, asserted effect of forfeiture of senior location. ownership of two adjacent mining lode

claims, designated respectively as the Uhlig 1. A decision of a state court that the statute No. 1 and the Uhlig No. 2, situated in the

of limitations making adverse possession of West mountain mining district, in Salt Lake real property for seven years a bar to its recounty, state of Utah. In the month of covery operates to defeat an action brought under U. s. Rev. Stat. § 2326, U. S. Comp. | August, 1898, the parties named filed in the Stat. 1901, p. 1430, to try title to conflicting proper land office an application for patent mining claims, in which the defeated party for said claims. During the publication of relied on the relocation, under $ 2324 (U. notice of the filing of the application, S. Comp. Stat. 1901, p. 1426), of a forfeited Giovanni Lavagnino, plaintiff in error,-as claim, necessarily involves a denial of rights the alleged owner of a mining lode claim asserted by him under the latter section, so as to make a case for a writ of error from called the Yes You Do,-filed an adverse the Supreme Court of the United States, claim to a portion of the land embraced in where the state court treated as irrelevant each of the Uhlig locations, which it was and immaterial evidence tending to show that asserted overlapped the Yes You Do. Therethe premises in dispute were embraced in the forfeited location, and that possession of that upon, pursuant to the requirements of $ claim was held and retained from a time at 2326 of the Revised Statutes (U. S. Comp. least contemporaneous with the initiation of Stat. 1901, p. 1430), this action was brought the conflicting locations almost up to the re-in a district court of Salt Lake county, location.

Utah, to determine in whom was vested the 2. An adequate presentation of a Federal ques. title and right of possession to the conflict

tion to a state court to make a case for a writ of error from the Supreme Court of the ing areas, which, in the case of the Uhlig United States suficiently appears where the No. 1, claim, amounted to 6.374 acres and in record clearly shows that the trial court con- the No. 2 to 1.441 acres. sidered that the unsuccessful party was spe- In substance, Lavagnino alleged in his cially claiming rights under U. S. Rev. Stat. complaint that, at the time of the location § 2326, U. S. Comp. Stat. 1901, p. 1430, authorizing an adverse of an application for of the Uhlig claims, there was a subsisting a patent to mineral lands, and the high valid location known as the Levi P. lode est state court necessarily acted upon that claim, which included within its areas the assumption in delivering its opinion.

land in dispute in the action; that the necesThe area of conflict between two mining lo- sary labor required by the statutes of the cations does not, upon the forfeiture of the United States was performed upon the claim senior location, become unoccupied mineral lands of the United States, so as to enable up to and including the year 1896; that no a relocator of the forfeited location to ad-'actual labor or improvements were made upon the claim for the year 1897, and, in was to be conclusively presumed that there consequence, all the land included within the did not exist any location which in anywise Levi P. location became forfeited, and conflicted with the Uhlig claims sought to acquired the status of

of unoccupied and be patented. mineral lands of the United States, and that The court made findings of fact, in which, while such was the status of the land, on inter alia, it was recited that the plaintiff at January 1, 1898, one J. Fewson Smith, the trial had not introduced any legal or Jr.,—the grantor of Lavagnino,-relocated competent evidence to sustain the issues on the Levi P. claim as the Yes You Do, and his part, and consequently that "upon the that thereafter all the requirements neces-trial, on motion of counsel for defendants, sary to be done had been performed, and the the said action of the plaintiff against the Yes You Do was then a valid and subsisting defendant was, and is hereby, dismissed.” location.

The facts were then found in respect to the Subsequently the St. Joe Mining Company location and working of the Uhlig claims, was substituted in the stead of Uhlig, as a and, as conclusions of law, the court held party defendant.

that the action against the defendants On the trial it was shown that at the should be dismissed with costs, and that the time Smith located the Yes You Do claim he defendant the St. Joe Mining Company, and was a deputy mineral surveyor for the dis- the defendant Alexander McKernan, were trict in which such mining claim was situ- entitled to purchase from the United States ated, and that he made the survey and plat of America the said Uhlig claims and the for the protest which had been filed in the whole thereof, and were also entitled to a land office against the Uhlig application for decree quieting their title to the premises in patent. On the offer, as evidence for the dispute. From a decree entered in conplaintiff, of the notice of location of the Yes formity to these conclusions an appeal was You Do claim and the deed from Smith to prosecuted to the supreme court of Utah, Lavagnino, objection was made to their ad- and that court affirmed the decree. 26 Utah, mission, and the offered evidence was ex- 1, 99 Am. St. Rep. 808, 71 Pac. 1046. A cluded upon the ground that the asserted writ of error was thereupon sued out from location by Smith of the Yes You Do was this court. not valid, because, at the time of the making

Messrs. Aldis B. Browne, Alexander thereof, Smith was a deputy mineral surveyor, and was prohibited by the terms of Britton, and N. W. Sonnedecker for plaintiff § 452 of the Revised Statutes of the United in error. States (U. S. Comp. Stat. 1901, p. 257),

Messrs. D. H. Wenger and Arthur Brown from making the location of a mining lode for defendants in error. claim. For the same reason the trial court

Mr. Justice White, after making the sustained an objection to evidence offered on foregoing statement, delivered the opinion behalf of the plaintiff tending to show that, of the court: at the time the Uhlig claims were located,

The supreme court of Utah was of the the ground covered by such locations was opinion that, by force of $ 452 of the Revised then covered by prior locations made at an statutes of the United States (copied in the earlier hour on the same day, and was con

margin†), J. Fewson Smith, Jr., being a sequently not subject to location as

deputy mineral surveyor, was disqualified occupied mineral lands of the United States. from locating the Yes You Do claim; that in That one of said locations—the Levi P.embraced the premises in dispute, and was claim was void; and that the plaintiff,

consequence the attempted location of such a subsisting location until forfeited by fail- Lavagnino, acquired no rights by the conure to perform the annual work for the year veyance of the claim to him by Smith. It 1897; that the relocation of said claim as

was next decided that, as the plaintiff had the Yes You Do was made on January 1, failed to show any right to the disputed 1898; and that the annual work and other premises, he became a stranger to the title, steps required by law to be done in con

and was without right to contest the claim nection with the claim had been performed. of the defendant. The correctness of the de

Following the introduction of testimony cree entered by the trial court was also held tending to show the validity of the Uhlig to result from the terms of § 2332 of the locations, testimony was introduced on be- Revised Statutes of the United States (U. half of the plaintiff in respect to the location and working of the Levi P. claim; but, + Section 452, Revised Statutes of the United States. on the offer of the Levi P. location notice,

"The officers, clerks, and employees in the Genthe trial court sustained an objection there- eral Land Office are prohibited from directly or to, and ruled that, as the Yes You Do was indirectly purchasing or becoming interested in not a valid location, there were no adverse the purchase of any of the public land; and any claims before the court, and as a result it person who violates this section shall forth with

be removed from his office."

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