*258

In Error to the Circuit Court of the United States for the District of Montana.

The act (25 Stat. 682) admitting Montana Into the Union provided that the state should constitute one judicial district, and that the sessions of the circuit and district courts of the United States should be held at Helena, in Lewis and Clarke county, that being the capital of the state. On July 20, 1892, the following act was passed (27 Stat. 252): "That the territory embraced within the following counties in the district of Montana, to wit: Beaverhead county, Madison county, and the county of Silver Bow shall hereafter constitute and be known as the Southern division of the district of Montana, and regular terms of the circuit and district courts of the United States for said district may be held at Butte City, Montana, on the first Tuesday in February and the first Tuesday in September of each year; and the said I courts so sitting at Butte shall have and exercise the same jurisdiction and authority in all civil actions, pleas, or proceedings, and in all prosecutions, informations, indictments, or other criminal or penal proceedings conferred by the general laws on the district and circuit courts of the United States; and where one or more defendants in any civil cause shall reside in said division, and one or more defendants to such cause shall re side out of said division, but in said district, then the plaintiff may institute his action either in the court having jurisdiction over the latter or in the said division. That this act shall not affect the jurisdiction, power, and authority of the court as to actions, prosecutions, and proceedings already begun and pending in said district, but the same will proceed as though this act had not been passed, except that the court shall have power, which it may exercise at discretion, to transfer to the court in said division such of said pending actions, prosecutions, and proceedings as might properly be begun therein under the provisions of this act."

On March 18, 1895, an indictment in five counts was presented in the circuit court, charging the defendant with violating section 5467, Rev. St., which reads:

“Any person employed in any department of the postal service who shall secrete, embezzle, or destroy any letter, packet, bag, or mail of letters intrusted to him, or which shall come into his possession. and which was intended to be conveyed by mail, or carried or delivered by any mail carrier, mail messenger, route agent, letter carrier, or other person employed in any department of the postal service. and which shall contain any * draft, check, warrant, or any other article of value, or writing representing the shall be punishable by imprisonment at hard labor for not less than one year nor more than five years."

same.

The fourth count, upon which alone the defendant was found guilty, charged that on

the 13th day of July, 1894, "In the state and district of Montana, and within the jurisdiction of this court," the defendant, "a person employed in the postal service of the United States, to wit, a railway postal clerk, * and in the discharge of the duties of that, position on the Great Northern Railway, between the station of Havre, in the county of* Choteau, and the station of Kalispell, in the county of Flathead, in said state of Montana,' did destroy a registered letter and the contents thereof, which letter had "come into his possession as such railway postal clerk, and which was intended to be, and was then and there being, conveyed by United States mail, and which said registered letter had been deposited in the mail at the United States post office at Sacramento," directed to "Mrs. Emilie Heistans Greitzer, Gasthaus etzel b. Einsedeln Ct. Schwizz, Schweizerland, which said registered letter contained a draft for fifty francs, D. O. Mills & Co., No. d.08250, on Paris, France, a more particular description of which is to the grand jurors aforesaid unknown."

The term of the circuit court for the district of Montana at which the grand jury was impaneled, and at which this indictment was presented, was held at the city of Butte, in the Southern division of the district. Thereafter, the defendant having been ar rested, on motion of the United States district attorney, the indictment was remitted for trial to the term of court to be held at Helena, in Lewis and Clarke county, in the other division of the district. No objections to this transfer were made by the defendant. Trial being had, the jury found the defendant guilty, as heretofore stated, under the fourth count. A motion in arrest, in which, for the first time, the question of Jurisdiction was raised, having been made and overruled, the defendant was sentenced to imprisonment for the term of one year, whereupon this writ of error was sued out.

Thomas H. Carter and S. S. Burdett, for plaintiff in error. Sol. Gen. Conrad, for the United States.

Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

Counsel for defendant state that the main question for determination is one of jurisdiction-First, of the grand jury in the Southern division of the district of Montana to find the indictment; and, second, whether, such indictment having been found, the court had authority to remit it to the other division for trial.

It is insisted that the circuit court for the Southern division had jurisdiction, under the act of 1892, of only such offenses as were committed within the limits of the division; that, therefore, the grand jury had no authority to find an indictment for an offense such as this, apparently committed in the other division. The solution of this question

depends upon the construction to be given to the act of 1892. By section 563, Rev. St., the district courts are given jurisdiction "of all crimes and offenses cognizable under the authority of the United States, committed within their respective districts." By section 629, par. 20, Id., the circuit courts have "concurrent jurisdiction with the district courts of crimes and offenses cognizable therein."

These statutes declare the general rule that jurisdiction is co-extensive with district. That being the general rule, no mere multiplication of places at which courts are to be held, or mere creation of divisions, nullifies it. Indeed, the place of trial has no necessary connection with the matter of territorial jurisdiction. By section 581, Rev. St., it is provided that "a special term of any district court may be held at the same place where any regular term is held, or at such other place in the district as the nature of the business may require." And by section 729, that "the trial of offenses punishable with death shall be had in the county where the offense was committed, where it can be done without great inconvenience." Jurisdiction In the trial courts being thus bounded by district, we find many acts, some increasing in a district the places of trial, and others in terms subdividing the district into divisions. The former have no effect on the matter of jurisdiction. Some of these latter acts specifically limit the jurisdiction in criminal actions of the courts held in a division to the territory within that division, as, for instance, in respect to Alabama (23 Stat. 18), Louisiana (25 Stat. 388), Michigan*(20 Stat. 175), Ohio (20 Stat. 101; 21 Stat. 63), Tennessee (21 Stat. 175), Texas (25 Stat. 783, 786); while, on the other hand, some contain no such provision, as in the case of Minnesota (26 Stat. 72; Post v. U. S., 161 U. S. 583, 585, 16 Sup. Ct. 611), though this was changed by a subsequent act (28 Stat. 102; Post v. U. S., supra).

In the light of this legislation, with its diversity of provision, we are called upon to construe the act of 1892, creating the Southern division of the district of Montana. The first part of the section simply creates the division and defines its limits. This is followed by the general declaration that the courts so sitting in Butte, the place at the Southern division in which they are to be held, "shall have and exercise the same jurisdiction and authority in all civil actions, pleas, or proceedings, and in all prosecutions, informations, indictments, or other criminal or penal proceedings conferred by the general laws upon the circuit and district courts of the United States." If the section stopped here there would be no question. The mere creation of a division does not disturb the general jurisdiction over the district. And, in addition, the language just quoted makes an affirmative grant to the courts, when sitting at Butte, of all the jurisdiction, civil and criminal, vested in the circuit and district

courts; that is, a jurisdiction co-extensive with the district. The latter part of the section causes all the doubt in respect to the matter. In that are found two provisions: One that, where one or more of the defendants in any civil cause reside in one division, and one or more in another, the plaintiff may institute his action in either division. This, of course, has no bearing on the question of jurisdiction in criminal cases. The second, that the act should not affect the jurisdiction of the court as to actions, prosecutions, and proceedings already begun, and that they should proceed where they were commenced, with a proviso that the court might in its discretion transfer all such actions, etc., as might properly be begun in the, new division to the court in that division. *This language is broad enough to include criminal actions. Too much stress should not be placed on the word "properly." The creation of divisions, and the multiplication of places of trial, are for the convenience of litigants, bringing the trial nearer to them and their witnesses. There is a manifest propriety, even when no jurisdictional necessity, in conducting criminal prosecutions as near to the place of the offense as possible. The idea of the vicinage is familiar to criminal law. And all that congress may have intended by this second provision was to make it clear that the court should have the power to transfer to this new division any pending proceeding which might, with more convenience, and therefore propriety, be prosecuted at the place at which, in the new division, the sessions of the court were to be held. It must, however, be conceded that these provisions do carry some implication that a distribution has been made of territorial jurisdiction between the courts of the two divisions, and the question we have to determine is whether this implication is sufficient to create a distribution which the statute has not in terms made. It may be said, and with force, that there is no need of the last half of the section; that it is superfluous, unless upon the assumption that there has been a distribution of jurisdiction, civil or criminal, or both, co-extensive with the territories of the two divisions; and yet, can it be adjudged that congress has created such distribution, when it has not in terms directed it, simply because some expressions in the statute imply its existence? The question is a difficult one, and yet we think the true rule of construction is this: When there are statutes clearly defining the jurisdiction of the courts, the force and effect of such provisions should not be disturbed by a mere implication flowing from subsequent legislation. In other words, where congress has expressly legislated in respect to a given matter, that express legislation must control, in the absence of subsequent legislation equally express, and is not overthrown by any mere inferences or implications to be found in such subsequent legislation. Espe

cially is this rule to control when it appears that congress, in some cases, has made express provision for effecting a change. This does not conflict with the doctrine, stated in Re Bonner, 151 U. S. 242, 256, 14 Sup. Ct. 323, 325, that the jurisdiction of a court in criminal cases cannot "be enlarged by any mere inferences from the law or doubtful construction of its terms." It is rather the converse of that, for the effort is to destroy a Jurisdiction otherwise clearly existing, by mere inferences and doubtful construction.

This may be a case of mere omission, but It is an omission which the courts cannot supply. We cannot assume that, because congress, in creating some divisions, distributed jurisdiction, it meant, in creating other divisions, to also so distribute it; and when we find that, in some cases of division, It distributed the jurisdiction, and in other cases not, we are not justified in assuming that in this case it intended a distribution which it did not in terms make, simply because of the use of language which somewhat implies that a distribution had already been made.

So far as the mere transfer of the place of trial from one division to another, it would seem, in the absence of express prohibition, to be within the competency of the court having full jurisdiction over the entire district, and certainly presents no ground of error when it is not at the time challenged, and the trial proceeds without objection.

These considerations also show that there is no force in the objection that the indictment does not specify the place at which the grand jury that found it was sitting, and also as to the certainty of the venue.

The only remaining question is in reference to the description of the draft which was in the letter destroyed. It is insisted that this is not sufficient. This objection cannot be sustained. The gravamen of the charge is the destruction of the letter. It is an offense against the postal laws of the United States, and, while the letter must contain a draft, check, or some other thing of value, or supposed value, in order to bring the case within the compass of this statute, yet it is unnecessary to describe this draft, check, etc., with the same precision as if forgery, or some other crime directed against the instrument itself, was charged. A full description of the check or draft being unessential, it is clearly sufficient when the grand jury say that, the instrument having been destroyed, they are unable to give any further description than such as is found in this indictment, for that, as will be seen, contains some matters of description and identification. There being no other questions presented in the record, and in these appearing no error, the judgment of the circuit court is affirmed.

Mr. Justice GRAY and Mr. Justice WHITE dissent.

17 S.C.-20

(165 U. S. 194)

SANFORD v. POE, Ohio State Auditor, et al. (two cases). FARGO v. SAME (two cases). PLATT V. SAME (two cases). SEWARD ▾. SAME.1

(February 1, 1897.)

Nos. 337, 338, 339, 340, 398, 399, 400. CONFLICT OF STATUTE WITH STATE CONSTITUTION -DECISION OF STATE COURT-PREPARED CASE"NICHOLS LAW"-VALIDITY TAXATION OF EXPRESS COMPANIES.

1. The decision of the highest court of a state that a certain statute does not conflict with the state constitution will be accepted by the United States supreme court as conclusive, though the case in which it was rendered was prepared to obtain a decision of the question, and did not involve an actual controversy.

2. A state tax on the property of an express company within the state, the taxable value of which is determined with reference to the whole capital of the company ("Nichols Law," Rev. St. Ohio, 88 2777-2780), is not an unconstitutional interference with interstate commerce. Mr. Justice White, Mr. Justice_Field, Mr. Justice Harlan, and Mr. Justice Brown dissenting.

3. Nor is it a tax on property beyond the jurisdiction of the state, and for that reason a taking of property without due process of law. Mr. Justice White, Mr. Justice Field, Mr. Justice Harlan, and Mr. Justice Brown dissenting.

4. In determining the value of the property of an express company for taxation on a mileage basis it will be presumed, when the contrary is not shown by the company, that all its property in the several states in which it operates is directly employed in its business.

5. The "Nichols Law" (Ohio Rev. St. §§ 27772780), providing that the taxable value of the property of telegraph, telephone, and express companies shall be determined with reference to the value of the entire capital stock, does not deny to such companies the equal protection of the laws.

Appeals (Nos. 337-340, inclusive) from the United States Circuit Court of Appeals for the Sixth Circuit.

Appeals (Nos. 398-400, inclusive) from the Circuit Court of the United States for the Southern District of Ohio.

These are cases involving the constitution-¿ ality of certain laws of the state of Ohio providing for the taxation of telegraph, telephone, and express companies, and the validity of assessments of express companies thereunder.

The general assembly of Ohio passed, April 27, 1893, an act to amend and supplement sections 2777, 2778, 2779, and 2780 of the Revised Statutes of that state (commonly styled the "Nichols Law"), which was amended May 10, 1894. The law created a state board of appraisers and assessors, consisting of the auditor of state, treasurer of state, and attorney general, which was charged with the duty of assessing the property in Ohio of telegraph, telephone, and express companies. By the act as amended, between the 1st and 31st days of May, annually, each telegraph, telephone, and express company doing business in Ohio was required to file a return with the auditor of state, setting forth, among other things, the number of shares of its capital stock; the par value and market 1 For opinion on rehearing, see 17 Sup. Ct. 604.

196

value (or, if there be no market value, then the actual value) of its shares at the date of the return; a statement in detail of the entire real and personal property of said companies, and where located, and the value thereof as assessed for taxation. Telegraph and telephone companies were required to return, also, the whole length of their lines, and the length of so much of their lines as is without and is within the state of Ohio, including the lines controlled and used, under lease or otherwise. Express companies were required to include in the return a statement of their entire gross receipts, from whatever source derived, for the year ending the 1st day of May, of business wherever done, and of the business done in the state of Ohio, giving the receipts of each office in the state; also, the whole length of the lines of rail and water routes over which the companies did business, within and without the state. Provision was made in the law for the organization of the board, for the appointing of one of its members as secretary, and the keeping of full minutes of its proceedings. The board was required to meet in the month of June, and assess the value of the property of these companies in Ohio. The rule to be followed by the board in making the assessment was that, "in determining the value of the property of said companies in this state, to be taxed within the state and assessed as herein provided, said board shall be guided by the value of said property as determined by the value of the entire capital stock of said companies, and such other evidence and rules as will enable said board to arrive at the true value in money of the entire property of said companies within the state of Ohio, in the proportion which the same bears to the entire property of said companies, as determined by the value of the capital stock thereof, and the other evidence and rules as aforesaid."

As to telegraph and telephone companies, the board was required to apportion the valuation among the several counties through which the lines ran, in the proportion that the length of the lines in the respective counties bore to the entire length in the state. In the case of express companies, the apportionment was to be made among the several counties in which they did business, in the proportion that the gross receipts in each county bore to the gross receipts in the state.

The amount thus apportioned was to be certified to the county auditor, and placed by him on the duplicate, "to be assessed, and the taxes thereon collected the same as taxes assessed and collected on other personal property," the rate of taxation to be the same as that on other property in the local taxing district.

The valuation of all the real estate of the companies situated in Ohio was required to be deducted from the total valuation as fixed by the board.

Provisions were made for hearings, and for

the correction of erroneous and excessive valuations, as follows:

"At any time, after the meeting of the board on the first Monday in June, and before the assessment of the property of any company is determined, any company or person interested shall have the right, on written application, to appear before the board and be heard in the matter of the valuation of the property of any company for taxation. After the assessment of the property of any company for taxation by the board, and before the certification by the auditor of state of the apportioned valuation to the several counties, as provided in section 2780, the board may, on the application of any interested person or company, or on its own mo tion, correct the assessment or valuation of the property of any company, in such manner as will, in its judgment, make the valuation thereof just and equal. The provisions of section 167 of the Revised Statutes shall apply to the correction of any error or overvaluation in the assessment of property for taxation by the state board of appraisers and assessors, and to the remission of taxes and penalties illegally assessed thereon."

Section 167 of the Revised Statutes, referred to, reads thus:

"Sec. 167. He [the auditor of state] may remit such taxes and penalties thereon as he ascertains to have been illegally assessed, and such penalties as have accrued or may accrue♬ in consequence of the negligence or error of any officer required to do any duty relating to the assessment of property for taxation, or the levy or collection of taxes, and he may, from time to time, correct any error in any assessment of property for taxation or in the duplicate of taxes in any county; provided that when the amount to be remitted in any one case shall exceed one hundred dollars, he shall proceed to the office of the governor and take to his assistance the governor and attorney general, and in all such cases may remit no more than shall be agreed upon by a majority of the officers named."

Instead of distributing the valuation as under the act of 1893, the state board, by the act of 1894, was to certify it to the auditor of state, whose duty it was made to apportion and certify the valuation among the counties.

In No. 337 the taxes for 1893 were involved; and in Nos. 338, 339, and 340, the taxes for 1894. These are appeals from the circuit court of appeals for the Sixth circuit. In Nos. 398, 399, and 400 the taxes for 1895 were involved. These are appeals from decrees of the circuit court for the Southern district of Ohio.

The original suits were brought in the circuit court to enjoin the certification of the apportioned valuations to the county auditors, as to 1893, against the state board; as to 1894 and 1895, against the auditor of state.

The circuit court (Taft, J.), on April 23, 1894. after a preliminary opinion, filed opinions in the case of W. U. Tel. Co. v. State Board,

61 Fed. 449, and in No. 637, Id. 470, holding the Nichols law to be invalid under the constitution of Ohio. On the 1st of May following the supreme court of Ohio decided that the Nichols law was constitutional and valid. State v. Jones, 51 Ohio St. 492, 37 N. E. 945.

Thereupon the circuit court reversed its ruling, and accepted the decision of the supreme court of the state, and Judge Taft filed a further opinion holding that the assessments were valid. 64 Fed. 9.

In all the cases the final decrees of the circuit court dissolved the temporary injunctions which had been granted, sustained demurrers, and dismissed the bills.

The circuit court of appeals affirmed the cases taken to it on appeal. 37 U. S. App. 378, 399, 16 C. C. A. 305, and 69 Fed. 546; 16 C. C. A. 683, 69 Fed. 557.

The proceedings of the state board in makIng the assessments for 1895, and certain correspondence, are set forth in the records as if exhibits to the bills. The action of the board, relative to express companies, is thus given:

"The board having given each express company doing business in Ohio, whose property in Ohio is hereinafter assessed, opportunity to appear and be heard personally by the board, and having heard all companies which desired to be heard through their officers, agents, or counsel, and having carefully considered the facts set out in the returns, schedules, and supplementary statements of such companies, and all evidences of value and all matters bearing upon the question of the value of the property of the companies, which, in the judgment of the board, would assist it in arriving at the true value, in money, of the entire property of each of said companies within the state of Ohio, on motion, the state board of appraisers and assessors unanimously fix and determine the values of the property of express companies hereinafter named in Ohio, to be taxed therein, at the amounts set out in the following table:

The Adams Express Company ...

.$533,095.80

The United States Express Company

On

488,264.70" This valuation was made July 24, 1895. the 2d of August counsel for the companies wrote the auditor requesting to be advised of the assessments when made, in order that they might apply for a correction. On the 7th of August the secretary of the board informed counsel of the assessments. On August 10th, counsel wrote, asking "upon what calculation, if any, the apparently precise amounts of the assessments, especially in the case of the express companies, are based, and how the figures are arrived at."

The auditor replied, for the board, that "the method pursued by the state board of appraisers and assessors this year in assessing the property in Ohio of the Western Union Telegraph Company and the express compa

nies you represent is not different from that followed in former years, which has been sustained by the courts, and is set forth in the records of the board."

Attention was called to certain data lacking in the companies' returns, and counsel were informed that opportunity would be afforded for a hearing on September 2d, at 10 o'clock a. m.; but the three bills involving these assessments were filed August 14, 1895. Subsequently returns were filed, as of May 1, 1895, showing:

As to the Adams Express Company: Number of shares, 120,000. Market value, $140 to $150. Taxable value of real estate owned in Ohio, $25,170. Value of personal property, including moneys and credits, owned by company in Ohio, $42,065. Total value of real estate owned outside of Ohio, $3,005,157.52. Total value of personal property owned outside of Ohio, $1,117,426.05. Entire gross receipts, from whatever source, received within the state for the year, $282,181. Whole length of lines of rail and water routes over which the company was doing business, 29,647 miles. Length without the state, 27,518 miles; within the state, 2,129 miles.

As to the United States Express Company: Number of shares, 100,000. Par value, $100. Market value, $40. Taxable value of real es

tate owned in Ohio, $22,190. Value of personal property, including moneys and credits, owned in Ohio, $28,438. Entire gross receipts, from whatever source, derived within the state, $358,519. Length of lines within the state over which the company was doing business, 3,011 miles.

As to the American Express Company: Number of interests, 180,000. Par value, $100. Market value, $112. Taxable value of real estate in Ohio, $58,660. Value of personal property, including moneys and credits, in Ohio, $23,430. Total value real estate outside of Ohio, $4,891,259. Total value of personal property outside of Ohio, $1,661,759. Gross receipts within the state, $275,446. Whole length of lines, 35,295 miles; length within the state, 1,731 miles.

*The companies made no return of their entire gross receipts of business, wherever done, nor of the terms of their contracts or arrangements for transportation.

These returns stated, and the bills repeated: That, aside from the real estate mentioned, the companies had no property in the state of Ohio "except certain horses, wagons, harness, trucks, safes, and office fixtures located at different points," and that their actual value was given. That "the business of the company in the state consists in carrying packages on passenger and express trains, steamboats, and stages, in the care and custody of its employés, who accompany the packages. The express company has no ownership of nor interest in these means of conveyance, and simply pays to the railroad companies and the owners of the steamboats and stage coaches for the passage of messengers and their ac