did not pay a dividend before the expiration parent enough, because, until the road was of these two years. The inquiry is, whether this contract goes further and exempts the road, after it has been completed for two years, from all other than state taxation, and whether the State is precluded from providing another mode of valuation for state taxes. able to earn something, taxation might bear heavily upon it. But, with the completion of the road, the reason for the exemption ceased, and it is difficult to see what inducement there was for the State to grant perpetual immunity from local taxation. In the original charter of the Company, granted in 1849, there was no It is manifest that legislation which, it is exemption from taxation. It is true, the claimed, relieves any species of property from amendment of 1851 altered this, so that the its due proportion of the general burdens of road was relieved of any public charge or tax government, should be so clear that there can for the period of five years, but this privilege be neither reasonable doubt nor controversy expired in 1856, and the provisions of the Act about its terms. The power to tax rests upon of 1852 on this subject were more favorable to necessity and is inherent in every sovereignty, the Company. Besides receiving, under this and there can be no presumption in favor of Act, a large body of lands donated by its relinquishment. While it were better for *Congress to the State to aid in the [*228 the interest of the community that this power construction of railroads, it was enabled to should on no occasion be surrendered, this complete its entire road and run it for two court has always held that the Legislature of years without paying any tax whatever. By a State, unless restrained by constitutional this means it secured immunity from taxation limitations, has full control over the subject until 1868, and any further immunity in this and can make a contract with a corporation direction, if conceded by the State, would have to exempt its property from taxation, either been a mere gratuity. In view of all the legisin perpetuity or for a limited period of time. If, lation on this subject, it would seem quite however, on any fair construction of the legis- clear that the General Assembly of Missouri, lation, there is a reasonable doubt whether the while recognizing, in behalf of this road, the contract is made out, this doubt must be solved propriety of temporary exemption from taxain favor of the State. In other words, the lan- tion, had no purpose to continue these exempguage used must be of such a character as, fair- tions indefinitely. ly interpreted, leaves no room for controversy. The present claim is of perpetual exemption from county and municipal taxation, quite as essential to the wants of the people as taxation for state purposes. But, it is said, the section covers the whole subject of taxation, and as it provides for state taxes only, it excludes any other. If, in the declaratory part of it, the road had been subject to "state taxation," there would have been plausibility in the argument, to say the least, that the Legislature intended to waive other taxation. But the provision is, that after the temporary exemption from all taxation ceases by its own limitation, the property of the road shall be subject "to taxation" at the same rate as other property in the State. There is no restriction in this language, nor is there any rule of law by which a word can be imported to limit its meaning. It is true, special provision is only made for the ascertainment and payment of a state tax, and nothing is said about the manner of ascertaining and paying other taxes. But this does not prove an intentional abandonment of all but state taxes. It proves nothing more than that the Legislature thought proper, in the particular of state taxes, to modify the general revenue law so far as this corporation is concerned, leaving the provisions of this general law operative upon local taxation. It is conceded that this exemption is not granted in express terms, but it is argued that, taking the whole section together, it arises by necessary implication. We do not think so. Immunity from all taxation was given until 227*] the road was built and in operation two years; but after this it is declared "That the road-bed, buildings, machinery, engines, cars and other property of such completed road, at the actual cash value thereof, shall be subject to taxation at the rate assessed by the State on other real and personal property of like value." This is a declaration that the taxation imposed upon the property of this Company shall not be different from the taxation imposed upon other similar property, which conforms to the constitutional requirement "that all property subject to taxation shall be taxed in proportion to its value." If other property is charged with the payment of county, school and municipal taxes, why not the property of this Company? In no other It would be a hard rule to apply to the legway can the principle of equality in taxation, islation of a State to hold that the circumso essential to good government, be secured. stance of making in the amendment to a charIf the Legislature intended to apply a differ-ter of a railroad corporation special provision ent rule in this case, it were easy to have said that the property of this Company shall be subject to taxation "for state purposes." Instead of this, it is declared to be "subject to taxation." This, obviously, means general taxation-such taxation as other property of like value is subjected to. No words of limita tion are used, and none can be implied against the interests of the State. It is never for the interest of the State to surrender the power of taxation, and an intention to do so will not be imputed to it unless the language employed leaves no other alternative. The motive for temporary exemption is ap for ascertaining the tax due the State (nothing being said about the manner of ascertaining other taxes), works an exemption of the property of the Corporation from all taxation not levied for state purposes. Silence on such a subject *cannot be construed as a [*229 waiver of the right of the State in this regard. There must be something said which is broad enough to show clearly that the Legislature intended to relieve the Corporation from a part of the burdens borne by other real and personal property. This was not done in this case, and the claim of exemption from local taxation cannot be sustained. It is claimed, however, that even if this be The assessor of Cass County had levied taxes so, the State is inhibited from altering the for both state and county purposes on the special provision on the subject of state taxa- property of the company in the county, and tion. This provision prescribes a mode for as- the question was whether these levies were certaining the tax due the State. The presi- authorized. The court held that the taxes for dent of the company is required to furnish to county purposes were rightfully assessed, unthe auditor a statement, under oath, of the der the general revenue laws, but that the actual cash value of the property to be taxed, taxes for state purposes were unauthorized, on which the company is directed to pay the because section 12 of the Act of 1852 had not tax due the State, within a certain time, to been repealed either by an express provision of a the Treasurer, under penalties. And the claim subsequent law or by necessary implication, and is that the State Legislature is prohibited being in force, state taxes could only be collectfrom passing any law to assess the property of ed in the way pointed out in that section. the company for taxation for state purposes *As it is the peculiar province of the [*231 in a different manner. It is not so written in highest court of a State to decide whether or the statute, nor, indeed, can any proper infer- not the method pursued in the assessment and ence be drawn from what is written that the collection of taxes is in conformity with the Legislature intended to contract with the Cor-law of the State, this decision is controlling. poration in this particular. It would be It was not made until after this suit was instrange, indeed, if it were so, for the mode of stituted and, doubtless, not promulgated until assessment might not work well, and yet, if it the rendition of the decree. The assessors of formed the subject of a contract, it could not | Saint Louis County, in this case, imposed be changed. The principal thing in which the taxes for state, county, school and city purState and Company were interested was the poses. The bill charged that the whole proactual cash value of the property to be ceeding was illegal, and sought to restrain the charged. This value was the basis of taxation, entire levy. On demurrer, the circuit court and it could not be a matter of moment how held that the city taxes were wrongfully levit was fixed, provided it were done correctly. ied, and issued the proper order restraining In this result both the State and Corporation them, and dismissed the bill so far as it relathad an equal interest. Both were interested in ed to state, county and school taxes. The the means adopted only so far as they were court should have included state taxes in the efficient to secure the contemplated object. The restraining order. On this account the decree exigency of the State required the revenue on must be reversed and cause remanded, with the basis of actual value, and this, it is to be directions to enter an order enjoining the colpresumed, the Corporation was willing to lection of the state tax in the bill mentioned. accord. At any rate it was the duty of the In all other respects the decree is right. State, in justice to other property owners, to Decree reversed. use the appropriate means to ascertain this value. The ordinary method of doing this is ROBERT S. FRENCH, Trustee of Laura J. by the instrumentality of officers appointed 230*] for the purpose, but the State asked the railroad, through its president, to make the valuation, to which the Corporation assented. This way of reaching the result was less expensive to the State, but more expensive to the Corporation than the usual mode in which taxes are assessed. The president of the Company could not make a true valuation without the expenditure of time and labor, and this repeated, year by year, as values of property constantly fluctuate. There is no presumption that he would not do it, conscientiously, according to his best judgment, but still it was a favor to the State for him to do it at all, and certainly no one can contend that a State cannot waive at any time a provision for its own benefit. Apart from this view of the subject, the provision in question was simply a mode for ascertaining the true value of the property to be taxed, and if, on trial, it should turn out not to be the best mode for the purpose, surely the Legislature has a right to change it and adopt another. This no one will question, unless the Legislature has surrendered its power over the subject by contract, which, in our opinion, has not been done in this case. But, until the Legislature appoints another mode for assessing and collecting the revenue due the State from this Corporation, it must proceed in conformity with the provisions contained in the Act of 1852. The whole subject we have discussed recent ly came before the Supreme Court of Missouri in the case of R. Co. v. Cass Co., 53 Mo., 17. JOSEPH B. French, Appt., v. STEWART, Alexander Hay, Admr. of James McCullough, Substituted Trustee, Deceased, et al. (See S. C., French, Trustee, v. Hay, et al.," 22 Wall., 238-250.) Objection, when too late-appearance-supplemental bill-amended bill-transfer from State to Federal Court-motion. 1. An objection as to the removal of a case from the State Court made in the court below after the testimony was all taken, the case was ready for hearing, and nearly three years after the transfer was made, was too late. 2. Where defendant filed his answer to an original bill, subscribed and sworn to by himself, and signed by his counsel, he thus entered his appear ance and placed himself within the jurisdiction of the court. 3. Where a final decree, covering the entire original case existed, further relief sought can be reached only by a supplemental bill, if at all. It is a gross error to allow an amended bill to be filed. 4. An amended bill is esteemed a part of the original bill and a continuation of the suit. New process is not necessary upon an amended bill as to defendants who are already before the court. 5. Where a decree is made in the State Court. and an amended bill is filed, which is transferred to the Circuit Court, the latter court cannot, on the amended bill, set aside the original decree. NOTE. Effect of appearance by counsel or attor ney; unauthorized appearance; what is an appearance-see note to Shelton v. Tiffin, 12 L. ed. U. §. 387. Res judicata; conclusiveness of judgment see note to Bank of U. S. v. Beverly, 11 L. ed. U. S. 75. 6. Where a decree pro confesso has been improp erly entered against one, the proper method of re[No. 360.] lief is by motion to the court to vacate it. Argued Apr. 6, 7, 1875, Decided Apr. 19, 1875. whatsoever. Under an arrangement between Stewart and the occupant of the house, Stewart procured possession of the house and furniture. In February, 1866, the complainant filed his original bill in the Circuit Court for the County APPEAL from the Circuit Court of the Unit of Alexandria. It sought to set aside the sale ed States for the Eastern District of Vir-made by Hay as fraudulent and void, to charge ginia. The case is stated by the court. Mr. Justice Swayne delivered the opinion of the court: This is an appeal in equity from the decree of the Circuit Court of the United States for the Eastern District of Virginia. In the year 1856, James McCullough owned the house and lot described in the original bill in this case. They were situate in the Town of Alexandria. On the 20th of October in that year, he executed a deed conveying the premises to George W. Brent, as trustee, to secure the payment of $3,000 to J. N. Harper. On the first of January, 1859, McCullough leased the premises, together with the furniture in the house, to James S. French for five years, at an annual rent of $600. In March, 1859, McCullough conveyed the premises to Robert S. French, the complainant, in trust for the benefit of Laura J. French, the wife of James S. French, and at the same time assigned to Robert S. French the lease to James S. French, the rent to be applied to the payment of the indebtedness of McCullough to Harper, secured by the deed of trust to Brent. Stewart with the rents and to recover possession of the property. On the 8th of December, 1866, the court decreed that the sale was void; that the possession should be restored to the complainant; that Stewart was chargeable with the rents, and that the case should be referred to a master to ascertain the amount. An appeal was thereupon taken by Stewart to the proper district court of the State, which affirmed the decree of the Circuit Court of the County. Upon the return of the case to the latter court, it was referred to a master to take an account of the rents pursuant to the decree. was The master reported that Stewart chargeable with the sum of $3,276.90, from which was to be deducted the payments he had made on the note of McCullough of $500, and interest on such payments, making an aggregate of $887.24, leaving a balance against Stewart of $2,387.66. On the 2d of June, 1869, the court decreed that he should pay that sum, with interest from the 26th of October, 1868. At the same time leave was given to the complainant to file an amended bill. He thereupon filed such bill, charging that Hay had participated in the frauds of Stewart, and should be held equally liable with him for rents, and that both were chargeable for loss and damage touching the furniture in the house when Stewart took possession. The bill was taken as confessed by Hay, and on the 21st of August, 1869, it was decreed that he should pay the complainant, on account of rents and for the detention and damage as to the furniture, $3,389.36, with interest from the 26th of October, 1868. Thereafter, Hay and Stewart applied to the court to vacate the decrees against them, and for leave to appear and answer upon the grounds that no process upon the amended bill had been served upon them, and that they had no notice or knowl At the breaking out of the civil war in 1861, this debt was paid, except $500, for which Harper held the note of McCullough. The premises were then in the possession of James S. French and his wife. The lease had been canceled, but the lessee was to pay this note. At the beginning of the war, James S. French and Brent went south, within the rebel lines, and did not return until after the close of the war. French left his sister in charge of the premises. Harper also went south. His wife put the note into the hands of a lawyer for col-edge of its pendency against them until a short lection. McCullough died in 1861. The defendant, Hay, was appointed his administrator. In 1862, Stewart claimed to own the note, and at his instance an order was procured from the County Court of Alexandria, substituting Hay as trustee in place of Brent in the deed of trust of McCullough. The deed of McCullough to Robert S. French, in trust for the wife of James S. French, was not put on record until the 7th of November, 1865. time before, and Hay averred that the attorney who had acted for him in that behalf, had done so wholly without his consent or knowledge. On the 23d of December, 1869, the court vacated the decree of the 21st of August, 1869, against Hay, but at the same time and in the same order, decreed against him for the sum of $2,387.66, with interest from the 26th of October, 1868, on account of the rents, and ordered that an issue should be tried on the law side of In the following month, Hay, as trustee, ad- the court touching the furniture, and that Hay vertised and sold the premises to Dr. Ripley, and Stewart should have leave to answer. They for the sum of $2,600. Ripley, learning there thereupon answered as to the whole case. On was difficulty about the title and in regard to the 8th of February, 1869, they moved the getting possession, refused to pay for the prop-court for an order for the removal of the case erty, but transferred his bid to Stewart. Hay, to the Circuit Court of the United [*244 having learned the existence of the deed to States for that District, pursuant to the Act Robert S. French, refused to proceed further of Congress of the 2d of March, 1867. An in the business. He never executed a deed pur- order was made and the cause was removed suant to the sale, nor received any part of the accordingly. purchase money from either Hay or Stewart. His entire connection with the property terminated with the sale. He did nothing further In the Circuit Court of the United States, Hay and Stewart severally moved the court to vacate the several decrees against them, made The complainant appealed to this court, and the case is thus brought before us for review. In the argument here, the objection touching the removal of the case from the State Court was refused. It was insisted that the Act of Congress upon the subject had not been complied with in respect to time, in several important particulars. by the Circuit Court of the County. These mo- | loss and damage as to the furniture. This did tions were heard and the several decrees were not in anywise affect the previous litigation annulled. Testimony was thereafter taken, and decrees as to Stewart under the original upon both sides. On the 13th of October, 1878, bill. Those decrees continued to stand as if when the case was ready for hearing, the com- the amended bill had not been filed. Young plainant moved the court to remand it to the v. Frost, 1 Md., 394; Bridge Co. v. Stewart, 3 court whence it came. The motion was over- How., 413; Walsh v. Smyth, 3 Bland, 20; ruled. The case was then heard upon the Keene v. Wheatley, 9 Am. L. Reg., 60. The merits and the bill dismissed. general rule is that an amendment of a bill gives a defendant the right to answer as if he had not answered before. 1 Dan. Ch. Pr., 411, Perk. ed., 1865. In the state of the case which existed when the amendment here in question was made, no amendment could be allowed. It was then too late. A final decree covering the entire original case subsisted. The court had no power over that decree and never attempted The point was not made in the court below to exercise any. The further relief sought until the testimony was all taken, the case could be reached, if at all, only by a supplewas ready for hearing, and nearly three years mental bill. Thorn v. Germand, 4 Johns. Ch., 245*] had elapsed since the transfer was 363; Shepard v. Merril, 3 Johns. Ch. 423; made. The objection came too late. Under Candler v. Pettit, 1 Paige, 168; Stafford v. the circumstances it must be held to have been Howlett, 1 Paige, 200; Bowen v. Idley, 6 Paige, conclusively waived. Taylor v. Longworth, 14 46; Ross v. Carpenter, 6 McLean, 382; Walsh Pet., 174; Brasher v. Van Cortlandt, 2 Johns. v. Smyth, 3 Bland, 20; Sanborn v. Sanborn, 7 Ch., 242; Skinner v. Dayton, 5 Johns. Ch., 191. Gray, 142; Verplanck v. Ins. Co., 1 Edw., 46. We shall consider the record as regards It was a gross error to allow the amended bill Stewart and Hay as if they were not joint de- to be filed. But the point was not made in the fendants. The case as to each presents a dis-state court nor in the court below, nor in the tinct aspect, and requires a separate examina- argument here. The case, according to our tion. I. As to Stewart. views, can be properly disposed of without reference to it. We have, therefore, laid it out On the 2d of June, 1866, he filed his answer of view. An amended bill is esteemed a part to the original bill. It was subscribed and of the original bill and a continuation of the sworn to by himself, and signed by Mr. Dod- suit. But one record is made. But the amenddridge as his counsel. He thus entered his ment is sometimes of such a character that it appearance and placed himself within the ju- is regarded as an independent graft upon the risdiction of the court. The proceedings there- original case and the beginning of a new lis after, including his appeal to the State Dis- pendens. Miller v. M'Intyre, 6 Pet., 61; Walsh trict Court, appear to have been in all things v. Smyth [supra]. Stewart complained that regular down to the removal of the case to the Dulany appeared and acted for him as to the Circuit Court of the United States. The de-amended bill without authority. Whether Ducree of the 8th of December, 1866, from which lany did so or not is immaterial. New process the appeal was taken, was a final one. Forgay is necessary *unless waived upon a sup- [*247 v. Conrad, 6 How., 204; Thomson v. Dean, 7plemental bill and a bill of revivor, but not Wall., 342, 19 L. d. 94. When affirmed upon an amended bill as to defendants who are by the appellate court t was conclusive of the already before the court. Cunningham v. Pell, rights of the parties as to everything covered 6 Paige, 657; Longworth v. Taylor, 1 McLean, by it, and could not be affected by any action 516. Being in court they are bound to take of the Circuit Court of the county or of the notice of the filing of such bills as of any other United States in the subsequent progress of proceeding in the case. In the English praethe case. That decree was res judicata of the tice the complainant is required to serve a most solemn character. Campbell v. Campbell, copy of the amendment upon the solicitor of 22 Gratt., 649; Thomson v. Albert, 15 Md., the defendant (Woodhouse v. Meredith, 1 Jac. 282; Hammond v. Inloes, 4 Md., 139. & W., 207), but this, it is believed, is rarely if ever done in the courts of the States, unless required by an established rule of practice or a special order in the case. In the courts of the United States the subject is regulated by the 28th Rule of equity practice. The State Court, by an order of the 23d of December, 1869, directed an issue to be tried as to the furniture, and gave Stewart leave to answer the amended The decree of the 2d of June, 1869, ascertained the amount due from Stewart for the rents, and ordered that he should pay it. This terminated the litigation under the original bill. After the close of that term-except for reasons not claimed nor shown to exist-the court had no power to revoke or modify this decree. Cameron v. McRoberts, 3 Wheat., 591; Bk. v. Moss, 6 How., 31; U. S. v. The Glamor-bill. gan, 2 Curt., 236. Nothing of the kind was This was all he had a right to claim, and left attempted. At the same time that this decree him nothing to complain of. In this condition was entered leave was given to the complain of things the case went to the Circuit Court of 246*] ant to file the amended bill. *Wm. the United States. That court possessed the Dulany, Esq., an attorney of the court, "ap- same power in the case as the State Court pearing in court and consenting thereto.' The while the case was before it-no more and no amended bill was filed on the 17th of that less. It certainly did not sit as a court of month. It sought to make Hay liable also for errors or appeal with jurisdiction to reverse the rents, and Hay and Stewart liable for the the final decree of the State Court made under the original bill. That would be contrary to, opportunity to defend being refused, the decree the intent and meaning of the Act of Congress was in effect another decree pro confesso. It under which the removal was made. Its au certainly was not a decree upon the merits after thority as to Stewart was limited to the alle- a hearing upon the charge as to the rents. gations of the amended bill in regard to the After the transfer of the case he applied to furniture. So far as he was concerned it pre- the Circuit Court of the United States to vabented no other subject of litigation, and nothing cate this decree upon the same showing as in else was open to examination under it. If that the State Court, and it was done. A bill for bill had not been filed there could have been no fraud could not have been maintained, because transfer as to him. On the 22d of October, there was no foundation for the charge. A bill 1872, the court below, as before stated, set of review would not have availed him, because aside all the decrees of the State Court and there was no error apparent upon the face of ordered that "this case do now stand for hear- the decree nor upon the record. The circuming on the bill, answer and pleadings." The stances under which the decree was rendered entire case was thus opened anew, as if noth- were very peculiar. They have been stated. ing had been done under the original bill by The proper mode of seeking redress was by the State Court. This was clearly an error. motion upon the showing which was made. We think the liability of Stewart as to the fur- Kemp v. Squire, 1 Ves., Sr. 205; Robson v. niture was well made out by the complainant. Cranwell, 1 Dick., 61; Benson v. Vernon, 3 248*] *The court below by an issue at law, Bro. P. C., 626; Erwin v. Vint, 6 Mumf., 267; as directed by the interlocutory order of the Pickett v. Legerwood, 7 Pet., 144; Tilden v. State court, or by a reference to a master, Johnson, 6 Cush., 354; Balch v. Shaw, 7 Cush., should have ascertained the amount and de- 284; Hall v. Williams, 10 Me., 278. The Circreed accordingly. Kelsey v. Hobby, 16 Pet., 269. | cuit Court had the power to do what it did and The order vacating the decrees of the State properly did it. This was less expensive, less Court as to Stewart, made under the original dilatory, and much to be preferred to a bill, bill, is vacated. The final decree dismissing even if the same relief could have been had in the bill as to him is reversed, and the case will that way. It was also more in accordance be remanded to the court below with directions with the spirit of sound equity practice. to proceed in conformity with this opinion. II. As to Hay. He also filed an answer to the original bill. Like Stewart's, it was subscribed and sworn to by himself, and was subscribed by counsel. He, too, was bound to take notice of the filing of the amended bill. But the original bill claimed no decree against him. The amended bill, as to him, made an entirely new case. It set up the first claim against him as to the rent and the furniture. His own affidavit and the other proofs showed clearly that Dulany had no authority to appear as his counsel; that he had no actual knowledge of the filing of the bill until after the decree pro confesso was taken against him, and that he had a complete defense. It is within the discretion of a court of equity, upon a proper showing, to set aside a decree pro confesso upon such terms as it may see fit to prescribe. Wooster v. Woodhull, 1 Johns. Ch., 539; Beekman v. Peck, 3 Johns, Ch., 415. The State Court well exercised its authority in setting aside the decree against Hay, but it committed a gross error in decreeing against him eo instanti the payment of $2,387.66 on account of the rent, leaving the case open only as to the furniture. To revoke the first decree because he had been ignorant of the filing of the amended bill, and hence had made no defense, and then to renew it without giving him an opportunity to be heard, was, to say the 249*] least, a singular *anomaly. So far as he was concerned the claim as to the rent and the furniture rested upon exactly the same foundation. If it was proper that he should be heard as to one it was equally so that he should be heard as to the other. There was no difference. The same considerations applied with respect to both. In the renewed decree damages as to the furniture might as well have been included as the charge for the rent. It was no less wrong as to the latter than it would have been as to the former. Time and The entire case made by the bill as to Hay was thus opened. His answer denied all the material allegations against him, and we find in the record no evidence whatever to sustain them. No effort seems to have been made to procure any. *The bill as to him was rightly dis- [*250 missed, and in this respect the decree of the Circuit Court is affirmed. JAMES S. FRENCH et al., Appts., |