not be said to be wrong, in view of the general attitude of the courts toward claims of exemption, adverted to by the state court, and of the fact that a subsequent agreement shows that the parties concerned did not suppose that they had an irrevocable grant, and especially the fact that the state Constitution in force in 1853 provided in art. 8, § 1, that all general laws and special acts passed pursuant to that section might be altered or repealed.

sists that the views of the supreme court upon the ruling of the assumption of risk are "of purely academic interest and of no practical importance" in the consideration of the legality of the verdict and judgment in the trial court. That court, it is said, submitted the fact to the jury, and also submitted the relative contribution of Williams's negligence and the negligence of defendants to his injury. But this is an underestimate of the action of the trial court. The court was requested to instruct the jury that the effect of the assumption of risk by Williams incident to the use of the claw bar, Submitted October 21, 1920. Decided Noand the circumstances under which it was used, was to relieve defendants from

[For other cases, see Appeal and Error, VIII. m, 1, in Digest Sup. Ct. 1908.]

[No. 63.]

vember 8, 1920.

liability "for the injury resulting there-N ERROR to the Supreme Court of

from." The court refused the instruc

tion as it was requested, and amended it by adding thereto, "and such fact [the assumption of risk] will be considered by you in determining the amount of plaintiff's recovery, if any, under all of the


The refusal and modification were assigned as error, and the supreme court considered and decided, as we have seen, that the fact was of no determining importance, and, if it existed, only constituted contributory negligence, and could operate only in reduction of the amount of recovery, not defeat recovery. This was error, as we have seen.

the State of New York in and for the

County of Albany, in that state, to review a judgment affirmed successively by the Appellate Division of the Supreme Court, Third Department, and by the Court of Appeals, refusing to disturb an assessment of railway property for taxation. Affirmed.

See same case below, in supreme court, 179 App. Div. 951, 165 N. Y. Supp. 1106; in court of appeals, 224 N. Y. 187, 120

N. E. 155.

The facts are stated in the opinion.

Messrs. William L. Visscher and Lewis E. Carr submitted the cause for plaintiff in error:

Judgment reversed and cause re- All of the essential elements of an manded for further proceedings not in- executed contract are found in the facts consistent with this opinion.




G. FRANK MEALY, George Spence, Jr.,
George B. Walker, and Silas Downs, Jr.,
as Assessors, and Hiram W. Gordinier, as
Comptroller, of the City of Troy, State of
New York.

(See S. C. Reporter's ed. 47-50.)

in this case.

13 C. J. 237-245, 315, 318; Justice v.
Lang, 42 N. Y. 497, 1 Am. Rep. 576;
Dartmouth College V.
Wheat. 518, 656-659, 4 L. ed. 629, 664.
Woodward, 4

A grant by the legislature of a state to a corporation, either in the act incorporating it or by other legislation, of a franchise, privilege, or exemption, followed by action of the corporation under or in reliance upon the grant so made, constitutes a contract, the obligation of which cannot be impaired by subsequent legislation.

Dartmouth College v. Woodward, 4 Error to state court - following deci-Wheat. 518, 627, 656, 4 L. ed. 629, 656, impairing contract ob- 661.

sion below ligations.

A decision of the highest court of New York that the exemption from taxation above a specified sum, granted to the Troy Union Railroad Company by N. Y Laws 1853, chap. 462, could be repealed without impairing contract obligations, can

Note. On error to state courts in cases presenting questions of impairment of contract obligations--see note to Osborne v. Clark, 51 L. ed. U. S. 619.

This principle has been repeatedly applied to statutes, the effect of which was to exempt property from taxation.

People ex rel. Troy Union R. Co. v. Carter, 52 Hun, 458, 5 N. Y. Supp. 507, affirmed in 117 N. Y. 625, 22 N. E. 1128; New Jersey v. Yard, 95 U. S. 104, 115117, 24 L. ed. 352, 354, 355; Wilmington & W. R. Co. v. Reid, 13 Wall, 264, 20 L. ed. 568; Humphrey v. Pegues, 16 Wall. 244, 249, 21 L. ed. 326, 327; Pear

sall v. Great Northern R. Co. 161 U. S. 646, 662, 40 L. ed. 838, 843, 16 Sup. Ct. Rep. 705; Wright v. Georgia R. & Bkg. Co. 216 U. S. 420, 54 L. ed. 544, 30 Sup. Ct. Rep. 242; Home of the Friendless v. Rouse, 8 Wall. 430, 437, 19 L. ed. 495, 497.

This rule applies to municipal action approved by the state.

13 C. J. 994, 995; Murray v. Charleston, 96 U. S. 432, 444, 24 L. ed. 760, 762; Louisville v. Cumberland Teleph. Co. 224 U. S. 649, 664, 56 L. ed. 934, 940, 32 Sup. Ct. Rep. 572; Grand Trunk

Western R. Co. v. South Bend, 227 U.

S. 544, 57 L. ed. 633, 44 L.R.A.(N.S.) 405, 33 Sup. Ct. Rep. 303; Mercantile Trust & D. Co. v. Columbus, 203 U. S. 311, 320, 51 L. ed. 198, 202, 27 Sup. Ct. Rep. 83; New Orleans Gaslight Co. v. Louisiana Light & H. P. & Mfg. Co. 115 U. S. 650, 662-665, 29 L. ed. 516, 521, 522, 6 Sup. Ct. Rep. 252; Detroit United R. Co. v. Michigan, 242 U. S. 238, 247-249, 253, 61 L. ed. 268, 273275, P.U.R.1917B, 1010, 37 Sup. Ct. Rep.


The Act of 1853 was not one coming within the reservation contained in N. Y. Const. art. 8, § 1, which was the only general reservation therein contained.

Atty. Gen. v. North America L. Ins. Co. 82 N. Y. 182.

The intent of the city of Troy is to be ascertained from the language used, the surrounding circumstances, and the object the parties had in view.

Maloney v. Iroquois Brewing Co. 173 N. Y. 310, 66 N. E. 19; Gillett v. Bank of America, 160 N. Y. 555, 55 N. E. 292; Schoonmaker v. Hoyt, 148 N. Y. 431, 42 N. E. 1059.

The intent of the parties is to be ascertained in the first place from the language used. If the words are plain and free from ambiguity they are, in the absence of something showing a different sense, to have their ordinary meaning.

Dwight v. Germania L. Ins. Co. 103 N. Y. 346, 57 Am. Rep. 729, 8 N. E. 654; Gans v. Etna L. Ins. Co. 214 N. Y. 330, L.R.A.1915F, 703, 108 N. E. 443.

If there is doubt or uncertainty from the language used, reference may be had to the circumstances connected with and surrounding the making and execution of the instrument and the object the parties had in view.

Maloney v. Iroquois Brewing Co. supra; Gillett v. Bank of America, 160 N. Y. 555, 55 N. E. 292; Schoonmaker v. Hoyt, supra.

tent, the conduct of the parties under a contract, long continued, becomes and is a practical construction of it, for it is the best evidence of what the parties intended.

Nicoll v. Sands, 131 N. Y. 24, 29 N. E. 818; Woolsey v. Funke, 121 N. Y. 92, 24 N. E. 191; Brooklyn L. Ins. Co. v. Dutcher, 95 U. S. 269, 273, 24 L. ed. 410, 411; Carthage Tissue Paper Mills v. Carthage, 200 N. Y. 14, 93 N. E. 60.


the cause for defendant in error.
Mr. George B. Wellington submitted
Thomas H. Guy was on the brief:

gratuity; and N. Y. Laws 1909, chap.
The exemption statute was a mere
201, the repealing act, is valid.
Christ Church v. Philadelphia County,
24 How. 300, 16 L. ed. 602; People ex
rel. Davies v. Tax & A. Comrs. 47 N. Y.
501; Tucker v. Ferguson, 22 Wall. 527,
22 L. ed. 805; West Wisconsin R. Co.
V. Trempealeau County, 93 U. S. 595,
23 L. ed. 814; Rochester v. Rochester
R. Co. 182 N. Y. 99, 70 L.R.A. 773, 74
N. E. 953, 205 U. S. 236, 51 L. ed. 784,
27 Sup. Ct. Rep. 469.

be construed to be a part of the orig-
Even though the Act of 1853 should
inal charter granted to the Troy Union
Railroad Company, nevertheless the
legislature has the power to repeal it.

101 U. S. 528, 25 L. ed. 912; People ex Union Pass. R. Co. v. Philadelphia, rel. Cooper Union v. Gass, 190 N. Y. 323, 123 Am. St. Rep. 549, 83 N. E. 64, 13 Ann. Cas. 678; People ex rel. Troy Union R. Co. v. Carter, 52 Hun, 458, 5 N. Y. Supp. 507.

[48] Mr. Justice Holmes delivered the opinion of the court:

This was a proceeding in the supreme court of New York, seeking by certiorari to review and set aside an assessment of city taxes upon the relator's property at a valuation of $1,000,000; the relator contending that it had a contract by virtue of which the city of Troy and the state were limited to a valuation of $30,000 for the purposes of the tax. A referee, a single judge, the appellate division of the supreme court, and the court of appeals successively have decided against the relator's claim, but it brings the case here on the ground that an attempt to repeal the statute upon which it bases its immunity impairs the obligation of contracts and is void. 88 Misc. 649, 152 N. Y. Supp. 435, 179 App. Div. 951, 165 N. Y. Supp. 1106, 224 N. Y. 187, 120 N. E. 155.

The case is this: In 1851 it was desired to establish a common terminal station and Again, if there is doubt as to the in-common tracks passing through a portion

of the city for four railroads then having
termini in Troy. An act of that year,
chap. 255, authorized the city and the four
roads to subscribe for the stock of a new
corporation to be formed for that purpose,
and the city to issue bonds when secured
by a mortgage of the new road to be built
and by contract of the four subscribing
roads. In July, 1851, the contemplated
corporation was formed with a stock of
$30,000; it is the relator in this suit. Then
on December 3, 1852, an agreement was
made by the city of Troy, the Troy Union
Railroad Company, and the four other
railroads, providing for carrying out the
plan, and therein the city covenanted to
join in an application to the legislature
of New York that the new road should be |
exempt from taxation upon an amount
exceeding the present amount of its capi-
tal stock, and, if such law should not be
passed, to refund the amount of the city
taxes for any valuation exceeding said
present stock. The above-mentioned mort-
gage was executed, the four roads gave the
city their covenant of indemnity, and
[49] thereafter, on June 24, 1853, the
desired act of the legislature was passed.
Laws 1853, chap. 462. It provided that
"for the purposes of taxation in the city
of Troy, and in the county of Rensselaer,
the property of the Troy Union Railroad
Company shall be estimated and assessed
(as the common council of said city of
Troy, by its contract with said company,
agreed that the same should be)
at the amount of the capital stock of said
company, and no more." The above-men-
tioned covenant of the city and this pro-
vision of the statute are the grounds upon
which the relator founds its claim.

In 1886 and 1887 the assessors of Troy assessed the Troy Union Railroad Company for $783,984 instead of the agreed $30,000, but it was held that the company's property above $30,000 was exempt. People ex rel. Troy Union R. Co. v. Carter, 52 Hun, 458, 5 N. Y. Supp. 507, 117 N. Y. 625, 22 N. E. 1128. În 1909, however, the Act of 1853 was repealed. Acts 1909, chap. 201. The assessment complained of in this case was made since this repeal.

The court of appeals held that the concession in the Act of 1853 was spontaneous and belonged to the class of privilegia favorabilia, as it is put in Christ Church v. Philadelphia County, 24 [50] How. 300, 16 L. ed. 602, and therefore was subject to repeal. This is a question upon which we would be slow to differ with a decision of the New York courts with regard to a New York corporation. It may be that too much stress was laid upon the absence of a consideration for the exemption (Wisconsin & M. R. Co. v. Powers, 191 U. S. 379, 385–387, 48 L. ed. 229-232, 24 Sup. Ct. Rep. 107); and that a fairly strong argument could be made for interpreting the grant of 1853 as purporting to be coextensive with the contract recited in that grant, whether correctly recited or not. It may be, if it were material, that the contract of 1858 should be construed as a continuance of that of 1852 as reformed, notwithstanding the habitually inaccurately used word "annulled." United States v. McMullen, 222 U. S. 460, 471, 56 L. ed. 269, 273, 32 Sup. Ct. Rep. 128. But, taking into consideration the general attitude of the courts toward claims of After 1853 there was a default in the exemption, adverted to by the court of payment of the interest on the bonds that appeals, the fact that the agreement of had been issued by the city under the 1858 shows that the parties concerned did agreement, and the city began an action not suppose that they had an irrevocable to foreclose the mortgage given by the grant, and especially the fact that the road to secure it. Thereupon, in 1858, a Constitution of New York in force in 1853 new contract was made between the par-provided in article 8, § 1, that all general ties concerned in which they, "for the pur-laws and special acts passed pursuant to pose of reforming the contract [made in 1852], adopt this instead and in place of the said contract, which is hereby annulled." The city of Troy agreed that if the Act of 1853 should be repealed at any time it would join in an application to the legislature, as in the former contract, and covenanted again that if the desired law should not be passed, it would refund as before. The other arrangements do not need mention here. 65 L. ed.

that section might be altered or repealed, we are not prepared to say that the decision below was wrong. We are dealing, of course, only with the contract supposed to be embodied in the Act of 1853. The liability of the city on its covenant to refund taxes upon an assessment exceeding $30,000 was not passed upon below, and is not before us in this case. Judgment affirmed.


[51] WILLIAM E. JOHNSON, Plff. in demonstrate that the supremacy test


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has been employed not only to restrain state taxation of Federal operations and instrumentalities, but also to prevent any exercise of state power or control in such Federal domain.

Ohio v. Thomas, 173 U. S. 276, 283, 43 L. ed. 699, 701, 19 Sup. Ct. Rep. 453; North Dakota ex rel. Flaherty v. Hanson, 215 U. S. 515, 54 L. ed. 307, 30 Sup. Ct. Rep. 179; Re Neagle, 135 U. S. 1, 34 L. ed. 55, 10 Sup. Ct. Rep. 658; Pembina Consol. Silver Min. & Mill Co. v.

Pennsylvania, 125 U. S. 181, 186, 31 L. ed. 650, 652, 2 Inters. Com. Rep. 24, 8 Sup. Ct. Rep. 737; Re Waite, 81 Fed. 359; Farmers & M. Sav. Bank v. Minnesota, 232 U. S. 516, 526, 58 L. ed. 706, 711, 34 Sup. Ct. Rep. 354; Boske v. Comingore, 177 U. S. 459, 468-470, 44 L. ed. 846, 850, 851, 20 Sup. Ct. Rep. 701; Williams v. Talladega, 226 U. S. 404, 57 L. ed. 275, 33 Sup. Ct. Rep. 116; United States v. Ansonia Brass & Copper Co. 218 U. S. 452, 471, 54 L. ed. 1107, 1114, 31 Sup. Ct. Rep. 49; Holmes v. Jennison, 14 Pet. 540, 574, 575, 10 L.

Argued October 18, 1920. Decided Novem- ed. 579, 596, 597; Re Loney, 134 U. S.


ber 8, 1920.

N ERROR to the Circuit Court of Frederick County, in the State of Maryland, to review a conviction of a Postoffice employee for driving a motor truck without a state license. Reversed. The facts are stated in the opinion.

Mr. W. C. Herron argued the cause, and, with Assistant Attorney General Stewart and Mr. Harry S. Ridgely, filed a brief for plaintiff in error:

To assert that there may be reasonable regulation of a Federal operation or agency by a state, acting under its police power, is to deny the complete sovereignty of the Federal government in the discharge of its constitutional


M'Culloch v. Maryland, 4 Wheat. 316, 429, 436, 4 L. ed. 579, 607, 609; Tennessee v. Davis, 100 U. S. 257, 263, 25 L. ed. 648, 650; Henderson v. New York (Henderson v. Wickham) 92 U. S. 259, 271, 23 L. ed. 543, 548; Weston v. Charleston, 2 Pet. 449, 467, 7 L. ed. 481. 487; Society for Savings v. Coite, 6 Wall. 594, 604, 18 L. ed. 897, 901; Osborn v. Bank of United States, 9 Wheat. 738, 867, 6 L. ed. 204, 234.

Decisions of this and other courts

Note. As to state or municipal regulations affecting those engaged in handling United States mail-see note to Com. v. Closson, L.R.A.1918C, 940.

372, 375, 33 L. ed. 949, 951, 10 Sup. Ct. Rep. 384; Western U. Teleg. Co. v. Brown, 234 U. S. 542, 547, 58 L. ed. 1457, 1459, 5 N. C. C. A. 1024, 34 Sup. Ct. Rep. 955; Re Lewis, 83 Fed. 159; Castle v. Lewis, 166 C. C. A. 279, 254 Fed. 917; United States ex rel. Flynn v. Fuellhart, 106 Fed. 911; United States v. Lipsett, 156 Fed. 65; Pundt v. Pendleton, 167 Fed. 997; Re Thomas, 31 C. C. A. 80, 58 U. S. App. 431, 87 Fed. 453; Stegall v. Thurman, 175 Fed. 813; Re Wulzen, 235 Fed. 362, Ann. Cas. 1917A, 274; Ex parte Beach, 259 Fed.


If a state possesses power to determine qualifications of plaintiff in error, then it likewise possesses power to levy a tax upon him for revenue or other purposes.

M'Culloch v. Maryland, 4 Wheat, 316, 429, 4 L. ed. 579, 582; Shaffer v. Carter, 252 U. S. 37, 50, 64 L. ed. 445, 455, 40 Sup. Ct. Rep. 221; Mugler v. Kansas, 123 U. S. 623, 659, 31 L. ed. 205, 209, 8 Sup. Ct. Rep. 273; Dobbins v. Erie County, 16 Pet. 435, 447, 448, 10 L. ed. 1022, 1026, 1027; Wheeling, P. & C. Transp. Co. v. Wheeling, 99 U. S. 273, 279, 283, 25 L. ed. 412, 414, 415.

The Maryland statute is open to the objection that it seeks to determine the fitness of, with reserved power to deny, a means adopted by Congress in executing its constitutional power to establish postoffices and post roads.

M'Culloch v. Maryland, 4 Wheat, 316, 413, 414, 4 L. ed. 579, 603, 604; Fairbank v. United States, 181 U. S. 283, 287, 288, 45 L. ed. 862, 864, 865, 21 Sup. Ct. Rep. 648, 15 Am. Crim. Rep. 135. State ownership of roads confers no power to create conditions and terms upon which the Federal government may use them in discharge of its constitutional functions.

Hendrick v. Maryland, 235 U. S. 610, 622, 59 L. ed. 385, 390, 35 Sup. Ct. Rep. 140; Kane v. New Jersey, 242 U. S. 160, 168, 61 L. ed. 222, 227, 37 Sup. Ct. Rep. 30; Re Rahrer, 140 U. S. 545, 555, 556, 35 L. ed. 572, 574, 575, 11 Sup. Ct. Rep. 865; Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 54, 56 L. ed. 327, 347, 38 L.R.A. (N.S.) 44, 32 Sup. Ct. Rep. 169, 1 N. C. C. A. 875; Western U. Teleg. Co. v. Richmond, 224 U. S. 160, 165, 56 L. ed. 710, 714, 32 Sup. Ct. Rep. 449; Essex v. New England Teleg. Co. 239 U. S. 313, 60 L. ed. 301, 36 Sup. Ct. Rep. 102.

Plaintiff in error possessed the right secured to him by the Constitution and laws of the United States to engage in the employment here drawn in issue without compliance with the laws of Maryland.

Slaughter-House Cases, 16 Wall. 36, 79, 21 L. ed. 394, 409; Hawker v. New York, 170 U. S. 189, 42 L. ed. 1002, 18 Sup. Ct. Rep. 573.


Principles upholding exertions state power affecting interstate commerce are not applicable to the case at


Nashville, C. & St. L. R. Co. v. Alabama, 128 U. S. 96, 100, 101, 32 L. ed. 352, 354, 2 Inters. Com. Rep. 238, 9 Sup. Ct. Rep. 28; Minnesota Rate Cases (Simpson v. Shepard) 230 U. S. 352, 402, 403, 409, 410, 411, 57 L. ed. 1511, 1542, 1543, 1545-1547, 48 L.R.A. (N.S.) | 1151, 33 Sup. Ct. Rep. 729, Ann. Cas. 1916A, 18; Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 297, 43 L. ed. 702, 706, 19 Sup. Ct. Rep. 465; Smith v. Alabama, 124 U. S. 465, 31 L. ed. 508, 1 Inters. Com. Rep. 804, 8 Sup. Ct. Rep. 564; New York, N. H. & H. R. Co. v. New York, 165 U. S. 628, 41 L. ed. 853, 17 Sup. Ct. Rep. 418; Chicago, R. I. & P. R. Co. v. Arkansas, 219 U. S. 453, 55 L. ed. 290, 31 Sup. Ct. Rep. 275; Hennington v. Georgia, 163 U. S. 299, 41 L. ed. 166, 16 Sup. Ct. Rep. 1086; Atlantic Coast Line R. Co. v. Georgia, 234 U. S. 280, 58 L. ed. 1312, 34 Sup. Ct. Rep. 829; Northern P. R. Co. v.

North Dakota, 250 U. S. 135, 148, 63 L. ed. 897, 902, P.U.R.1919D, 705, 39 Sup. Ct. Rep. 502; Dakota Cent. Teleph. Co. v. South Dakota, 250 U. S. 163, 187, 63 L. ed. 910, 4 A.L.R. 1623, P.U.R. 1919D, 717, 39 Sup. Ct. Rep. 507; Lewis Pub. Co. v. Morgan, 229 U. S. 288, 301, 57 L. ed. 1190, 1197, 33 Sup. Ct. Rep. 867; Central Trust Co. v. Central Trust Co. 216 U. S. 251, 259, 54 L. ed. 469, 471, 30 Sup. Ct. Rep. 341, 17 Ann. Cas. 1066.

Mr. Alexander Armstrong, Attorney General of Maryland, argued the cause, and, with Mr. Lindsay C. Spencer, filed a brief for defendant in error:

When a state, by a law of general application, forbids any person to operate an automobile upon its highways without first obtaining a license so to do, and requires certain qualifications of the applicant for such license as a condition precedent to the issuance thereof, an employee of the United States, who operates such automobile only in the course of his employment, can constitutionally be required to comply with such provisions. The state can constitutionally exact the payment of a license fee such as is required by the law under discussion, whether such fee is considered as a reasonable fee for the services of the state officials charged with the issuance of licenses, or as compensation exacted by the state for the use of its road facilities.

Ops. Atty. Gen. of Wisconsin (Owens) vol. 2, 1913, p. 36; United States v. Kirby, 7 Wall. 482, 19 L. ed. 278; Opinion of Attorney-General Crittendon, 5 Ops. Atty. Gen. 554; United States v. Hart, Pet. C. C. 392, Fed. Cas. No. 15,316; Searight v. Stokes, 3 How. 151, 170, 11 L. ed. 537, 546; Dickey v. Maysville W. P. & L. Turnp. Road Co. 7 Dana, 113; Hendrick v. Maryland, 235 U. S. 610, 59 L. ed. 385, 35 Sup. Ct. Rep. 140; Kane v. New Jersey, 242 U. S. 160, 61 L. ed. 222, 37 Sup. Ct. Rep. 30; Babbitt, Motor Vehicles, § 200, 2d ed. p. 139; Gibbons v. Ogden, 9 Wheat. 1, 182, 189, 6 L. ed. 23, 67, Slaughter-House Cases, 16 Wall. 36-63, 21 L. ed. 394-404; Barbier v. Connolly, 113 U. S. 27, 28, 28 L. ed. 923, 924, 5 Sup. Ct. Rep. 357; Re Rahrer, 140 U. S. 545-554, 35 L. ed. 572-574, 11 Sup. Ct. Rep. 865; Hawker v. New York, 170 U. S. 189, 42 L. ed. 1002, 18 Sup. Ct. Rep. 573; New York v. Miln, 11 Pet. 102, 103, 9 L. ed. 648; Hennington v. Georgia, 163 U. S. 299, 308, 41 L. ed. 166, 170, 16 Sup. Ct. Rep. 1086; Chi


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