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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.

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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 În 1909, however, the Act of 1853 was repealed.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.

125

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

Err.,

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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.

IN

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

functions.

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.

956.

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 of state power affecting interstate commerce are not applicable to the case at

bar.

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 CrittenNashville, C. & St. L. R. Co. v. Ala- don, 5 Ops. Atty. Gen. 554; United bama, 128 U. S. 96, 100, 101, 32 L. ed. States v. Hart, Pet. C. C. 392, Fed. 352, 354, 2 Inters. Com. Rep. 238, 9 Sup. Cas. No. 15,316; Searight v. Stokes, 3 Ct. Rep. 28; Minnesota Rate Cases How. 151, 170, 11 L. ed. 537, 546; Dickey (Simpson v. Shepard) 230 U. S. 352, v. Maysville W. P. & L. Turnp. Road 402, 403, 409, 410, 411, 57 L. ed. 1511, Co. 7 Dana, 113; Hendrick v. Maryland, 1542, 1543, 1545-1547, 48 L.R.A. (N.S.) | 235 U. S. 610, 59 L. ed. 385, 35 Sup. Ct. 1151, 33 Sup. Ct. Rep. 729, Ann. Cas. Rep. 140; Kane v. New Jersey, 242 U. 1916A, 18; Lake Shore & M. S. R.S. 160, 61 L. ed. 222, 37 Sup. Ct. Rep. Co. v. Ohio, 173 U. S. 285, 297, 43 L. ed. 30; Babbitt, Motor Vehicles, § 209, 2d 702, 706, 19 Sup. Ct. Rep. 465; Smith ed. p. 139; Gibbons v. Ogden, 9 Wheat. v. Alabama, 124 U. S. 465, 31 L. ed. 508, 1, 182, 189, 6 L. ed. 23, 67, 68; 1 Inters. Com. Rep. 804, 8 Sup. Ct. Rep. Slaughter-House Cases, 16 Wall. 36-63, 564; New York, N. H. & H. R. Co. v. 21 L. ed. 394-404; Barbier v. Connolly, New York, 165 U. S. 628, 41 L. ed. 853, 113 U. S. 27, 28, 28 L. ed. 923, 924, 5 17 Sup. Ct. Rep. 418; Chicago, R. I. & Sup. Ct. Rep. 357; Re Rahrer, 140 U. S. P. R. Co. v. Arkansas, 219 U. S. 453, 545-554, 35 L. ed. 572-574, 11 Sup. Ct. 55 L. ed. 290, 31 Sup. Ct. Rep. 275; Rep. 865; Hawker v. New York, 170 U. Hennington v. Georgia, 163 U. S. 299, S. 189, 42 L. ed. 1002, 18 Sup. Ct. Rep. 41 L. ed. 166, 16 Sup. Ct. Rep. 1086; 573; New York v. Miln, 11 Pet. 102, Atlantic Coast Line R. Co. v. Georgia, 103, 9 L. ed. 648; Hennington v. 234 U. S. 280, 58 L. ed. 1312, 34 Sup. Georgia, 163 U. S. 299, 308, 41 L. ed. Ct. Rep. 829; Northern P. R. Co. v. 166, 170, 16 Sup. Ct. Rep. 1086; Chi

cago & N. W. R. Co. v. Fuller, 17 Wall. state commerce cannot be relied upon as 560-570, 21 L. ed. 710-714; Morgan's furnishing an answer. They deal with L. & T. R. & S. S. Co. v. Board of the conduct of private persons in matters Health, 118 U. S. 455, 463, 465, 30 L. ed. in which the states as well as the general 237, 241, 242, 6 Sup. Ct. Rep. 1114; government have an interest, and which Nashville, C. & St. L. R. Co. v. Ala- would be wholly under the control of bama, 128 U. S. 96, 99, 100, 32 L. ed. the states but for the supervening des352-354, 2 Inters. Com. Rep. 238, 9 tination and the ultimate purpose of the Sup. Ct. Rep. 28; Sherlock v. Alling, acts. Here the question is whether the 93 U. S. 99, 102, 23 L. ed. 819, 820; state can interrupt the acts of the genSmith v. Alabama, 124 U. S. 465, 31 eral government itself. With regard to L. ed. 508, 1 Inters. Com. Rep. 804, 8 taxation, no matter how reasonable, or Sup. Ct. Rep. 564; Atlantic Coast Line how universal and undiscriminating, the R. Co. v. Georgia, 234 U. S. 286, 291, state's inability to interfere has been re294, 58 L. ed. 1312, 1317, 1319, 34 Sup. garded as established since M'Culloch Ct. Rep. 829; Chicago, R. I. & P. R. v. Maryland, 4 Wheat. 316, 4 L. ed. 579. Co. v. Arkansas, 219 U. S. 453, 55 The decision in that case was not put L. ed. 290, 31 Sup. Ct. Rep. 275; Wil- upon any consideration of degree, but son v. Black Bird Creek Marsh Co. 2 upon the entire absence of power on the Pet. 245, 251, 252, 7 L. ed. 412, 414; part of the [56] states to touch, in Cooley v. Port Wardens, 12 How. 299, that way, at least, the instrumental13 L. ed. 996; Cushing v. The John ities of the United States (4 Wheat. Fraser (The James Gray v. The John 429, 430), and that is the law toFraser) 21 How. 184, 187, 15 L. ed. day. Farmers & M. Sav. Bank v. Min106, 108; Lane County v. Oregon, 7 nesota, 232 U. S. 516, 525, 526, 58 Wall. 71, 19 L. ed. 101; Stone v. Mis- L. ed. 706, 711, 34 Sup. Ct. Rep. 354. sissippi, 101 U. S. 814, 25 L. ed. 1079; A little later the scope of the propoOpinion of Attorney-General Gregory, sition as then understood was indicated May 7, 1917, unreported; Parkersburg in Osborn V. Bank of the United & O. River Transp. Co. v. Parkersburg, States, 9 Wheat. 738, 867, 6 L. ed. 204, 107 U. S. 691, 699, 27 L. ed. 584, 587, 2 234: "Can a contractor for supplying a Sup. Ct. Rep. 732; Huse v. Glover, 119 military post with provisions be reU. S. 543, 548, 549, 30 L. ed. 487, 490, strained from making purchases within 7 Sup. Ct. Rep. 313; Monongahela Nav. any state, or from transporting the proCo. v. United States, 148 U. S. 312, 329, visions to the place at which the troops 330, 37 L. ed. 463, 469, 13 Sup. Ct. Rep. were stationed? Or could he be fined 622. or taxed for doing so? We have not yet heard these questions answered in the affirmative." In more recent days the principle was applied when the governor of a soldiers' home was convicted for dis

Mr. J. Purdon Wright also argued the cause for defendant in error.

Mr. Justice Holmes delivered the opin

ion of the court:

regard of a state law concerning the use the inmates of the home as part of their of oleomargarin, while furnishing it to

tion of the state in regard to those very

matters of administration which are thus approved by the Federal authority." L. ed. 699, 701, 19 Sup. Ct. Rep. 453. Ohio v. Thomas, 173 U. S. 276, 283, 43 It seems to us that the foregoing decisions establish the law governing this

The plaintiff in error was an employee of the Postoffice Department of the United States, and, while driving a gov-officer was not "subject to the jurisdicrations. It was said that the Federal ernment motor truck in the transportation of mail over a post road from Mt. Airy, Maryland, to Washington, was arrested in Maryland, and was tried, convicted, and fined for so driving without having obtained a license from the state. He saved his constitutional rights by motion to quash, by special pleas, which were overruled upon demurrer, and by motion in arrest of judgment. The facts were admitted, and the naked question is whether the state has power to require such an employee to obtain a license by submitting to an examination concerning his competence and paying $3, before performing his official duty in obedience to superior command.

The cases upon the regulation of inter

case.

Of course, an employee of the United States does not secure a general immunity from state law while acting in the course of his employment. That was de-. cided long ago by Mr. Justice Washington in United States v. Hart, Pet. C. C. 390, Fed. Cas. No. 15,316; 5 Ops. Atty. Gen. 554. It very well may be that, when the United States has not spoken,

the subjection to local law would extend charges within the switching limits, where to general rules that might affect inci- the line-haul carrier competes with the dentally the mode of carrying out the switching line, and to refuse to absorb such employment,-as, for instance, a stat- charges when the switching line does not ute or ordinance regulating the mode of compete with the line-haul carrier, may be forbidden by the Interstate Commerce Comturning at the corners of streets. Com. mission as being unjustly discriminatory v. Closson, 229 Mass. 329, L.R.A.1918C, and unlawful, under the Act of February 4, 939, 118 N. E. 653. This might stand on 1887, § 2, which prohibits any carrier from much the same footing as liability under charging or receiving from any person a the common law of a state to a person in- greater compensation than it receives from jured by the driver's negligence. But another person for doing for him a like even the most unquestionable and most and contemporaneous service under substantially similar circumstances and conditions. universally applicable of state laws, such [For other cases, see Carriers, III. e, in Digest as those concerning [57] murder, will not be allowed to control the conduct of a marshal of the United States, acting under and in pursuance of the laws of the United States. Re Neagle, 135 U. S. 1, 34 L. ed. 55, 10 Sup. Ct. Rep.

658.

Sup. Ct. 1908.]

Interstate Commerce Commission findings of fact judicial review.

2. Findings of fact by the Interstate Commerce Commission upon questions, the determination of which is by law imposed upon the Commission, can be disturbed by

judicial decree only in cases where the Commission's action is arbitrary, or transcends the legitimate bounds of its authority.

[For other cases, see Interstate Commerce Com

mission, in Digest Sup. Ct. 1908.] Interstate Commerce Commission order vagueness or uncertainty. 3. An order of the Interstate Commerce

It seems to us that the immunity of the instruments of the United States from state control in the performance of their duties extends to a requirement that they desist from performance until they satisfy a state officer, upon examination, that they are competent for a necessary part of them, and pay a fee Commission directing railway carriers enfor permission to go on. Such a require-tering a specified city to desist from absorbment does not merely touch the government servants remotely by a general rule of conduct; it lays hold of them in their specific attempt to obey orders, and requires qualifications in addition to those that the government has pronounced sufficient. It is the duty of the Department to employ persons competent for their work, and that duty it must be pre-date, and thereafter to maintain, uniform sumed has been performed. Keim v United States, 177 U. S. 290, 293, 44 L. ed. 774, 775, 20 Sup. Ct. Rep. 574. Judgment reversed.

ing switching charges on certain interstate carload freight, while refusing to absorb such charges on like carload shipments for a like and contemporaneous service under substantially similar circumstances and conditions, such practices having been found within the Act of February 4, 1887, § 2, to be unjustly discriminatory and unlawful, and to establish on or before a specified

regulations and practices for the absorption of charges for the switching of interstate carload freight at that city, and to collect no higher rates or charges on such freight than they contemporaneously collect from other shippers or receivers at that point for

Mr. Justice Pitney and Mr. Justice a like and contemporaneous service under McReynolds dissent.

SEABOARD AIR LINE RAILWAY COM-
PANY, Seaboard Air Line Railway,
Southern Railway Company, and Atlan-

substantially similar circumstances and conditions, is not too vague and uncertain to be enforceable.

[For other cases, see Interstate Commerce Commission, in Digest Sup. Ct. 1908.]

[No. 27.]

tic Coast Line Railroad Company, Appts., Argued October 8 and 11, 1920. Decided

V.

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1. The practice of railway carriers entering a certain city to absorb switching

November 8, 1920.

Note. As to duty of carrier to furnish equal connecting facilities to other carriers-see note to Pennsylvania Co. v. United States, 59 L. ed. U. S. 616.

On the right of a carrier to discriminate with respect to special or unusual service-see note to State ex rel. Ellis v. Atlantic Coast Line R. Co. 12 L.R.A. (N.S.) 506.

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