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for the purpose of collecting the taxes, it is now immaterial.

These contentions constitute the issue in the case and depend upon the relation of the law (mostly statutory) to the facts, and what it determines. As an element in the determination, the use of the rules of the Department and the mortuary tables counsel dismisses from controversy, in concession to Henry v. United States, 251 U. S. 393, 64 L. ed. 322, 40 Sup. Ct. Rep. 185, and Simpson v. United States, 252 U. S. 547, 64 L. ed. 709, 40 Sup. Ct. Rep. 367. The remaining element, that is, the necessity of an assessment prior to July 1, 1902, to the validity of the taxes in question, [391] counsel for appellants says, revolves "upon the meaning, and application of the word 'imposed,' the fifth word in the special saving clause of the Repeal Act of April 12, 1902." [32 Stat. at L. 96, chap. 500, Comp. Stat. § 6144, 4 Fed. Stat. Anno. 2d ed. p. 135.] And counsel defines the word to include all of the steps necessary to the collection of a tax, making it tantamount to "accrued." In other words, the contention is, that a tax is not "imposed" by the simple declaration of a law that property shall be subject to it, but "imposed" only when the tax becomes due and payable; and that the taxes in the present case had not reached that essential condition before July 1, 1902, because they had not been assessed. In support of the contention, counsel cites Mason v. Sargent, 104 U. S. 689, 26 L. ed. 894, and Hertz v. Woodman, 218 U. S. 205, 54 L. ed. 1001, 30 Sup. Ct. Rep. 621. There is much in the latter case which, it may be urged, is adverse to the contention, but upon this we are not called upon to pass, for counsel concedes that if a statute imposes a tax in such way as that the amount is readily reduced to a certainty, no assessment is necessary. And this is true of the taxes in question.

By § 29 of the Act of June 13, 1898 (30 Stat. at L. 448, chap. 448), legacies or distributive shares such as this case is concerned with are made subject to a duty at the rate of 75 cents for each and every hundred dollars of the clear value thereof, and the tax is made a lien and charge for twenty years, and its payment required before payment and distribution to the legatees. The section also requires the trustee to make and render to the collector a schedule, list, or statement of the legacies, together with the amount of duty that has accrued or shall

1 We disregard a distinction in the legacies as not important to the argument.

accrue thereon. Section 30 was amended
March 2, 1901 [31 Stat. at L. 948, chap.
806], but no change in anything impor-
tant to the present controversy. Section
29 and the amendments of March 2, 1901,
were repealed by Act of April 12, 1902
(32 Stat. at L. 97 et seq., chap. 500,
Comp. Stat. § 6369, 4 Fed. Stat. Anno.
2d ed. p. 228), [392] but it was pro-
vided that "all taxes or duties imposed
by § 29 and amendments thereof, prior
to the taking effect" of the repealing
should "be subject, as to lien,
act,
charge, collection, and otherwise, to the
provisions of § 30 and amendments
thereof," which are hereby "continued
in force." Except as so continued in
force, the repealing statute took effect
July 1, 1902.

The schedule under § 29 was rendered, as we have seen, accepted by the collector, and taxes were paid in accordance therewith, in the sum of $158,321.78.

The schedule included legacies that had been paid after July 1, 1902, but as, by Act of June 27, 1902 (32 Stat. at L. 406, chap. 1160, 4 Fed. Stat. Anno. 2d ed. p. 232), such legacies were not subject to a tax, the taxes on them were refunded, upon demand of the executors, but the government refused to refund the taxes on legaThis suit cies paid prior to that date. was brought for their amount; that is, the sum of $51,029.54.

To support recovery, it is contended that there was no obligation of payment, because, as has already been said, the amount to be paid was not made certain by assessment, or, to quote counsel, was not "so certain (or capable of such ascertainment) that reasonable minds could not disagree, and that the exercise of judgment and the consideration and weighing of evidence could not affect the result." For this Hagar v. Reclamation Dist. 111 U. S. 701, 28 L. ed. 569, 4 Sup. Ct. Rep. 663, and other cases, are cited and reviewed.

But we cannot agree that there was uncertainty. We have seen the amount of taxes imposed by the statute was definite, and the appellants had no trouble in estimating and returning the value of the legacies upon which it was imposed. The basis of the claim of uncertainty is that he estate was and is not settled, and that there is a possibility that the legatees may be called upon to pay debts. tention is as strained and baseless as that rejected in Simpson v. United States,

21

supra.

The con

[393] It is to be remembered be. sides, that the case does not present a case of resistance to the payment

321

V.

BOARD OF PUBLIC UTILITY COMMISSIONERS, City of Paterson and Board of Finance of Said City. (No. 36.)

Err.,

V.

BOARD OF PUBLIC UTILITY COMMISSIONERS, City of Paterson and Board of Finance of Said City. (No. 37.)

MORRIS & COMPANY, PIff. in Err.,

V.

BOARD OF PUBLIC UTILITY COMMISSIONERS, City of Paterson and Board of Finance of Said City. (No. 38.)

JACOB MEYER and Kommer De Vogel,
Partners Doing Business as Meyer & De
Vogel, Plffs. in Err.,

of a tax, but of the recovery of taxes | WESTERN UNION TELEGRAPH COMvoluntarily paid; and that, therefore, PANY, Plff. in Err., the illegality of them should be shown not only by averment, but by proof; not, as it is attempted to be, hy assertion and speculation. It is true that it is averred that, prior to July 1, 1902, the amount of claims against the estate D. FULLERTON & COMPANY, Plff. in had not been ascertained, and that there was responsibility upon the trustees and legatees to make a return of the whole or ratable portions of the legacies to the extent that the sums remaining in the estate should be insufficient to satisfy all valid claims. It is conceded, however, the contingency of this might have terminated August 1, 1902, and while it is averred that the clear value of the interests of the legatees was at all times prior to July 1, 1902, uncertain and indefinite, and still is so, there stand in opposition the facts of the case and the refutation that an estate of the net personal value of nearly eight million dollars was or is in danger of embarrassment by the payment of legacies of less than one million dollars. And we have seen that the executors, who had knowledge of the condition of the estate, and all that it might be made subject to, did not hesitate to make a return of the PUBLIC SERVICE RAILWAY COMPANY,. legacies to the collector of internal revenue, and pay the taxes thereon. The petition in this case was filed in the court of claims June 23, 1916,-fourteen years after the commencement of the administration of the estate, and nearly as long after the time of presentation of claims against it, and the record shows that the total of the claims and expenses of administration, including funeral expenses, amounts to the sum of $235,700. In the face of this exhibition we are asked to speculate upon possibility of the existence of liabilities that fourteen years have not developed.

Judgment affirmed.

[394] ERIE

V.

BOARD OF PUBLIC UTILITY COMMISSIONERS, City of Paterson and Board of Finance of Said City. (No. 39.)

Plff. in Err.,

V.

BOARD OF PUBLIC UTILITY COMMISSIONERS, City of Paterson and Board of Finance of Said City. (No. 40.)

(See S. C. Reporter's ed. 394-414.) Constitutional law due process of law imposing special burden on railway company abolishing grade impairing police power.

crossings commerce contract obligations 1. A state may, consistently with the due process of law, commerce, and con

tract clauses of the Federal Constitution, require a railway corporation engaged in

Note. As to what constitutes due process of law, generally-see notes to People v. O'Brien, 2 L.R.A. 255; Kuntz v. Sumption, 2 L.R.A. 655; Re Gannon, RAILROAD COMPANY, 5 L.R.A. 359; Ulman v. Baltimore, 11 Piff. in Err.,

V.

BOARD OF PUBLIC UTILITY COMMISSIONERS, City of Paterson and Board of Finance of Said City. (Nos. 33 and 34.)

PASSAIC WATER COMPANY, Plff. in

Err.,

V.

BOARD OF PUBLIC UTILITY COMMISSIONERS, City of Paterson and Board of Finance of Said City. (No. 35.)

L.R.A. 224; Gilman v. Tucker, 13 L.R.A. 304; Pearson v. Yewdall, 24 L. ed. U. S. 436, and Wilson v. North Carolina, 42 L. ed. U. S. 865.

As to the validity of class legislation, generally- -see notes to State v. Goodwill, 6 L.R.A. 621; and State v. Loomis, 21 L.R.A. 789.

As to constitutional equality of privileges, immunities, and protection, generally-see note to Louisville Safety Vault & T. Co. v. Louisville & N. R. Co. 14 L.R.A. 579.

interstate commerce to abolish at its own | the tracks of a steam road at grade in a expense, whatever the cost, and without public street may, consistently with the regard to financial ability, highway grade Federal Constitution, be required to bear crossings, including those at streets laid a part of the expense of abolishing the out after the railway was built, if it can grade crossing, and the payment of the reasonably be said that the public safety amount charged, if not excessive, may be requires the change. made a condition of the street railway company's continued right to use the streets. [For other cases, see Constitutional Law, IV. b, 4; IV. c, 2, in Digest Sup. Ct. 1908.] Constitutional law equal protection of the laws discrimination.

[For other cases, see Constitutional Law, IV. b, 4; IV. c, 2; IV. g, 4, e: Commerce, III. a, in Digest Sup. Ct. 1908.]

Statutes who may assail validity.

2. A railway company which might constitutionally have been charged under the state laws with the whole expense of abolishing certain highway grade crossings may not complain that not more than 10 per cent of the cost of abolishing three crossings used by a street railway is thrown upon the latter company.

[For other cases, see Statutes, I. d, 3, fu Digest Sup. Ct. 1908.] Error to state court -non-Federal question.

scope of review

3. The Federal Supreme Court has no concern, on writ of error to a state court, with the question how far legislative or quasi legislative powers may be delegated to a commission or board.

[For other cases, see Appeal and Error, 21522163, in Digest Sup. Ct. 1908.] Constitutional law due process of law imposing special burden on street railway company sharing cost of abolishing railway grade crossing.

4. A street railway company crossing

Generally, as to what laws are void as impairing obligation of contractssee notes to Franklin County Grammar School v. Bailey, 10 L.R.A. 405; Bullard v. Northern P. R. Co. 11 L.R.A. 246; Henderson v. State Soldiers & S. Monument Comrs. 13 L.R.A. 169, and Fletcher v. Peck, 3 L. ed. U. S. 162.

For a discussion of police power, generally-see notes to State v. Marshall, 1 L.R.A. 51: Re Gannon, 5 L.R.A. 359; State v. Schlemmer, 10 L.R.A. 135; Ulman v. Baltimore, 11 L.R.A. 224; Electrie Improv. Co. v. San Francisco, 13 L.R.A. 131; and Barbier v. Connolly, 28 L. ed. U. S. 923.

On state regulation of interstate or foreign commerce-see notes to Norfolk & W. R. Co. v. Com. 13 L.R.A. 107, and Gloucester Ferry Co. v. Pennsylvania, 29 L. ed. U. S. 158.

On power to compel railroad to establish or maintain, at its own expense, overhead or underground crossing, as affected by the fact that the street or highway is opened subsequently to construction of railroad-see note to State ex rel. Minneapolis v. St. Paul, M. & M. R. Co. 28 L.R.A. (N.S.) 298.

5. A water company required to bear the entire expense of moving its pipes, as necessitated by the abolition of certain highway grade crossings of a steam railroad, is not denied the equal protection of the laws merely because a street railway company occupying such streets, instead of being charged with the expense of moving its tracks, is charged 10 per cent of the total expense at its crossings. [For other cases, see Constitutional Law, IV. a, 3, a, in Digest Sup. Ct. 1908.] due process of Constitutional law law imposing special burden on telegraph company -commerce.

6. An interstate telegraph company may, consistently with the Federal Constitution, be required to bear the expense of the changes in its poles and wires made necessary by the compulsory abolition of certain highway grade crossings of a steam railroad.

[For other cases, see Constitutional Law, IV. b. 4; IV. c, 2; Commerce, III. a, in Digest Sup. Ct. 1908.]

crossing-see note to State ex rel. Ise v. Atchison, T. & S. F. R. Co. L.R.A.1915E, 751.

On the general subject of writs of error from the United States Supreme Court to state courts-see notes to Mar. tin v. Hunter, 4 L. ed. U. S. 97; Hamblin v. Western Land Co. 37 L. ed. U. S. 267; Re Buchanan, 39 L. ed. U. S. 884, and Kipley v. Illinois, 42 L. ed. U. S. 998.

On what adjudications of state courts can be brought up for review in the Supreme Court of the United States by writ of error to those courts-see note to Apex Transp. Co. v. Garbade, 62 L.R.A. 513.

On how and when questions must be raised and decided in a state court in order to make a case for a writ of error from the Supreme Court of the United States-see note to Mutual L. Ins. Co. v. McGrew, 63 L.R.A. 33.

On what questions the Federal Supreme Court will consider in reviewing the judgments of state courts-see note to Missouri ex rel. Hill v. Dockery, 63 L.R.A. 571.

On who may raise objection that a On power to compel railroad to es- statute contains an unconstitutional distablish or maintain at its own expense crimination-see note to Pugh v. Pugh,

an overhead or underground highway

32 L.R.A. (N.S.) 954.

Constitutional law due process of, process clause because the evidence law imposing special burden on shows without dispute that the railway owners of private railway sidings. company did not have sufficient funds or any means of procuring the same for the purpose of meeting the cost of complying with the order.

7. Owners of private railway sidings have no constitutional ground for complaint because such sidings will be dislocated and their owners be put to further expense by the lawful compulsory abolition of certain highway grade crossings of a steam rail

way.

[For other cases, see Constitutional Law, IV. b, 4; IV. c, 2, in Digest Sup. Ct. 1908.]

[Nos. 33-40.]

Argued November 16 and 17, 1920. cided January 3, 1921.

State Public Utilities Commission v. Toledo, St. L. & W. R. Co. 267 Ill. 93, .P.U.R.1915B, 879, 107 N. E. 774; State v. Great Northern R. Co. 100 Minn. 445, 10 L.R.A. (N.S) 250, 111 N. W. 289; Houston & T. C. R. Co. v. Dallas, 98 Tex. 396, 70 L.R.A. 850, 84 S. W. 648; De- Northern C. R. Co.'s Appeal, 103 Pa. 621; Pennsylvania Schuylkill Valley R. Co. v. Philadelphia & R. R. Co. 160 Pa. L. R. Co. v. State Public Utilities Commission, 273 Ill. 210, 112 N. E. 689; Connecticut Co. v. Stamford, Conn. -, 110 Atl. 554; Chicago & N. W. R. Co. v. Ochs, 249 U. S. 416, 63 L. ed. 679, P.U.R.1919D, 498, 39 Sup. Ct. Rep. 343; Chicago, M. & St. P. R. Co. v. Minneapolis, 238 Fed. 384; Health Dept. v. Trinity Church, 145 N. Y. 32, 27 L.R.A. 710, 45 Am. St. Rep. 79, 39 N. E. 833.

FIGHT WRITS of Error to the Court 232, 28 Atl. 771; Cleveland, C. C. & St.

of Errors and Appeals of the State of New Jersey to review judgments which affirmed judgments of the Supreme Court of that state, upholding an order of the state Board of Public Utility Commissioners, directing the abolition of certain highway grade crossings.

Affirmed.

See same case below in Nos. 33 and 34, in supreme court, 89 N. J. L. 57, 98 Atl. 13, in court of errors and appeals, 90 N. J. L. 672, 673, 103 Atl. 1052; in No. 35, 90 N. J. L. 714, 103 Atl. 1053; in No. 36, 90 N. J. L. 729, 103 Atl. 1055; in No. 37, 90 N. J. L. 677, 103 Atl. 1051; in Nos. 38 and 39, 90 N. J. L. 694, 103 Atl. 1053; in No. 40, in supreme court, 89 N. J. L. 24, 98 Atl. 28, in court of errors and appeals, 90 N. J. L. 715, 103

Atl. 1054.

The facts are stated in the opinion.

Messrs. George S. Hobart and Charles E. Hughes argued the cause, and, with Messrs. Gilbert Collins and George F. Brownell, filed a brief for plaintiffs in error in Nos. 33 and 34:

The order imposes a burden upon the interstate traffic of the Erie Railroad Company and interferes with and impairs its ability to perform its duty as an interstate carrier of freight and pas

sengers.

The question of constitutionality must be determined according to the terms of the statute, and is not dependent upon the action or nonaction of the officials authorized to proceed thereun

der.

Montana Co. v. St. Louis Min. & Mill. Co. 152 U. S. 160, 38 L. ed. 398, 14 Sup. Ct. Rep. 506; Security Trust & S. V. Co. v. Lexington, 203 U. S. 323, 51 L. ed. 204, 27 Sup. Ct. Rep. 87; Georgia R. & Bkg. Co. v. Wright, 207 U. S. 126, 52 L. ed. 134, 28 Sup. Ct. Rep. 47, 12 Ann. Cas. 463; Re Christensen, 43 Fed. 243; Grainger v. Douglas Park Jockey Club, 78 C. C. A. 199, 148 Fed. 513, 8 Ann. Cas. 997.

In a case of this kind the court will examine the evidence, not for the purpose of deciding disputed questions of fact, if there is any such dispute, but for the purpose of determining whether what purports to be a finding upon questions of facts is so involved with and dependent upon questions of law as to be, in substance and effect, a decision of the latter.

McNeill v. Southern R. Co. 202 U. S. 543, 50 L. ed. 1142, 26 Sup. Ct. Rep. 722; Central Stock Yards Co. v. Louisville & N. R. Co. 63 L.R.A. 213, 55 C. C. A. 63, 118 Fed. 113; Kansas City Southern R. Co. v. Kaw Valley Drainage Dist. 233 U. S. 75, 58 L. ed. 857, 34 Sup. Ct. Rep. 564; Chicago, B. & Q. R. Co. v. Railroad Commission, 237 U. S. 220, 59 L. ed. 926, P.U.R.1915C, 309, 35 Sup. Ct. Rep. 560; Mississippi R. Commission v. Mobile & O. R. Co. 244 U. S. 388, | Oregon, R. & Nav. Co. v. Fairchild, 224 U. S. 510, 56 L. ed. 863, 32 Sup. Ct. 61 L. ed. 1216, 37 Sup. Ct. Rep. 602. The order was unreasonable and arbi-Rep. 535; Southern P. Co. v. Schuyler, trary, and therefore violates the duel 227 U. S. 601, 57 L. ed. 662, 43 L.R.A.

Kansas City Southern R. Co. v. C. H. Albers Commission Co. 223 U. S. 573, 56 L. ed. 556, 32 Sup. Ct. Rep. 316; Cedar Rapids Gaslight Co. v. Cedar Rapids, 223 U. S. 655, 56 L. ed. 594, 32 Sup. Ct. Rep. 389; Washington ex rel.

254 U. S.

(N.S.) 901, 33 Sup. Ct. Rep. 277; Norfolk & W. R. Co. v. Conley, 236 U. S. 605, 59 L. ed. 745, P.U.R.1915C, 293, 35 Sup. Ct. Rep. 437; Groesbeck v. Duluth, S. S. & A. R. Co. 250 U. S. 607, 63 L. ed. 1167, 40 Sup. Ct. Rep. 38.

The order was unreasonable and arbitrary, and therefore violates the due process clause because the railway company was not given the alternative of reducing or eliminating the alleged danger to public safety and the alleged impairment to public travel by decreasing the number of train movements or by abandoning the railroad.

lessees of the sidetracks of their prop-
erty without due process of law.

Missouri P. R. Co. v. Nebraska, 164 U. S. 403, 41 L. ed. 489, 17 Sup. Ct. Rep. 130; Missouri P. R. Co. v. Nebraska, 217 U. S. 196, 54 L. ed. 727, 30 Sup. Ct. Rep. 461, 18 Ann. Cas. 989; Washington ex rel. Oregon R. & Nav. Co. v. Fairchild, 224 U. S. 510, 56 L. ed. 863, 32 Sup. Ct. Rep. 535; Union Lime Co. v. Chicago & N. W. R. Co. 233 U. S. 211, 58 L. ed. 924, 34 Sup. Ct. Rep. 522; Tap Line Cases (United States v. Louisiana & P. R. Co.) 234 U. S. 1, 58 L. ed. 1185, 34 Sup. Ct. Rep. 741; Northern P. R. Co. v. North Dakota, 236 U. S. 585, 59 L. ed. 735, L.R.A.1917F, 1148, P.U.R.1915C, 277, 35 Sup. Ct. Rep. 429, Ann. Cas. 1916A, 1; Great Northern R. Co. v. Minnesota, 238 U. S. 340, 59 L. ed. 1337, P.U.R.1915D, 701, 35 Sup. Ct. Rep. 753; Seaboard Air Line R. Co. v. Railroad Commission, 240 U. S. 324, 60 L. ed. 669, 36 Sup. Ct. Rep. 260; Chicago & N. W. R. Co. v. Ochs, 249 U. S. 416, 63 L. ed. 679, P.U.R. 1919D, 498, 39 Sup. Ct. Rep. 343; Lake Erie & W. R. Co. v. State Public Utilities Commission, 249 U. S. 422, 63 L. ed. 684, P.U.R.1919D, 459, 39 Sup. Ct. Rep. 345; McInnis v. New Orleans & N. E. R. Co. 109 Miss. 482, L.R.A.1915E, 682, P.U.R.1915D, 418, 68 So. 481; State ex rel. Mt. Hope Coal Co. v. White Oak In so far as the order requires the R. Co. 65 W. Va. 15, 28 L.R.A. (N.S.) to make certain 1013, 64 S. E. 630; State ex rel. Chicarailway company changes in the properties of the Pub-go, M. & P. S. R. Co. v. Public Service lie Service Railway Company, and in so Commission, 77 Wash. 529, L.R.A.1918B, far as it limits the proportion of the 786, 137 Pac. 1057, Ann. Cas. 1915D, expense to be paid by the Street Rail-202; Re Grade Crossing Comrs. 207 N. way Company to certain of the cross-Y. 58, 100 N. E. 714, Ann. Cas. 1914C, ings to be eliminated, the order violates 271; Hatfield v. Straus, 117 App. Div. the due process clause for the reason 671, 102 N. Y. Supp. 934, 189 N. Y. that it takes the property of the railway company for the use of the Street Railway Company.

Jack v. Williams, 113 Fed. 823, affirmed in 76 C. C. A. 165, 145 Fed. 281; Iowa v. Old Colony Trust Co. L.R.A. 1915A, 549, 131 C. C. A. 581, 215 Fed. 307; Northern P. R. Co. v. Washington Territory, 142 U. S. 492, 35 L. ed. 1092, 12 Sup. Ct. Rep. 283; Amesbury v. Citizens Electric Street R. Co. 199 Mass. 394, 19 L.R.A.(N.S.) 865, 85 N. E. 419; Sherwood v. Atlantic & D. R. Co. 94 Va. 291, 26 S. E. 943; Philadelphia & R. R. Co. v. Public Service Commission, 67 Pa. Super. Ct. 604; Re Denver, B. & W. R. Co. P.U.R.1919F, 9; Re Bellefonte C. R. Co. P.U.R.1919F, 67; Mississippi R. Commission v. Mobile & O. R. Co. 244 U. S. 388, 61 L. ed. 1216, 37 Sup. Ct. Rep. 602; Chicago, M. & St. P. R. Co. v. Minneapolis, 238 Fed. 384.

Railroad & Warehouse Commission v. Litchfield & M. R., Co. 267 Ill. 337, 108 N. E. 347.

as

208, 82 N. E. 172; Re Rochester, H. & L. R. Co. 110 N. Y. 126, 17 N. E. 680; Fanning v. Osborne, 102 N. Y. 441, 7 N. E. 307; Swift v. Delaware, L. & W. R. Co. 66 N. J. Eq. 34, 57 Atl. 456; Grand Trunk Western R. Co. v. RailIn so far as the order affects the side- road Commission, 221 U. S. 400, 55 L. The statute, tracks indicated on the plan attached ed. 786, 31 Sup. Ct. Rep. 537. construed by the thereto, it impairs the obligation of the state courts, violates the 14th Amendcontracts between the railway company and the respective owners or lessees of ment: (a) Because it takes the property of the railway company as the the sidetracks; if the order is construed lessee of the Paterson & Hudson River to require the railway company to re- Railroad Company and of the Paterson locate or reconstruct the sidetracks & Ramapo Railroad Company for the (either on or off its right of way), at private use and benefit of the two comits own expense, then it further op- panies; (b) because the cost of complyerates to deprive the railway company ing with the order will greatly exceed of its property without due process of the value of the interest of the rail law; while, on the other hand, if not so way company in the property of the or two companies, without any compen. construed, it deprives the owners

325

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