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return to his own country. If he has had such opportunity, then article 3 has not been violated, either in its letter or spirit, by the arrest and detention of the petitioner. It is conceded that he was delivered to the authorities of the state of Michigan in May, 1896, to stand his trial upon the charge of larceny. He gave bail to appear for trial in the recorder's court when required and immediately returned to Canada. On December 10th, 1896, he voluntarily appeared in the state of Michigan, of his own motion, and not upon the order of the recorder's court, or at the instance of his bail, and while in this district was arrested."

Messrs. E. H. Sellers and Cassius Hollenbeck for appellant:

The treaty of 1889 expressly limits the surrender to one offense and the trial of the accused on that offense, and no other, until he shall have had an opportunity of return ing to the country of his asylum on regaining his liberty.

United States v. Rauscher, 119 U. S. 407, 80 L. ed. 425; Com. v. Hawes, 13 Bush. 697, 26 Am. Rep. 242; State v. Vanderpool, 39 Ohio St. 273, 48 Am. Rep. 431; Blandford v. State, 10 Tex. App. 627; United States v. Watts, 14 Fed. Rep. 130; Ex parte Hibbs, 26 Fed. Rep. 431; Ex parte Coy, 32 Fed. Rep. 917; Re Reinitz, 39 Fed. Rep. 204, 4 L. R. A. 236; People, Young, v. Stout, 81 Hun, 336; Re Rowe, 40 U. S. App. 516, 77 Fed. Rep. 165, 23 C. C. A. 103.

The trial of appellant for another offense was in violation of the faith and honor of the government, as well as of an express law of Congress.

People v. Cross, 135 N. Y. 540; Re Cooper, 143 U. S. 501, 36 L. ed. 242; Re Cannon, 47 Mich. 486; State v. Hall, 40 Kan. 345; Re Robinson, 29 Neb. 137, 8 L. R. A. 398; Ex parte McKnight, 48 Ohio St. 588, 14 L. R.

A. 128.

Mr. John K. Richards, Solicitor General, for appellee:

A fugitive from justice acquires from that fact alone no right of asylum in a foreign country, which exempts him from trial here if he falls within the clutches of the law.

Ex parte Brown, 28 Fed. Rep. 653; Ker v. Illinois, 119 U. S. 436, 30 L. ed. 421; Mahon v. Justice, 127 U. S. 700, 32 L. ed. 283; Lascelles v. Georgia, 148 U. S. 537, 37 L. ed. 549; Cook v. Hart, 146 U. S. 183, 36 L. ed. 934.

[66] Mr. Chief Justice Fuller, delivered the opinion of the court:

Article three of the Extradition Convention between the United States and Great Britain, promulgated March 25, 1890 (26 Stat. at L. 1508), and section 5275 of the Revised Statutes, are as follows:

"Art. III. No person surrendered by or to either of the high contracting parties shall be triable or be tried for any crime or offense, committed prior to his extradition, other [67]*than the offense for which he was surrendered, until he shall have had an opportunity of returning to the country from which he was surrendered."

"Sec. 5275. Whenever any person is deliv. ered by any foreign government to an agent of the United States, for the purpose of being brought within the United States and tried for any crime of which he is duly accused, the President shall have power to take all necessary measures for the transportation and safekeeping of such accused person, and for his security against lawless violence, until the final conclusion of his trial for the crimes or offenses specified in the warrant of extradition, and until his final discharge from custody or imprisonment for or on account of such crimes or offenses, and for a reasonable time thereafter, and may employ such portion of the land and naval forces of the United States, or of the militia thereof, as may be necessary for the safekeeping and protection of the accused."

Cosgrove was extradited under the treaty, and entitled to all the immunities accorded to a person so situated; and it is admitted that the offense for which he was indicted in the district court was committed prior to his extradition, and was not extraditable. But it is insisted that although he could not be extradited for one offense and tried for another, without being afforded the opportunity to return to Canada, yet as, after h● had given bail, he did so return, his subsequent presence in the United States was voluntary and not enforced, and therefore he had lost the protection of the treaty and rendered himself subject to arrest on the capias and to trial in the district court for an offense other than that on which he was surrendered; and this although the prosecution in the state court was still pending and unde termined, and Cosgrove had not been released or discharged therefrom.

Conceding that if Cosgrove had remained in the state of Michigan and within reach of his bail, he would have been exempt, the argument is that, as he did not continuously so remain, and, during his absence in Canada, his sureties could not have followed him there and compelled his return, if his appearance happened to be required according to the exigency of the bond, which the facts [68] stated show that it was not, it follows that when he actually did come back to Michigan he had lost his exemption.

The

But we cannot concur in this view. treaty and statute secured to Cosgrove a reasonable time to return to the country from which he was surrendered, after his discharge from custody or imprisonment for or on account of the offense for which he had

been extradited, and at the time of this arrest he had not been so discharged by reason of acquittal; or conviction and compliance with sentence; or the termination of the state prosecution in any way. United States v. Rauscher, 119 U. S. 407, 433 [30: 425, 434].

The mere fact that he went to Canada did not in itself put an end to the prosecution or to the custody in which he was held by his bail, or even authorize the bail to be forfeited, and when he re-entered Michigan he was as much subject to the compulsion of his sureties as if he had not been absent.

In Taylor v. Taintor, 16 Wall. 366, 371

69]

COMPANY, Plff. in Err.,

v.

HALL, Treasurer of Arapahoe
County, Colorado.

(See S. C. Reporter's ed. 70--82.)

Tax on railroad cars.

[21: 287, 290], Mr. Justice Swayne, speak- | AMERICAN REFRIGERATOR TRANSIT [70] ing for the court, said: "When bail is given, the principal is regarded as delivered to the custody of his sureties. Their dominion is FRANK a continuance of the original imprisonment. Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another state; may arrest him on the Sabbath; and, if necessary, may break and enter his house for that purpose. The seizure is not made by virtue of new process. None is needed. It is likened to the rearrest by the sheriff of an escaping prisoner. In [Anony mous] 6 Mod. 231 it is said: "The bail have their principal always up on a string, and

The state may tax the average number of refrigerator cars used by railroads within the state, but owned by a foreign corporation which has no office or place of business within the state, and employed as vehicles of transportation in the interchange of interstate commerce.

[No. 226.]

may pull the string whenever they please, Argued and Submitted March 16, 17, 1899. and render him in their own discharge.' The rights of the bail in civil and criminal

Decided April 24, 1899.

ERROR to the Supreme Court of the

cases are the same. They may doubtless per-State of Colorado to review a judgment

mit him to go beyond the limits of the state within which he is to answer, but it is unwise and imprudent to do so; and if any evil ensue, they must bear the burden of the consequences, and cannot cast them upon the obligee."

We think the conclusion cannot be maintained on this record that, because of Cosgrove's temporary absence, he had waived or lost an exemption which protected him while he was subject to the state authorities to answer for the offense for which he had been extradited.

The case is a peculiar one. The marshal initiated the prosecution in the state courts, and some weeks thereafter the indictment was found in the district court for the same act on which the charge in the state courts was based. The offenses, indeed, were different, and different penalties were attached to them. But it is immaterial that Cosgrove might have been liable to be prosecuted for both, as that is not the question here, which is whether he could be arrested on process from the district court before the prior proceeding had terminated and he had had opportunity to return to the country from which he had been taken. Or, rather, whether the fact of his going to Canada pending the state proceedings deprived him of the immunity he possessed by reason of his extradition so that he could not claim it though the jurisdiction of the state courts had not been exhausted; he had come back to Michigan; and he had had no opportunity to return to Canada after final discharge from the state prosecution.

*We are of opinion that, under the circumstances, Cosgrove retained the right to have the offense for which he was extradited disposed of and then to depart in peace, and that this arrest was in abuse of the high process under which he was originally brought into the United States, and cannot be sustained.

Final order reversed and cause remanded with a direction to discharge petitioner.

of that court reversing the judgment of the District Court of Arapahoe County in that State and dismissing a suit in equity brought by the American Refrigerator Transit Company, plaintiff, against Frank Hall, Treasurer of said County to restrain defendant from enforcing payment by plaintiff of certain taxes assessed upon refrigerator cars owned by it and used for transportation over various lines of railroad. Judgment of Supreme Court affirmed.

See same case below, 24 Colo. 291.

Statement by Mr. Justice Shiras:

In March, 1896, the American Refrigerator Transit Company, a corporation organized under the laws of the state of Illinois, filed, in the district court of Arapahoe county, state of Colorado, against Frank Hall, treasurer of said county, a bill of complaint seeking to restrain the defendant from enforcing payment by the said transit company of certain taxes assessed upon refrigerator cars owned by the company, and used for the transportation of perishable freight over various lines of railroad throughout the United States. The bill alleged that the business in which said cars were engaged was exclusively interstate commerce business; that the company has and has had no office or place of business within the state of Colorado, and that all the freight transported in plaintiff's cars was transported either from a point or points in a state outside of the state of Colorado to a point within that state, or from a point in the state cf Colorado to a point without said state, or between points wholly outside of said state; that said cars had no taxable situs within said state; that said assessment of taxes upon said cars was without authority of *law and void and that complain- [71] ant had no plain or adequate remedy at law.

A demurrer to the complaint was overruled and answer was filed denying some and admitting other allegations of the bill.

At the trial the parties agreed to and filed | of cars wherein they can safely transport the following stipulation: such character of freight.

"1st. That plaintiff is and was during the times mentioned in the petition a corporation duly organized and existing by virtue of the laws of the state of Illinois, with its principal office in the city of East St. Louis, in said state; that it is engaged in the business of furnishing refrigerator cars for the transportation of perishable products over the various lines of railroads in the United States; that these cars are more expensive than the ordinary box or freight car; that the cars referred to are the sole and exclusive property of the plaintiff, and that the plaintiff furnishes the same to be run indiscriminately over any lines of railroad over which shippers or said railroads may desire to route them in shipping, and furnishes the same for transportation of perishable freight upon the direct request of shippers or of railroad companies requesting the same on behalf of shippers, but on the responsibility of the carrier and not of the shipper; that as compensation for the use of its cars plaintiff received a mileage of three fourths of a cent per mile run from each railroad company over whose lines said cars are run, such rate of payment being the same as is paid by all railroad companies to each other for the use of the ordinary freight cars of each when used on the lines of others in the exchange of cars incident to through transportation of freight over connecting lines of railroads; that plaintiff has not, and never has had, any contract of any kind whatsoever by which its cars are leased or allotted to or by which it agrees to furnish its cars to any railroad company operating within the state of Colorado; that it has and has had during said times no office or place of business nor other property than its cars within the state of Colorado, and that all the freight transported in plaintiff's cars in or through the state of Colorado, including the cars assessed, was transported in such cars either from a point [72] or points in a state of the United States outside of the state of Colorado to a point in the state of Colorado, or from a point in the state of Colorado to a point outside of said state, or between points wholly outside of said state of Colorado, and said cars never were run in said state in fixed numbers nor at regular times, nor as a regular part of particular trains, nor were any certain cars ever in the state of Colorado, except as engaged in such business aforesaid, and then only transiently present in said state for such purposes.

"That, owing to the varying and irregular demand for such cars, the various railroad companies within the state of Colorado have not deemed it a profitable investment to build or own cars of such character, and therefore relied upon securing such cars when needed from the plaintiff or corporations doing a like business.

"That it is necessary for the railroad companies operating within the state of Colorado, and which are required to carry over their lines perishable freight, such as fruits, meats, and the like, to have such character

"2d. That the average number of cars of the plaintiff used in the course of the business aforesaid within the state of Colorado during the year for which such assessment was made would equal forty, and that the cash value of plaintiff's cars exceeds the sum of $250 per car, and that if such property of the plaintiff is assessable and taxable within such state of Colorado, then the amount for which such cars, the property of the plaintiff, is assessed by said state board of equalization is just and reasonable, and not in excess of the value placed upon other like property within said state for the purposes of taxation.

"3d. That said company is not doing business in this state, except as shown in this stipulation and by the facts admitted in the pleadings.

"4th. That in case it be found by the court under the undisputed facts set forth in the pleadings and the facts herein stipulated that the authorities of the state of Colora do under existing laws have no power to as sess or tax the said property of plaintiff, then judgment shall be entered herein for the plaintiff for the relief prayed; otherwise [73] judgment shall be entered for the defendants.

"The following constitutional and statutory provisions are referred to in the opinion:

"All corporations in this state, or doing business therein, shall be subject to taxation for state, county, school, municipal, and other purposes, on the real and personal property owned or used by them within the territorial limits of the authority levying the tax.' (§ 10, art. 10, State Const.)

"Sec. 3765. (M. A. S.) All property, both real and personal, within the state, not expressly exempt by law, shall be subject to taxation.

""Sec. 3804.

It shall be the duty of said board (the board of equalization) to assess all the property in this state owned, used, or controlled by railway companies, telegraph, telephone, and sleeping or palace car companies.

"Sec. 3805. The president, vice president, general superintendent, auditor, tax agent, or some other officer of such railway, sleeping, or other palace car, or telegraph or telephone company, or corporation, owning, operating, controlling, or having in its possession in this state any property, shall furnish said board on or before the fifteenth day of March, in each year, a statement signed and sworn to by one of such officers, and showing in detail for the year ending on the thirty-first day of December preceding.'

"5th. A full list of rolling stock belonging to or operated by such railway company, setting forth the number, class, and value of all locomotives, passenger cars, sleeping cars or other palace cars, express cars, baggage cars, mail cars, box cars, cattle cars, coal cars, platform cars, and all other kinds of cars owned or used by said company. The statement shall show the actual proportion of the rolling stock in use on the company's

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Mr. Alexander B. McKinley, for defendant in error:

Adams Exp. Co. v. Ohio State Auditor, 165 U. S. 194, 41 L. ed. 683, 166 U. S. 185, 41 L. ed. 965; Adams Exp. Co. v. Indiana, 165 U. S. 255, 41 L. ed. 707; Postal Teleg. Cable Co. v. Adams, 155 U. S. 688, 39 L. ed. 311, 5 Inters. Com. Rep. 1; Adams Exp. Co. v. Kentucky, 166 U. S. 171, 41 L. ed. 960; Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18,35 L. ed. 613, 3 Inters. Com. Rep. 595.

road, all of which is necessary for the transportation of freight and passengers, and the operation of the road within the state dur- The tax now under consideration is not a ing the year for which the statement is made. license tax, or in any sense a tax for the privThe said statement shall also show the act-ilege of transacting interstate commerce. ual proportion of rolling stock of said company used upon leased lines and lines [74] operated with others within the state, the mileage so leased and operated, and the location thereof. "7th. Whenever it shall be found that one corporation uses or controls any❘ property belonging to or owned by another corporation, said board may assess such property either to the corporation using or controlling the same, or to the corporation by which it is owned or to which it belongs. But every such corporation shall, in the statement to said board, set forth what property belonging to or owned by any other corporation is used or controlled by the corporation making the statement."

The cause having come on to be heard, judgment was entered on behalf of the plaintiff, awarding a perpetual injunction as prayed for in the bill of complaint. Thereupon an appeal was taken to the supreme court of the state, from whose decision, reversing the judgment of the trial court and directing the dismissal of the bill, an appeal was taken to this court.

Messrs. Judson Harmon and Percy Werner, for plaintiff in error:

The cars of the plaintiff in error, under the agreed facts, acquired no situs in Colorado for the purpose of taxation.

Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18, 35 L. ed. 613, 3 Inters. Com. Rep. 595; Pickard v. Pullman Southern Car Co. 117 U. S. 34, 29 L. ed. 785; Pullman Southern Car Co. v. Nolan, 22 Fed. Rep. 276; Central R. Co. v. State Bd. of Assessors, 49 N. J. L. 11; Bain v. Richmond & D. R. Co. 105 N. C. 363, 8 L. R. A. 299, 3 Inters. Com. Rep. 149; Marye v. Baltimore & O. R. Co. 127 U. S. 117, 32 L. ed. 94; Morgan v. Parham, 16 Wall. 471, 21 L. ed. 303; Hays v. Pacific Mail S. 8. Co. 17 How. 596, 15 L. ed. 254; St. Louis v. Wiggins Ferry Co. 11 Wall. 423, 20 L. ed. 192; Coe v. Errol, 116 U. S. 517, 29 L. ed. 715; Crandall v. Nevada, 6 Wall. 35, 18 L. ed. 745; Robinson v. Long ley, 18 Nev. 71; State v. State Board (unreported) (Mo.) Dec. 1898.

A state cannot tax the vehicles employed exclusively in the business of interstate commerce, where such vehicles have no situs within the state.

The fact that cars and other vehicles are employed in interstate commerce does not in the least abridge the right of a state to tax them.

The right of a state to tax all subjects within its jurisdiction is unquestionable, and this right may, in the discretion of the legislature, be exercised over all the property coming temporarily within its territory.

Union P. R. Co. v. Peniston, 18 Wall. 5, 21 L. ed. 787; Lane County v. Oregon, 7 Wall. 71, 19 L. ed. 101.

The courts of the United States adopt and follow the decisions of the highest court of a state in questions which concern merely the Constitution or laws of that state.

Bucher v. Cheshire R. Co. 125 U. S. 555, 31 L. ed. 795; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685, 41 L. ed. 1165; Merchants' & Mfrs. Bank v. Pennsylvania, 167 U. S. 461, 42 L. ed. 237.

*Mr. Justice Shiras delivered the opinion [74] of the court:

In this record we again meet the problem, so often presented, how to reconcile the rightful power of a state to tax property within its borders with its duty to obey those provisions of the Federal Constitution which forbid the taking of property without due process of law, and the imposition of burdens upon interstate commerce.

The frequency with which the question has arisen is evidence both of its importance and of its difficulty. The vast increase of commerce throughout the country, and the consequent necessary increase of the means whereby such commerce is carried on, have been the occasion of many of the cases in which this court has been called upon to consider the subject. The expense involved in [75] the manufacture of some of the common articles in daily use and in their transportation is so great as to be beyond the means of individuals, and has rendered necessary the Pullman's Palace Car Co. v. Pennsylvania, aggregation of capital in the form of corpo141 U. S. 18, 35 L. ed. 613, 3 Inters. Com. rations. Usually such corporations, though Rep. 595; Philadelphia & S. 8. Co. v. Penn-organized under the law of one state, make sylvania, 122 U. S. 346, 30 L. ed. 1205, 1eral or all of the states, and, while so doing their profits by doing their business in sevInters. Com. Rep. 308; Corfield v. Coryell, receive the protection of their laws. When 4 Wash. C. C. 379; Erie R. Co. v. State, 31 the taxpayers of one state perceive that they N. J. L. 531, 86 Am. Dec. 226; Brown v. are subjected to competition by the importaMaryland, 12 Wheat. 449, 6 L. ed. 689; tion of articles made in another, or that they Passenger Cases, 7 How. 458, 12 L. ed. 775: are contributing continually to the prosperState Tax on Railway Gross Receipts, 15 ity of foreign corporations, what more natWall. 292, 21 L. ed. 167; Fargo v. Michigan, ural than that they should demand that 121 U. S. 230, 30 L. ed. 888, 1 Inters. Com. some share of the public burdens should be Rep. 51. put upon such corporations? The difficult

task of the lawmaker is to meet that natural | and proper demand without infringing upon the freedom of interstate commerce, or depriving those engaged therein of the equal protection of the laws.

of miles over which it ran its cars within the state bore to the whole number of miles, in that and other states, over which its cars were run. This was a just and equitable method of assessment; and if it were adopted by all the states through which these cars ran, the company would be assessed upon the whole of its capital stock and no more."

In the case before us we do not need to go far in search of the principles which determine it. We think they may be found in the cases of Western Union Teleg. Co. v. Adams Express Co. v. Ohio State Auditor Atty. Gen. of Massachusetts, 125 U. S. 530 was a case wherein was drawn in question [31: 790]; Pullman's Palace Car Co. v. the validity of a law of the state of Ohio Pennsylvania, 141 U. S. 18 [35: 613, 3 In-imposing an assessment upon an express comters. Com. Rep. 595]; and Adams Express pany whose business was carried on through Co. v. Ohio State Auditor, 165 U. S. 194 [41: several states. The statute required a board 683]. of assessors "to proceed to ascertain and assess the value of the property of express, tel- [77] egraph, and telephone companies in Ohio, and in determining the value of the property of said companies in this state, to be taxed within the state and assessed as herein provided, said board shall be guided by the value of said property as determined by the value of the entire capital stock of said companies, and such other evidence and rules as will enable said board to arrive at the true value in money of the entire property of said companies within the state of Ohio, in the proportion which the same bears to the entire property of said companies, as determined by the value of the capital stock thereof, and the other evidence and rules as aforesaid."

In the first of those cases was involved the question of the validity of a law of Massachusetts, which imposed on the Western Union Telegraph Company, a corporation of the state of New York, a tax on account of the property owned and used by it within the state of Massachusetts, the value of which was to be ascertained by comparing the length of its lines in that state with the length of its entire lines. This court held that such a tax is essentially an excise tax, and not forbidden by the commerce clause of the Constitution.

In Pullman's Palace Car Co. v. Pennsylvania the nature of the case and the conclusion were thus stated by Mr. Justice Gray: "The cars of this company within the state of Pennsylvania are employed in interstate commerce; but their being so employed does not exempt them from taxation by the state; and the state has not taxed them because of [76] their being so employed, but because of their being within its territory and jurisdiction. The cars were continuously and permanently employed in going to and fro upon certain routes of travel. If they had never passed beyond the limits of Pennsylvania it could not be doubted that the state could tax them, like other property within its borders, not-be appropriately quoted: withstanding they were employed in interstate commerce. The fact that, instead of stopping at the state boundary, they cross that boundary in going out and coming back, cannot affect the power of the state to levy a tax upon them. The state, having the right, for the purposes of taxation, to tax any personal property found within its jurisdiction, without regard to the place of the owner's domicil, could tax the specific cars which at a given moment were within its borders. The route over which the cars travel extending beyond the limits of the state, particular cars may not remain within the state; but the company has at all times substantially the same number of cars within the state, and continuously and constantly uses there a portion of its property; and it is distinctly found, as matter of fact, that the company continuously, throughout the periods for which these taxes were levied, carried on business in Pennsylvania, and had about one hundred cars within the state.

It was contended, on behalf of the express company, that the law in question was invalid because it sought to impose taxes on property beyond the territorial jurisdiction of Ohio; because the assessments therein provided for were an invasion of the constitutional guaranty of the equal protection of the laws, and because the assessments imposed a burden upon interstate_commerce. But this court held otherwise. Portions of the opinion of Mr. Chief Justice Fuller may

"Although the transportation of the subjects of interstate commerce, or the receipts received therefrom, or the occupation or business of carrying it on, cannot be directly subjected to state taxation, yet property belonging to corporations or companies engaged in such commerce may be; and whatever the particular form of the exaction, if it is essentially only property taxation, it will not be considered as falling within the inhibition of the Constitution. Corporations and companies engaged in interstate commerce should bear their proper proportion of the burdens of the governments under whose protection they conduct their operations, and taxation on property, collectible by the ordinary means, does not affect interstate commerce otherwise than incidentally, as all business is affected by the necessity of contributing to the support of government.

"As to railroad, telegraph, and sleepingcar companies, engaged in interstate commerce, it has been often held by this court "The mode which the state of Pennsyl- that their property, in the several states vania adopted to ascertain the proportion of through with their lines or business ex-[78] the company's property upon which it should tended. might be valued as a unit for the purbe taxed in that state, was by taking as a poses of taxation, taking into consideration basis of assessment such proportion of the the uses to which it was put and all the ele capital stock of the company as the numberments making up aggregate value, and that a

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