The district court denied the writ of was had without the aid or presence of his habeas corpus prayed for, and ordered the attorney; and that the district judge and petition to be dismissed, whereupon an ap- the district attorney told his said attorney peal was allowed petitioner to this court, that, as petitioner's defense was "inconsisand a transcript of the petition, the final tent with the defense of others charged at order, and all other proceedings in the cause the same time with complicity in the de were directed to be forwarded to its clerk. struction of the vessel "Olive Pecker," the The final order concluded in these words: court would not permit the same attorney "And the court further certifies as a part of | to represent them all. this order that although indictment No. 241, under which the petitioner, John Andersen, was tried and convicted of murder, was not one of the number embraced in the order of the 14th of December, 1897, assigning said McIntosh as counsel, that still said McIntosh, under said order and pursuant to the [29] assignment of the court, continued to represent the said Andersen upon his trial in the circuit court of the United States, and upon his appeal in the Supreme Court of the United States, on trial of said indictment No. 241." Messrs. Hugh G. Miller, P. J. Morris, and J. G. Bigelow for appellant. Mr. William H. White, United States Attorney for the Eastern District of Virginia, for appellee. [29] *Mr. Chief Justice Fuller delivered the opinion of the court: The contention seems to be that petitioner was denied, at any rate in the first instance, the assistance of the attorney he had selected, and that he did not have his attorney with him when he told his story November 8; and that, as he was thereby deprived of fundamental constitutional rights, all subsequent proceedings were void for want of jurisdiction. The papers introduced before the district court, by consent, tended to show that Morris had not been employed by Andersen prior to November 8; that the five members of the crew other than Andersen authorized Mor ris on that day to represent them; that the district attorney had had no interview with any of the prisoners up to the morning of November 8, which he informed the attorney it was imperatively necessary in view of future action that he should have, and then if the prisoners employed him they would be at his disposal. The rule that the writ of habeas corpus cannot be made use of as a writ of error be-record of the trial showed that examination ing firmly established, the contention of appellant's counsel is that the judgment of the circuit court, the judgment of this court, and the action of the circuit court in pursuance of our mandate, are wholly void because he was denied "the assistance of counsel for his defense," that is, the assistance of counsel of his own selection. The petition was insufficient in not setting forth the proceedings, or the essential parts thereof, prior to August 26, 1898, on which day it was presented, and it was very prop; erly conceded on the hearing of this appeal that the record of Andersen's trial and conviction and the proceedings on error was to be treated as part of the record, and it was referred to by counsel on both sides accordingly. Craemer v. Washington, 168 U. S. 124, 128 [42: 407, 409]. Apart from that evidence, however, the before the United States commissioner was waived by the accused; that the trial lasted several days, during which no other counsel applied to the court for leave to act for Andersen, nor did Andersen request the court to permit any other counsel to conduct or assist in conducting his defense; that Andersen admitted that the statement he made on November 8 was a voluntary one, that no such statement was put in evidence; nor was any objection raised to questions propounded to Andersen when on the stand as to what he had said on that occasion; nor were wit nesses called to contradict his answers. *The record did not show nor was there [31] any pretense that the court was requested and denied the request; and if it were true to assign Morris as counsel for Andersen, The record disclosed that on Monday, the that the district judge or district attorney 8th of November, 1897, the day after Ander-suggested that it would be objectionable to sen had been delivered into the custody of five members of the crew, even though coupdo so in view of his employment by the other the marshal, George McIntosh, Esq., was as-led with the intimation that the court would signed to him as counsel upon his own re- decline on that ground to make such assignquest and in accordance with section 1034 of the Revised Statutes; and that Mr. McIn-ment, the fact was not material on this ap tosh actually represented him from thence plication. onward contesting every step of the way, until, after having obtained a writ of error from this court, and argued the cause here, his petition for a rehearing was denied. But the petition averred that on Novem-nated was not a member of the bar of that [30] ber 7 petitioner had "employed as counsel to represent him one P. J. Morris;" that on the same day Morris called at the place of detention and asked permission to see petitioner for consultation, which was refused; that petitioner's preliminary examination U. S., Book 43. 172 U. S. 23 In Commonwealth v. Knapp, 9 Pick. 496 [20 Am. Dec. 491], the supreme judicial court of Massachusetts refused to make a desired assignment because the person desig court, and also because "a person of more legal experience ought to be assigned, who mig render aid to the court as well as to the prisoner;" but the question under what circumstances a court may in a given case decline to assign particular counsel on the 353 request of the accused was not discussed. | the Pittsburgh, Cincinnati, Chicago, & St. In the case of Re Shibuya Jugiro, 140 U. Louis Railway Company against the board S. 291, 296 [35: 510,513], the alleged assign- of public works of West Virginia et al., to ment at Jugiro's trial "of one as his counsel restrain the assessment and collection of who (although he may have been an attor- taxes upon a bridge over the Ohio river. ney at law) had not been admitted or quali- Affirmed. fied to practice as an attorney or counselor at law in the courts of New York" was held to be matter of error, and not affecting the jurisdiction of the trial court. some Statement by Mr. Justice Gray: St. Louis Railway Company, a corporation The Pittsburgh, Cincinnati, Chicago, & of the state of Ohio, owning and operating a The general rule is that the judgment of a court having jurisdiction of the offense railway running through the states of West Virginia, Ohio, Pennsylvania, Indiana, and charged and of the party charged with its Illinois, under the laws of those states, and commission is not open to collateral crossing the Ohio river, a navigable stream, attack. The exceptions to this rule when forming the boundary between the states of been essential right has denied West Virginia *and Ohio, by means of a [33] need not be considered, for whether this bridge built, owned, and controlled by the application was tested on the petition alone, plaintiff, filed in the circuit court of the treating the record as part thereof, or heard, United States for the district of West Virwithout objection, as on rule to show cause,ginia a bill in equity against the Board of the district court could not have done other- Public Works of the state of West Virginia, wise than deny the writ. Re Boardman, a public corporation, against its members 169 U. S. 39 [42: 653]. individually (being the Governor, the auditor, the treasurer, the superintendent of free schools, and the attorney general of the state), and against one Cowan, sheriff of Brooke county, all of them citizens of that state, to restrain the assessment and collection of taxes upon the bridge under section 67 of chapter 29 of the Code of West Virginia of 1891. Order affirmed. Mandate to issue at once. [82] PITTSBURGH, CINCINNATI, CHICAGO, & ST. LOUIS RAILWAY COMPANY, Appt., v. BOARD OF PUBLIC WORKS OF THE (See S. C. Reporter's ed. 32-48.) Injunction against a tax-adequate remedy for error-opportunity to be heard. 1. The collection of taxes assessed under the authority of a state is not to be restrained by injunction from a Federal court, unless it clearly appears, not only that the tax is illegal, but also that the owner of the property taxed has no adequate remedy by the ordinary processes of the law, and that there are speclal circumstances bringing the case under some recognized head of equity jurisdiction. 2 Provision for a review and correction by the circuit court of a county, of an assessment for taxes made by the board of public works, affords such a convenient and adequate remedy for any error in the taxation as will preclude an injunction against collecting the tax. 8. Previous notice of a hearing before officers who make an assessment for taxes is not necessary if there is notice of the decision with a right to appeal to a court and be heard and offer evidence before the valuation of the property for taxation is finally fixed. The bill alleged that, under and by virtue of that section of the Code, the plaintiff was required, through its principal officers, to make return in writing, under oath, to the auditor of the state, on or before the 1st of April in each year, and in the manner prescribed by that section, of its property subject to taxation in the state; the auditor was required to bring the return, as soon as prac ticable, before the board of public works; that board was authorized either to approve the return, or to proceed to assess and fix the fair cash value of all the property of railroad companies which they were so required to return for taxation; and it was further provided that, as soon as possible after the value of any railroad property was fixed for purposes of taxation by one of the several methods designated by that section, the auditor should assess and charge such property with the taxes properly chargeable thereon. The bill also alleged that the plaintiff's main line of railway ran through the state of West Virginia for a distance of 7.11 miles, of which 6.53 miles were in the county of Brooke and 0.58 miles in the county of Hancock; that its bridge across the Ohio river was part of its railway; that the total length of the bridge, including its abutments, was 2,044 feet, of which 1,518 feet were in West Submitted January 25, 1898. Decided No- Virginia and 526 feet in Ohio; and that the [No. 8.] vember 28, 1898. plaintiff, before April 1, 1894, as required by section 67 of chapter 29 of the Code, made to APPEAL from a decree of the Circuit the auditor of the state of West Virginia a Court of the United States for the Dis-return of its property subject to taxation in trict of West Virginia sustaining a demurrer the state for the year 1894 (a copy of which and dismissing a suit in equity brought by was annexed to and made part of the bill, [34] and is set out in the margin †), and, in mak- | the auditor; that on September 28, 1894, ing that return, included, in the 7.11 miles of its main track, so much of the bridge as lay within the state, amounting to 1,518 feet. The bill further alleged that some time in September, 1894, the board of public works, meeting at Charleston in that state, as provided by that section of the Code, to assess [35] and fix the *valuation of railroad property for the purposes of taxation, refused to approve the plaintiff's return, and proceeded, among other things, to assess the plaintiff with 6.53 miles of main track and 6.53 miles of second track in the county of Brooke, which assessment and valuation covered the entire length of its railroad in the state of West Virginia, including so much of the bridge as lay within the state; and, in addition thereto, valued and assessed the bridge as a separate structure, at the sum of $200,000, placing the tax upon the bridge at $3,060, and the auditor proceeded to assess the plaintiff with this sum of $3,060; thereby assessing it with the entire length of the bridge in West Virginia as a part of its railway in the state, and also assessing it with the bridge as a separate structure, thus taxing the plaintiff a second time for that part of its bridge which lay in West Virginia; whereas the bridge should only have been assessed as so many feet of the railway. The bill further alleged that neither the board of public works, nor any member thereof, nor the auditor, informed the plaintiff of the valuation which had been placed upon its property by the board of taxation, nor of the taxes which had been assessed thereon by the plaintiff, not having been informed of The bill further alleged that "on the day of, 1895," the auditor added ten per cent to the sum of $3,060, to pay the expense of collection, and certified that sum, with the ten per cent added, to the sheriff of Brooke county for collection; and that the sheriff "since said date" had demanded payment of the sum of $3,060 and the ten per cent additional, and was threatening to collect them by legal process, and would thus inflict irreparable injury upon the plaintiff, unless prevented by the interposition of a court of competent jurisdiction. †Valuation of P., C., C. & St. L. R'y Main Line in the State of West Virginia as Returned for HIT 7.11 7.11 The plaintiff further alleged that the bridge constituted a part of its line of railway, and had no separate earning capacity, and no greater earning capacity than any other equal number of feet of its line of railway, and was used exclusively by it in transporting freight and passengers across the Ohio river to and from the states of West Virginia and Ohio; and that it was advised and believed that the bridge was an instrument of interstate commerce, and was not, as a separate structure from its line of railway, a proper subject for taxation by the state of West Virginia in the manner above set forth. court of the United States for the northern district of Illinois, to restrain the collection of a tax assessed by the city of Chicago upon his shares in the bank, alleging, among other things, that the tax was illegal and void, because the tax was not uniform and equal with taxes on other property as required by the Constitution of the state, and because the shares were taxable only at the domicil of the owner and therefore were not property within the jurisdiction of the state of Illi nois. This court, speaking by Mr. Justice Field, without considering the validity of the objections to the tax, held that the bill could not be maintained, saying: "Assuming the The bill then charged that the tax upon tax to *be illegal and void, we do not think [38i the bridge was illegal and unjust, and con- any ground is presented by the bill, justifystituted a cloud upon the title to the bridge, ing the interposition of a court of equity to and that by reason of that clause of the Con- enjoin its collection. The illegality of the stitution of the United States, which gives tax and the threatened sale of the shares for Congress control over interstate commerce, its payment constitute of themselves alone the circuit court of the United States for no ground for such interposition. There the district of West Virginia was clothed must be some special circumstances attendwith authority and jurisdiction to restraining a threatened injury of this kind, distinand to prevent the assessment and collec-guishing it from a common trespass, and tion of this illegal and unjust tax; and bringing the case under some recognized head prayed for an injunction against its assessment and collection, and for her relief. The bill was sworn to March 18, 1895; and was filed March 25, 1895, together with an affidavit to the effect that, since the bill was sworn to, the sheriff had levied upon one of the plaintiff's freight engines for the purpose of enforcing the collection of the tax upon the bridge. Upon the filing of the bill, a temporary injunction was granted as prayed of equity jurisdiction, before the preventive remedy of injunction can be invoked. It is upon taxation that the several states chiefly rely to obtain the means to carry on their respective governments, and it is of the utmodes adopted to enforce the taxes levied most importance to all of them that the should be interfered with as little as possible. Any delay in the proceedings of the officers, the taxes may derange the operations of the upon whom the duty is devolved of collecting A general demurrer to the bill was after-ment to the public. No court of equity will, government, and thereby cause serious detri[37] wards filed and sustained, the injunction therefore, allow its injunction to issue to redissolved, and the bill dismissed. The strain their action, except where it may be plaintiff appealed to this court, under the act necessary to protect the rights of the citiof March 3, 1891, chap. 517, § 5. 26 Stat. zen whose property is taxed, and he has no adequate remedy by the ordinary processes of the law," 11 Wall. 109, 110 [20: 66]. "The Messrs. J. Dunbar and J. B. Sommer-party of whom an illegal tax is collected has ville, for appellant. for. at L. 828. Messrs. T. S. Riley, Thayer Melvin, and Edgar P. Rucker, Attorney General of West Virginia, for appellee. [37] *Mr. Justice Gray, after stating the case, delivered the opinion of the court: The collection of taxes assessed under the authority of a state is not to be restrained by writ of injunction from a court of the United States, unless it clearly appears, not only that the tax is illegal, but that the owner of the property taxed has no adequate remedy by the ordinary processes of the law, and that there are special circumstances bringing the case under some recognized head of equity jurisdiction. Dows v. Chicago, 11 Wall. 108 [20: 65]; Hannewinkle v. Georgetown, 15 Wall. 547 [21: 231]; State Railroad Tax Cases, 92 U. S. 575 [23: 663]; Union Pacific Railway Co. v. Cheyenne, 113 U. S. 516 [28: 1098]; Milwaukee v. Koeffler, 116 U. S. 219 [29: 612]; Shelton v. Platt, 139 U. S. 591 [34: 273]. In Dows v. Chicago a citizen of the state of New York, owning shares in a national bank organized and doing business in the city of Chicago, filed a bill in equity, in the circuit ordinarily ample remedy, either by action against the officer making the collection or the body to whom the tax is paid. Here such remedy existed. If the tax was illegal, the might have had his action, after it was paid. plaintiff protesting against its enforcement against the officer or the city to recover back the money, or he might have prosecuted either for his damages. No irreparable injury would have followed to him from its collection. Nor would he have been compelled to resort to a multiplicity of suits to determine his rights. His entire claim might have been embraced in a single action." 11 Wall. 112 [20: 67]. In the State Railroad Tax Cases this court, in a careful and thorough opinion delivered by Mr. Justice Miller, stated that "it has been repeatedly decided that neither the mere illegality of the tax complained of, nor its injustice nor irregularity, of themselves, give the right to an injunction in a court of equi- [39] ty;" referred to section 3224 of the Revised Statutes, which provides that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court;" and said that "though this was [40] intended to apply alone to taxes levied by the United States, it shows the sense of Congress of the evils to be feared if courts of justice could, in any case, interfere with the process of collecting the taxes on which the government depends for its continued existence." The court then quoted from Dows v. Chicago, and Hannewinkle v. Georgetown, above cited, and proceeded as follows: "We do not propose to lay down in these cases any absolute limitation of the powers of a court of equity in restraining the collection of illegal taxes. But we may say that, in addition to illegality, hardship, or irregularity, the case must be brought within some of the recognized foundations of equitable jurisdiction; and that mere errors or excess in valuation, or hardship or injustice of the law, or any grievance which can be remedied by a suit at law, either before or after payment of taxes, will not justify a court of equity to interpose by injunction to stay collection of a tax. One of the reasons why a court should not thus interfere, as it would in any transaction between individuals, is that it has no power to apportion the tax or to make a new assessment, or to direct another to be made by the proper officers of the state. These officers, and the manner in which they shall exercise their functions, are wholly beyond the power of the court when so acting. The levy of taxes is not a judicial function. Its exercise, by the Constitutions of all the states, and by the theory of our English origin, is exclusively legislative. A court of equity is, therefore, hampered in the exercise of its jurisdiction by the necessity of enjoining the tax complained of, in whole or in part, without any power of doing complete justice by making, cr causing to be made, a new assessment on any principle it may decide to be the right one. In this manner, it may, by enjoining the levy, enable the complainant to escape wholly the tax for the period of time complained of, though it be obvious that he ought to pay a tax if imposed in the proper manner.' 92 U. S. 613-615 [23: 673, 674]. *In Union Pacific Railway Co. v. Cheyenne, in which the Union Pacific Railway Company obtained an injunction against the levy of a tax by the city of Cheyenne, the facts were peculiar. The plaintiff, owning many lots of land in that city, had paid a tax assessed on all its property by a board of equalization under a general statute of the territory of Wyoming, and had also been taxed by the city of Cheyenne under provisions of its charter which had been repealed by that statute; and the bill showed, as stated in the opinion, that the levy complained of "would involve the plaintiff in a multiplicity of suits as to the title of lots laid out and being sold; would prevent their sale; and would cloud the title to all its real estate." 113 U. S. 526, 527 [28: 1102]. In Shelton v. Platt, 139 U. S. 591 [35: 273], the president in behalf of himself and other members of an express company, a joint-stock company of the state of New York, filed a bill in equity in a circuit court of the United States in Tennessee to restrain the collection of a license tax upon the com pany under a statute of the state of Tennessee, alleged to be contrary to the Constitution of the United States. The bill averred that the comptroller had issued a warrant of distress to a sheriff to collect such taxes for two years, the sheriff had levied or was about to levy the warrant on the property of the company, and the comptroller was about to issue a like warrant to collect the tax for a third year; that the property of the company in Tennessee was employed in interstate commerce in the express business, and was necessary to the conduct of it; and that the seizure by the sheriff would greatly embarrass the company in the conduct of that business and subject it to heavy loss and damage, and the public served by it to great loss and inconvenience. This court held that, even if the statute was unconsti tutional and the tax void, the bill could not be maintained, and, speaking by the Chief Justice, said: "The trespass involved in the levy of the distress warrant was not shown to be continuous, destructive, inflictive of injury, incapable of being measured in money, or committed by irresponsible persons. So far as appeared, complete compensation for the resulting injury could have been had by recovery of damages in an ac- [41] tion at law. There was no allegation of inability on the part of the express company to pay the amount of the taxes claimed, nor any averment showing that the seizure and sale of the particular property which might be levied on would subject it to loss, damage, and inconvenience which would be in their nature irremediable." The court went on to say that another statute of the state (which had been adjudged by this court in Tennessee v. Sneed, 96 U. S. 69 [24: 610], to afford a simple and effective remedy) provided that where an officer charged by law with the collection of a tax took any steps to collect it, a party conceiving it to be unjust or illegal might pay it under protest and sue the officer to recover it back, and should have no other remedy by injunction or otherwise. The court observed that "legislation of this character has been called for by the embarrassments resulting from the improvident employment of the writ of injunction in arresting the collection of the public revenue; and, even in its absence, the strong arm of the court of chancery ought not to be interposed in that direction, except where resort to that court is grounded upon the settled principles which govern its jurisdiction;" and that the jurisdiction exercised by the courts of the United States to restrain by injunction the collection of a tax wholly illegal and void had always been rested on other grounds than merely the unconstitutionality of the tax. 139 Ú. S. 596-598 [35: 276, 277]. In the light of these decisions we proceed to an examination of the provisions of the Code of West Virginia of 1891, chap. 29, § 67, under which the tax upon the plaintiffs' bridge was assessed. That section requires every corporation, owning or operating a railroad wholly or partly within the state, to make, through |