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 road, all of which is necessary for the transportation of freight and passengers, and the operation of the road within the state during the year for which the statement is made. The said statement shall also show the actual 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. Mr. Alexander B. McKinley, for defendant in error: The tax now under consideration is not a license tax, or in any sense a tax for the priv ilege of transacting interstate commerce. 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. 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, 1 Inters. Com. Rep. 308; Corfield v. Coryell, 4 Wash. C. C. 379; Erie R. Co. v. State, 31 N. J. L. 531, 86 Am. Dec. 226; Brown v. Maryland, 12 Wheat. 449, 6 L. ed. 689; Passenger Cases, 7 How. 458, 12 L. ed. 775: State Tax on Railway Gross Receipts, 15 Wall. 292, 21 L. ed. 167; Fargo v. Michigan, 121 U. S. 230, 30 L. ed. 888, 1 Inters. Com. Rep. 51. eral or all of the states, and, while so doing their profits by doing their business in sevreceive the protection of their laws. When the taxpayers of one state perceive that they are subjected to competition by the importation of articles made in another, or that they are contributing continually to the prosperity of foreign corporations, what more natural than that they should demand that some share of the public burdens should be 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 proportion of the whole fairly and properly | business. By the business which it trans- separate pieces and articles of tangible property, by the contracts, franchises, and priv"The valuation was thus not confined to ileges which it has acquired and possesses, it the wires, poles, and instruments of the tele- has created a corporate property of the actgraph company; or the roadbed, ties, rails, ual value of $16,000,000. Thus, according to and spikes of the railroad company; or the its figures, this intangible property, its fraucars of the sleeping-car company; but in- chises, privileges, etc., is of the value of cluded the proportionate part of the value re- $12,000,000, and its tangible property of only sulting from the combination of the means $4,000,000. Where is the situs of this inby which the business was carried on-tangible property? Is it simply where its a value existing to an appreciable ex- home office is, where is found the central ditent throughout the entire domain of recting thought which controls the workings operation. And it has been decided that a of the great machine, or in the state which proper mode of ascertaining the assessable gave it its corporate franchise, or is that invalue of so much of the whole property as is tangible property distributed wherever its situated in a particular state is, in the case tangible property is located and its work done? of railroads, to take that part of the value Clearly, as we think, the latter. Every state of the entire road which is measured by the within which it is transacting business and proportion of its length therein to the length where it has its property, more or less, may of the whole (Pittsburgh, C. C. & St. L. rightfully say that the $16,000,000 of value Railway Co. v. Backus, 154 U. S. 421 [38: which it possesses springs not merely from the 1031)], or taking in the basis of assessment original grant or corporate power by the state such proportion of the capital stock of a which incorporated it or from the mere ownsleeping-car company as the number of miles ership of the tangible property, but it springs of railroad over which its cars are run in a from the fact that that tangible property it particular state bears to the whole number of has combined with contracts, franchises, and [80] miles traversed by them in that and other privileges into a single unit of property, and states (Pullman's Palace Car Co. v. Pennsyl- this state contributes to that aggregate value, vania, 141 U. S. 18 [35: 613, 3 Inters. Com. not merely the separate value of such Rep. 595]), or such a proportion of the whole tangible property as is within its limits, value of the capital stock of a telegraph but its proportionate share of the value company as the length of its lines within a of the entire property. That this is true is state bears to the length of its lines every- obvious from the result that would follow if where, deducting a sum equal to the value of all the states other than the one which creits real estate and machinery subject to local ated the corporation could and should withtaxation within the state. Western Union hold from it the right to transact express Teleg. Co. v. Taggart, 163 U. S. 1 [41: 49]. business within their limits. It might continue to own all its tangible property within each of those states, but unable to transact the express business within their limits, that $12,000,000 of value attributable to its intangible property would shrivel to a mere trifle. "Doubtless there is a distinction between the property of railroad and telegraph companies and that of express companies. The physical unity existing in the former is lacking in the latter; but there is the same unity in the use of the entire property for the specific purpose, and there are the same elements of value arising from such use. The cars of the Pullman Company did not constitute a physical unity, and their value as separate 9] cars did not bear a direct relation to the valuation which was sustained in that case. The cars were moved by railway carriers under contract, and the taxation of the corporation in Pennsylvania was sustained on the theory that the whole property of the company might be regarded as a unit plant, with a unit value, a proportionate part of which value might be reached by the state authorities on the basis indicated." On a petition for a rehearing, the questions were again fully argued, and the conclusions reached on the first hearing were reaffirmed. Adams Express Co. v. Ohio State Auditor, 166 U. S. 186 [41: 185]. From the opinion denying the rehearing, delivered by Mr. Justice Brewer, a few extracts may be quoted as applicable to the case in hand: "Where is the situs of this intangible property? The Adams Express Company has, according to its showing, in round numbers $4,000,000 of tangible property scattered through different states, and with that tangible property thus scattered transacts its In conclusion, let us say that this is eminently a practical age; that courts must recognize things as they are and as possessing a value which is accorded to them in the markets of the world, and that no finespun theories about situs should interfere to enable these large corporations, whose business is carried on through many states, to escape from bearing in each state such burden of taxation as a fair distribution of the actual value of their property among those states requires." The Constitution of the state of Colorado provides that all corporations in the state or doing business therein shall be subject to taxation on the real and personal property owned or used by them within the territorial limits of the authority levying the tax, and its statutes provide for a board of equalization, whose duty it shall be to assess all the property in the state owned, used or controlled by railway companies, telegraph, telephone, and sleeping or palace car companies; and that 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 con same, or to the corporation to which it be- | into another, to use and employ, a portion of longs. its movable personal property, it is legitiThe American Refrigerator Transit Com- mate for the latter to impose upon such proppany is a corporation of the state of Illinois, erty, thus used and employed, its fair share engaged in the business of furnishing re- of the burdens of taxation imposed upon simfrigerator cars for the transportation of per-ilar property used in like way by its own ishable products over the various lines of citizens, we think that such a tax may be railroads in the United States, and receives properly assessed and collected, in cases like [81] as compensation for the use of its cars a*mile- the present, where the specific and individual age of three fourths of a cent per mile from items of property so used and employed were each railroad company over whose lines said not continuously the same, but were stantly changing, according to the exigencies of the business, and that the tax may be fixed by an appraisement and valuation of the average amount of the property thus habitually used and employed. Nor would the fact that such cars were employed as vehicles of transportation in the interchange of interstate commerce render their taxation invalid. Marye v. Baltimore & O. R. R. Co. 127 U. S. 123 [32: 96]; Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18 [35: 613, 3 Inters. Com. Rep. 595]. cars are run. The receiver of the Union Pacific, Denver, & Gulf Company reported to the board of equalization that he had on the line of the railroad which he was operating within the state of Colorado forty-two refrigerator cars belonging to the American Refrigerator Transit Company on December 31, 1894. The board thereupon assessed to the Transit Company said forty-two cars, at a valuation of two hundred and fifty dollars each, and distributed said assessment to the different counties through which the line of said railroad extended. The judgment of the Supreme Court of the State of Colorado is accordingly affirmed. Mr. Justice Harlan and Mr. Justice It was stipulated in the trial court "that it is necessary for the railroad companies operating within the state of Colorado, and White dissented. which are required to carry over their lines perishable freight, to have such character of cars wherein they can safely transport such freight; and that, owing to the varying and OLIVER WENDELL HOLMES, Jr., Appt., irregular demands for such cars, the various railroad companies within the state of Colorado have not deemed it profitable to build or own cars of such character, and therefore rely upon securing such cars when needed from the Transit Company, or corporations doing a like business." It was further stipulated "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 two hundred and fifty dollars per car, and that if such property of the plaintiff is assessable and taxable within such state, 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. Applying the reasoning and conclusions of the cases hereinbefore cited to those admitted facts, we have no difficulty in affirming the judgment of the supreme court of Colorado sustaining the validity of the taxation in question. The state statutes impose no burdens on the business of the plaintiff in error, but con[82] template only the assessment and levy of taxes upon the property situated within the state; and the only question is whether it was competent to ascertain the number of the cars to be subjected to taxation by inquiring into the average number used within the state limits during the period for which the assessment was made. It having been settled, as we have seen, that where a corporation of one state brings v. GEORGE D. HURST. (See S. C. Reporter's ed. 82-90.) Serial publication in monthly magazine vitiates subsequent copyright of whole book. The serial publication of a book in a monthly magazine, prior to any steps taken toward securing a copyright, is such a publication of the same, within the meaning of the act of Congress of February 3, 1831, as to vitiate a copyright of the whole book, obtained subsequently, but prior to the publication of the book as an entirety. [No. 124.] Argued and Submitted January 16, 17, 1899. ON APPEAL from a decree of the United States Circuit Court of Appeals for the Second Circuit affirming the decree of the Circuit Court of the United States for the Eastern District of New York dismissing a suit in equity brought by Oliver Wendell Holmes, Jr., as executor of the will of the late Oliver Wendell Holmes, to obtain an injunction against the infringement of the copyright of a book written by plaintiff's testator, entitled "The Autocrat of the Breakfast Table." Affirmed. See same case below, 76 Fed. Rep. 757, and 51 U. S. App. 271. Statement by Mr. Justice Brown: *This was a bill in equity by the executor [83] of the will of the late Dr. Oliver Wendell |
