suppose that in these and many other respects the proceedings were faulty and illegal; does it follow that in every such case a court of equity will restrain the collection of the tax by injunction? * * * 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 equity. * * * We do not propose to lay down in these cases any absolute limitations 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 of valuation, or hardship, or injustice of the law, or any other 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 strictly legislative. (Heine v. Levee Commissioners, 19 Wall., 660.) * * If there be an excessive estimate of the value of the franchise or capital stock, or both, it is by an error of judgment in the officers to whose judgment the law confided that matter; and it does lie with the court to substitute its own judgment for that of the tribunal expressly created for that purpose." (State Railroad Tax Cases, 92 U. S., 575).

In Pittsburg Railway Co. v. Backus (154 U. S., 421), the Supreme Court of the Nation again approves the doctrine announced by Justice Miller in the State railroad cases above referred to. The opinion of the Backus case is by Mr. Justice Brewer, and in speaking of the question before us here, he said, among other things:

"The true cash value of the plaintiff's property in the State of Indiana in the year 1891 was a question of fact, the determination of which for the purpose of taxation was given to the special tribunal, the State board. Whenever a question of fact is thus submitted to the determination of a special tribunal, its decision creates something more than a mere presumption of fact, and if such determination comes into inquiry before the courts it can not be overthrown by evidence going only to show that the fact was otherwise than so found and determined. Here the question determined by the State board was the value of certain property. That determination can not be overthrown by the testimony of two or three witnesses that the valuation was other than that fixed by the board. It is true such testimony may be competent, and was received in this case because, taken in connection with other testimony, it might establish fraudulent conduct on the part of the board sufficient to vitiate its determinations. It is not, however, contended by counsel that there was any actual fraud on the part of the board; that the individual members thereof deliberately violated the obligations of their oaths of office, and intentionally placed upon the property of the plaintiff a valuation they knew to be grossly in excess of that which

it in fact bore, and did so with the purpose of making the plaintiff bear a greater share of the burden of the support of the State government than it rightfully should. The contention is rather that the board made a grievous mistake in placing so high a value, and that it took into consideration property outside of the State, and gave to the property within the State a value apparently deduced from that without the State. * * * Is testimony that the value placed by the board was excessive, together with testimony that portions of the road outside of the State were of largely greater value than any similar length of road within the State, unaccompanied with evidence that the board reached the value by simply dividing the total value of the company's property on a mileage basis, or that it failed to take into consideration the fact of such excessive value of portions outside of the State, sufficient to impeach its determination? This question must be answered in the negative. No determination of a special board, charged under law with the duty of placing a value upon property, can be successfully impeached by such meager testimony." (Pittsburg R. R. Co. v. Backus, 154 U. S., 421.)

Again in Maish v. Arizona (154 U. S., 421) the Supreme Court, speaking through Mr. Justice Brewer, said:

"A final objection is that the assessment was grossly unfair, and that there was fraudulent discrimination in favor of the Southern Pacific Railroad Company. It appears that assessment of ordinary range cattle was fixed by the Territorial board at $7.42, while one witness testified that their value was $6 to $6.50 per head. It also appears that the Territorial board valued the railroad property at $6,811.14 per mile, while there was testimony that to duplicate the roadbed and track alone would cost from $21,000 to $22,000 per mile; and appellants offered to prove that the railroad company stated to the board that if the valuation was fixed at about the rate which was fixed it would pay the taxes; if much higher, it would resist collection in the courts; and that the board concluded that it was better to get some taxes out of the railroad company than none, and therefore fixed the value at the sum named.

"There is nothing tending to show that the board, in fixing the value of cattle at $7.42, acted fraudulently or with any wrongful intent, or that that valuation was not the result of its deliberate judgment upon sufficient consideration and abundant evidence; and it would be strange, indeed, if an assessment could be set aside because a single witness is found whose testimony is that the valuation was excessive. No assessment could be sustained if it depended upon the fact that all parties thought the valuation placed by the assessing board was correct. Something more than an error of judgment must be shown-something indicating fraud or misconduct. Neither is the fact that an officer of the railroad company came before the board and declared its willingness to pay taxes on a certain valuation and its intention to resist the payment of taxes on any higher valuation sufficient to impute fraudulent conduct of the board, although it finally fixed the valuation at the sum named by the railroad company. It appears from the testimony of one of the members of the equalization board that it was guided largely by the valuation placed in other States and Territories upon railroad property, and that from such valuation, as well as that given by the railroad company, it made the assessment at something like the average

of the valuation of railroads in the various States and Territories named. It is unnecessary to determine whether this board erred in its judgment as to the value of this property, whether it would not have been better to have made further examination and taken testimony as to the cost of construction, present condition, etc. Matters of that kind are left largely to the discretion and judgment of the assessing and equalizing board, and if it has acted in good faith its judgment can not be overthrown."

(Pittsburg C. R. Co. v. Backus, 154 U. S., 421-435.)

Again, the Supreme Court in Adams Express Co. v. Ohio State Auditor (165 U. S., 194), affirmed the above rule, saying:

"We have said nothing in relation to the contention that these valuations were excessive. The method of appraisement prescribed by the law was pursued and there was no specific charge of fraud. The general rule is well settled that whenever a question of fact is thus submitted to the determination of a special tribunal, its decision creates something more than a mere presumption of fact; and if such determination comes into inquiry before the courts it can not be overthrown by evidence going only to show that the fact was otherwise than as so found and determined." (Pittsburg C. R. Co. v. Backus, 154 U. S., 434; Western Union Telegraph Co. v. Taggart, 163 U. S., 1).

In line with the above authorities the circuit court of the United States for the middle district of Tennessee in a recent case elaborated the principle of the authorities quoted above. It is the case of Taylor v. Louisville & N. R. Co., reported in 31 C. A. A., 537. From the bill of complaint filed in the case it appears that the plaintiff sought to restrain the members of the state board of equalization of Tennessee from certifying the tax valuation of the railroad company to the several tax collectors of the 35 counties through which the road ran. The bill contained two grounds upon which was based the right to the writ, to wit: (a) Excessive valuation of its own property; (b) undervaluation of other property in the State; and therefore a violation of the uniformity provision of the constitution. The first ground standing alone was held insufficient, and on this point the court said:

"It is well settled that a suit to enjoin the collection of a tax will not be entertained in courts of equity-at least in those of the United States in which the sole ground set forth in the bill is that the tax is illegal or excessive. It must appear in addition that the circumstances make the wrong about to be inflicted of such a peculiar character that the remedies in a court of law are inadequate, and so bring the case under some recognized head of equity jurisdiction." (Ogden City v. Armstrong, 168 U. S., 224; Express Co. v. Seibert, 142 U. S., 339; Allen v. Car Co., 139 U. S., 591; Railway Co. v. Cheyenne, 113 U. S., 516; Hannewinkle v. Georgetown, 15 Wall., 547; Dow v. Chicago, 11 Wall., 108; Taylor v. L. & N. R. Co., 31 C. C. A., 544.)

Speaking further on the matters considered by the board in determining the value of property for taxation, the court said at page 547 of the same case:

"It is sufficient to say that we find nothing in the evidence that was before the two boards which they might not properly consider under the laws of Tennessee, as circumstances to aid them in reach

ing a conclusion as to the value of that part of the railroad of complainant lying in Tennessee. Nor do we discover anything in the record to indicate that such evidence was wrongly applied. We do not find anything in the record or affidavits affirmatively showing that the boards have included in their assessments property of the complainant not in Tennessee, and the defendants in their report of the assessment and in their answer expressly deny that any such property was included. The exclusion of certain expert evidence to show how unreliable a standard of value are market reports of stocks and bonds we do not regard as material. Even if this were a direct proceeding to review the action of the defendants, as upon error (which it is not) the ruling could hardly be the subject of criticism; for the matters touched upon in the affidavits were matters of general knowledge, which the defendants and the assessors might be presumed to know. The relevancy of such items of evidence as the market value of bonds and stocks, and the amount of gross earnings and the net earnings, in reaching a conclusion as to the value of a railroad or telegraph line, has been so often recognized by the Supreme Court of the United States that we need not discuss it. (Railroad v. Backus, 154 U. S., 424; Henderson Bridge Co. v. Kentucky, 166 U. S., 150; Adams Express Co. v. Ohio State Auditor, 165 U. S., 194; 166 U. S., 185.) It is contended that the law of Tennessee, as declared by its supreme court, is that each line of railroad must be valued by itself and not as a part of a system, and therefore that the unit theory, upon which the foregoing decisions were based, has no application to Tennessee. If this be true, it only reduces the size of the unit, but it does not destroy every evidential bearing of stock and bond values upon the value of railroad property; and we must presume in a collateral attack upon the action of the board, such as this is, in the absence of any showing to the contrary, that, within the limits of the reasonable discretion and judgment vested in the defendants, they gave proper consideration to the Tennessee rule, if it differs from the general rule, in weighing and applying the evidence of stock and bond values to the issue before them. (Taylor v. L. & N. R. R. Co., 31 C. C. A., 547.)

To summarize, the above authorities hold:

First. Assessors and boards of equalization act judicially. Second. Their judgments are not subject to collateral attack in courts of equity, except for fraud or want of jurisdiction.

Third. They are vested by law with the duty and power to ascertain and determine a question of fact, and such decision when made amounts to more than a mere presumption that the fact exists, and therefore can not be overthrown in a collateral attack by evidence tending to show that the fact was otherwise than found and determined by them.

It is the purpose of the bill under consideration to give the same vitality to these rules of equity in relation to State taxes that is now given them by existing law in relation to Federal taxes.

47909-14- -39

III.

It is within the power of Congress to fix the jurisdiction of Federal district and circuit courts.

It will be observed that the amendment simply extends existing laws to all taxes. Congress declared in the original section that no court should have jurisdiction to restrain the assessment or collection of Federal taxes. It will not be argued that the original section does any injustice to either the Federal Government or the Federal taxpayer. And for the same reason it can not be consistently urged that the amendment proposed would be unfair to either the State or the State taxpayer.

But with the justice of the proposed amendment conceded still its enactment is opposed by some on the ground that the amendment contravenes the Constitution and is beyond the competency of Congress to pass.

A consideration of this question in the light of legislative and judicial precedent eliminates the objection.

The objection involves a single proposition, namely, the power of Congress to limit the jurisdiction of courts which it is authorized by the Constitution to create.

The circuit and district courts of the United States are creatures of the Federal Government. They are Congress-made institutions. From no other source do they obtain either power or jurisdiction. Congress created them. Congress can destroy them. This doctrine is sustained by Congress itself. For a century and more Congress has been engaged, from time to time, in changing the jurisdiction of these courts.

LEGISLATIVE PRECEDENTS.

Chapter 7 of the Revised Statutes of the United States contains the law fixing the original jurisdiction of the circuit courts. Section 629, the first section of said chapter, confers upon the circuit courts jurisdiction as follows:

"The circuit courts shall have original jurisdiction as follows: First, of all suits of a civil nature at common law or in equity, where the matter in dispute, exclusive of costs, exceeds the sum or value of five hundred dollars, and an alien is a party, or the suit is between a citizen of the State where it is brought and a citizen of another State: Provided, That no circuit court shall have cognizance of any suit to recover the contents of any promissory note or chose in action in favor of an assignee, unless a suit might have been prosecuted in such court to recover the said contents if no assignment had been made, except in cases of foreign bills of exchange.'

It will be observed that the paragraph quoted contains in its provisions a limitation of jurisdiction. This law was passed in September, 1789, and has remained the law of the land to the present dayconclusive evidence of the judgment of Congress that it had the power to limit the jurisdiction of inferior courts.

Paragraph 4 of section 629 contains another limitation. The paragraph is as follows:

"Fourth. Of all suits at law or in equity, arising from any act providing for revenue from imports or tonnage, except civil causes of