not swear he did not sign the notice. Smith testifies positively that he saw him sign it, and gives details and circumstances. The evidence satisfies us that the notice was signed by Fuller. It also appears that the deed to Smith was fully read to and understood by Fuller before he signed it. The recitals in the deed, which were true, gave Fuller all the information it was necessary he should have as a basis for his signature to it.

We come now to consider the alleged inadequate price obtained at the sale. In May, 1872, Stearns sold the land to Linkins at 45 cents per square foot. In April, 1873, Mrs. Derby purchased at $1 per square foot. At the time Mrs. Derby purchased, and during the summer of 1873, speculation in real estate in the neighborhood of this land was rife, and prices were high; but in the fall of 1873 came a revulsion, and a depression of prices, which continued until after the sale in this case. In March, 1880, Smith sold a little over 15,000 feet of the land to Page for $14,200, or about 92 cents per square foot. The price which Smith paid was a little over 35 cents per square foot. But, in view of the efforts which had been made by the plaintiff to sell the property or to raise money on it, and of all the facts of the case, it cannot be said that the property sold for less than it could have been reasonably expected to bring at public auction at the time. Smith made the first bid, at $4,500. The bidding reached $6,000 by $500 bids, and then either $6,500 or $6,900 by $100 bids, every alternate bid being Smith's. The $6,500 bid or the $6,900 bid was made by Mr. John W. Thompson. Then Smith bid $7,000. Latta, who was present, endeavored to induce Mr. Thompson to bid more, but he would not. Shailer, the person who visited Washington by the plaintiff's desire, was present at the sale. It was held at the usual hour of the day for such sales. The evidence shows that Smith immediately offered the property at his bid to several persons, including Mr. Thompson, but no one would take it. We see no ground for setting aside the sale because of inadequacy of price. The bill in the case was filed a few days after Smith had sold to Page. The period of depression had passed. The price had gone up again to nearly what Mrs. Derby had paid. But the fact of depression in value is no ground in itself for not upholding a sale under the trust deed, nor is a subsequent rise in value a ground for setting aside the sale. Those who speculate in real estate on credit take the risk of depression in value at the time the credit expires, and those who buy for cash in time of depression are entitled to the benefit of a subsequent rise in value.

The principal question discussed at the bar was the validity of the sale in the absence of Fuller. Latta, the other trustee, was present. No objection at the time of the sale to the absence of Fuller was made on behalf of the plaintiff, although she actually knew of the time and place of sale, and in consequence sent Shailer to Washington, and he attended the sale. The question of the necessity of the presence of a sole trustee at a sale under a deed of trust like the present was before the circuit court of the United States for the District of Columbia in 1838, in Connolly v. Belt, 5 Cranch, C. C. 405, on a bill filed by the grantor in the deed of trust to set aside a sale under it. It was contended that the sale was void because the sole trustee was not present, though he was represented at it by an agent. The objection was not made at the sale, but was raised by a bill filed by Belt, the debtor, against the creditor, and Semmes, the trustee, and the purchaser. The court was held by Chief Judge CRANCH and Assistant Judge MORSELL. The case of Heyer v. Deaves, 2 Johns. Ch. 154, was cited to it as holding that, under a statute of New York which required all sales of mortgaged premises under a decree to be made by a master, a sale was invalid which was made by a competent agent of the master in his absence. Chief Judge CRANCH says, in delivering the opinion of the court: "Neither that statute nor that case is applicable to the present case, which is a sale under a common deed of trust. The time, place, terms, and conditions were such as were deemed by the trustee most for the

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interest of all the parties concerned in the said sale, as*appears by the answer of the trustee; and a sale made by an agent of the trustee according to the terms and conditions, and at the time and place prescribed, is a sale by the trustee, there being no law requiring him to be personally present at the auction. No objection having been made by Mr. Belt or his friends on account of the absence of Mr. Semmes, the trustee, who was represented by Mr. C. Cox as his agent at the sale, and their suffering the sale to go on, is, I think, a waiver of the objection if it would have been otherwise valid. But the objection in itself is of no avail." We are not advised of any decision since that one in the District of Columbia holding to the contrary until the one now before us. It was made nearly 50 years ago, and has probably been followed in some cases as a rule of property, which it is; and the fact that in view of it no statute has been passed by congress requiring the personal presence of a sole trustee, or of both trustees, at a sale under a deed of trust, is persuasive to show that the absence of a sole trustee, or of one of two trustees, ought not to be held of itself to vitiate a sale. Where there is a statute requiring a thing to be done by a known and responsible public officer, it may well be held that he must do it in person. But in a sale under a deed of trust like the present, where private persons appoint other private persons, their heirs and assigns, to make the sale, then if the notice of sale is given, and the deed is executed by the sole trustee or the two trustees, and the sale is fairly conducted, and no ground otherwise appears for setting it aside, the mere fact that the sale is not attended by the sole trustee, or that it is made in the absence of one or even both of two trustees, is not alone a sufficient ground for holding the sale invalid. The absent trustee or trustees may, after the sale is advertised, become ill, or be called to a distance not to return for some time. The creditor has rights as well as the debtor, and where, in the case of two trustees, the sale is conducted as in this case, in pursuance of a notice signed by both of them, conforming to the deed of trust, and previously publicly advertised, and one of them is present, and the sale is fairly and properly made, and the proceedings under the deed of trust are otherwise regular, and both of the trustees*afterwards execute such a deed as was executed in this case, there is no ground of public policy or private right which requires it to be held that the absence of the second trustee vitiates the sale.

After the sale, and on the day on which the deed was executed to Smith, he made a settlement with Latta for the purchase. He elected to consider it as one wholly for cash. This he had a right to do, notwithstanding the terms of sale. No duty of the trustees or of Smith to the plaintiff was violated by this course. The amount of the note and interest was $5,739.25. The expenses of sale, commissions, taxes, and interest on them, were put down at $2,086.78. Deducting this from the $7,000 left $4,913.22 to be credited on the $5,739.25, and that amount was credited on the note on that day, leaving a deficiency of $826.03. Even if something less ought to have been charged against the $7,000, leaving the deficiency less than $826.03, it does not appear that there was not a deficiency.

The decree of the court in general term made March 20, 1882, is reversed, and the cause is remanded to that court, with directions to reverse, with costs, the decree of the court in a special term made April 12, 1881, and to dismiss the bill of complaint, with costs.

FIELD, J., (dissenting.) I am unable to assent to the judgment of this court, as I do not agree to the conclusion reached on the question of fact as to the previous concurrence of Fuller, one of the trustees of the property in the notice of sale. He testifies that he never authorized the sale; never heard of it; nor did Smith ever speak to him on the subject until two weeks after it had taken place, when Smith came to his house and got him, then sick in bed, to sign the deed. He also testifies that the signature "John F. Fuller" ap

pended to the notice of sale is not in his handwriting. Under these circumstances I cannot but conclude that Mr. Smith is mistaken in his recollection, and that he has confounded Fuller's subsequent assent to the execution of the deed with a supposed previous assent to the notice of sale. Fuller's ratification of the proceedings by joining in the deed does not remove, in my judgment, this objection, as it is evident that it was executed in ignorance of all the circumstances under which the sale took place. I agree with the court below that "if a trustee can ratify the acts of his co-trustee, it can only be upon consultation with him, and upon full information as to all the facts;" and it is clear that this information was wanting in the present case.

(115 U. S. 321)

CINCINNATI, N. O. & T P. R. Co. v. COMMONWEALTH OF KENTUCKY.

LOUISVILLE & N. R. Co. v. Same.

CHESAPEAKE, O. & S. R. Co. v. SAME.

Filed November 16, 1885.

CONSTITUTIONAL LAW-DUE PROCESS OF LAW-RIGHT TO HEARING-TAXATION OF RAILROAD PROPERTY.

A state statute requiring the chief officer of a railroad company to make a return to the auditor of public accounts in July of each year of the length of his road within the state, and providing for the appointment of a board of equalization, which shall meet annually in a designated month at a designated place and receive the returns from the auditor, and ascertain the value of the property, and equalize and adjust the assessment thereon, and further providing for the collection of the taxes so assessed by suit against the officers for the penalties incurred by a failure to pay the taxes levied, or for the recovery of the taxes themselves by action in the courts, is not unconstitutional.

In Error to the Court of Appeals of the Commonwealth of Kentucky. * The commonwealth of Kentucky brought its several actions against the railroad companies above named as plaintiffs in error, respectively, to recover the amounts of certain taxes levied against each of them, under the provisions of "An act to prescribe the mode of ascertaining the value of the property of railroad companies for taxation, and for taxing the same," approved April 3, 1878. Bullitt & F. Gen. St. Ky. 1881, p. 1019. As the validity of this statute is drawn in question in these actions, it is here set out in full, as follows:

"Section 1. Be it enacted by the general assembly of the commonwealth of Kentucky, that the president or chief officer of each railroad company, or other corporation owning a railroad lying in this state, shall, in the month of July in each year, return to the auditor of public accounts of the state, under oath, the total length of such railroad, including the length thereof beyond the limits of the state, and designating its length within this state, and in each county, city, and incorporate town therein, together with the average value per mile thereof, for the purpose of being operated as a carrier of freight and passengers, including engines and cars and a list of the depot grounds and improvements and other real estate of the said company, and the value thereof, and the respective counties, cities, and incorporated towns in which the same are located; that if any of said railroad companies owns or operates a railroad or railroads out of this state, but in connection with its road in this state, the president or chief officer of such company shall only be required to return such proportion of the entire value of all its rolling stock? as the number of miles of its railroad in this state bears to the whole number of miles operated by said company in and out of this state.

"Sec. 2. That should any railroad, or part of a line of railroad, in this state

be in the hands or under the control of a receiver or other person, by order or decree of any court in this or any other state, it shall be the duty of such receiver or other person to make, under his oath, the returns and valuations required by the first section of this act; and should such president or chief officer of any railroad company, or such receiver, fail to make said returns and valuations on or before the first day of August in each and every year, the said auditor shall proceed and ascertain the facts and values required by this act to be returned, and in such manner and by such means as he may deem best, and at the cost of the company failing to make the returns and values.

"Sec. 3. That the governor of the state, on or before the first day of August, 1878, shall appoint three disinterested freeholders, citizens of this state, who shall constitute a board of equalization, who shall meet annually at the office of the auditor in Frankfort, on the first day of September in each year, a majority present constituting a quorum, for the transaction of business; and at the said meetings the auditor shall lay before them the returns made to him under this act, and any schedules and valuations as he may have made under the second section hereof; and should the valuations, or any of them, in the judgment of said board, be either too high or too low, they shall correct and equalize the same by a proper increase or decrease thereof. Said board shall keep a record of their proceedings, to be signed by each member present at any meeting; and the said board is hereby authorized to examine the books and property of any railroad company to ascertain the value of its property, or to have them examined by any suitable disinterested person, to be appointed by them for that purpose. The members of said board shall hold their office for the term of four years, and shall receive for their services ten dollars per day, and all traveling and other necessary expenses while in actual service. provided, that said service shall not be for a longer period of time than twenty days in any one year; and before proceeding to act under their appointment, they shall take an oath before the governor of the state that they will faithfully and impartially perform their duties as members of said board of equalization; and in the case of the death, resignation of either, or failure to act, the governor shall fill the vacancy by another appointment.

"Sec. 4. The same rate of taxation for state purposes, which is or may be in any year levied on other real estate in this commonwealth, shall be, and is hereby, levied upon the value so found by the said board, of the railroad, rolling-stock, and real estate of each company; and the same rate of taxation for the purposes of each county, city, town, or precinct, in which any portion of any railroad is located, which is or may be in any year levied on other real estate therein, shall be, and is hereby, levied on the value of the real estate of said company therein, and of the number of miles of such road therein, reckoned as of the value of the average value of each mile of such railroad with its rolling-stock, as ascertained as aforesaid. And immediately after the said board shall have completed its valuations each year, the auditor of public accounts shall notify the clerk of each county court of the amount so assessed for taxation in his county, and each railroad company of the amount of its assessment for taxation for state purposes, and for the purposes of such county, city, town, or precinct. And all existing laws in this state, authorizing the assessment and taxation of the property of railroad companies by counties, cities, or incorporated towns, are hereby repealed; and no county, city, or incorporated town in this state shall hereafter assess, levy, or collect any taxes on the property of railroad companies of this state, except as provided by this act.

"Sec. 5. All taxes levied under the provisions of this act shall be paid on or before the tenth day of October in each year; and for a failure to pay the same, the officers of the said companies shall be subject to the same penalties to which they are now subject for a failure to pay the taxes now levied by law.

And the taxes, in behalf of the commonwealth, may be recovered by action in the Franklin circuit court, and those in behalf of the counties by actions. in the courts of civil common-law jurisdiction in such counties, respectively. "Sec. 6. That all laws in conflict with this act are repealed. "Sec. 7. This act shall take effect from its passage.

The powers and duties conferred by this act upon the board of equalization were by a subsequent act, approved April 19, 1882, devolved upon the board of railroad commissioners, appointed under an act approved April 6, 1882. These actions were brought in the Franklin circuit court in pursuance of the fifth section of the act. The cause of action against the Cincinnati, New Orleans & Texas Pacific Railroad Company was set out in the petition, according to the practice in Kentucky, as follows:

"The plaintiff states that the defendant is a railroad company and corporation, and is, and was during the year 1882, the owner of, by lease, and oper ating, a line of railway lying in the state of Kentucky known as the Cincinnati Southern Railway, and the same constructed under, and chartered and incorporated by, an act of the general assembly of the commonwealth of Kentucky, entitled 'An act to authorize the trustees of the Cincinnati Southern Railway to acquire the right of way and to extend a line of railway through certain counties in this commonwealth,' approved February 13, 1872. "Plaintiff states that the defendant, for the purpose of assessment and taxation for the year 1882, as required by law, reported to the auditor of public accounts of the state of Kentucky the total length of said road owned and operated by it as aforesaid, and the value thereof per mile, and also reported its engines, cars, depot grounds, improvements, and other real estate, and the value thereof. The total valuation of said roads, including sidings and other taxable property as reported, was dollars.

"Plaintiff states that after said report and valuation was made to the au ditor of public accounts by the defendant, the board of railroad commissioners, who by law constitute a board of equalization to value and assess the railroad, property of the state, after being sworn, as required by law, met on the first day of September, 1882, at the office of the auditor, in*Frankfort, and with a majority of said board present, constituting a quorum, the auditor placed before them the valuations, returns, and report made to him by defendant.

"Plaintiff states that said board of equalization continued its sittings from day to day, as provided by law, of which the defendant had due notice; and plaintiff avers that defendant did appear before said board by its officers, agents, and attorneys, and presented such facts, figures, and information, and argument in relation to the valuation and assessment for taxation of its said property, as it saw proper to.

"Plaintiff states that said board, after a full hearing of defendant, by her officers, agents, and attorneys, and a full consideration of said returns, reports, information, and arguments before them, valued and assessed for taxation for the year 1882 the defendant's line of railroad lying in this state, the same reported by defendant to the auditor, together with the rolling stock, engines, cars, depot grounds, improvements, and other real estate, at the sum of $6,027,942.00, and on the day of September, 1882, returned and filed with the auditor of public accounts the record of said assessment and valuation, signed and attested, as provided by law, a certified copy of which, marked A,' is filed herewith as a part hereof.

"Plaintiff states that the auditor of public accounts, before the tenth day of March, 1882, duly notified defendant of the amount of its assessment for taxation, and, as required by law, opened an account with defendant, charging it with the sum of $28,632.42, the amount of tax due the state of Kentucky upon said assessment and valuation of the defendant's property for the year 1882 at 47 cents on the one hundred dollars, which is the rate of taxation prescribed by law on such property, and all other real estate of the com