the one hand, that it is the prime object | Taxes state taxation of national of § 265 to require, on the other. banks. 2. A state tax assessed to a national capital stock, surplus, undivided profits, bank, measured by the value of the bank's and other personal property, is not equiva lent to one upon the shareholders in respect of their shares, and such tax is, therefore, invalid under United States Rev. Stat. § 5219, which only permits the state, when assessing taxes, to include national bank shares in the valuation of the per[For other cases, sonal property of the owner or holder. see Taxes, I. c, 2, c, in Digest Sup. Ct. 1903.] [No. 136.] Besides a challenge of the jurisdiction of the state court for want of due process over defendant in personam, to be [362] interposed in that court, and, if overruled, followed by invoking the revisory jurisdiction of this court, the final judgment may be questioned collaterally, if in truth there be a want of due process, either defensively, as in Pennoyer v. Neff, 95 U. S. 714, 723-733, 24 L. ed. 565, 569-572; see also York v. Texas, 137 U. S. 15, 20, 21, 34 L. ed. 604, 605, 11 Sup. Ct. Rep. 9; Western Life Indemnity Co. v. Rupp, 235 U. S. 261, 273, 59 Argued and submitted March 2, 1922. DeL. ed. 220, 224, 35 Sup. Ct. Rep. 37; Baker v. Baker, E. & Co. 242 U. S. 394, 401-403, 61 L. ed. 386, 391-393, 37N WRIT of Certiorari to the SuSup. Ct. Rep. 152; or by adopting the more aggressive method pursued in Simon v. Southern R. Co. supra; see, also Wells, F. & Co. v. Taylor, 254 U. S. 175, 183-185, 65 L. ed. 205, 211, 212, 41 Sup. Ct. Rep. 93. In short, observance by the Federal courts, towards litigants in the state courts, of the comity prescribed by § 265, requires orderly procedure, but involves no impairment of the substance of constitutional right. The case before us presents no exceptional feature, and the courts below correctly disposed of it. Decree affirmed. cided April 10, 1922. preme Court of the State of Mississippi to review a judgment which affirmed a judgment of the Circuit Court of Harrison County, in that state upholding a tax assessed to a national bank. Reversed and remanded for further proceedings. See same case below, on first appeal, 108 Miss. 346, 66 So. 407; on second appeal, 116 Miss. 450, 77 So. 195; on third appeal, Miss. 84 So. 707; on fourth appeal, 123 Miss. 279, 85 So. 308, The facts are stated in the opinion. Mr. William H. Watkins argued the cause, and, with Mr. Hanun Gardner, filed a brief for petitioner: The assessment complained of in this case was made directly against the FIRST NATIONAL BANK OF GULF-property of the plaintiff in error, and PORT, MISSISSIPPI, Petitioner, 1. Where the validity of a tax assessment by state officers is properly challenged, and the matter comes before the Federal Supreme Court, that court must determine the effect of the thing actually Note. On state taxation of national banks-see notes to Providence Bank v. Billings, 7 L. ed. U. S. 939; McHenry v. Downer, 45 L.R.A. 737; Old Nat. Bank v. County Ct. 3 L.R.A. (N.S.) 584; and Citizens' Nat. Bank v. Burton, 10 L.R.A. (N.S.) 947. not aginst the shareholders thereof. Bank of California v. Richardson, 248 U. S. 476, 63 L. ed. 372, 39 Sup. Ct. Rep. 165; First Nat. Bank v. Richmond, 39 Fed. 309, appeal dismissed in 149 U. S. 769, 37 L. ed. 959, 13 Sup. Ct. Rep. 1044; First Nat. Bank v. Chehalis County, 166 U. S. 440, 41 L. ed. 1069, 17 Sup. Ct. Rep. 629; Owensboro Nat. Bank V. Owensboro, 173 U. S. 664, 43 L. ed. 850, 19 Sup. Ct. Rep. 537; Powes v. Detroit, G. H. & M. R. Co. 201 U. S. 543, 50 L. ed. 860, 26 Sup. Ct. Rep. 556; Home Sav. Bank v. Des Moines, 205 U. S. 503, 51 L. ed. 901, 27 Sup. Ct. Rep. 571; Hawley v. Malden, 232 U. S. 1, 58 L. ed. 477, 34 Sup. Ct. Rep. 201, Ann. Cas. 1916C, 842; Rogers v. Hennepin County, 240 U. S. 184, 60 L. ed. 594, 36 Sup. Ct. Rep. 326; Farrington v. Tennessee, 95 U. S. 679, 24 L. ed. 558; Davidson v. New Orleans, 96 U. S. 97, 106, 24 L. ed. 616, 620; Bank of Commerce v. Tennessee, 161 U. S. 134, 146, 40 L. ed. 645, 619, 16 Sup. Ct. Rep. 456; Home Sav. Bank v. Des Moines, 205 U. S. 503, 51 L. ed. 901, 27 Sup. Ct. Rep. 571; Stapylton v. Thaggard, 33 C. C. A. 353, 62 U. S. App. 638, 91 Fed. 93; Weiser Nat. Bank v. Jeffreys, 14 Idaho, 659, 95 Pac. 23; Smith v. First Nat. Bank, 17 Mich. 479; Rosenblatt v. Johnston, 104 U. S. 462, 26 L. ed. 832. The assessment of taxes was discriminatory, in that plaintiff in error was subjected to a greater rate of taxation than was assessed upon other moneyed 'capital. Mr. Justice McReynolds delivered the opinion of the court: Petitioner is a national bank located at Gulfport, Harrison county, Mississippi. The state revenue agent instructed the tax collector for that county as follows: "The following described property in said county, to wit: Capital stock, surplus, undivided profits, and any and all other property properly assessable to banks, amounting to $75,150, belonging to and owned by First National Bank of Gulfport, has escaped taxation durPeople's Warehouse Co. v. Yazoo City, ing each of the years 1902, 1903, 1904, 97 Miss. 500, 52 So. 481; Adams v. Kuy-1905, 1906, and 1907, by reason of not kendall, 83 Miss. 571, 35 So. 830; Adams being assessed. v. Mississippi State Bank, 75 Miss. 701, 23 So. 395; Chicago, R. I. & P. R. Co. v. Robertson, 122 Miss. 417, 84 So. 449; First Nat. Bank v. Chehalis County, 166 U. S. 440, 41 L. ed. 1069, 17 Sup. Ct. Rep. 629; Owensboro Nat. Bank v. Owensboro, 173 U. S. 664, 43 L. ed. 850, 19 Sup. Ct. Rep. 537; First Nat. Bank v. Chapman, 173 U. S. 205, 43 L. ed. 669, 19 Sup. Ct. Rep. 407; First Nat. Bank v. Albright, 208 U. S. 548, 52 L. ed. 614, 28 Sup. Ct. Rep. 349; Bank of California v. Richardson, 248 U. S. 476, 63 L. ed. 372, 39 Sup. Ct. Rep. 165; Truax v. Corrigan, 257 U. S. 312, ante, 254, 42 Sup. Ct. Rep. 124. Mr. J. B. Harris submitted the cause for respondent: "You are, by virtue of the Annotated Code of Mississippi of 1906, chapter 131, § 4740, now notified and required to, within ten days hereafter, make the proper assessment of said property by way of an additional assessment, on the roll or tax list in your hands, and to give ten days' notice in writing to said First National Bank, whose property is so assessed, and also notify in writing the board of supervisors of said county of said assessment." In obedience to this instruction, the collector entered upon the rolls of his office an assessment to the bank in these words, "Amount of all other personal property not otherwise mentioned, $174,000." as Objection was duly offered upon the The taxes that the revenue agent ground that the corporation was averred had escaped were those imposed sessed, and not the stockholders, as reby § 4273 of the Code of Mississippi of quired by § 5219, Revised Statutes of 1906; and this is not a direct tax on the United States (Comp. Stat. § 9784, the national bank, but is a tax on the 6 Fed. Stat. Anno. 2d ed. p. 796). The shareholders, which should be paid by Harrison county circuit court overruled the bank; and, as a matter of fact, the this and directed the board of superstatute imposes the tax, not on the bank visors [364] "to assess the First Nationor its capital stock, but upon its share-al Bank of Gulfport, Mississippi, with holders, and the bank is required to pay same. Owensboro Nat. Bank v. Owensboro, 173 U. S. 664, 43 L. ed. 850, 19 Sup. Ct. Rep. 537; First Nat. Bank v. Chehalis County, 166 U. S. 440, 41 L. ed. 1069, 17 Sup. Ct. Rep. 629; First Nat. Bank v. McNeel, 151 C. C. A. 495, 238 Fed. 559; Home Sav. Bank v. Des Moines, 205 U. S. 503, 51 L. ed. 901, 27 Sup. Ct. Rep. 571; Bank of Oxford v. Oxford, 70 Miss. 504, 12 So. 203; Vicksburg Bank v. Worrell, 67 Miss. 47, 7 So. 219; Maguire v. Board of Revenue & Road Comrs. 71 Ala. 401; First Nat. Bank v. Durr, 246 Fed. 163; Bank of California v. Richardson, 248 U. S. 476, 63 L. ed. 372, 39 Sup. Ct. Rep. 165. capital stock, surplus, undivided profits, and any and all property assessable to said bank, in the sum of $75,150, for the years 1903, 1906, and 1907, which said property was at said time owned by said First National Bank, and which had escaped taxation for each of the years as hereinbefore set out; and said board of supervisors is hereby directed to make such assessment by way of additional assessment on the roll and tax list of Harrison county, Mississippi." The supreme court of the state approved this judgment. See Adams v. People's Bank, 108 Miss. 346, 66 So. 407; Adams v. First Nat. Bank, 116 Miss. 450, 77 So. 195; First Nat. Bank v. Adams, 123 Miss. 279, 85 So. 308. power of the state, definitely delimited by § 5219. The judgment of the court below must be reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Mr. Justice Clarke took no part in the consideration or decision of this cause. EXPORTERS OF MANUFACTURERS' V. BUTTERWORTH-JUDSON COMPANY. Section 5219,1 Revised Statutes (Comp. Stat. § 9784, 6 Fed. Stat. Anno. 2d ed. p. 796) (copied below) prescribes the full measure of the power of the several states to impose taxes upon national banking associations or their stockholders. Any assessment not in conformity therewith is unauthorized and invalid. Bank of California v. Richardson, 248 U. S. 476, 483, 63 L. ed. 372, 375, 39 Sup. Ct. Rep. 165. "The tax assessed to shareholders may be required by law to be paid in the first instance by the corporations themselves, as the [365] debt and in behalf of the shareholder, leaving to the corporation the right to reimbursement for the tax paid from their shareholders, either under some express statutory authority for their recovery, or under Appeal the general principle of law that one who pays the debt of another, at his request, can recover the amount from him." Home Sav. Bank v. Des Moines, 205 U. S. 503, 518, 51 L. ed. 901, 909, 27 Sup. Ct. Rep. 571. But, as pointed out in Owensboro Nat. Bank v. Owensboro, 173 U. S. 664, 676, 677, 43 L. ed. 850, 855, 856, 19 Sup. Ct. Rep. 537, a tax levied upon a corporation, measured by the value of its shares, is not equivalent to one upon the shareholders in respect of their shares. Where the validity of an assessment by officers of the state is properly challenged, and the matter comes here, this court must determine the effect of the thing actually done. What might have been done under the local statute is not controlling. We think it clear that the assessment in the present case was against the corporation, and beyond the Nothing herein shall prevent all the shares in any association from being included in the valuation of the personal property | the owner or holder of such shares, in assessing taxes imposed by authority of the state within which the association is located; but the legislature of each state may determine and direct the manner and place (See S. C. Reporter's ed. 365-369.) filing. A stipulation of counsel for both parties, executed after the term of a Federal district court had expired, could give that court no power during the period for which the term purports to have been extended by such stipulation, to sign and settle a bill of exceptions not theretofore presented. [For other cases, see Appeal and Error, V. s, 3, in Digest Sup. Ct. 1908.] [No. 390.] Argued March 14, 1922. Decided April 10, 1922. ΟΝ from the N Α CERTIFICATE United States Circuit Court of Appeals for the Second Circuit, presenting the question whether the District Court had, by the expiration of the term, lost the power to sign a bill of exceptions. Answered in the affirmative. The facts are stated in the opinion. Mr. Henry M. Ward argued the cause and filed a brief for the Exporters of Manufacturers' Products, Inc.: The validity of a stipulation for the settlement of a bill of exceptions made after the expiration of the term of the trial court, as extended by standing rule, has been repeatedly recognized by this court. of taxing all the shares of national banking associations located within the state, subject only to the two restrictions, that the Jackson ex dem. Bradstreet v. Thomas, taxation shall not be at a greater rate than 4 Pet. 102, 104, 105, 7 L. ed. 796–798; is assessed upon other moneyed capital in Hunnicutt v. Peyton, 102 U. S. 333, 26 the hands of individual citizens of such L. ed. 113; Jennings v. Philadelphia, B. state, and that the shares of any national & W. R. Co. 218 U. S. 255, 257, 54 L. banking association owned by nonresidents .ed. 1031, 1032, 31 Sup. Ct. Rep. 1; of any state shall be taxed in the city or town where the bank is located, and not Michigan Ins. Bank v. Eldred, 143 U. S. elsewhere. Nothing herein shall be conNote. As to when bill of exceptions strued to exempt the real property of associations from either state, county, or mu- must be taken to be available on review— nicipal taxes, to the same extent, according see note to Phelps v. Mayer, 14 L. ed. to its value, as other real property is taxed. U. S. 643. 293, 298, 36 L. ed. 162, 163, 12 Sup. Ct., term of court is extended for ninety Rep. 450. days from the date of entry of the final judgment or decree.' The district court had the power on the stipulation to enter the orders by which the term was extended, and hence the trial judge had power to settle the bill of exceptions. Hunnicutt v. Peyton, 102 U. S. 353, 26 L. ed. 113; Manhattan L. Ins. Co. v. Francisco, 17 Wall. 672, 679, 21 L. ed. 698, 700; United States v. Breitling, 20 How. 252-254, 15 L. ed. 900–902. The plaintiff followed the well-settled practice in the circuit court of appeals for the second circuit. Blisse v. United States, 263 Fed. 961; Michigan Ins. Bank v. Eldred, 143 U. S. 293, 36 L. ed. 162, 12 Sup. Ct. Rep. 450. Mr. William Wallace, Jr., argued the cause and filed a brief for the Butterworth-Judson Company: "In respect of this case the ninetyday period above provided for, and therefore the term at which the final judgment in question was entered, expired on the 24th of February, 1920. "On March 1, 1920, a written stipu lation was executed between the attorneys for the parties hereto in the words following: 'It is hereby stipulated and agreed by and between the parties hereto that the November term of the United States district court for the southern district of New York be extended to April 6, 1920, for the purpose of settling and filing the bill of exceptions herein.' "On or before the 6th of April, 1920, but long after the 24th of February, No extension of time for filing a bill 1920, the plaintiff in error proposed a of exceptions, and no stipulation by bill of exceptions. Thereupon the trial counsel relative to such filing, are of any in error, and on the faith of the [368] judge, over the objection of defendant avail whatsoever unless granted or signed within the term at which judg-signed the bill of exceptions annexed to stipulation above quoted, settled and ment is rendered. O'Connell v. United States, 253 U. S. 142, 64 L. ed. 827, 40 Sup. Ct. Rep. 444; Michigan Ins. Bank v. Eldred, 143 U. S. 293, 36 L. ed. 162, 12 Sup. Ct. Rep. 450; Reader v. Haggin, 88 C. C. A. 91, 160 Fed. 909; Jennings v. Philadelphia, B. & W. R. Co. 218 U. S. 255, 54 L. ed. 1031, 31 Sup. Ct. Rep. 1; Waldron v. Waldron, 156 U. S. 361, 39 L. ed. 453, 15 Sup. Ct. Rep. 383; United States v. Mayer, 235 U. S. 55, 59 L. ed. 129, 35 Sup. Ct. Rep. 16; Oxford & C. L. R. Co. v. Union Bank, 82 C. C. A. 609, 153 Fed. 723. Mr. Justice McReynolds delivered the opinion of the court: Asking instruction, as provided by 239, Judicial Code, the circuit court of appeals for the second circuit has sent up the statement and question which follow. "This cause came here on a writ of error to a judgment in favor of the Butterworth-Judson Company in an action at law in the district court for the southern district of New York. Judgment resulted from the verdict of a jury, and thereupon plaintiff in took a writ. error "The stated terms of the trial court, as prescribed by act of Congress, begin each month on the first Tuesday there of; but a general rule of that court provides as follows: For the purpose of taking any action which must be taken within the term of the court at which final judgment or decree is entered, each the writ of error herein and now in this court. "Defendant in error then moved in the record the bill of exceptions so setthis court for an order striking from tled as above set forth, on the ground and made a part of the record herein, in that the same had been settled, signed, contravention of law, in that the term had expired. "Upon consideration of this motion a question of law arises concerning which this court desires the instruction of the supreme court in order properly to decide the cause. "Question certified. Is the bill of exceptions so as above set forth settled, signed, and certified to this court in contravention of law, in that the term had expired before the same was offered for settlement?" In the recent case of O'Connell v. United States, 253 U. S. 142, 146, 64 L. ed. 827, 833, 40 Sup. Ct. Rep. 444, we reaffirmed the doctrine announced in Michigan Ins. Bank v. Eldred, 143 U. S. 293, 298, 36 L. ed. 162, 163, 12 Sup. Ct. Rep. 450: "By the uniform course of decision, no exceptions to rulings at a trial can be considered by this court unless they were taken at the trial, and were also embodied in a formal bill of exceptions presented to the judge at the same term, or within a further time allowed by order entered at that term, or by standing rule of court, or by consent of parties; and save under very extraor dinary circumstances, they must be allowed by the judge and filed with the clerk during the same term. After the term has expired, without the court's control over the case being reserved by standing rule or special order, and especially after a writ of error has been entered in this court, all authority of the court below to allow a bill of exceptions then first presented, or to alter or amend a bill of exceptions already allowed and filed, is at an end." [369] And applying this rule, we held the bill of exceptions, signed by the trial judge after expiration of the time allowed by the rule of court, was no part of the record. 2. The common-law rule that a presumption arises that the injury occurred on the delivering carrier's lines when goods moving in interstate commerce, upon a through bill of lading, are delivered in bad condition, and the evidence shows that they were sound when received by the initial carrier, but does not aflirmatively establish where the loss occurred, was not abrogated by the Carmack Amendment of June 29, 1906, to the Act of February 4, 1887, § 20, which requires the issuance of a through bill of lading by the initial carrier, and declares it to be liable for damage occurring anywhere along the route. [For other cases. see Evidence, II. h, 2, b, in Digest Sup. Ct. 1908.] [No. 146.] 1922. N WRIT of Certiorari to the Su ΟΝ preme Court of the State of Nebraska to review a judgment which affirmed a judgment of the District Court of Lancaster County, in that state, in favor of plaintiff in a suit by a shipper against a terminal carrier, to recover damages for injury to shipment. Affirmed. Pittsburgh, C. & St. L. R. Co. v. Ram- Argued March 3, 1922. Decided April 10, sey, 22 Wall. 322, 327, 22 L. ed. 823, 824. The policy of the law requires that litigation be terminated within a reasonable time, and not protracted at the mere option of the parties. See United States v. Mayer, 235 U. S. 55, 70, 59 L. ed. 129, 136, 35 Sup. Ct. Rep. 16. We think the better rule, and the one supported by former opinions of this court, requires that bills of exceptions shall be signed before the trial court loses jurisdiction of the cause by expiration of the term, or such time thereafter as may have been duly prescribed. The certified question is accordingly answered in the affirmative. an interstate See same case below, 104 Neb. 587, 178 N. W. 177. The facts are stated in the opinion. Mr. Wymer Dressler argued the cause and filed a brief for petitioner: Since the enactment of the Carmack Amendment to the Interstate Commerce Law, making the initial carrier liable for the entire transportation, all such presumptions heretofore applied by state courts are superseded, and recovery against a connecting carrier can only be had by affirmatively showing that it caused the damage. Boston & M. R. Co. v. Hooker, 233 U. S. 97, 58 L. ed. 868, L.R.A.1915B, 450, 34 Sup. Ct. Rep. 526, Ann. Cas. Roy v. Chesapeake & O. R. Co. 31 L.R.A. (N.S.) 1. On construction of the Hepburn Act (Carmack Amendment)-see note to Galveston, H. & S. A. R. Co. v. Wallace, 56 L. ed. U. S. 516. |