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"The corporate franchises, the property, the business, the income of corporations created by a state may undoubtedly be taxed by the state; but in imposing such taxes care should be taken not to interfere with or hamper, directly or by indirection, interstate or foreign commerce, or any other matter exclusively within the jurisdiction of the federal government."

incidentally affecting carriers engaged in the conduct of the commerce. A tax upon the such commerce, was the subject of considera- net profits has not the same deterrent effect, tion in Phila. Steamship Co. v. Pennsylvania, since it does not arise at all unless a gain is 122 U. S. 326, 345, 7 Sup. Ct. 1118, 1124 (30 shown over and above expenses and losses, L. Ed. 1200) where the court, by Mr. Justice and the tax cannot be heavy unless the profBradley, said: its are large. Such a tax, when imposed upon net incomes from whatever source arising, is but a method of distributing the cost of government, like a tax upon property, or upon franchises treated as property; and if there be no discrimination against interstate commerce, either in the admeasurement of the tax or in the means adopted for enforcing it, it constitutes one of the ordinary and general burdens of government, from which persons and corporations otherwise subject to the jurisdiction of the states are not exempted by the federal Constitution because they happen to be engaged in commerce among the states.

And so we hold that the Wisconsin income tax law, as applied to the plaintiff in the case before us, cannot be deemed to be so direct a burden upon plaintiff's interstate business as to amount to an unconstitutional interference with or regulation of commerce among the states. It was measured not by the gross receipts, but by the net proceeds from this part of plaintiff's business, along with a like imposition upon its income derived from other sources, and in the same way that other corporations doing business within the state are taxed upon that proportion of their income derived from business transacted and property located within the state, whatever the nature of their business. Judgment affirmed.

Many previous cases were referred to. The correct line of distinction is so well illustrated in two cases decided at the present term that we hardly need go further. In Crew Levick Co. v. Pennsylvania, 245 U. S. 292, 38 Sup. Ct. 126, 62 L. Ed., we held that a state tax upon the business of selling goods in foreign commerce, measured by a certain percentage of the gross transactions in such commerce, was by its necessary effect a tax upon the commerce, and at the same time a duty upon exports, contrary to sections 8 and 10 of article 1 of the Constitution, since it operated to lay a direct burden upon every transaction by withholding for the use of the state a part of every dollar received. On the other hand, in Peck & Co. v. Lowe, Collector, 38 Sup. Ct. 432. 247 U. S. 165, 62 L. Ed. decided May 20th last, we held that the Income Tax Act of October 3, 1913, c. 16, § 2, 38 Stat. 166, 172, when carried into effect by imposing an assessment upon the entire net income of a corporation, approximately threefourths of which was derived from the export of goods to foreign countries, did not amount to laying a tax or duty on articles exported within the meaning of article 1, § 9, cl. 5, of the Constitution. The distinction between a direct and an indirect burden by way of tax or duty was developed, and it was CHELENTIS v. LUCKENBACH S. S. CO., shown that an income tax laid generally on net incomes, not on income from exportation (Argued and Submitted April 18, 1918. Decidbecause of its source or in the way of disIcrimination, but just as it was laid on other income, and affecting only the net receipts from exportation after all expenses were paid and losses adjusted and the recipient of the income was free to use it as he chose, was only an indirect burden.

The difference in effect between a tax measured by gross receipts and one measured by net income, recognized by our decisions, is manifest and substantial, and it affords a convenient and workable basis of distinction between a direct and immediate burden upon the business affected and a charge that is only indirect and *incidental. A tax upon gross receipts affects each transaction in proportion to its magnitude and irrespective of whether it is profitable or otherwise. Conceivably it may be sufficient to make the difference between profit and loss, or to so diminish the profit as to impede or discourage

Mr. Chief Justice WHITE concurs in the result.

1. SEAMEN

Inc.

ed June 3, 1918.)

No. 657.

(247 U. S. 372)

11-INJURY IN SERVICE-MEAS

URE OF RECOVERY.

A contract of fireman on steamship is maritime in its nature, and under the maritime law his recovery for injuries incurred while in the service of the ship is limited to wages, maintenance, and cure. 2. ADMIRALTY 1 SEAMEN INJURY IN SERVICE-MEASURE OF RECOVERY-AUTHORITY OF STATE.

No state has power to abolish the wellrecognized maritime rules concerning the measure of recovery by a seaman injured while in service of a vessel, and substitute therefor the full indemnity rule of the common law. 3. ADMIRALTY 2 SEAMEN INJURY IN SERVICE-MEASURE OF RECOVERY-"RIGHT" -"REMEDY."

Despite Judiciary Act Sept. 24, 1789, c. 20. §9, 1 Stat. 76 (Jud. Code, $$ 24, 256 [Act March 3, 1911, c. 231, 36 Stat. 1092, 1160; Comp. St. 1916, §§ 991(9), 1233]), giving district courts exclusive original cognizance of all

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

civil causes of admiralty and maritime jurisdic-] damage sustained. The cause was removed to tion, saving to suitors the right of a common-law the United States District Court because of remedy, where the common law is competent to give it, the rights of a seaman injured while diverse citizenship. Counsel did not question in service of the ship must be measured accord- seaworthiness of ship or her appliances, and ing to the rules of the maritime law, and cannot announced that no claim was made for mainbe measured by the common law, for a right is tenance, cure, or wages. At conclusion of a well founded or acknowledged claim, while a plaintiff's evidence the court directed verdict remedy is the means employed to enforce a right, and the statute merely allowed suitors to for respondent, and judgment thereon was afhave recourse to common-law remedies where firmed by the Circuit Court of Appeals. 243 adequate. Fed. 536, 156 C. C. A. 234. The latter court said:

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Remedy; Right.]

4. SEAMEN 11

INJURY IN SERVICE MEASURE OF RECOVERY-STATUTE. As a shipowner under the maritime law is liable to a member of the crew injured at sea by reason of another member's negligence, regardless of their relation, Seamen's Act March 4, 1915, c. 153, § 20, 38 Stat. 1185 (Comp. St. 1916, 8337a), declaring that seamen having command shall not be held fellow servants with those under their authority, does not, where a seaman was injured as a result of an alleged negligent order of the master, warrant recovery according to the common-law rules of liability; the section disclosing no intention to impose such rules of liability on shipowners.

Mr. Justice Pitney, Mr. Justice Brandeis, and Mr. Justice Clarke dissenting.

On Writ of Certiorari to the United States Circuit Court of Appeals for the Second Circuit.

Action by Peter Chelentis against the Luckenbach Steamship Company, Incorporated, be gun in state court and removed to the federal court. A judgment for defendant was affirmed by the Circuit Court of Appeals (243 Fed. 536, 156 C. C. A. 234), and plaintiff brings certiorari. Affirmed.

Messrs. Silas B. Axtell and Arthur L. Burchell, both of New York City (Fayette B. Dow, of Washington, D. C., of counsel), for petitioner.

Messrs. Peter S. Carter and William H. Carter, both of New York City, for respond

ent.

"The contract of a seaman is maritime, and has written into it those peculiar features of the maritime law that were considered in the case of The Osceola [189 U. S. 158, 23 Sup. Ct. 483, 47 L. Ed. 760]; and although, because of these peculiarities, such contracts are almost invariably litigated in admiralty courts, still the contract must be the same in every court, maritime or common law. The only difference between a proceeding in one court or the other would be that the remedy would be regulated by the lex fori. If a seaman, who had been locked up or put in irons for disobedience of orders, were to sue the master for damages in a court of common law, he could not recover like a shore servant, such as a cook or chauffeur, who had received the same treatment. So a seaman, bringing suit in a common-law court for personal injuries, could recover, even if guilty of contributory negligence, although a shore servant suing in the same court could not; and a seaman suing in a common-law court for personal injuries could recover (except in the case of unseaworthiness of the vessel or failure to give proper care and medical attention) only wages to the end of the voyage and the expenses for maintenance and cure for a reasonable time thereafter, whereas in a similar case a shore servant would be entitled to recover full indemnity. Therefore, by virtue of the inherent nature of the seaman's contract, the defendant's negligence and the plaintiff's contributory negligence were totally immaterial* considerations. in this case; the sole question for the jury to titled to recover because he had not received determine being whether the plaintiff was enfrom the defendant his wages to the end of the voyage and the expense for his maintenance and cure for a reasonable time thereafter.

tion 20 of the Seamen's Act [chapter 153, 38 "Has Congress changed the situation by secStat. 1164, 1185, Comp. St. 1916, § 8337a), as the plaintiff contends? He argues that the act

*Mr. Justice McREYNOLDS delivered the makes the master a fellow servant of the seaopinion of the Court.

man, and therefore that Congress intended to make the relation between the seaman and all the officers throughout the same as at common law. But the Supreme Court, in the case of The Osceola, supra, while reserving the question whether the master and seaman were fellow servants, held that it made no difference whatever in respect to the liability of the shipowners for an improvident order of the master which resulted in personal injuries to the sea

man.

In December, 1915, petitioner was employed by respondent, a Delaware corporation as fireman on board the steamship J. L. Luckenbach, which it then operated and controlled. While at sea, twenty-four hours out from New York, the port of destination, petitioner undertook to perform certain duties on deck during a heavy wind; a wave came aboard, "It follows that whether the master and seaknocked him down and broke his leg. He re- man are fellow servants or not is quite immaceived due care immediately; when the ves-terial in the case of a suit for injuries resulting sel arrived at destination he was taken to the this reason the court was right in directing a from an improvident order of the master. For marine hospital, where he remained for three verdict for the defendant, and the judgment is months; during that time it became necessa- affirmed." ry to amputate his leg. After discharge from the hospital, claiming that his injuries resulted from the negligence and an improvident order of a superior officer, he instituted a common-law action in Supreme Court, New York county, demanding full indemnity for

In The Osceola, 189 U. S. 158, 175, 23 Sup. Ct. 483, 487 (47 L. Ed. 760), a libel in rem to recover damages for personal injuries to a seaman while on board and alleged to have resulted from the master's negligence, speaking through Mr. Justice Brown, we held:

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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*381

"1. That the vessel and her owners are liable, in case a seaman falls sick, or is wounded, in the service of the ship, to the extent of his maintenance and cure, and to his wages, at least so long as the voyage is continued.

"2. That the vessel and her owner are, both by English and American law, liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship. Scarff v. Metcalf, 107 N. Y. 211 [13 N. E. 796, 1 Am. St. Rep. 807].

"3. That all the members of the crew, except perhaps the master, are, as between themselves, fellow servants, and hence seamen cannot recover for injuries sustained through the negligence of another member of the crew beyond the expense of their maintenance and cure.

"4. That the seaman is not allowed to recover an indemnity for the negligence of the master, or any member of the crew, but is entitled to maintenance and cure, whether the injuries were received by negligence or accident."

After reference to article 1, § 8, and article 3, 2, of the Constitution, we declared in Southern Pacific Co. v. Jensen, 244 U. S. 205, 215, 216, 37 Sup. Ct. 524, 528 (61 L. Ed. 1086, Ann. Cas. 1917E, 900):

* *

"Considering our former opinions, it must now be accepted as settled doctrine that, in consequence of these provisions, Congress has paramount power to fix and determine the maritime law which shall prevail throughout the And further, that in the absence of some controlling statute, the general maritime law, as accepted by the federal courts, constitutes part of our national law, applicable to matters within the admiralty and maritime jurisdiction."

country.

Concerning extent to which the general maritime law may be changed, modified or affected by state legislation, this was said:

"No such legislation is valid if it contravenes the essential purpose expressed by an act of Congress, or works material prejudice to the characteristic features of the general maritime law, or interferes with the proper harmony and uniformity of that law in its international and interstate relations. This limitation, at the least, is essential to the effective operation of the fundamental purposes for which such law was incorporated into our national laws by the Constitution itself. These purposes are forcefully indicated in the foregoing quotations from The Lottawanna," 21 Wall. 558, 575 (22 L. Ed. 654).

Among such quotations is the following: "One thing, however, is unquestionable; the Constitution must have referred to a system of law coextensive with, and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several states, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the states with each other or with foreign states."

[1, 2] The work about which petitioner was engaged is maritime in its nature; his employment was a maritime contract; the injuries received were likewise maritime and the parties' rights and liabilities were matters clearly within the admiralty jurisdiction. Atlantic Transportation Co. v. Imbrovek, 234 U. S. 52, 59, 60, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157. And

unless in some way there was imposed upon the owners a liability different from that prescribed by maritime law, petitioner could properly demand only wages, maintenance and cure. Under the doctrine approved in Southern Pacific Co. v. Jensen, no state has power to abolish the well-recognized maritime rule concerning measure of recovery and substitute therefor the full indemnity rule of the common law. Such a substitution would distinctly and definitely change or add to the settled maritime law; and it would be destructive of the "uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the states with each other or with foreign states."

[3] Two acts of Congress are relied upon, and it is said that under each petitioner has? the right to recover full indemnity according to the common law. They are: (1) Section 9, Judiciary Act of 1789, 1 Stat. 76, 77, whereby District Courts of the United States were given exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, "saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it" (Judicial Code, §§ 24, 256 [Act March 3, 1911, c. 231, 36 Stat. 1092, 1160; Comp. St. 1916, §§ 991 (9), 1233]); and (2) section 20 of Act to Promote the Welfare of American Seamen, approved March 4, 1915, c. 153, 38 Stat. 1164, 1185, which provides:

"That in any suit to recover damages for any injury sustained on board vessel or in its service seamen having command shall not be held to be fellow servants with those under their authority."

The precise effect of the quoted clause of the original Judiciary Act has not been delimited by this court and different views have been entertained concerning it. In Southern Pacific Co. v. Jensen we definitely ruled that it gave no authority to the several states to enact legislation which would work "material prejudice to the characteristic features of the general maritime law or interfere with the proper harmony and uniformity of that law in its international and interstate relations." In The Moses Taylor, 4 Wall. 411, 431 (18 L. Ed. 397), we said:

of a common-law remedy, where the common law "That clause only saves to suitors 'the right is competent to give it. It is not a remedy in the common-law courts which is saved, but a common-law remedy. A proceeding in rem, as used in the admiralty courts, is not a remedy afforded by the common law; it is a proceeding under the civil law."

And in Knapp, Stout & Co. v. McCaffrey, 177 U. S. 638, 644, 648, 20 Sup. Ct. 824, 827

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MINATION.

iary attachment against a particular thing, or 2. COURTS 394(10) QUESTIONS for Deteragainst the property of the defendant in general, it is essentially a proceeding according to the course of the common law, and within the saving clause of the statute * * # of a common-law remedy. The suit in this case being one in equity to enforce a common-law remedy, the state courts were correct in assuming jurisdiction."

The distinction between rights and remedies is fundamental. A right is a well founded or acknowledged claim; a remedy is the means employed to enforce a right or redress an injury. Bouvier's Law Dictionary. Plainly, we think, under the saving clause a right sanctioned by the maritime law may be enforced through any appropriate remedy recognized at common law; but we find nothing therein which reveals an intention to give the complaining party an election to determine whether the defendant's liability shall be measured by common-law standards rather than those of the maritime law. Under the circumstances here presented, without regard to the court where he might ask relief, petitioner's rights were those recognized by

the law of the sea.

Where a property owner contended that a judgment of the state court allowing benefits to be set off against his claim for damages to realty resulting from the construction and operation of an elevated railroad deprived him of his property without due process of law in violation of the Fourteenth Amendment, the question for the national Supreme Court is not whether the rule adopted by the state was best supported by reason, but whether a fundamental right was denied.

3. CONSTITUTIONAL LAW 280 - DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS -WHAT CONSTITUTES.

The owner of realty injured by the construction and operation of an elevated railroad was not deprived of his property without due process of law in violation of the Fourteenth Amendment because benefits resulting from the increased travel were considered in determining whether the premises had been damaged, though other lands in the neighborhood were similarly benefited, for the right guaranteed is merely that the owner shall not be deprived of the market value of his property under a rule of law making it impossible for him to obtain just compensation, and there is no guaranty that he shall derive a positive pecuniary advantage from a public work whenever a neigh

bor does.

In error to the Supreme Court of the State of Illinois.

Action by William A. McCoy against the Union Elevated Railroad Company and others. A judgment for defendants was affirmed by the Illinois Supreme Court (271 Ill. 490, 111 N. E. 517) on writ of error sued out by Sernetta J. McCoy and John R. Caverly as executors of the estate of William A. McCoy, and the executors bring error. Af

[4] Section 20 of the Seamen's Act declares
"seamen having command shall not be held
to be fellow servants with those under their
authority," and full effect must be given
this whenever the relationship between such
parties becomes important. But the mari-
time law imposes upon a shipowner liability
to a member of the crew injured at sea by
reason of another member's negligence with-
out regard to their relationship; it was of
no consequence therefore to petitioner wheth-firmed.
er or not the alleged negligent order came
from a fellow servant; the statute is irrele
vant. The language of the section discloses
no intention to impose upon shipowners the
same measure of liability for injuries suffer-
ed by the crew while at sea as the common
law prescribes for employers in respect of
their employés on shore.

The judgment of the court below is
Affirmed.

Mr. Justice HOLMES concurs in the result.

Mr. Justice PITNEY, Mr. Justice BRANDEIS, and Mr. Justice CLARKE, dissent.

(247 U. S. 354)

MCCOY et al. v. UNION ELEVATED R. CO.

et al.

(Argued March 14 and 15, 1918. Decided June

3, 1918.)
No. 190.

1. CONSTITUTIONAL LAW 116 IMPAIRMENT OF OBLIGATION OF CONTRACT-SCOPE OF PROVISION.

Const. art. 1, § 10, declaring that no state shall pass any law impairing the obligation of contracts, applies only to legislative action, and not to the judgment of a court.

Messrs. Harry S. Mecartney and John S. Miller, both of Chicago, Ill., for plaintiffs in

error.

Messrs. Francis W. Walker, Roger L. Foote, and Addison L. Gardner, all of Chicago, Ill., for defendants in error.

* Mr. Justice McREYNOLDS delivered the opinion of the Court.

William A. McCoy, testator of plaintiffs in error, owned a hotel situated at the northwest corner of Clark and Van Buren streets, Chicago. During 1897 defendants constructed along the latter street and in front of the building an elevated passenger railroad of the ordinary type and have continued to maintain and operate it. Charging that construction, maintenance, and operation of the railroad had caused and would continue to cause injury to the property by noise, smoke, dirt, shutting off air and light, disturbing

privacy, and impairing the freedom of ingress and egress, and that its market value had been greatly reduced, McCoy brought a common-law action (September, 1902) in a state court to recover the entire damage.

The declaration does not allege plaintiff's ownership of the fee in the street, but asserts his interest in the lot and right to the "easements and privileges which legally ap

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

*355

pertain and rightfully belong to property abutting public streets" in Chicago, including the right of light, air, access, privacy, view, etc. Trial to a jury upon plea of not guilty during February, 1914, resulted in verdict for defendants, and judgment thereon was affirmed by the Supreme Court, a writ of error having been sued out by McCoy's executors. 271 Ill. 490, 111 N. E. 517. That court's statement of facts follows:

"During the years 1896 and 1897 what is generally known as the 'loop' was constructed, under authority conferred by ordinances of the city of Chicago, for the joint use of the three systems above mentioned and *another elevated system then in course of construction. The loop consists of an elevated structure in the streets encircling the central portion of the business district of the city, upon which are laid tracks for the passage of the elevated trains of all of the defendant companies completely around the central portion of the business district. Before the construction of the loop the elevated trains of the defendant companies stopped at their respective terminals. The structure forming the south side of the loop was placed in that portion of Van Buren street extending from Wabash avenue on the east to Fifth avenue on the west, Clark street being one of the streets intersecting Van Buren street between these two avenues.

"Stations to permit passengers to board and leave the elevated trains were established at intervals around the loop and stairways were constructed leading from each station to the surface of the street. One of these stations in Van Buren street was established at La Salle street, about 100 feet west from the McCoy Hotel, and another was established at Dearborn street, about 300 feet east from the hotel. The elevated structure in Van Buren street obstructed the passage of light to the storerooms in McCoy's building, and the noise from the passage of trains over the structure and the fact that passing trains were on a level with the windows of the second floor of the building rendered the rooms on the south side of the second and third floors of the building less desirable for hotel purposes. Large upright columns supporting the elevated structure were placed just inside the curb in front of the premises and rendered the premises less accessible from the street.

"There is no material controversy over the facts in the case. The witnesses all agree that the matters above mentioned, when considered by themselves, would be detrimental to the premises. They also agree that there was a steady increase of from 5 to 10 per cent. per year in the value of the premises from the construction of the loop until 1905. It also appears from the evidence that the rents from the storerooms on the ground floor constantly increased after 1897. The plaintiff called but one real estate expert as a witness. He testified that the damages to the property from the construction of the elevated structure, and the operation of the trains thereon, amounted to $81,999, being 15 per cent. of the value which the witness placed upon the interest of McCoy in the premises. He admitted that there had been a continuous increase in the value of the premises since the completion of the loop, and that a portion of that increase, which he said it was impossible to estimate, was due to the increased travel brought to the premises by the elevated railroad, but that he did not take that into consideration in fixing the damages.

"The real estate experts called by the defendants, on the other hand, testified that at least one-half of the increase in the value of the premises was due to the increased travel in

front of the premises resulting from the operation of the elevated railroad in Van Buren street as a part of the loop. In support of the testimony of these witnesses defendants proved that the number of persons boarding the elevated_trains at the La Salle street station, in Van Buren street, during the three months of the year 1897 in which trains were operated around the loop, was 161,763, and that the number constantly increased, until in 1905 there were 3,659,583 persons who boarded the trains at that station. It was also shown that during the period in 1897 above mentioned 194,904 persons boarded the elevated trains at the Dearborn street station, in Van Buren street, and that the number constantly increased each year until in 1905 there were 2,558,976 persons who boarded the trains at that station."

During the trial, over plaintiff's objections, questions concerning evidence were determined in accordance with repeated rulings by the Illinois Supreme Court that the effect of construction, maintenance, and operation of an elevated road upon market value was the point for determination, and that increase in such value caused by the improvement itself should be considered and treated as a special benefit, although enjoyed by other neighborhood property.

Among others, plaintiff requested the following instructions:

"The jury are instructed that the Constitution of this state provides that 'private property shall not be taken or damaged for public use without just compensation.' This action is brought by plaintiff for an alleged damage to the property of plaintiff arising from the construction [maintenance and operation] of the structure in the abutting street for elevated railroad purposes. Such damages in the eye of the law can only be a loss in the market value of the property arising from the said construction [maintenance and operation] for the purposes aforesaid. Whether the premises in question have in fact been so damaged is for the jury to find from the evidence, according to the method and within the limitations of other instructions given you.

"The court instructs the jury that 'benefits' and 'damages' spoken of in the instruction mean benefits and damages to the market value thereof, and that by the term 'market value' of property, as used in these instructions, is meant the price at which the owner, if desirous of selling, would under ordinary circumstances surrounding the sales of property have sold the property for, and what a person desirous as purchaser would have paid for it under the same circumstances.

"The jury are instructed that, in considering the question of whether the premises in question were or were not damaged by the construction of the structure in the abutting street for elevated railroad purposes,* they are to exclude from consideration all benefit which accrued to the said premises or to the owners thereof by reason of improved travel facilities furnished by said elevated railroad."

The words "maintenance and operation" were inserted in the first of these requests and as thus amended it was given; the others were refused.

The following instructions were also given: "The court instructs the jury that benefits and damages spoken of in these instructions mean benefits and damages to the fair cash market value thereof, and that by the term

fair cash market value of the property,' as used in these instructions, is meant its value as determined by what it would sell for in the mar

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