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"It follows that the judgment of the eircuit court holding the tax assessed against 'all other property at $856,400.56' to be unlawful, is erroneous, and that the plaintiff is entitled to a judgment for the whole amount of the tax sued for. Judgment is accordingly entered here for the plaintiff for $1,027.22, back taxes for the year 1899, with interest thereon from the 1st of Janu ary, 1900, at the rate of 1 per cent per month (Rev. Stat. 1899, § 9225), and costs." | This writ of error was then sued out. Other facts appear in the opinion.

Messrs. Eleneious Smith and John F. Dillon argued the cause, and, with Messrs. Alexander New and Henry D. Estabrook, filed a brief for plaintiff in error:

against the property of defendant in error, | Pelton v. Commercial Nat. Bank, 101 U.S. and special execution ordered to be issued. 143, 25 L. ed. 901; Cummings v. Merchants' Both parties moved for a new trial, which | Nat. Bank, 101 U. S. 153, 25 L. ed. 903; motions were denied. Both parties then ap- German Nat. Bank v. Kimball, 103 U. S. pealed to the supreme court of the state, 732, 26 L. ed. 469; State ex rel. Morris v. which court reversed the judgment of the Cunningham, 153 Mo. 642, 55 S. W. 249; circuit court. After an elaborate discussion State ex rel. Wright v. St. Louis, I. M. & of the case the supreme court said: S. R. Co. 82 Mo. 683; State ex rel. Gibson v. Daris, 131 Mo. 457, 33 S. W. 22; Hannibal & St. J. R. Co. v. State Bd. of Equalization, 64 Mo. 294; State v. Hannibal & St. J. R. Co. 75 Mo. 208; Ward v. Gentry County Bd. of Equalization, 135 Mo. 309, 36 S. W. 648; House v. Clinton County Ct. 67 Mo. 522; State ex rel. Lemon v. Buchanan County Bd. of Equalization, 108 Mo. 235, 18 S. W. 782; State ex rel. Wyatt v. Vaile, 122 Mo. 33, 26 S. W. 672; State Bd. of Equali cution v. People, 191 Ill. 528, 58 L. R. A. 513, 61 N. E. 339; Ex parte Ft. Smith & V. B. Bridge Co. 62 Ark. 461, 36 S. W. 1060; Los Angeles County v. Ballerino, 99 Cal. 597, 32 Pac. 583, 34 Pac. 329; Pacific Postal Teleg, Cable Co. v. Dalton, 119 Cal. 604, 51 Pac. 1072: Randell v. Bridgeport, 63 Conn. 321, 28 Atl. 523; Bureau County v. Chicago, B. & Q. R. Co. 44 Ill. 229; Iowa & D. Teleph. Co. v. Schamber, 15 S. D. 588, 91 N. W. 78; Chicago, B. & Q. R. Co. v. Atchison County, 54 Kan. 786. 39 Pac. 1039: Merrill v. Humphrey. 24 Mich. 170; Walsh v. King, 74 Mich. 350, 41 N. W. 1080; State ex rel. Wright v. Sarage (Neb.) 91 N. W. 557; Cocheco Mfg. Co. v. Strafford, 51 N. H. 455; Manchester Mills v. Manchester, 58 N. H. 38; Mercantile Nat. Bank v. New York, 172 N. Y. 35, 64 N. E. 756; Chattanooga v. Nashville, C. & St. L. R. Co. 7 Lea. 563; Weeks v. Milwaukee, 10 Wis. 243; Hersey v. Mihrankee County, 16 Wis. 186. 82 Ami. Dec. 713; Lefferts v. Calumet County, 21 Wis. 688; Milwaukee Iron Co. v. Hubbard, 29 Wis. 52: Hersey v. Barron County, 37 Wis. 75; Railroad Tax Case, 8 Sawy. 233. 13 Fed. 722; Second Nat. Bank v. Caldwell, 13 Fed. 429; Re Watson, 15 Fed. 511; Santa Clara County v. Southern P. R. Co. 9 Sawy. 165, 18 Fed. 385; Indiana ex rel. Wolf v. Pullman Palace Car Co. 11 Biss. 561, 16 Fed. 193; Dundee Morty. Trust Invest. Co. v. School Dist. No. 1, 10 Sawy. 52, 21 Fed. 151, 11 Sawy. 92, 24 Fed. 197; Taylor v. Louisville & N. R. Co. 31 C. C. A. 537, 60 U. S. App. 166, 88 Fed. 350; Railroad & Teleph. Cos. v. Tennessee, 85 Fed, 302; Chicago Union Traction Co. v. State Bd. of Equalization, 114 Fed. 557; Cooley, Taxn. 2d ed. pp. 748-785; Judson, Taxn. § 478; Welty, Assessments, § 186.

The Western Union Telegraph Company is an agent of the government and an instru ment of interstate commerce; and its franchises exercised in Missouri having been de rived solely from the Federal government are exempt from taxation by the taxing authorities of the state.

Pensacola Teleg. Co. v. Western U. Teleg. Co. 96 U. S. 1, 24 L. ed. 708; Western U. Teleg. Co. v. Texas, 105 U. S. 460, 26 L. ed. 1067; California v. Central P. R. Co. 127 U. S. 1, 32 L. ed. 150, 2 Inters. Com. Rep. 153, 8 Sup. Ct. Rep. 1073; San Fran cisco v. Western U. Teleg. Co. 96 Cal. 140, 17 L. R. A. 301, 31 Pac. 10; Centrul P. R. Co. v. California, 162 U. S. 91. 40 L. ed. 903. 16 Sup. Ct. Rep. 766; Wabash, St. L. & P. R. Co. v. Illinois, 118 U. S. 557, 30 L. ed. 244, 1 Inters. Com. Rep. 31, 7 Sup. Ct. Rep. 4; Union P. R. Co. v. Peniston, 18 Wall. 5, 21 L. ed. 787; Leloup v. Port of Mobile, 127 U. S. 640, 32 L. ed. 311, 2 Inters. Com. Rep. 134, 8 Sup. Ct. Rep. 1380; Robbins v. Shelby County Taxing Dist. 120 U. S. 493, 30 L. ed. 696, 1 Inters. Com. Rep. 45. 7 Sup. Ct. Rep. 592; Philadelphia & S. Mail S. 8. Co. v. Pennsylvania, 122 U. S. 344, 30 L. ed. 1204, 1 Inters. Com. Rep. 308, 7 Sup. Ct. Rep. 1118; Western U. Teleg. Co. v. Pendleton, 122 U. S. 358, 30 L. ed. 1189. 1 Inters. Com. Rep. 306. 7 Sup. Ct. Rep. 1126. The state board of equalization has discriminated against plaintiff in error and in favor of other persons generally. The board, in order to discriminate as aforesaid, fixed the value of the property of the Western Union Telegraph Company for taxation at far more than its full actual cash value, and intentionally so equalized and adjusted the values of other property throughout the state at 40 per cent of the actual cash value thereof. The necessary effect of all of which has been that the said company has been discriminated against in violation of the 14th Amendment to the Constitution of the United States.

Where discrimination of this character exists, it amounts to fraud in law, and a denial of equal protection of the law, and the courts will grant relief. Likewise where lack of jurisdiction to make the assessment is shown.

State ex rel. Wyott v. Vaile, 122 Mo. 33, 26 S. W. 672; State ex rel. Lore v. Hannibal & St. J. R. Co. 101 Mo. 120, 13 S. W. 466; Black v. McGonigle, 103 Mo. 192. 15 S. W. 615; State ex rel. Morris v. Cunningham, 153 Mo. 642, 55 S. W. 249.

In all cases where franchises such as those

possessed by the Western Union Telegraph Company have been considered in estimat ing the value of property assessed, and such assessments have been sustained, statutes providing for the assessment of corporations under a "unit" system have contained express and detailed provisions for correctly ascertaining the valuation of the property to be assessed. No such provisions are found in the laws of Missouri. The "ways and means" for any such assessment have not been prescribed. Furthermore, the statutes of Missouri exclude any such mode of assessment of telegraph companies.

Western U. Teleg. Co. v. Atty. Gen. 125 U. S. 530, 31 L. ed. 790, 8 Sup. Ct. Rep. 961; Atty. Gen. v. Western U. Teleg. Co. 141 U. S. 40, 35 L. ed. 628, 11 Sup. Ct. Rep. 889; Western U. Teleg. Co. v. Taggart, 163 U. S. 1, 41 L. ed. 49, 16 Sup. Ct. Rep. 1054; State Railroad Tax Cases, 92 U. S. 575, sub nom. Taylor v. Secor, 23 L. ed. 669; Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18, 35 L. ed. 613. 3 Inters. Com. Rep. 595, 11 Sup. Ct. Rep. 876; Adams Exp. Co. v. Ohio State Auditor, 165 U. S. 194, 41 1. ed. 683, 17 Sup. Ct. Rep. 305; on Rehearing 166 U. S. 185, 41 L. ed. 965, 17 Sup. Ct. Rep. 604; Henderson Bridge Co. v. Ken tucky, 166 U. S. 150, 41 L. ed. 953, 17 Sup. Ct. Rep. 532; St. Louis v. Wenneker, 145 Mo. 238, 47 S. W. 105.

The franchise of a corporation "to be" a corporation is not taxable in a foreign state in which it is licensed to do business.

London & S. F. Bank v. Block, 117 Fed. 900.

Mr. Hunter M. Meriwether argued the cause, and, with Mr. Robert E. Ball, filed a brief for defendant in error:

The franchises, in the sense of intangible property, as well as the poles and wires of the Western Union Telegraph Company, are taxable by the several states. Such franchise taxes have been sustained in all recent cases by the Supreme Court of the United States against this defendant, and others similarly situated.

The

The assessment made by the state board was an assessment of the property of plaintiff in error, and did not include or in any way affect the right to exist and transact its business in Missouri or elsewhere. tax is strictly a property tax, and having been fairly and legally assessed upon a reasonable valuation of the property, should be sustained.

First Nat. Bank v. Kentucky, 9 Wall. 353, 19 L. ed. 701; Union P. R. Co. v. Peniston, 18 Wall. 5, 21 L. ed. 787; Commercial Electric Light & P. Co. v. Judson, 21 Wash. 49, 57 L. R. A. 78, 56 Pac. 829; Louisville R. Co. v. Com. 105 Ky. 710, 49 S. W. 486; Paducah Street R. Co. v. McCracken County, 105 Ky. 472, 49 S. W. 178; Owensboro Nat. Bank v. Owensboro, 173 U. S. 664, 43 L. ed. 850, 19 Sup. Ct. Rep. 537; Com. v. Manor Gas Coal Co. 8 Pa. Dist. R. 258; New York v. Roberts, 171 U. S. 658, 43 L. ed. 323, 19 Sup. Ct. Rep. 58. There is a clear distinction between a license tax and a property tax. The former involves a charge for permission or authority to transact certain business, while the latter is a contribution imposed upon, and measured by, the property of an individual or corporation. The state cannot impose a license, impost, or embargo on plaintiff in error, even though it be called a tax. it can take from the property owned by plaintiff in error within the jurisdiction of the state, a sufficient amount to pay its just proportion of its governmental expenses. Nothing else having been attempted, the tax should be sustained.

But

Cooley, Taxn. 2d ed. pp. 383, 576; Burroughs, Taxn. § 77, p. 146, § 85, p. 169; Judson, Taxn. p. 130; Welton v. Missouri, 91 U. S. 275, 23 L. ed. 347; State v. Emert, 103 Mo. 241, 11 L. R. A. 219, 3 Inters. Com. Rep. 527, 15 S. W. 81; Emert v. Missouri, 156 U. S. 296, 39 L. ed. 430, 5 Inters. Com. Rep. 68, 15 Sup. Ct. Rep. 367.

The action of the state board in valuing and assessing the property of the plaintiff in error is not subject to review or attack in this proceeding.

Western U. Teleg. Co. v. Atty. Gen. 125 U. S. 530, 31 L. ed. 790, 8 Sup. Ct. Rep. Cooley, Taxn. 2d ed. p. 748; Burroughs, 961; Atty. Gen. v. Western U. Teleg. Co. 141 Tax. p. 238; Hamilton V. Rosenblatt, U. S. 40, 35 L. ed. 628, 11 Sup. Ct. Rep. 8 Mo. App. 237; Yazoo & M. Valley 889; Central P. R. Co. v. California, 162 R. Co. v. Adams, 77 Miss. 764, 25 U. S. 91, 40 L. ed. 903, 16 Sup. Ct. Rep. 766; So. 355; Home F. Ins. Co. v. Lynch, Western U. Teleg. Co. v. Norman, 77 Fed. 19 Utah, 189, 56 Pac. 681; Dan13; Western U. Teleg. Co. v. Taggart, 163 forth v. Livingston, 23 Mont. 558, 59 Pac. U. S. 1, 41 L. ed. 49, 16 Sup. Ct. Rep. 1054; 916; State, Elizabeth, Prosecutor, v. New 25 Am. & Eng. Enc. Law, p. 873; Adams Jersey Jockey Club, 63 N. J. L. 515, 44 Atl. Exp. Co. v. Ohio State Auditor, 166 U. S. 207; Dayton v. Multnomah, 34 Or. 239, 55 220, 41 L. ed. 977, 17 Sup. Ct. Rep. 604; Pac. 23; Ledoux v. Le Bee, 83 Fed. 761; Com. v. Western U. Teleg. Co. 2 Dauph. Co. McLeod v. Receveur, 18 C. C. A. 188, 34 Rep. 40; Michigan Teleph. Co. v. Charlotte, U. S. App. 533. 71 Fed. 455; Brooklyn Elev. 93 Fed. 11; Keokuk & H. Bridge Co. v. R. Co. v. Brooklyn, 16 Misc. 416, 38 N. Y. Illinois, 175 U. S. 626, 44 L. ed. 299, 20 Sup. Supp. 154; State ex rel. Harrison County Ct. Rep. 205; Henderson Bridge Co. v. Ken- Bank v. Springer, 134 Mo. 212, 35 S. W. tucky, 166 U. S. 154, 41 L. ed. 954, 17 Sup. 589. Ct. Rep. 532; Louisville Tobacco Warehouse Co. v. Com. 106 Ky. 165, 57 L. R. A. 33, 49 S. W. 1069; Com. v. Manor Gas Coal Co. 188 Pa. 195, 41 Atl. 605; Adams Exp. Co. v. Kentucky, 166 U. S. 171, 41 L. ed. 960, 17 Sup. Ct. Rep. 527.

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Mr. Justice McKenna, after stating the facts, delivered the opinion of the court:

On the question of fact, if it be such, as to what the item "of other property at $856,400.56," in the *assessment by the board [421]

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of equalization, was constituted of, the trial franchise as a distinct proprietary entity, court and the supreme court of the state are and, because it was derived from the Fednot in accord. The trial court found the eral government, decided that it was exempt "fact to be from the evidence that, in valu- from taxation. The necessary consequence ation of other property' of defendant, the was and is to destroy the relation between state board took into consideration the fran- that franchise and the other properties of chise of defendant company." It is apparent the plaintiff in error, regarding them, not from the court's opinion that by franchise as parts of the system, but abstractly,- re the court meant the rights and privileges ob-garding the poles not differently from other tained by the plaintiff in error under the poles, the wire not different from other wire. act of Congress of July 24, 1866. The su- The supreme court, on the contrary, repreme court of the state, however, expressed garded the properties as related and as conits conclusion from the evidence, as follows: stituting a system, and because of their re"So, that, when, in determining the value lation having a value greater than the sum of the property of the defendant in this of the values of the individual things restate, the board of equalization took into garded merely as such. Viewing the order consideration the cost of construction and of the board of equalization as the supreme equipment of said Western Union Telegraph court viewed it, was it valid? In other Company, and the location thereof, and its words, Is the state in exercising its taxing traffic and business, and the par value of power limited to assessing the mere material its stock and bonds, and the gross receipts things used by the plaintiff in error, and and net earnings and franchises owned by must it regard them as of no greater value said company, and the value thereof,' it did than they had when they reposed in lumber not and could not have included therein any yards and factories, with cost added of putfranchise derived by the defendant from the ting them in place? Or the proposition may government of the United States, because be stated another way, which better exthat government had conferred no such fran- presses the ultimate contention of the plainchise; nor was such a valuation placed upon tiff in error. Conceding that the tangible 'all other property,' a tax upon the fran- property of the telegraph company derives chise of the defendant company. The fran- value from its use in a system, does the comchise derived by the defendant from the pany do business in the state in pursuance state of New York was considered by the of the Constitution of the United States and board in determining the value of the prop- the act of July, 1866, and become thereby erty of the defendant located in this state. an instrument of interstate commerce and That is, that property was valued, not as so a government agent, and as such exempt many poles, so much wire, so many instru- from the taxation contested in this case? ments. or so much other property,' in the We think the question has been answered by abstract, but was valued in the concrete, in this court. the relation that such property in the abstract bore to other property in the abstract, which being brought into relation towards each other into a system, located partly in this state and partly in other states gave each part a concrete value, which was much greater than its abstract value. The right to exist,-the franchise of the defendant, was property, and was subject to taxation, either directly, in the proportion that the portion of the franchise exercised in this state bore to the proportion of the franchise exercised in all other states, or indirectly, as was done in Massachusetts and was done here, by being impressed upon the [422]*tangible property owned by it, thereby increasing its value, and by considering the franchise and its tangible property as a system, and then assessing the part of the property forming a part of the system and located in Missouri as of its proportionate value of the whole property constituting the system."

Plaintiff in error asserts the correctness of the finding of the trial court, and insists that it is the only finding that could have been made, and bases the argument against the taxes assessed on that insistence. But if the finding on the question is one of fact, necessarily we are bound by that made by the supreme court of the state. The trial court picked out the rights given to the defendant under the act of Congress, denomi nated them a franchise, contemplated the

*In Western U. Teleg. Co. v. Atty. Gen.[423] 125 U. S. 530, 31 L. ed. 790, 8 Sup. Ct. Rep. 961, the effect of the act of July, 1866, upon the power of the state to tax the property of telegraph companies was considered. The laws of Massachusetts imposed a tax upon the Western Union Telegraph Company on account of the property owned and used by it within that state, the value of which was ascertained by comparing the length of its lines within the state with the length of its entire lines. The tax was sustained. The act of July, 1866, was urged against the tax as it is urged here.

The contentions of the company in that case was, as it is in this, that it did not derive its existence from the state of Missouri, but from the state of New York; that it did not do business in the state of Mis souri by permission of that state, but by virtue of being an instrument of interstate commerce; that its rights and privileges and franchises were conferred by the United States and constituted it an agent of the United States, and as such agent it was exempt from the tax imposed. The conten tions were rejected. The court did not test or measure the power of the state by the name which its laws gave the tax, and, speaking by Mr. Justice Miller, said:

"The argument is very much pressed that it is a tax upon the franchise of the com pany, which franchise being derived from the United States by virtue of the statute

*

above recited, cannot be taxed by a state, | pany situate within a state, it may be reand counsel for appellant occasionally speak garded, not abstractly or strictly locally, of the tax authorized by the law of Massa- but as a part of a system operated in other chusetts upon this as well as all other cor- states, and that the state was not precluded porations doing business within its terri- from taxing the property because the state tory, whether organized under its laws or had not created the company or conferred not, as a tax upon their franchises. But by franchise upon it, or because it derived whatever name it may be called, as de- rights or privileges under the act of July, scribed in the laws of Massachusetts it is 1866, or was engaged in interstate com-[425] essentially an excise upon the capital of the merce. Every one of the fundamental propocorporation. The laws of that common-sitions, therefore, contended for by plaintiff wealth attempt to ascertain the just amount in error, those decisions declare unsound. which any corporation engaged in business within its limits shall pay as a contribution to the support of its government upon the amount and value of the capital so employed by it therein."

And that power of the state was explained in an elaborate opinion, and sustained. [424] These propositions were laid down: *The company owed its existence as a corporation and its right to exercise the business of telegraphy to the laws of the state under which it was organized; that the privilege of running the lines of its wires over and along the military and post roads of the United States was granted by the act of Congress, but that the statute was merely permissive, and conferred no exemption from the ordinary burdens of taxation; that the state could not, by any specific statute, prevent a corporation from placing its lines along the post roads or stop the use of them after they were so placed, but the corporation could be taxed, in exchange for the protection it received from the state, 66 upon its real or personal property as any other person would be." And, describing the particular tax imposed, it was said:

"The tax in the present case, though nominally upon the shares of the capital stock of the company, is in effect a tax upon that organization on account of property owned and used by it in the state of Massachusetts, and the proportion of the length of its lines in that state to their entire length throughout the whole country is made the basis for ascertaining the value of that property. We do not think that such a tax is forbidden by the acceptance on the part of the telegraph company of the rights conferred by § 5263 of the Revised Statutes [U. S. Comp. Stat. 1901, p. 3579] or by the commerce clause of the Constitution."

In other words, the lines in Massachusetts were regarded as a part of a system, and assessed accordingly.

The statute of Massachusetts came up again for consideration in Atty. Gen. v. Western U. Teleg. Co. 141 U. S. 40, 35 L. ed. 628, 11 Sup. Ct. Rep. 889, and the principles announced in Western U. Teleg. Co. v. Atty. Gen. 125 U. S. 530, 31 L. ed. 790, 8 Sup. Ct. Rep. 961, were affirmed and followed. See also Ratterman v. Western U. Teleg. Co. 127 U. S. 411, 32 L. ed. 229, 2 Inters. Com. Rep. 59, 8 Sup. Ct. Rep. 1127; Leloup v. Port of Mobile, 127 U. S. 640, 32 L. ed. 311, 2 Inters. Com. Rep. 134, 8 Sup. Ct. Rep. 1380.

These cases establish that, in estimating the value of the property of a telegraph com

But it is contended that the method of assessment followed in those cases was sustained because they were prescribed by the legislature, and that in the case at bar the method adopted was not prescribed or authorized by the laws of Missouri. The answer is obvious. What the laws of Missouri authorized was competent for the supreme court of Missouri to decide, and it decided that the order of the board of equalization was legal under the Constitution and statutes of the state. The decision, constituting, as it does, an interpretation of the Constitution and laws of the state, is not open to dispute here. If it were, it would seem incontestable that the state could either prescribe the method or confer upon its taxing officers the power to adopt a suitable one. And there is nothing in the Adams Exp. Co. Cases, 166 U. S. 171, 225, 41 L. ed. 960, 979, 17 Sup. Ct. Rep. 527, 608, to the contrary.

2. The plaintiff in error asserts that the board of equalization practised discrimination against it by assessing at a value disproportionate to the value assessed on real and personal property by local assessing of ficers. This defense was expressed as follows:

"Defendant avers that under the law it was the duty of said board of equalization to adjust and equalize as aforesaid the valuation of all real and personal property in the state of Missouri, among the several counties in the state, and that during the period aforesaid it did so proceed to adjust and equalize such valuations. That said state board of equalization, by common arrangement, understanding and purpose among themselves, in fact did during the period aforesaid, in violation of the Constitution and laws of said state of Missouri, with intent to compel defendant to pay a greater proportion of taxes than the owners of other real and personal property in said state of Missouri, assess all property, to wit, other than the property of the telegraph companies, to wit, from 35 to 40 per cent of its true value, whereby as to taxes levied upon real and personal property other than telegraph property in the state of Missouri, this defendant was unlawfully and wrongfully discriminated *against to the extent of[426] 60 per cent of the amount of taxes assessed by said state board of equalization and levied by the taxing officers of the state upon defendant in pursuance of such assessment." Testimony was introduced to sustain the averments.

The supreme court of Missouri held, how

ever, that plaintiff in error could not, even | 55, 63; Hicks v. Westport, 130 Mass. 478; under the cases cited by it, avail itself of Balfour v. Portland, 28 Fed. 738." the defense. The court said:

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The defendant cannot avail itself of these cases, for the reasons (1) that it seeks to raise the question of discrimination by a defense to an action at law to collect the taxes, and thereby collaterally attacks the judgment of the board of equalization; (2) that such questions can only be raised by a direct attack, in equity, and then only upon the condition precedent that it pays or tenders the amount justly due and only asks to have the collection of the excess restrained. This the defendant has not done in this case. It simply alleges a discrimination or excessive tax, and then seeks to defeat the whole assessment without paying or tendering anything, notwithstanding it admits by its answer and its proofs that it has property in this state subject to taxation of the value of $541,472.40. Upon the authority of the cases relied on by it, this cannot be done."

We concur in this view. The proceedings before the board were quasi judicial, and the order made by it was within its jurisdiction. It was not void on its face, and cannot be resisted in an action at law. This is the principle announced in the case referred to. In Stanley v. Albany County [121 U. S. 535, 30 L. ed. 1001, 7 Sup. Ct. Rep. 1234] is cited, among other cases, Balfour v. Portland, 28 Fed. 738. The case is especially pertinent. The action was at law for the recovery of taxes paid under protest which had been levied upon property which, it was charged, had been deliberately overvalued. Recovery was denied. The circuit court said:

"The property was subject to taxation by the authority and for the purpose alleged. True, the result reached was erroneous, because of the wilful disregard in the proceeding of the law requiring uniformity in the [427]valuation of property for taxation *within

the jurisdiction of the defendant. Still the proceeding being quasi judicial, and the subject-matter within the jurisdiction of the officers who conducted it, the result reached is so far conclusive that the legality of it cannot be questioned in an action at law to recover back the one half of the tax as illegal."

So this court said in Stanley v. Albany County:

"It is only where the assessment is wholly void, or void with respect to separable portions of the property, the amount collected on which is ascertainable, or where the assessment has been set aside as invalid, that an action at law will lie for the taxes paid, or for a portion thereof. Over-valuation of property is not a ground of action at law for the excess of taxes paid beyond what should have been levied upon just valuation. The courts cannot, in such cases, take upon themselves the functions of a revising or equalizing board. Newman v. Livingston County, 45 N. Y. 676, 687; National Bank v. Elmira, 53 N. Y. 49, 52; Bruecher v. Port Chester, 101 N. Y. 240, 244. 4 N. E. 272; Lincoln v. Worcester, 8 Cush.

a

And we think overvaluation of property cannot be a ground of defense at law. In other words, the action of the tax officers, being in the nature of a judgment, must be yielded to until set aside. This can only be done in a direct proceeding. The property owner is in effect a plaintiff, and the condition of relief against the enforcement of the quasi judicial order, which he attacks, is a tender of payment of the taxes that he ought to pay. And this condition would still be upon him if he set up overvaluation as an equitable defense to an action brought against him. Los Angeles County v. Ballerino, 99 Cal. 594, 597, 32 Pac. 581, 34 Pac. 329. This certainly would be so in Missouri, under the doctrine expressed by the supreme court of the state in the case at bar. Judgment affirmed.

Mr. Justice Brewer concurs in the result. Mr. Justice White and Mr. Justice

Peckham dissent.

*DANFORTH GEER, Willard F. Gay, Ar-[428] thur W. Smith, et al., Appts.,

บ.

MATHIESON ALKALI WORKS, Castner Electrolytic Alkali Company, Edward E. Arnold, Richard T. Wilson, John G. Agar, Alfred Ely, John Russel Gladdings, et al., as Directors of the Said Mathieson Alkali Works.

(See S. C. Reporter's ed. 428-437.)

Service of summons on foreign corporation— removal of causes- -separable controversy.

1.

2.

Service of summons within the state on resident directors of a foreign corporation is insufficient to give the court jurisdiction of such corporation, where at the time of such service it had ceased to do business within the state, and had designated no agent on whom service could be made.

A separable controversy which justifies a removal to a Federal court, where there is diverse citizenship, exists between plaintiffs and two corporations named as defendants in a complaint which seeks to set aside for fraud a conveyance between such corporations, and to prevent the directors of the grantor from making any further disposition of its property, and prays for a reconveyance of such property and an accounting by the grantee for the damages sustained by the transfer.

NOTE 48 to service of process on foreign corporations-see notes to Foster v. Charles Betcher Lumber Co. (S. D.) 23 L. R. A. 490. and Eldred v. American Palace-Car Co. 45 C.

C. A. 3.

As to what service of process is sufficient to constitute due process of law-see note to Pinney v. Providence Loan & Invest. Co. (Wis.) 50 L. R. A. 577.

On removal of causes generally-see notes to Whelan v. New York, L. E. & W. R. Co. (C. C. N. D. Ohio) 1 L. R. A. 65; Butler v. National Home for Disabled Volunteer Soldiers, 36 L. ed. T. S. 346, and Torrence v. Shedd, 36 L. ed. U. S. 528.

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