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countles of the state, were during these years | Ignated by the postmaster general as one of worth and valued at the sum of $41,967.54, the telegraph companies that must transmit The tax levied on the company by the law of messages for the United States at a price and March 8, 1888, under the name of privilege rate to be fixed by the said postmaster gentax, amounted annually to $391.28, or an ag eral; that defendant was engaged as a gop. gregate for thetwo years of $782.56. Under the ernmental agent of the United States, at the general revenue laws of the state the ad valo- times mentioned, in transmitting messages rem tax on the property of the company for for the government of the United States be- * the two years would have been $1,188.56 for tween its various offices, not only from points state and county purposes only, not including within the state of Mississippi to points withwhat might have been assessed and collected out the state of Mississippi, but also for sucb by municipalities in the way of ad valorem government officers from points wholly with. taxes for municipal purposes. For the years in the state of Mississippi to other points also 1890 and 1891 the company called to pay its wholly within the state of Mississippi; and taxes, and Adams, the state revenue agent of that all of the roads upon which the lines of the state of Mississippi, brought suit in the said company were constructed were post circuit court of Hinds county, August 16, roads of the United States. 1892, against the company therefor. The first Plaintiff demurred to the special pleas. The count of the declaration was for the privilege case came on to be heard upon these demur. taxes and the second count for ad valorem rers, and the circuit court sustained defend. taxes in the several counties, which it was al ant's demurrer to the second count, and plain. leged had been duly levied for state and coun. tiff's demurrer to defendant's pleas to the first ty purposes. The company demurred to the count, with leave to defendant to plead over. second count and pleaded specially to the first This, defendant declined to do, and judgment count, in substance,* and, so far as essential was thereupon entered against the company bere, that it was a telegraph company duly in. for the amount of the so-called “privilege tax. corporated and organized under the laws of

es" for the years 1890 and 1891, with interest the state of New York, and was on the 1st days and costs. From this judgment an appeal of January, 1890, 1891, and 1892, respectively,

was taken to the supreme court of Mississip. engaged in, and still continued to carry on, pi, and the judgment affirmed. The opinion the business of a telegraph company, having of that court will be found reported in ad. offices in various cities and towns in the state vance of the official series in 14 South. 36. A of Mississippi for the purpose of receiving and writ of error was then allowed to this court sending telegraphic messages and maintaining and operating certain lines of telegraph on the

T. Moultrie Mordecai and P. H. Gadsden, various post roads, public roads, and railroads

for plaintiff in error. Marcellus Green, for extending over, across, leading into and from

defendant in error. the state of Mississippi to the state of Alabama, and other points in other states of the

• Mr. Chief Justice FULLER, after stating United States and the dominion of Canada; the facts in the foregoing language, deliverer that it was also the lessee of the Atlantic the opinion of the court. Postal Telegraph Cable Company, a corpora

It is settled that where, by way of duties tion duly organized under the laws of the laid on the transportation of the subjects of a state of New York, and by its charter author. interstate commerce, or on the receipts de ized to construct and operate lines of tele rived therefrom, or on the occupation or busigraph in and between the various states of ness of carrying it on, a tax is levied by a the Union, including the state of Mississippi; state on interstate commerce, such taxation that as such lessee and owner it was engaged amounts to a regulation of such commerce, in the general public telegraph business of and cannot be sustained. But property in transmitting messages for commercial purpos a state belonging to a corporation, whether es by, along, and over its lines within, from, foreign or domestic, engaged in foreign or through, and across the state of Mississippi juterstate commerce, may be taxed, or a tax and many other states and territories of the may be imposed on the corporation on acUnion, and had ofiices for the receiving and count of its property within a state, and may sending of messages by telegraph in each and take the form of a tax for the privilege of every state and territory wherein the lines exercising its franchises within the state, ir leased or owned by it extended, including the the ascertainment of the amount is made de state of Mississippi; that on or about the 6th pendent in fact on the value of its property day of March, 1836, the company duly filed its situated within the state (the exaction, therewritten acceptance with the postmaster gen fore, not being susceptible of exceeding the eral of the United States of the restrictions sum which might be leviable directly there. and obligations of the act of congress enti on), and if payment be not made a condition tled, “An act to aid in the construction of tel precedent to the right to carry on the busiegraph lines and to secure to the government ness, but its enforcement left to the ordinary the use of the same for postal, military, and means devised for the collection of taxes other purposes," approved July 24, 1866, now The corporation is thus made to bear its proptitle 65 of the United States Revised Statutes, er proportion of the burdens of the govern. and that in pursuance thereof it had been des. | ment under whose protection it conducts its



operations, whlle Interstate commerce is not And in the case at bar the supreme court, In itself subjected to restraint or impediment. in its examination of the liability of plaintiff

As pointed out by Mr. Justice Field in in error for the taxes in question, said: "It Horn Silver Min. Co. v. New York, 143 U. S. will be thus seen at once that this is a tax im305, 12 Sup. Ct. 403, the right of a state to posed upon a telegraph company, in lieu of tax the franchise or privilege of being a cor all others, as a privilege tax, and its amount poration as personal property has been re is graduated according to the amount and peatedly recognized by this court, and this value of the property measured by miles. It whether the corporation be domestic or a for is to be noticed that it is in lieu of all other eign corporation doing business by its per taxes, state, county, municipal. The reason. mission within the state. But a state cannot ableness of the imposition appears in*the rec-* exclude from its limits a corporation en ord, as shown by the second count of the decgaged in interstate or foreign commerce, or a laration and its exhibits, whereby the appel. corporation in the employment of the general | lant seems to be burdened in this way with a government, either directly in terms or in tax much less than that which would be prodirectly by the imposition of inadmissible duced if its property had been subjected to a conditions. Nevertheless the state may sub single ad valorem tax." This exposition of ject it to such property taxation as only inci the statute brings it within the rule where ad dentally affects its occupation, as all busi valorem taxes are compounded or commuted ness, whether of individuals or corporations, for a just equivalent, determined by referis affected by common governmental bur ence to the amount and value of the propdens. Ashley v. Ryan, 153 U. S. 436, 14 Sup. erty. Being thus brought within the rule, Ct. 865, and cases cited.

the tax becomes substantially a mere tax on Doubtless no state could add to the taxa property, and not one imposed on the privi. tion of property according to the rule of or lege of doing interstate business. The subdinary property taxation the burden of a stance, and not the shadow, determines the license or other tax on the privilege of using, validity of the exercise of the power. constructing, or operating an instrumentality The act, in prescribing the ascertainment of interstate or international commerce, or of the charge as to telegraph companies for the carrying on of such commerce; but operating less than 1,000 miles of wire, was the value of property results from the use to directed to reach a reasonable commutation which it is put, and varies with the profita. of the amount which the company would be bleness of that use, and by whatever name compelled to pay if the taxation were ad the exaction may be called, if it amounts to valorem. The taxation was neither arbitrary no more than the ordinary tax upon proper. nor discriminating, nor, so far as we are ad. ty, or a just equivalent therefor, ascertained vised, was payment made a condition preby reference thereto, it is not open to attack cedent to doing business, but collection was as inconsistent with the constitution. Rail enforceable by suit, and the remedies perroad Co. v. Backus, 154 U. S. 439, 445, 14 taining thereto, and not otherwise. Code Sup. Ct. 1122.

Miss. 1880, 88 583, 587-589, 594. The method of taxation by "a tax on privi We concur with the view of the act thus leges” has been determined by the supreme expressed by the supreme court of the state, court of Mississippi to be in harmony with and, accepting it as correct, it is obvious that the constitution of that state, and that, the case does not fall within the line of deci"where the particular arrangement of taxa sions in which state laws have been held tion provided by legislative wisdom may be inoperative because in conflict with, or accounted for on the assumption of com amounting to the exercise of, or the asserpounding or commuting for a just equivalent, tion of control over, a power vested exclu. according to the determination of the legisla- sively in the United States. In those deci. ture, in the general scheme of taxation, it sions the interference with the commercial will not be condemned by the courts as vio power was found to be direct, and not the lative of the (state) constitution." Bank v. mere incidental effect of the requirement of Worrell, 67 Miss. 47, 7 South. 219. In that the usual proportional contribution to public case privilege taxes imposed on banks of de maintenance. posit or discount, which varied with the They need not be re-examined here, as the amount of capital stock or assets, and were taxation in question, according to the proper declared to be "in lieu of all other taxes, interpretation of the statute, is in principle state, county, or municipal, upon the shares such as was sustained in W. U. Tel. Co. v. and assets of said banks," came under re Attorney General of Massachusetts, 125 U. view, and it was decided that the privilege S. 530, 8 Sup. Ct. 961; Ratterman v. Teletax, to be effectual as a release from liability graph Co., 127 U. S. 411, 8 Sup. Ct. 1127; for all other taxes, must be measured by the Pullman's Palace-Car Co. v. Pennsylvania, capital stock and entire assets or wealth of 141 U. S. 18, 11 Sup. Ct. 876; Massachusetts the bank, and that real estate bought with v. W. U.* Tel. Co., 111 U. S. 40, 11 Sup. Ct. * funds of the bank was exempt from the or 889; Maine v. Grand Trunk Ry. Co., 142 U. dinary ad valorem taxes, but was part of the S. 217, 12 Sup. Ct. 121, 103. assets of the bank to be considered in fixing In Massachusetts v. W. U. Tel. Co., it was the basis of its privilege tax.

beld that the tax imposed by the statutes ou

Massachusetts requiring every telegraph , adopted to ascertain the amount of the value company owning a line of telegraph within of the capital engaged in that business withthe state to pay to the state treasurer "a in its boundaries, on which the tax should rax upon its corporate franchise at a valua be assessed, is not an unfair or unjust one; tion thereof equal to the aggregate value of and the details of the method by which this the shares in its capital stock," deducting was determined have not exceeded the fair such portion of that valuation as is propor range of legislative discretion. 125 U. S. 553, tional to the length of its lines without the 8 Sup. Ct. 965." state, and deducting also an amount equal In the case before us, the tax was graduto the value of its real estate and machinery, ated according to the amount and value of subject to local taxation within the state, the property measured by miles, and was in was in effect a tax upon the corporation on lieu of taxes levied directly on the property. account of property used by it within the In marking the distinction between the powstate; and was constitutional and valid as er over commerce and municipal power, literapplied to a telegraph company incorporated al adherence to particular nomenclature by another state, and which had accepted should not be allowed to control construction the rights conferred by congress by section in arriving at the true intention and effect 5263 of the Revised Statutes. In arriving at of state legislation. We are of opinion that this conclusion, W. U. Tel. Co. v. Massa it was within the power of the state to levy chusetts, 125 U. S. 530, 8 Sup. Ct. 961, was a charge upon this company in the form of followed, and the following propositions af

a franchise tax, but arrived at with referfirmed in that case were reiterated by Mr. ence to the value of its property within the Justice Gray, delivering the opinion of the state and in lieu of all other taxes, and that court: "The franchise of the company to be the exercise of that power by this statute, as a corporation, and to carry on the business expounded by the highest judicial tribunal of telegraphing, was derived not from the of the state in the language we have quoted, act of congress, but from the laws of the did not amount to a regulation of interstate state of New York, under which it was or commerce or put an unconstitutional reganized; and it never could have been in straint thereon. tended by the congress of the United States, Judgment affirmed. in conferring upon a corporation of one state the authority to enter the territory of any other state, and to erect its poles and lines

(156 U. S. 202) therein, to establish the proposition that such

LAZARUS v. PHELPS. a company owed no obedience to the laws

(January 28, 1895.) of the state into which it thus entered, and

No. 105. was under no obligation to pay its fair pro

USE AND OCCUPATION - Evidence OP POSSESSION portion of the taxes necessary to the support

-FORMER JUDGMENT-INSTRUCTIONS. of the government of that state. 125 U. S.

1. As possession of land once proven is pre 547, 518, 8 Sup. Ct. 362, 963. By whatever

sumed to continue, plaintiff may in an action for name the tax may be called, as described in the rental value of lands, for the purpose of esthe laws of Massachusetts, it is essentially

tablishing exclusive possession in defendant,

give in evidence the record of a prior action be an excise upon the capital of the corporation;

tween the same parties, in which plaintiff recovand those laws attempt to ascertain the just ered judgment for use and occupation of the amount which any corporation engaged in

land up to the time for which the second action business within its limits shall pay as a con

is brought, and in the petition in which plaintiff

alleged, not only that defendant had wrongfully tribution to the support of its government taken possession of the land and pastured his upon the amount and value of the*capital so cattle thereon, but that he has held, and is now employed by it therein. 125 U. S. 547, 8 Sup.

holding, the exclusive possession of the same

to his own use and benefit." Ct. 962. The tax, though nominally upon

2. Defendant cannot complain of the addithe shares of the capital stock of the com tion to a charge in an action for use and occupany, is in effect a tax upon that organiza pation of land, placing defendant's right of retion on account of property owned and used

covery on the jury's believing that defendant

had possession of the land, and claimed and by it in the state of Massachusetts; and the exercised the exclusive use and enjoyment thereproportion of the length of its lines in that of, of the words “and attempted to exclude othstate to their entire length throughout the

ers therefrom," as this simply made plaintiff

prove more than was necessary. whole country is made the basis for ascer

3. Where the court charged that plaintiff taining the value of that property. Such a could not recover for use and occupation unless tax is not forbidden by the acceptance on

defendant had the exclusive use and occupation the part of the telegraph company of the

of plaintiff's lands, and stocked them to their

full capacity, there was no error in refusing derights conferred by section 5263 of the Re fendant's requested charge as to his liability in vised Statutes, or by the commerce clause case the lands were depastured by cattle only of the constitution. 125 U. S. 552, 8 Sup.

part of which belonged to him. Ct. 965. The statute of Massachusetts is in In Error to the Circuit Court of the United tended to govern the taxation of all corpora States for the Northern District of Texas. tions doing business within its territory, This was an action originally begun by whether organized under its own laws or un William Walter Phelps to recover of the der those of some other state; and the rule plaintiff in error, Samuel Lazarus, the rental


value of 186.SS0 acres of land in Texas, from duction of the record of that case. The proof February 5, 1890, at 8 cents per acre. The was that on September 17, 1888, plaintiff inallegation of the petition was that defendant stituted a suit in the same court, upon a pe permitted large herds of his cattle and horses tition containing allegations similar to those to graze upon plaintiff's lands, and used them in this case, against the defendant, for the for pasturage for other cattle, for which he use of the land after the expiration of the received hire.

Curtis and Atkinson lease, and in such suit The evidence showed that Phelps was the

recovered judgment for the use and occupaowner in fee simple of 149,716 acres of land, tion of said lands up to February 5, 1890, in situated in four different counties in Texas. the sum of $8,417. This evidence was of. The land was in sections of 610 acres each,

fered to establish the fact that defendant did alternating with like sections owned by the have exclusive possession of said land as public school fund of Texas, plaintiff owning charged by plaintiff, and to show that plainthe odd-numbered and the fund owning the

tiff had claimed for the use and value of his even-numbered sections. In July, 1887, de land from the time of the original occupation fendant, Lazarus, rented from the state, for of the same by the defendant. four years from that date, the alternate sec

If this had been a mere action of trespass tions of land so owned by it. Prior to the on lands, although the trespass was a contime of Lazarus' lease, Phelps had a much tinuous one, it might well be said that proof larger quantity of land, but before the trial that certain trespasses were committed upon had sold 30,000 acres.

(livers days and times before a certain date Plaintiff's lands had been rented to Curtis had no legal tendency to prove that the same and Atkinson upon a lease which expired on trespasses continued beyond that date. But April 15, 1897. Curtis and Atkinson built the petition in that case, which is admitted wire fences around the land, or a greater por

by the bill of exceptions to have been similar tion of it, inclosing both the lands owned by

to the one filed in tine case under considerathe plaintiff and those owned by the state,

tion, averred not only that defendant, withe which were subsequently leased to defend out lawful authority and by force of arms, ant. The fence was partly upon plaintiff's entered upon such lands, and pastured his land, and partly upon the school land. Phelps

cattle there, but that during the whole of had no cattle within the inclosure, but the

said time he converted the said land to his settlers, some 150 in number, had about

own use, and appropriated and took to him3,000 head of cattle running at large, and

self all its benefits; that, at the expiration of mingling with defendant's cattle. Defend the lease to Curtis and Atkinson, the said ant had within the inclosure a number of Lazarus, defendant, purchased all the cattle cattle estimated by the witnesses at 10,500

of the said Curtis and Atkinson, which were bead.

then running upon the said lands; that de• Plaintiff introduced testimony, which was

fendant, instead of surrendering said lands objected to, showing that on September 17,

to the said plaintiff, as the said Curtis and 1888, he had instituted a suit similar to this

Atkinson were bound to do, maintained posone against the defendant, and on February

session thereof, and has since maintained the 5, 1890, recovered a judgment for the use

fence around the whole of said lands, exand occupation of the land to that date.

cluding others and the cattle of others there. Plaintiff's evidence tended to show that the

from, and “has held, and is now holding, the land had been stocked to its full capacity.

exclusive possession of the same to his own Defendant's evidence tended to prove the con

use and benefit.” In other words, the basis trary. Plaintiff also offered evidence show.

of the petition was not only the depasture of ing the value of the land for grazing pur

these lands, but the exclusive use and occuposes, during the time covered by this suit,

pation of the same. The verdict and judg. to bave been 4 cents per acre per annum, or

ment in that case settled the fact that the de. $5,988.14. The trial resulted in a verdict and

fendant was in the use and occupation of judgment for plaintiff in the sum of $5,460.

said lands up to February 5, 1890, and, in 32. Defendant thereupon sued out this writ

the absence of evidence to the contrary, such of error.

possession would be presumed to continue

after that date. * Possession of real property F. C. Dillard, for plaintiff in error. Leigh

once proven to exist is presumed to continue. Robinson, for defendant in error.

Brown v. King, 5 Metc. (Mass.) 173; Gray v.

Finch, 23 Conn. 495; Currier v. Gale, 9 Al. Mr. Justice BROWN, after stating the len, 522; Smith v. Hardy, 36 Wis. 417; Bay. facts in the foregoing language, delivered the ard v. Colefax, 4 Wash. C. C. 38, Fed. Cas. opinion of the court.

No. 1,130. As the evidence was offered to es. A similar case between the same parties tablish exclusive possession in the defendant, was before this court, and is reported in 152 we think the record of the former judgment U. S. 81, 14 Sup. Ct. 477. In that case the was competent. Tental value of the same lands from April 15, 2. Exception was also taken to the charge 1887, to February 5, 1890, was recovered, and of the court that if the jury believed from the judgment sustained by this court.

the evidence that since February 5, 1990, the 1. The first error assigned is to the intro defendant bad possession of the lands of the


plaintiff within said inclosure, and claimed showing an exclusive enjoyment of his lands and exercised the exclusive use and enjoy. that of showing the defendant had also atment of plaintiff's lands for grazing pur tempted to exclude strangers. But it did not poses, and attempted to exclude others there relieve him from the duty of showing such from, either by maintaining fences or line exclusive use and enjoyment. In other words, riding, or by force through his employés, or the defendant was not prejudiced by the erby any or all these means, then they should ror, and has no right to complain. Lancaster find for the plaintiff such sum as the evi v. Collins, 115 U. S. 222, 6 Sup. Ct. 33. dence showed the reasonable value of the use 3. In this connection, too, defendant reand occupation of plaintiffs' lands so had by quested the further charge that, where several defendant for grazing purposes, from said persons own separate tracts of land in the 5th day of February, 1890, to the date of trial. same inclosure, each one has the right to Defendant excepted to this charge on the place enough stock therein to consume the ground that an attempt to exclude strangers grass upon his part of the lands, and is not from the pasture would not render him lia liable to the others therefor; but, if he places ble, there being no attempt to exclude plain. therein more stock than his part of the land tiff or any one claiming under him.

will reasonably maintain, he will be liable Had all the lands within the inclosure be to the other owners for the excess, and no longed to the plaintiff, the action of the de more; and also that, if the jury believed from fendant in excluding others therefrom would the evidence that plaintiff's grass was conbave been evidence from which the jury sumed by stock of defendant's and other permight reasonably infer that defendant claim sons, then defendant would only be liable. cd the exclusive right of possession of the for the part consumed by his own stock, to lands; but the argument is that, as the alter be ascertained by apportioning the total dampate sections had been leased by the defend age in the proportion that the number of his aot, he had a lawful right to exclude every stock bears to the total number doing the one from the inclosure, so far as he had damage. leased it, except the plaintiff or his lessees, But, as already stated, the court put the and, as he could not exclude others from bis whole liability of the defendant upon the theown lands without also excluding them from ory that he had enjoyed the exclusive use the plaintiff's, the court erred in leaving this and occupation of plaintiff's lands, and had fact to the jury as an assertion of an exclusive stocked them to their full capacity. If this be right to the possession of plaintiff's lands. 80,-and there was evidence to that effect,He had as much right as the plaintiff to ex then, undoubtedly, plaintiff would be entitled clude strangers from the inclosure, since in to recover the entire rental value of the lands depasturing plaintiff's lands they would also for grazing purposes. If it were not so, then, depasture his own. But the decisive an under the charge of the court, the plaintiff swer to this argument is that the proposition could recover nothing, though defendant may of the court was not laid down in the alterna have pastured thousands of his cattle upon tive, that is, that if the defendant exercised these lands. Whether the court was correct the exclusive use and enjoyment of the plain in its view that, under the pleadings, plaintiff's lands, or attempted to exclude others tiff could not recover for a partial depasturtherefrom, he would be liable; but, after age of his lands, is quite immaterial; since, charging them that they must find an exclu if the jury had found such partial depastursive use and enjoyment of the lands by the age, it would have been their duty, notwithdefendant, the court added a further require standing, to have returned a verdict for the ment, which appears to have been unneces defendant. In the opinion of the court, the sary,—that they must also find that he had whole obligation of the defendant rested up. attempted to exclude others therefrom. Per. on the fact that he had stocked the plaintiff's baps, however, all that was meant was to lands to their full capacity, and had thus encall the attention of the jury to this fact as joyed their exclusive use and occupation. tending to prove a claim of exclusive posses. The charge requested was therefure irrelesion. The court evidently proceeded upon vant. the theory that, under the pleadings in the There was no error in the action of the case, the plaintiff could only recover by show court, and its judgment is therefore affirmed. ing an exclusive use and enjoyment of his lands by the defendant, and that it was not enough simply to show that he had pastured

(156 U. S. 51) certain of his cattle there, without also show. SPARF et al. v. UNITED STATES. ing that he had stocked the lands to their full

(January 21, 1895.) capacity. In this view, it was quite unnec

No. 613. essary to add the instruction that they must

HOMICIDE-CONFESSIONS-OBJECTION TO EVIDENCB further find that he had attempted to ex

ADMISSIBLE AS TO OXE DEFENDANT-PROVclude others therefrom; but this took nothing

INCE OF COURT AND JURY. from what the court had previously charged, 1. The mere fact that one is confined un. and was an instruction of which the plaintiff

der charge of a capital offense does not make

his confession involuntary. rather than the defendant had a right to com 2. A general objection made on the joint plain. It added to the plaintiff's burden of trial of two persons for murder, by counsel rep



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