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to use every feature found in any of its claims; waiting patiently until the American patent became public property by reason of the expiration of foreign patents for the same construction. It appears to be generally conceded that the construction now adopted by the defendants is the better one, and mingles the types, which have in fact been heretofore kept distinct. It is also conceded that said construction is a Chinese copy of the improvements suggested by the claims of the later patent, which there has been an attempt to put in issue. Such a bargain, however, in its very nature, could not outlast the life of the patent; and, if its construction is open to the world, the defendants cannot be the only ones restricted from using it. The real question at issue is whether letters patent No. 397,280 so controls the situation that no one except the complainant is at liberty to use the special features involved in claims 15, 16, 18, and 20 of the expired patent, No. 430,278. This matter cannot be determined on affidavits. Indeed, it is not apparent that counsel for complainant can hope for such action, since they deemed it important to base their demand for relief upon a conjoint use by defendants of the claims of both patents. The order for preliminary injunction is refused.

It goes with the saying that, if the attention of the court at the ex parte hearing had been directed to the now admitted fact that the monopolistic grant of patent 430,278 had expired, neither a restraining order, nor a hearing upon preliminary injunction, would have been granted. The defendants not only demand that the indemnity bond shall be vacated, but that very drastic measures shall be taken toward the complainant. Reflections upon the situation created by the ex parte hearing have caused me very many unpleasant half hours. Now that it is again faced, and dispassionately examined, I am compelled to give the complainant and its counsel the benefit of the doubt. During my years in the profession I acquired a respect for the integrity and high character of the patent bar, and my acquaintance with its members since my present position has brought me into contact with so many of them, from so widely separated parts of the country, has intensified that respect, and esteem has been added thereunto in large measure. I am unable to accept the belief that a malicious motive inspired the action which was taken. The restraining order was almost instantly revoked, and it would seem that no considerable harm, except trouble and expense, can have befallen the defendants, especially when the present attitude of the court shall become publicly known. At best, however, the charge of carelessness against the complainant cannot be eliminated from the proceedings.

The indemnity bond may be vacated, and let the proper order be issued, directing the complainant to pay the defendants, within 30 days, the sum of $500, as compensation for the damage and expense caused to defendants by procuring the issuance of the restraining order and the hearing on preliminary injunction.

The matter of contempt may remain in abeyance, awaiting the outcome of the above order.

RAILROAD TAX CASES.

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(Circuit Court, E. D. Arkansas, W. D. April 1, 1903.) 1 STATES-ATTORNEY GENERAL-POWERS.

Under Const. Ark. art. 6, § 22, providing that the Attorney General shall perform such duties as may be prescribed by law, he has no powers except such as are given by the statutes of the state.

(Ed. Note.-For cases in point, see vol. 5, Cent. Dig. Attorney General,

$$ 3-7.] 2 SAME-TAXATION-ASSESSMENTS-APPEARANCE FOR STATE.

Kirby's Dig. art. 6, c. 62, defining the duties of the Attorney General, provides that he shall have authority to represent the state, in any court other than the Supreme Court, only in quo warranto proceedings and actions to prosecute suits against ofticers indebted to the state for moneys collected and unaccounted for. By other special acts he is also authorized to appear for the state in actions to recover back taxes and in antitrust cases, etc.; and section 7182 declares that, whenever a cause is brought against a county assessor for the collection of public revenues, he shall be allowed reasonable fees of counsel, etc. Held, in a suit against the State Board of Railroad Commissioners to restrain the collection of taxes on assessments made by them, the Attorney General had no power

to intervene on behalf of the state. 8. TAXATION-RAILROADS-RAILROAD COMMISSIONERS-ASSESSMENTS_POWERS.

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Kirby's Dig. $ 6954, provides that the Board of Railroad Commissioners authorized to assess railroad property for taxes shall hold their annual meetings on the first Monday in June in each year, and also declares that the Governor shall have the right to convene the board in special session at any time. Held, that the mak of an assessm

such board at Its meeting in June did not exhaust its power, but that the board was a continuous body, and therefore, after having made an assessment, it had the power to modify the same for the purpose of compromising litiga

tion. 4 SAYE-REVIEW.

The propriety of a modification of a railroad tax assessment by the Arkansas State Board of Railroad Commissioners for the purpose of compromising litigation, in the absence of fraud or other misconduct, is conclusive on the courts

S. B. Johnson, Oscar Miles, E. B. Peirce, Rose, Hemingway & Rose, and Bridges & Woolridge, for railroad companies.

James P. Clarke, for state railroad commissioners.
R. L. Rogers, Atty. Gen., for the State.

TRIEBER, District Judge. In 1903, and again in 1904, a number of the railroad corporations of this state filed their bills in this court to restrain the Board of State Railroad Commissioners, which, under the laws of the state, is composed of the Governor, Secretary of State, and Auditor of State, from certifying the assessments made by them in those years against the property of the complainants. Separate bills were filed by each of the railroads in each year, but, as the allegations upon which the relief is sought in each case for each year are practically the same, the disposition of one of the cases of each year will dispose of all of them.

The relief in the bills filed in 1903 was sought upon the following grounds:

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It was charged by the railroad companies that the attempted assessments were illegal and void for the following reasons:

First. Because the board proceeded to make the assessments without having been sworn as required by the statutes of the state.

Second. That the board proceeded to make the assessments without examining the lists and schedules of the description and value of the railroad property, as required by law, but made the assessments arbitrarily and in willful disregard of the rights of the companies.

Third. That the railroad companies were denied a hearing before the board in relation to the assessments of their property, in utter disregard of the rights guarantied to them by the Constitution and laws of the United States and state of Arkansas.

Fourth. That the meeting of the board at which the assessments were made on all the railroad and bridge companies of the state, to the number of 58, lasted only a half an hour, and the assessments were made 1!pon resolutions introduced by two of the members, which read as follows:

"Resolved, that the Board of Railroad Assessment of Arkansas, after consideration of the former assessments of the railroad property operated in this state, has reached the conclusion that the present prosperous condition of the country, which has enhanced the value of railroad property, will justify a reasonable rise of the assessment of all leading lines of railway, and to this end the following valuation is fixed upon the mileage of the railroads enumerated in the list hereto attached, and the Secretary of State is ordered and directed to certify out to the various counties of the state the proportionate assessment based upon the figures here given."

To which resolution was attached a list of 58 railroad and bridge companies, opposite each of which was indicated its alleged former assessment and the assessment proposed by said resolution. By the proposed resolution the valuation was raised about 3373 per cent, above what it had been assessed the year before.

Immediately after that resolution was introduced, another member of the board introduced the following resolution:

"Be it resolved by the Board of Railroad Assessment, that inasmuch as (naming several roads] have become trunk lines, and their earnings have greatly increased in value, and believing that these properties in justice should be raised to a level equal to the present assessment of the Iron Mountain Railroad, I therefore move that the assessment of said roads be raised, and that a general increase of assessment for taxation on all the roads, express, telegraph and sleeping car companies in this state be raised to a general level twenty per cent. above their past assessments. In my opinion, this is but just, in view of the present great prosperity of these roads, and right, and should be done. That the Secretary of State is hereby directed to certify to the clerks in the different counties through which these roads run the assessments as above made."

The last resolution was adopted, and assessments made on the roads in conformity therewith.

Fifth. That these assessments were very much in excess of the assessments made on other property in the state, although the Constitution of the state of Arkansas provides that all property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct; making the same equal and uniform throughout the state.

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It is further alleged that the uniform rule throughout the state is to assess property, for the purpose of taxation, at about 40 per cent. of its real value, but that the valuation placed upon the property of the railroads by said board was practically its full value, and therefore much higher than other property in the state is assessed.

An injunction was prayed to restrain the board from certifying the assessments thus made by it to the clerks of the various counties through which the railroads run.

In the bills filed in 1904 the material allegations are that the board, at its meeting, assessed the railroad property at a much higher valuation than it had been assessed before; that it was made arbitrarily and in willful disregard of their rights, and for the fraudulent purpose of increasing the assessment, without reference to the value of its property for the purpose of taxation. It was charged that the property was assessed at more than its actual cash value, although other property in the state is uniformly assessed at the rate of 40 to 50 per cent. of its actual value; that the board, in arriving at the value of the railroads, undertook to value the entire railroad mileage of the roads, a very large part of which, and the most valuable part of it, is in other states, the roads being engaged in interstate transportation; that the board considered all the bonds and stocks of the entire railroad system, and apportioned it according to the mileage in this state as compared with the entire mileage of the system, regardless of the fact that a very large part of the property of the corporations was in other states, and was much more valuable than the part situated in this state, and that a very large part of the property of the railroad companies which was held in other states consisted of bonds and stocks of other railroads, which had been duly taxed by the proper authorities of the states where it was situated. They therefore prayed for injunctions as in the bills filed in 1903.

In the bills for both years the companies offered to pay taxes on a legal assessment, according to the values which controlled the assessment of all other property in the state.

The court granted temporary injunctions to restrain the defendants from certifying the assessments made by them in the years 1903 and 1904, respectively, but upon condition that the railroads pay the taxes on the assessments made by the board in 1902, which they admitted to be fair, and permitted the board to certify to the clerks of the various counties in which the property is situated the assessments made for the vear 1902 as the basis upon which the roads should pay taxes until the final determination of these proceedings.

The cases have been pending in this court ever since, and now the Board of Railroad Commissioners have come into court, showing that at a meeting held by the board in pursuance of a call made by the Governor on the 29th day of March, 1905, for the purpose of compromising these suits, they made new assessments for the years 1903 and 1904 of the railroad property of the companies in this state, whereby a reasonable deduction was made, and the property assessed at certain sums, set out in the certified copy of their proceedings, and asking that the same be made a part of the record of the cases pending in this court: that the action of the board be approved by the court, and, with the con

sent of the railroad companies, the complainants in the several actions, decrees be entered permitting the Secretary of State to certify to the clerks of the counties in which the property is situated these new assessments. The railroad companies appeared in court and consented that such decrees may be entered, and further agreed to pay the taxes on these new assessments, less the amounts paid by them on the assessments certified to the clerks of the counties under the terms of the orders of injunction granted in 1903 and 1904.

The Attorney General of the state asks leave to file an intervention on behalf of the state of Arkansas, and that the state be made a party defendant; protesting against any consent decrees or any action by the court permitting the assessments made by the board on the 29th day of March, 1905, to be considered. In his petition he charges that the board has no such power; that, when it made its assessments in the years 1903 and 1904, it exhausted its powers, and that thereafter it had no control or authority whatever over the matter; that the members of the board are only nominally defendants, but that the state is the real party in interest, and the only party concerned or to be affected by the result of this litigation. He further alleges that the assessments made during the years 1903 and 1904 are proper assessments, and were neither too high, nor in any manner illegal, but that, if they were too high, or if any injustice has been done to the railroad companies by reason of any unlawful acts of the board at that time, the court could determine it by its final decree at the hearing, but that no other body or board has any power to make any changes in the former assessments; and for this reason he objects, on behalf of the state, to any decree, except upon the evidence which may be taken by the parties to the action, and the state in its own behalf. Objections are made to the filing of this intervention on behalf of the complainants, as well as the Board of Railroad Commissioners, the defendants herein.

The Constitution of the state provides that the Attorney General shall perform such duties as may be prescribed by law. Article 6, § 22, Const. Ark. We must therefore turn to the statutes of the state to ascertain what duties the Legislature has seen proper to impose on that officer. Chapter 62, art. 6, of Kirby's Digest, defines his duties; and a careful reading will show that the only authority he possesses to represent the state in any court other than the Supreme Court is in quo warranto proceedings and actions to prosecute suits against officers indebted to the state by reason of moneys collected and not accounted for. By special acts he is also authorized to appear for the state in actions to recover back taxes, in anti-trust cases, and some others; but counsel has failed to call our attention to any statute, nor has the court been able to find any, making it the duty of the Attorney General, or authorizing him, to appear in trial courts on behalf of the officers of the state in proceedings of this nature. In the absence of a statute authorizing him to act or appear for the state, the Attorney General is powerless to do so. A., T. & S. F. R. R. v. People, 5 Colo. 63.

Section 7182 of Kirby's Digest provides:

"Whenever a cause has been or may hereafter be brought against any person holding the office of county collector, county assessor or clerk of the county court for performing or attempting to perform any duty or thing authorized

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