countles of the state, were during these years worth and valued at the sum of $41,967.54. The tax levied on the company by the law of March 8, 1888, under the name of privilege tax, amounted annually to $391.28, or an aggregate for the two years of $782.56. Under the general revenue laws of the state the ad valorem tax on the property of the company for the two years would have been $1,188.56 for state and county purposes only, not including what might have been assessed and collected by municipalities in the way of ad valorem taxes for municipal purposes. For the years 1890 and 1891 the company failed to pay its taxes, and Adams, the state revenue agent of the state of Mississippi, brought suit in the circuit court of Hinds county, August 16, 1892, against the company therefor. The first count of the declaration was for the privilege taxes and the second count for ad valorem taxes in the several counties, which it was alleged had been duly levied for state and county purposes. The company demurred to the second count and pleaded specially to the first count, in substance, and, so far as essential here, that it was a telegraph company duly incorporated and organized under the laws of the state of New York, and was on the 1st days of January, 1890, 1891, and 1892, respectively, engaged in, and still continued to carry on, the business of a telegraph company, having offices in various cities and towns in the state of Mississippi for the purpose of receiving and sending telegraphic messages and maintaining and operating certain lines of telegraph on the various post roads, public roads, and railroads extending over, across, leading into and from the state of Mississippi to the state of Alabama, and other points in other states of the United States and the dominion of Canada; that it was also the lessee of the Atlantic Postal Telegraph Cable Company, a corporation duly organized under the laws of the state of New York, and by its charter authorized to construct and operate lines of telegraph in and between the various states of the Union, including the state of Mississippi; that as such lessee and owner it was engaged in the general public telegraph business of transmitting messages for commercial purposes by, along, and over its lines within, from, through, and across the state of Mississippi and many other states and territories of the Union, and had offices for the receiving and sending of messages by telegraph in each and every state and territory wherein the lines leased or owned by it extended, including the state of Mississippi; that on or about the 6th day of March, 1886, the company duly filed its written acceptance with the postmaster general of the United States of the restrictions and obligations of the act of congress entitled, "An act to aid in the construction of telegraph lines and to secure to the government the use of the same for postal, military, and other purposes," approved July 24, 1866, now title 65 of the United States Revised Statutes, and that in pursuance thereof it had been des

ignated by the postmaster general as one of the telegraph companies that must transmit messages for the United States at a price and rate to be fixed by the said postmaster general; that defendant was engaged as a governmental agent of the United States, at the times mentioned, in transmitting messages for the government of the United States between its various offices, not only from points within the state of Mississippi to points without the state of Mississippi, but also for such government officers from points wholly with. in the state of Mississippi to other points also wholly within the state of Mississippi; and that all of the roads upon which the lines of said company were constructed were post roads of the United States.

Plaintiff demurred to the special pleas. The case came on to be heard upon these demurrers, and the circuit court sustained defendant's demurrer to the second count, and plaintiff's demurrer to defendant's pleas to the first count, with leave to defendant to plead over. This, defendant declined to do, and judgment was thereupon entered against the company for the amount of the so-called "privilege taxes" for the years 1890 and 1891, with interest and costs. From this judgment an appeal was taken to the supreme court of Mississippi, and the judgment affirmed. The opinion of that court will be found reported in advance of the official series in 14 South. 36. A writ of error was then allowed to this court.

T. Moultrie Mordecal and P. H. Gadsden, for plaintiff in error. Marcellus Green, for defendant in error.

* Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

It is settled that where, by way of duties, laid on the transportation of the subjects of interstate commerce, or on the receipts derived therefrom, or on the occupation or business of carrying it on, a tax is levied by a state on interstate commerce, such taxation amounts to a regulation of such commerce, and cannot be sustained. But property in a state belonging to a corporation, whether foreign or domestic, engaged in foreign or interstate commerce, may be taxed, or a tax may be imposed on the corporation on account of its property within a state, and may take the form of a tax for the privilege of exercising its franchises within the state, if the ascertainment of the amount is made dependent in fact on the value of its property situated within the state (the exaction, therefore, not being susceptible of exceeding the sum which might be leviable directly thereon), and if payment be not made a condition precedent to the right to carry on the business, but its enforcement left to the ordinary means devised for the collection of taxes The corporation is thus made to bear its proper proportion of the burdens of the govern. ment under whose protection it conducts its

695

operations, while interstate commerce is not In itself subjected to restraint or impediment. As pointed out by Mr. Justice Field in Horn Silver Min. Co. v. New York, 143 U. S. 305, 12 Sup. Ct. 403, the right of a state to tax the franchise or privilege of being a corporation as personal property has been repeatedly recognized by this court, and this whether the corporation be domestic or a foreign corporation doing business by its permission within the state. But a state cannot exclude from its limits a corporation engaged in interstate or foreign commerce, or a corporation in the employment of the general government, either directly in terms or indirectly by the imposition of inadmissible conditions. Nevertheless the state may subject it to such property taxation as only incidentally affects its occupation, as all business, whether of individuals or corporations, is affected by common governmental burdens. Ashley v. Ryan, 153 U. S. 436, 14 Sup. Ct. 865, and cases cited.

Doubtless no state could add to the taxation of property according to the rule of ordinary property taxation the burden of a license or other tax on the privilege of using, constructing, or operating an instrumentality of interstate or international commerce, or for the carrying on of such commerce; but the value of property results from the use to which it is put, and varies with the profita. bleness of that use, and by whatever name the exaction may be called, if it amounts to no more than the ordinary tax upon proper ty, or a just equivalent therefor, ascertained by reference thereto, it is not open to attack as inconsistent with the constitution. road Co. v. Backus, 154 U. S. 439, 445, 14 Sup. Ct. 1122.

Rail

The method of taxation by "a tax on privileges" has been determined by the supreme court of Mississippi to be in harmony with the constitution of that state, and that, "where the particular arrangement of taxation provided by legislative wisdom may be accounted for on the assumption of compounding or commuting for a just equivalent, according to the determination of the legislature, in the general scheme of taxation, it will not be condemned by the courts as violative of the [state] constitution." Bank v. Worrell, 67 Miss. 47, 7 South. 219. In that case privilege taxes imposed on banks of deposit or discount, which varied with the amount of capital stock or assets, and were declared to be "in lieu of all other taxes, state, county, or municipal, upon the shares and assets of said banks," came under review, and it was decided that the privilege tax, to be effectual as a release from liability for all other taxes, must be measured by the capital stock and entire assets or wealth of the bank, and that real estate bought with funds of the bank was exempt from the ordinary ad valorem taxes, but was part of the assets of the bank to be considered in fixing the basis of its privilege tax.

And in the case at bar the supreme court, in its examination of the liability of plaintiff in error for the taxes in question, said: "It will be thus seen at once that this is a tax imposed upon a telegraph company, in lieu of all others, as a privilege tax, and its amount is graduated according to the amount and value of the property measured by miles. It is to be noticed that it is in lieu of all other taxes, state, county, municipal. The reasonableness of the imposition appears in the record, as shown by the second count of the declaration and its exhibits, whereby the appellant seems to be burdened in this way with a tax much less than that which would be produced if its property had been subjected to a single ad valorem tax." This exposition of the statute brings it within the rule where ad valorem taxes are compounded or commuted for a just equivalent, determined by reference to the amount and value of the property. Being thus brought within the rule, the tax becomes substantially a mere tax on property, and not one imposed on the privilege of doing interstate business. The substance, and not the shadow, determines the validity of the exercise of the power.

The act, in prescribing the ascertainment of the charge as to telegraph companies operating less than 1,000 miles of wire, was directed to reach a reasonable commutation of the amount which the company would be compelled to pay if the taxation were ad valorem. The taxation was neither arbitrary nor discriminating, nor, so far as we are advised, was payment made a condition precedent to doing business, but collection was enforceable by suit, and the remedies pertaining thereto, and not otherwise. Code Miss. 1880, §§ 585, 587-589, 594.

We concur with the view of the act thus expressed by the supreme court of the state, and, accepting it as correct, it is obvious that the case does not fall within the line of decisions in which state laws have been held inoperative because in conflict with, or amounting to the exercise of, or the assertion of control over, a power vested exclusively in the United States. In those decisions the interference with the commercial power was found to be direct, and not the mere incidental effect of the requirement of the usual proportional contribution to public maintenance.

869.

They need not be re-examined here, as the taxation in question, according to the proper interpretation of the statute, is in principle such as was sustained in W. U. Tel. Co. v. Attorney General of Massachusetts, 125 U. S. 530, 8 Sup. Ct. 961; Ratterman v. Telegraph Co., 127 U. S. 411, 8 Sup. Ct. 1127; Pullman's Palace-Car Co. v. Pennsylvania, 141 U. S. 18, 11 Sup. Ct. 876; Massachusetts v. W. U. Tel. Co., 141 U. S. 40, 11 Sup. Ct.• 889; Maine v. Grand Trunk Ry. Co., 142 U. S. 217, 12 Sup. Ct. 121, 163.

In Massachusetts v. W. U. Tel. Co., it was beld that the tax imposed by the statutes o

value of 186.SS0 acres of land in Texas, from February 5, 1890, at 8 cents per acre. The allegation of the petition was that defendant permitted large herds of his cattle and horses to graze upon plaintiff's lands, and used them for pasturage for other cattle, for which he received hire.

The evidence showed that Phelps was the owner in fee simple of 149,716 acres of land, situated in four different counties in Texas. The land was in sections of 640 acres each, alternating with like sections owned by the public school fund of Texas, plaintiff owning the odd-numbered and the fund owning the even-numbered sections. In July, 1887, defendant, Lazarus, rented from the state, for four years from that date, the alternate sections of land so owned by it. Prior to the time of Lazarus' lease, Phelps had a much larger quantity of land, but before the trial had sold 30,000 acres.

Plaintiff's lands had been rented to Curtis and Atkinson upon a lease which expired on April 15, 1887. Curtis and Atkinson built wire fences around the land, or a greater portion of it, inclosing both the lands owned by the plaintiff and those owned by the state, which were subsequently leased to defendant. The fence was partly upon plaintiff's land, and partly upon the school land. Phelps had no cattle within the inclosure, but the settlers, some 150 in number, had about 3,000 head of cattle running at large, and mingling with defendant's cattle. Defendant had within the inclosure a number of cattle estimated by the witnesses at 10,500 head.

*Plaintiff introduced testimony, which was objected to, showing that on September 17, 1888, he had instituted a suit similar to this one against the defendant, and on February 5, 1890, recovered a judgment for the use and occupation of the land to that date. Plaintiff's evidence tended to show that the land had been stocked to its full capacity. Defendant's evidence tended to prove the contrary. Plaintiff also offered evidence showing the value of the land for grazing purposes, during the time covered by this suit, to bave been 4 cents per acre per annum, or $5,988.14. The trial resulted in a verdict and judgment for plaintiff in the sum of $5,460.32. Defendant thereupon sued out this writ

of error.

F. C. Dillard, for plaintiff in error. Leigh Robinson, for defendant in error.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

A similar case between the same parties was before this court, and is reported in 152 U. S. 81, 14 Sup. Ct. 477. In that case the tental value of the same lands from April 15, 1887, to February 5, 1890, was recovered, and the judgment sustained by this court.

1. The first error assigned is to the intro

duction of the record of that case. The proof was that on September 17, 1888, plaintiff in-* stituted a suit in the same court, upon a petition containing allegations similar to those in this case, against the defendant, for the use of the land after the expiration of the Curtis and Atkinson lease, and in such suit recovered judgment for the use and occupa tion of said lands up to February 5, 1890, in the sum of $8,417. This evidence was offered to establish the fact that defendant did have exclusive possession of said land as charged by plaintiff, and to show that plaintiff had claimed for the use and value of his land from the time of the original occupation of the same by the defendant.

If this had been a mere action of trespass on lands, although the trespass was a continuous one, it might well be said that proof that certain trespasses were committed upon divers days and times before a certain date had no legal tendency to prove that the same trespasses continued beyond that date. But the petition in that case, which is admitted by the bill of exceptions to have been similar to the one filed in the case under consideration, averred not only that defendant, without lawful authority and by force of arms, entered upon such lands, and pastured his cattle there, but that during the whole of said time he converted the said land to his own use, and appropriated and took to himself all its benefits; that, at the expiration of the lease to Curtis and Atkinson, the said Lazarus, defendant, purchased all the cattle of the said Curtis and Atkinson, which were then running upon the said lands; that defendant, instead of surrendering said lands to the said plaintiff, as the said Curtis and Atkinson were bound to do, maintained possession thereof, and has since maintained the fence around the whole of said lands, excluding others and the cattle of others therefrom, and "has held, and is now holding, the exclusive possession of the same to his own use and benefit." In other words, the basis of the petition was not only the depasture of these lands, but the exclusive use and occupation of the same. The verdict and judg ment in that case settled the fact that the defendant was in the use and occupation of said lands up to February 5, 1890, and, in the absence of evidence to the contrary, such possession would be presumed to continue after that date. Possession of real property once proven to exist is presumed to continue. Brown v. King, 5 Metc. (Mass.) 173; Gray v. Finch, 23 Conn. 495; Currier v. Gale, 9 Allen, 522; Smith v. Hardy, 36 Wis. 417; Bayard v. Colefax, 4 Wash. C. C. 38, Fed. Cas. No. 1,130. As the evidence was offered to establish exclusive possession in the defendant, we think the record of the former judgment was competent.

2. Exception was also taken to the charge of the court that if the jury believed from the evidence that since February 5, 1890, the defendant had possession of the lands of the

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plaintiff within said inclosure, and claimed and exercised the exclusive use and enjoyment of plaintiff's lands for grazing purposes, and attempted to exclude others therefrom, either by maintaining fences or line riding, or by force through his employés, or by any or all these means, then they should find for the plaintiff such sum as the evidence showed the reasonable value of the use and occupation of plaintiffs' lands so had by defendant for grazing purposes, from said 5th day of February, 1890, to the date of trial. Defendant excepted to this charge on the ground that an attempt to exclude strangers from the pasture would not render him liable, there being no attempt to exclude plaintiff or any one claiming under him.

Had all the lands within the inclosure belonged to the plaintiff, the action of the defendant in excluding others therefrom would have been evidence from which the jury might reasonably infer that defendant claimed the exclusive right of possession of the lands; but the argument is that, as the alternate sections had been leased by the defendant, he had a lawful right to exclude every one from the inclosure, so far as he had leased it, except the plaintiff or his lessees, and, as he could not exclude others from his own lands without also excluding them from the plaintiff's, the court erred in leaving this fact to the jury as an assertion of an exclusive right to the possession of plaintiff's lands. He had as much right as the plaintiff to exclude strangers from the inclosure, since in depasturing plaintiff's lands they would also depasture his own. But the decisive answer to this argument is that the proposition of the court was not laid down in the alternative, that is, that if the defendant exercised the exclusive use and enjoyment of the plaintiff's lands, or attempted to exclude others therefrom, he would be liable; but, after charging them that they must find an exclusive use and enjoyment of the lands by the defendant, the court added a further require ment, which appears to have been unnecessary, that they must also find that he had attempted to exclude others therefrom. Perhaps, however, all that was meant was to call the attention of the jury to this fact as tending to prove a claim of exclusive possession. The court evidently proceeded upon the theory that, under the pleadings in the case, the plaintiff could only recover by showing an exclusive use and enjoyment of his lands by the defendant, and that it was not enough simply to show that he had pastured certain of his cattle there, without also showing that he had stocked the lands to their full capacity. In this view, it was quite unnecessary to add the instruction that they must further find that he had attempted to exclude others therefrom; but this took nothing from what the court had previously charged, and was an instruction of which the plaintiff rather than the defendant had a right to complain. It added to the plaintiff's burden of v.15s.c.-18

showing an exclusive enjoyment of his lands that of showing the defendant had also attempted to exclude strangers. But it did not relieve him from the duty of showing such exclusive use and enjoyment. In other words, the defendant was not prejudiced by the error, and has no right to complain. Lancaster v. Collins, 115 U. S. 222, 6 Sup. Ct. 33.

3. In this connection, too, defendant requested the further charge that, where several persons own separate tracts of land in the same inclosure, each one has the right to place enough stock therein to consume the grass upon his part of the lands, and is not liable to the others therefor; but, if he places therein more stock than his part of the land will reasonably maintain, he will be liable to the other owners for the excess, and no more; and also that, if the jury believed from the evidence that plaintiff's grass was consumed by stock of defendant's and other persons, then defendant would only be liable, for the part consumed by his own stock, to be ascertained by apportioning the total damage in the proportion that the number of his stock bears to the total number doing the damage.

But, as already stated, the court put the whole liability of the defendant upon the theory that he had enjoyed the exclusive use and occupation of plaintiff's lands, and had stocked them to their full capacity. If this be so, and there was evidence to that effect,then, undoubtedly, plaintiff would be entitled to recover the entire rental value of the lands for grazing purposes. If it were not so, then, under the charge of the court, the plaintiff could recover nothing, though defendant may have pastured thousands of his cattle upon these lands. Whether the court was correct in its view that, under the pleadings, plaintiff could not recover for a partial depasturage of his lands, is quite immaterial; since, if the jury had found such partial depasturage, it would have been their duty, notwithstanding, to have returned a verdict for the defendant. In the opinion of the court, the whole obligation of the defendant rested upon the fact that he had stocked the plaintiff's lands to their full capacity, and had thus enjoyed their exclusive use and occupation. The charge requested was therefore irrelevant.

There was no error in the action of the court, and its judgment is therefore affirmed.

(156 U. S. 51)

SPARF et al. v. UNITED STATES.
(January 21, 1895.)
No. 613.

HOMICIDE-CONFESSIONS-OBJECTION TO EVIDENCE
ADMISSIBLE AS TO ONE DEFENDANT-PROV-
INCE OF COURT AND JURY.

1. The mere fact that one is confined under charge of a capital offense does not make his confession involuntary.

2. A general objection made on the joint trial of two persons for murder, by counsel rep