538, an action by the Interstate Commerce Commission, by petition for mandamus in the circuit court of the United States for the northern district of Ohio, against the Lake Shore & Michigan Southern Railroad Com

IN ERROR to the Circuit Court of the United States for the Eastern District of Kentucky to review a judgment sustain ing a demurrer to, and dismissing, the petition in an original action in mandamus to compel the return of a franchise tax col-pany, to compel it to file reports required lected under the authority of a state statute, on the ground that such tax was a burden on interstate commerce. Modified so as to show that the case was dismissed for want of jurisdiction, and, as so modified, affirmed. The facts are stated in the opinion. Mr. Shelley D. Rouse submitted the cause for plaintiff in error. Mr. Charlton B. Thompson was on the brief.

Mr. N. B. Hays submitted the cause for defendant in error. Messrs. John W. Ray and C. H. Morris were on the brief.

by the act to regulate interstate commerce
It was argued for the government that while
decisions of this court under the judiciary
act of 1789 (1 Stat. at L. 73, chap. 20) and
the act of 1875 (18 Stat. at L. 470, chap. 137,
U. S. Comp. Stat. 1901, p. 508) had been
construed to confer no original jurisdiction
in mandamus in the United States courts,
yet the act of March 3, 1887 (24 Stat. at L
552, chap. 373, U. S. Comp. Stat. 1901,
508), in view of the modern development in
proceedings by mandamus, should be held to
confer the jurisdiction upon the circuft

Mr. Justice Day delivered the opinion of courts to entertain original suits in manthe court:

In this case an original action in mandamus was begun in the circuit court of the United States for the eastern district of Kentucky. It was brought by the bridge company to compel the auditor of public accounts for the state to issue his warrant on the state treasury for the amount of a franchise tax collected under authority of §§ 4079 and 4080 of the Kentucky statutes. The return of the tax was asked upon the ground that it levied a burden on the interstate commerce business of the bridge company, pertaining exclusively to commerce between Kentucky and Ohio, and was therefore repugnant to the Federal Constitution.

The auditor appeared by counsel, and, by general demurrer, raised the question of the sufficiency of the allegations of the petition, and by special demurrer challenged the jurisdiction of the court to entertain the action. The circuit court, passing the question of jurisdiction, held that levying the tax in question did not violate the commerce clause of the Federal Constitution, as it was a tax upon property, and not upon the business of the company, sustained the general demurrer, and dismissed the petition. We are of opinion that the court below had no jurisdiction of this action. It has been too frequently decided in this court to require the citation of the cases that the circuit courts of the United States have no

jurisdiction in original cases of mandamus, and have only power to issue such writs in aid of their jurisdiction in cases already pending, wherein jurisdiction has been acquired by other means and by other process. [111] *Many of the cases are caollected in 4 Fed. Stat. Annotated, 503.

The question was before this court recently in Knapp v. Lake Shore & M. S. R. Co. 197 U. S. 536, 49 L. ed. 870, 25 Sup. Ct. Rep.

damus. The contention was rejected and the prior cases adhered to.

We deem it settled beyond controversy, until Congress shall otherwise provide, that circuit courts of the United States have no power to issue a writ of mandamus in an original action brought for the purpose of securing relief by the writ, and this result is not changed because the relief sought concerns an alleged right secured by the Constitution of the United States.

It follows that the circuit court should have dismissed the case for want of jurisdiction instead of determining it upon the merits. The judgment dismissing the petition is therefore modified so as to show that the case was dismissed for want of jurisdiction, and, as thus modified, the judgment is affirmed.

*COUNTY COMMISSIONERS OF WICC MICO COUNTY

V.

SAMUEL BANCROFT, JR.
NCROFT,

(See S. C. Reporter's ed. 112–119.) Courts-following decisions of state courts. 1. Whether a repealable exemption from NOTE. As to state decisions and laws as rules of decision in Federal courts-see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553; Griffin v. Overman Wheel Co. 9 C. C. A. 548; Elmendorf v. Taylor, 6 L. ed. U. S. 290; Jackson ex dem. St. John v. Chew, 6 L. ed. U. S. 583; United

States ex rel. Butz v. Muscatine, 19 L. ed. U.
S. 490; Clark v. Graham, 5 L. ed. U. S. 334;
Forepaugh v. Delaware, L. & W. R. Co. 5
L.R.A. 508; and Mitchell v. Burlington, 18
L. ed. U. S. 351.

On repeal of statutes by implicationsee notes to State v. Massey, 4 L.R.A. 309; First Nat. Bank v. Weidenbeck, 38 C. C. A. 136; and United States v. 356 Caddies of Tobacco, 20 L. ed. U. S. 235.

state taxation has been in fact repealed by a subsequent state statute is a question of state law, upon which the decisions of the highest courts of the state, in the absence of any contract rights, are binding on the Federal courts.

Taxes-exemption-repeal.

Mr. Nicholas P. Bond submitted the cause for respondent. Messrs. Ralph Robinson and Edward Duffy were on the brief:

The organization of the Baltimore, Chesapeake, & Atlantic Railway Company and the contracts between the railway and its 2. The withdrawal of a repealable exbondholders had been entered into, and the emption from state taxation of the prop rights of the bondholders thereon and ariserty of a reorganized railway company, ifing therefrom, had accrued, at a time when any such exemption existed, was effected by Md. Acts 1896, chap. 120, which directs a new assessment for taxation of the property in the state, and expressly declares that the property of every railroad shall be assessed for county and municipal purposes, and contains a proviso that nothing therein contained shall be held to discharge, release, or impair any irrepealable contract or obligation then existing, which sufficiently evidences the legislative intent to repeal exemptions from taxation which were not protected by binding contracts beyond legislative control, and to bring all property within the taxing power of the state.

[No. 129.]

the decisions in question had not been made. It is, we submit, the right of a complainant, under this state of facts, to have the independent judgment of this court upon his rights. It is to that very end that the courts of the United States are given authority to administer the laws of the state in controversies between citizens of different states.

Mercantile Trust Co. v. Texas & P. R. Co. 51 Fed. 536.

We fully admit the doctrine that where a state statute has been construed, or a rule of property established, at the time a transaction is entered into, or rights accrued, such construction or rule will bind the parties as

Argued and submitted October 9, 1906. De- fully as though written into the transac

ON

cided November 5, 1906.

N WRIT of Certiorari to the Circuit Court of Appeals for the Fourth Circuit to review a decree which affirmed a decree of the Circuit Court for the District of Maryland, enjoining state taxation of certain railway property. Reversed and remanded to the Circuit Court with directions to dismiss the bill.

See same case below, 70 C. C. A. 287, 135 Fed. 977.

The facts are stated in the opinion. Mr. James E. Ellegood argued the cause and filed a brief for petitioners:

Is not the rule of construction adopted by the court of appeals of Maryland the rule of construction for this court?

Commercial Bank v. Buckingham, 5 How. 342, 12 L. ed. 181; Baltimore & P. R. Co. v. Hopkins, 130 U. S. 223, 32 L. ed. 913, 9 Sup. Ct. Rep. 503; Central Land Co. v. Laidley, 159 U. S. 110, 40 L. ed. 94, 16 Sup. Ct. Rep. 80; State Railroad Tax Cases, 92 U. S. 575617, 23 L. ed. 663–674; Fairfield v. Gallatin County, 100 U. S. 47, 25 L. ed. 544; Wilson v. Standefer, 184 U. S. 412, 46 L. ed. 618, 22 Sup. Ct. Rep. 384; Gulf & S. I. R. Co. v. Hewes, 183 U. S. 68, 46 L. ed. 87, 22 Sup. Ct. Rep. 26.

The repugnancy between the exemption in the statute, and the statute which was intended as a revision of the laws upon the subject of taxation, repeals the exemption. Columbia Mfg. Co. v. Vanderpoel, 4 Cow. 556; State v. Northern C. R. Co. 90 Md. 472, 45 Atl. 465, 187 U. S. 266, 47 L. ed. 170, 23 Sup. Ct. Rep. 02.

tion; but, where no such construction was then in force, we are entitled to have this statute construed by the independent judgment of this court.

Burgess v. Seligman, 107 U. S. 20, 27 L. ed. 359, 2 Sup. Ct. Rep. 10; Carroll County v. Smith, 111 U. S. 556, 28 L. ed. 517, 4 Sup. Ct. Rep. 539; Anderson v. Santa Anna Twp. 116 U. S. 356, 29 L. ed. 633, 6 Sup. Ct. Rep. 413.

This respondent is entitled to have his rights determined according to the law as it existed on September 1, 1894, at which time the rights of bondholders accrued.

Louisville Trust Co. v. Cincinnati, 22 C. C. A. 334, 47 U. S. App. 36, 76 Fed. 296.

The part of § 2, chap. 120, of the Acts of 1896, relied upon by the petitioners to show a clear intention on the part of the legislature to repeal the exemption conferred by the act of 1886, chap. 133, is not sufficient for that purpose.

1st. Because this language is no broader than that to be found in § 155 of art. 81, which was in force at the time the exemption secured by chapter 133 of the Acts of 1886 was granted the Baltimore & Eastern Shore Railroad Company, and, in so far as it can be held to imply a repeal of this exemption, is copied word for word from 155.

2d. Because this part of § 2 of chap. 120 of the Acts of 1896 is unconstitutional, being an attempt to incorporate into an amendment of § 2 a distinct section of article 81, which is not named in the title of the act

Davis v. State, 7 Md. 151, 61 Am. Dec. 331; Stiefel v. Maryland Inst. 61 Md. 144.

When there is an express repeal from an existing statute and a re-enactment of it at the same time, or a repeal or re-enact-way company. Upon appeal to the circuit ment of a portion of it, the re-enactment neutralizes the repeal so far as the old law is continued in force. It operates without interruption where the re-enactment takes effect at the same time.

Notwithstanding this decision of the cir

or out of this state, for the purpose of car-
rying on their business, and any other rail-cuit court of appeals, it is now conceded in
road company in this state shall have the
right to lease or sell its railroad or other
property to the said Baltimore & Eastern
Shore Railroad Company."

the brief of the respondent's counsel, so far
as this argument is concerned, that there
was no binding contract upon the state en-
titled to protection under the Federal Con-
The Baltimore & Eastern Shore Railroad stitution (article 1, § 10) against state im-
Company accepted the provisions of the act pairment of the obligation of the contract.
and completed the construction of its road In view of the provisions of the Maryland
between the termini named in August, 1891. Constitution this concession would seem in
In June, 1890, it purchased the property of harmony with the right reserved in that in-
[126]the *Wicomico & Pocomoke Railroad Com-strument to amend, repeal, and alter char-
pany, extending from Salisbury to Ocean ters. Northern C. R. Co. v. Maryland, 187
City. Afterwards, the Baltimore & Eastern U. S. 258, 47 L. ed. 167, 23 Sup. C. Rep. 62.
Shore Railroad Company mortgaged the en- And see Wisconsin & M. R. Co. v. Powers,
tire property to secure $1,600,000 of mort- 191 U. S. 379, 48 L. ed. 229, 24 Sup. Ct. Rep.
gage bonds. This mortgage was foreclosed 107. But it is insisted, conceding that the
in 1894, and the purchaser proceeded to or- exemption from taxation was merely a
ganize a new corporation-the Baltimore, bounty or gratuity, it extended to the reor-
Chesapeake, & Atlantic Railway Company-ganized company by force of the Maryland
the respondent becoming the holder of some
of its mortgage bonds. This reorganization
was under § 187 and 188 of art. 23, Mary-
land Code of 1888, which provides as
follows:

Section 187, that in case of the sale of any railroad under foreclosure of mortgage, the purchaser may form a corporation for the purpose of owning, possessing, maintaining, and operating such railroad, by filing in the office of the secretary of state a certificate, of the name and style of such corporation, the number of directors, etc.

statutes above quoted, and has never been
repealed nor withdrawn by the state, and,
therefore, the bondholder, being directly in-
terested in the property, has a right to be
protected by injunction against the levying
of such taxes so long as the act remains in
force.

The questions arising in this case, as to
the construction and force of the acts of the
legislature of the state, have been before the
supreme court of Maryland in three cases:
Baltimore, C. & A. R. Co. v. Ocean City, 89
Md. 89, 42 Atl. 922; Baltimore C. & A. R.
"Sec. 188. Such corporation shall possess Co. v. Wicomico County, 93 Md. 113, 48 Atl.
all the powers, rights, immunities, privi-853; and Baltimore, C. & A. R. Co. v. Wico-
leges, and franchises in respect to such rail-mico County, 63 Atl. 678. In these cases it
road, or the part thereof included in such
certificate, and in respect to the real and
personal property appertaining to the same,
which were possessed or enjoyed by the cor-
poration which owned or held such railroad
previous to such sale under or by virtue of
its charter, and any amendments thereto,
and of [any] other laws of this state," etc.
Under authority of the Maryland statutes
the Baltimore, Chesapeake, & Atlantic Rail-
way Company issued the mortgage bonds of
which respondent is the holder. The county
commissioners of Wicomico county have
levied and assessed taxes upon the railroad
company's property, and threatened to sell
the same for nonpayment thereof. The cir-
cuit court held, and the circuit court of ap-
peals affirmed the judgment, that §§ 187
and 188 of the Maryland Code, extending
immunities to the new company, had the ef-
fect to exempt from taxation certain proper-
ty of the reorganized company, and that the
exemption constituted a contract between
the state and the company entitled to pro-to this court is rested upon the proposition
[287]tection under the contract clause of the Fed-
eral Constitution, against the subsequent at-
tempt of the county commissioners to levy
taxes upon the property.

was held that the exemption from taxation
provided for by the laws above quoted did
not extend to the reorganized company, and
in the last case, decided March 27, 1906, since
the decision in the circuit court of appeals,
it was held that the general assessment law
of 1896 (Acts of 1896, chap. 120) declaring
that the property of every railroad should be
assessed for county and municipal purposes,
and providing that nothing in the act[116]
should discharge or release any irrepealable
contract or obligation existing at the date of
the passage of the act, amounted to a recall
of the immunity granted by the former law,
which had at all times been subject to re-
peal by the state, and that, conceding the
immunity extended to the reorganized com-
pany under § 187 of the statute, the repeal
of the exemption did not violate any con-
tract with the state, entitled to the protec-
tion of the Federal Constitution.

As we have said, the argument addressed

that the subsequent law of 1896, imposing taxes upon the property of the railroad company in general terms, did not repeal prior legislation, which, properly construed, gives

the privilege of exemption from taxation to discharge, release, impair, or affect any irre-
the property of the reorganized railroad | pealable contract or obligation of any kind
company. We, therefore, are to consider a whatsoever existing at the date of the pas-
case wherein there is no contention that a sage of the act. This proviso evidences the
valid and binding contract has been impaired legislative intent to repeal exemptions from
by state action, and the questions are as to taxation which were not protected by bind
the proper construction of the statute, and ing contracts beyond legislative control, if
whether a repealable exemption from taxa- any such existed, and to bring all property
tion has been withdrawn by subsequent within the taxing power of the state. We
legislation of the state.
agree with the reasoning expressed by the
court of appeals of Maryland upon this
branch of the case. Baltimore, C. & A. R.

Co. v. Wicomico County, 63 Atl. 683.

From this view it follows that the decree

of the Circuit Court of Appeals must be re

versed and the cause remanded to the Cir

cuit Court with directions to dismiss the

bill.

*CHARLES M. TAYLOR, Appt.,

V.

S. R. Kauffman.

(See S. C. Reporter's ed. 120-126.)

Deeds-what constitutes.

Previous decisions of this court have settled the proposition that whether such exemption has been in fact repealed by a subsequent state statute is a question of state law in which the decisions of the highest courts of the state, in the absence of a contract, are binding; and that it is only where the exemption is irrepealable, thus constituting a contract, that it becomes the duty of this court to decide for itself whether the subsequent act did or did not impair the obligation of the contract. Gulf & S. I. R. Co. v. Hewes, 183 U. S. 66-74, 46 L. ed. 86-90, THOMAS BURNS, John A. Duncan, and 22 Sup. Ct. Rep. 26; Northern C. R. Co. v. Maryland, 187 U. S. 258, 266, 267, 47 L. ed. 167, 170, 172, 23 Sup. Ct. Rep. 62. It is contended, however, that inasmuch as the respondent acquired his bonds in 1896, | which were issued in 1894, at a time when none of the Maryland decisions above referred to had been made, the first of them being in 1899, the construction of the statutes and their continued force are questions for the Federal courts having jurisdiction of the cause and the parties. And further, [119] that while the Federal tribunals will differ reluctantly from the state courts upon a question of the validity of state statutes, and will "lean towards an agreement of views with the state courts," nevertheless, they must in such cases exercise an independent judgment in determining the force and validity of state statutes. Burgess V. Seligman, 107 U. S. 20, 23, 27 L. ed. 359, 361, Sup. Ct. Rep. 10; Great Southern Fire Proof Hotel Co. v. Jones, 193 U. S. 532, 48 L. ed. 778, 24 Sup. Ct. Rep. 576, and cases cited in the opinion in that case.

1. No transfer of title was effected by an instrument which recites that the party of the first part "sells" certain mining claims to the party of the second part for a and consideration following," and which, in specified consideration, and "upon the terms its subsequent provisions, authorizes the party of the second part to sell and negoti ate the mines for any sum above $45,000, and retain out of the purchase price seven eighths of the excess, the party of the first part agreeing to execute any conveyance thereafter necessary to convey a good title, and the party of the second part assuming no obligations except a general one by which both parties mutually agree to aid each other in the negotiation and sale; such document is not a deed, but simply a power of attorney, and, as such, subject to revocation.

Power of attorney-revocation.

2. An interest in the property upon which the power is to operate, and not merely an interest in the exercise of the power, is essential to make a power of attorney one coupled with an interest, so as not to be subject to revocation.

If we could concede the soundness of this contention, we are of opinion that the court of appeals of Maryland was right in holding that the legislation of 1896 (Acts of 1896, chap. 120), directing a new assessment of the property of the state, and expressly declaring that the property of every railroad in the state should be valued and assessed Submitted October 16, 1906. Decided No for county and municipal purposes, had the effect to withdraw the prior exemption from

taxation if a proper construction of the leg-A

islation of the state would extend it to the property of the reorganized company. The act contains the significant proviso that nothing therein contained shall be held to

[No. 28.]

vember 12, 1906.

PPEAL from the Supreme Court of the Territory of Arizona to review a decree which affirmed a decree of the District Court for the County of Cochise, in that territory, in favor of defendants in a suit

[120]