FEDERAL REPORTER,
vol. 55.
for the purpose of removing the plant, and was under no contract' obljgation to render further financial assistance to the plaintiff to accomplish such removal, as the contract in express terms provides "that no payment in excess of $6,000 shall be called for or made until said plant shall have been removed from its present location to the buildings to he erected as hereinbefore mentioned." The defendant had expended more money than it agreed in the contract to expend. If a party has done all that could reasonably be expected of him to perform as to his part of an agreement, he certainly cannot be considered, in a court of equity, as having failed to meet his obligations, and as having afforded the other party a just excuse for nonperformance. This proposition of law is certainly correct as to the present case, where the plaintiff has not shown its independent ability and ready means to perform its obligations, and is seeking a specific performance of the contract. Had the court below' by decree ordered the defendant to pay all, or any part, of the balance of money mentioned in the contract before the removal of the plant by the plaintiff, such decree would have violated, instead of have justly enforced, the plain terms of the. contract of the parties. It appears from the evidence that the sum of four or five thousand dollars would be required to remove the plant as contemplated by the parties, and the plaintiff has not shown that it possessed the available means to meet this obligation, to be performed before it would be entitled to further pecuniary assistance from the defendant. Independent of the question of fact as to false and fraudulent representations which were principally considered in the court below, it seems. to us that the plaintiff's prayer for the relief of performance could have been properly denied upon the grounds lhat specific enforcement of the contract would have been unjust and oppressive to the defendant, and also that the fulfillment of the eontract on the part of the plaintiff could not have been secured by decree. As to the last contention mentioned in the opinion of the judge tn the court below, we deem it only necessary to use his approprin.te language: "A simple statement of the case is the strongest argament against tihe injustice of such a decree." The decree of the court below is affirmed, with costs.
I
PULL1.IAN'S P AI.ACE-OAR CO. v. BOARD OF ASSESSORS et at (Cire:uit Court, E. D. Louisiana. March 23, 1893.) No. 12,163.
1.
TAXATION-REMEDIES-BILvFOR INJUNCTION.
Acts La. 1890, No. 106, § 26, which requires that "all taxpayers in the parish of Orleans" shall app()ur before the board of assessors, and commence suit tOlT redress, only in the manner therein prescribed, applies only to. tllxpayers who desil'e ,claim that there has been error either in the description or valuation ot. the property assessed, and does not apply to
PULLMAN'S PALACE-CAR CO. V. BOARD OF ASSESSORS.
207
those taxpayers who complain of errof in the proportion of the property assessed, the description and valuation being conceded to be correct; and this last Class of taxpayers, without complying with section 26, may, by bill in equity, enjoin, the collection of taxes illegally assessed against it. 2. SAME-INTERSTATE COMMEUCE-SLEEPING CARS.
A foreign cOl'poration owning sleeping cars which are engaged in interstate traffic, and only come into the state for the purpose of receiving and discharging passengers, and for the purpose of having such minor repairs made as they casually require, is not Wholly exempt from taxation pnder the laws of the state, but may be assessed "in the ratio which the number of miles of the line within the state has to the total number of miles of the entire line," pursuant to Acts La. 1890, No. 106, § 29. The total value, employed in Louisiana, of the cars of a foreign sleepingcar company, was $100,000. An assessment was made against the company, in which the sum of $100,000 was inserted as the value of cars, etc., and the value to be taxed was placed in the column where cars, carriages, and vehiCles of all kinds were placed, and not in a column under the head of "trackage within this parish of railroads within this state, or partly within this state and another state." Held, that the company was assessed on the total value of the property employed within the state, and not "in the ratio which the number of miles of the line within the state has to the total number of miles of the entire line," as required by Acts La. 1890, No. 106, § 29, and that the assessment was invalid.
3.
SAME-FoREIGN SLEEPING· CAR COMPANy-ASSESSMENT.
In Equity. Bill to enjoin the collection of a tax alleged to have been illegally assessed against the Pullman's Palace-Car Company, of Illinois. Percy Roberts, for complainant. E. A. O'Sullivan and Richard Lyons, for respondents. BILLINGS, District Judge. This case is submitted on the bill of complaint, supplemental or amended bill, and agreed statment of facts and exhibits, upon an application for an injunction pendente lite. The bill is an injunction bill. By the bill and the agreed statement of facts it appears that the complainant is a corporation created under the laws of, and domiciled in, the state of Illinois, whose business it is to manufacture and lease out sleeping cars, etc., under contracts with various railroad corporations in the United States, Canada, and Mexico; that its property, consisting in sleeping cars to the value of $100,000, comes into the state of Louisiana and into the city of New Orleans, but solely for the purpose of receiving and discharging passengers, and for the purpose of having such minor repairs made as they may casually require, and immediately thereafter goes out of the state of Louisiana into other states of the Union, and is employed in the business of transportation of interstate passengers; that the complainant has no branch establishment in the state of Louisiana to carryon traffic, unless the fact that,under its contracts with the railroads, its tickets are placed for sale with the agents of the railroad, constitutes the offices of such railroads its branch establishments. The bill then avers that the state tax officers and those of the city of New Orleans have imposed, and are about to collect, a tax upon the full valuation of complainant's cars, as above given. In other words, the averment of the bill in this respect is that the tax has been
208
levied upon their cars as it woiild be upon real estate or other property permanently within the state of Louisiana, i. e. without con· sidering that it is property which is only occasionally within this stfl,te, for a brief period of time, and is constantly moving through many other states besides the state of Louisiana. There has been a tender made of the tax which would be due if the ratio or proportion of assessment had been observed as is prescribed in section 29 of Act No. 106 of the Acts of 1890, which section will be set out subsequently. The questions submitted by the complainant are (1) whether the complainant can be taxed at all; and (2) whether, if it can be taxed at all, it can be taxed except ratably and according to the proportion of the miles which its cars taxed traverse within this state, as compared with the number of miles which they traverse in this state and other states. Before considering these questions, I will consider the objection urged by the defendants to the bill on the ground that the complainant has not appealed to the assessors, nor commenced its suit as required by the revenue act of 1890, above referred to. 'l'he respondents rely upon section 26, p. 132, of said revenue act, as containing a provision which must defeat this suit. But that provision requires that taxpayers shall present their claims for the eorrection of errors in description or valuation. The objection in this case came from an error in neither of these particulars. The cars were eorrectly described, and the valuation was correct. The error consisted in assessing the complainant for the entire value, and not merely for that proportion of the value fixed by the statute. 'l'herefore the complainant was not required to ask within a given time to have the error corrected. I conclude, therefore, that the complainant is not debarred, by section 26, from maintaining this suit. As to the bill upon its merits. Section 29 of Act No. 106 of the Acts of 1890, under which this tax is levied, is as follows: "Sec. 29. Be it fmiher enacted," etc., "that the real estate, roadbeds, roads, iron, track, superstructures, excavations, and channels of railroads, canals, and other transportation or telegraph companies shall be assessed and taxed in the parish or lAssessment district where located; and all other property, not specially exempted from taxation by article 207 of the constitution, belonging to said railroads, canals," etc., "shall be assessed and at the domicile or principal office of said railroads, canals," etc., "as contemplated by article 245 of the constitution; but the rolling stock or movable prpperty of any railroad company, telegraph company, canal company, or. other transportation company, whose line lies partly within this state and partly within another state or states, or whose sleeping cars run over any line lying partly within this state or partly within another state or states, shall be assessed in this state in the ratio Which the number of miles of the line within :the state has to the total number of miles of the entire line."
I think this section compels the conclusion that the first ground taken by the complainant is not maintainable, and the second ground is well taken. This section provides that "any transportation company whose sleeping cars run over any line lying partly within this state or partly within another state or states shall be assessed in this state in the ratio which the number of miles of the line within the state has to the total number ofmiles()f the entire line." This
GARES V. NORTHWEST NAT. BUILDING, L. & 1. ASS'N.
209
is a provision for taxation which applies alike to resident and nonresident companies, and is therefore unlike the provision construed in Marye v. Baltimore & O. R. Co., 127 U. S. 117, 8 Sup. Ct. Rep. 1037. Since it is applicable to all companies, it does not violate the constitution, as being, in effect, an imposition upon the interstate commerce. It is also just and reasonable. Delaware Rail' road Tax Case, 18 Wall. 208; State Railroad Tax Cases, 92 U. S. 575, 607; W. U. Tel. Co. v. Attorney General, 125 U. S. 530, 8 Sup. Ct. Rep. 961; and Pullman Car Co. v. Pennsylvania, HI U. S. 18, 11 Sup. Ct. Rep. 876. While the statute defining the manner in which the tax shall be levied, to wit, that there shall be levied a tax within this state only upon that proportion of the valuation of the cars which results from comparing the miles traversed within this state with the aggregate of miles traversed within and without the state, is binding upon the complainant, it is binding also upon the taxing officers. It was submitted to the court as to what was the meaning of the assessment roll,-i. e. in what manner the tax had been levied,{whether upon entire property of the value of $100,000, or upon a tportion or percentage of property whose value was such that the [portion or percentage taxed was that amount. The sum $100,000 us put down as the value of cars, etc. Furthermore, the value to !be taxed is placed in the column where cars, carriages, and vehicles iOf all kinds are placed, and not in the column under the head of !"trackage within this parish of railroads within this state, or partly rnrithin this state and another state." I think that the tax was <assessed upon the entire value of all the cars of the complainant, not upon them in the ratio of miles, as required by the statute. fMy conclusion is that the injunction pendente lite should issue.
GARES v. NOIl'1'HWES'l' XA'1'. BUILDIXG, L. & 1. ASS'X.
(Circuit Court, D. Oregoll.
September 14, 1892.)
No. 1,947. MANDAMUS-.JURTSDlCTIO'" OF FEDERAl, COT:RTS.
The United States cireuit courts have no to issue writs of mau(lamus, even when, hy the law of the state where the court sits, mandamus is regarded as a civil action, except in cases where the writ is ancillnry to some other proceedings. Rosenbaum v. Bauer, 7 Sup. Ct. Rep. 633, 120 U. S. 450, followed.
Suit for mandamus, brought by T. M. Gares against the Northwest National Building, Loan & Investment Association, to compel defendant to hold a stockholders' meeting for the election of a board of directors. Defendant demurs. Demurrer sustained. G. H. Gorman, for petitioner. C. B. Bellinger, for respondent. GILBERT, Circuit Judge. This is a suit for a mandamus to compel the defendant corporation to hold a stockholders' meeting for v.5,'iF.no.2-14