These cases are governed by the decisions in of John Kierns, deceased, in the sum of

Muhlker v. New York & Harlem Railroad Com- | $1,296, depreciation of rental value of his pany, ante, p. 522.

property, and $2,525, injury to the fee. [Nos. 202, 203.]

Money judgments were entered for the depreciation of the rental value of the respec

tive properties, and it was decreed that unArgued April 27, 28, 1905. Decided May 15, less the right was acquired by the defend1905.

ants to maintain the structure and operate

the railroad by the payment of the sums N ERROR to the Supreme Court of the awarded for the damages to the fee, injunc

State of New York to review two judg- tions should become operative against the ments dismissing the complaints in actions structure and railroad. The judgments were by abutting owners for damages for the affirmed by the appellate division, but were erection of, and for an injunction against reversed by the court of appeals. Upon the the continuance of, an elevated railroad return of the cases to the supreme court structure in the adjoining street, which judgments were entered dismissing the comjudgments were entered pursuant to the plaints, and these writs of error were then mandates of the Court of Appeals of that sued out. state, on reversing the judgments of the Ap- In the Birrell Case the court of appeals pellate Division of the Supreme Court, First [173 N. Y. 644, 66 N. E. 1105] contented Department, which had affirmed the judg- itself with a simple reversal of the judgments of the Supreme Court of the County ment; in the Keirns Case a per curiam opinof New York, granting the relief sought. | ion was filed as follows: Reversed and remanded for further pro

“Judgment reversed and the complaint ceedings.

dismissed without costs, upon the authority See same case below (No. 202) in Appel- of Fries v. New York & H. R. Co. 169 N. Y. late Division, 60 App. Div. 630, 70 N. Y. 270, 62 N. E. 358, and Muhlker v. New York Supp. 1135; in Court of Appeals, 173 N. Y. & II. R. Co. 173 N. Y. 549, 66 N. E. 558.” 644, 66 N. E. 1105.

Judge Vann filed a concurring opinion, See same case below (No. 203) in Appel which he concluded as follows: late Division, 60 App. Div. 630, 70 N. Y. “I concurred in the dissenting opinion of Supp. 1141; in Court of Appeals, 173 N. Y. Judge Cullen in the Fries Case and should 642, 66 N. E. 1110.

have concurred in that of Judge Bartlett in The facts are stated in the opinion.

the Muhlker Case had I sat when it was Messrs. Alfred B. Cruikshank and At- argued, but I regard the question as now water & Cruikshank for plaintiffs in error. settled, and by the rule of stare decisis I am

Messrs. Ira A. Place, Edward Wins-compelled to vote for reversal.” [173 N. Y. low Paige and Thomas Emery for defend-642, 66 N. E. 1110.] ants in error.

The Muhlker Case came to this court and

was reversed (197 U. S. 544, 25 Sup. Ct. Rep. Mr. Justice McKenna delivered the opin-522, 49 L. ed. —). There are some differ

| . ion of the court:

ences in the facts in the cases at bar from that Plaintiffs in error are owners of property case, but none, in our judgment, which withon Park avenue in the city of New York, | draw them from the principles there exand brought these actions in the supreme pressed. And, as we have seen, a substancourt of the county of New York against tial identity in the cases was pronounced by the defendants in error for damages for the the courts of New York. erection of, and for an injunction against

Counsel, it is true, have submitted some the continuance of, the viaduct described in additional considerations based on the act Muhlker v. New York & H. R. Co. 197 U. S. of 1892, under which the viaduct was erect544, 25 Sup. Ct. Rep. 522, 49 L. ed. The ed, and on other laws of New York, to which supreme court found that the viaduct and the considerations we have given due attention, operation of trains thereon were and had but we do not think they demand or would been, from certain dates which were men justify a change of our ruling. tioned, a continuous trespass upon the ease

It follows, therefore, that the judgments ments of light, air, and access appurtenant should be and they are hereby reversed, and to the property of plaintiffs in error, and the causes remanded for further proceedings that they sustained damages, respectively, not inconsistent with this opinion. as follows: Birrell in the sum of 3,360, depreciation in the rental value of her prop- The CHIEF JUSTICE, Mr. Justice White, erty, and the sum of $7,050, damages to the Mr. Justice Peckham, and Mr. Justice fee; Patrick Kierns, as executor and trustee Holmes dissent.

V.

IN

(198 U. S. 341) DELAWARE, LACKAWANNA, & WEST-Laws of Pennsylvania for that year. The

ERN RAILROAD COMPANY, Piff. in sections of the act in question are 4 and 5, Err.,

and are reproduced in the margin.t

In appraising the value of the capital COMMONWEALTH OF PENNSYLVANIA. stock of the plaintiff in error, pursuant to

that statute, it is contended by it that the Taxation of capital stock—including value appraising officers should have deducted

of tangible property situated in other from the value of the stock the value of the states-due process of law.

coal mined in Pennsylvania by the company

and owned by it, but situated in other Including in the appraisement of the capital states, there awaiting sale, and beyond the

stock of a domestic corporation, for purposes jurisdiction of the state of Pennsylvania at of taxation, under Pa. Laws 1891, p. 229, the value of coal mined by it within the state, Sections of the Act of June 8, 1891. but situated in other states, there awaiting Sec. 4. That hereafter, except in the case of sale when the appraisement was made, de- banks, savings institutions, and foreign insurprives the corporation of its property without

ance companies, it shall be the duty of the presi. due process of law.

dent, chairman, or treasurer of every corpora. tion having capital stock, every joint-stock as

sociation and limited partnership whatsoever, [No. 208.]

now or hereafter organized or incorporated by

or under any law of this commonwealth, and of Argued April 10, 1905. Decided May 15, every corporation, joint-stock association, and 1905.

limited partnership whatsoever, now or hereafter incorporated or organized by or under the

laws of any other state or territory of the N ERROR to the Supreme Court of the United States, or by the United States, or by

State of Pennsylvania to review a judg- any foreign government, and doing business in ment which affirmed a judgment of the and liable to taxation within this common

wealth, or having capital or property employed Court of Common Pleas in and for the

or used in this commonwealth by or in the name County of Dauphin, in that state, denying of any limited partnership, joint-stock associathe claim of a domestic corporation that tion, company, or corporation whatsoever, as. the appraising officers, in valuing its capi-sociation or associations, copartnership or cotal stock for taxation, should have deducted partnerships, person or persons, or in any other

manner, to make a report in writing to the the value of the coal mined by it within the auditor general, in the month of November, one state, which was situated in other states, thousand eight hundred and ninety-two, and an. there awaiting sale at the time the appraise- nually thereafter, stating specifically : ment was made. Reversed and remanded First. Total authorized capital stock. for further proceedings.

Second. Total authorized number of shares.

Third. Number of shares of stock issued. See same case below, 206 Pa. 645, 56 Atl.

Fourth. Par value of each share. 69.

Fifth. Amount paid into the treasury on each

share. Statement by Mr. Justice Peckham:

Sixth. Amount of capital paid in. The plaintiff in error brings this case here dend was declared.

Seventh. Amount of capital on which divi. to review the judgment of the supreme court Eighth. Date of each dividend declared durof Pennsylvania (206 Pa. 645, 56 Atl. 69), ing said year ended with the first Monday of in favor of that state, on a question raised November. by the plaintiff in error as to its liability

Ninth. Rate per centum of each dividend de

clared. to taxation by the state upon certain coal

Tenth. Amount of each dividend during the of the value of $1,702,443, belonging to the year ended with the first Monday in said month. plaintiff in error, which had been mined in Eleventh. Gross earnings during the year. Pennsylvania, and which, prior to the ap- Twelfth. Net earnings during said year.

Thirteenth. Amount of surplus. praisement of the value of the capital stock of the company, pursuant to the Pennsylva- ing fund during said year.

Fourteenth. Amount of profit added to sink. nia statute, for taxation in Pennsylvania,

Fifteenth. Highest price of sales of stock behad been transported to and was situated in tween the first and fifteenth days of November other states, awaiting sale.

aforesaid. The case arises under proceedings provid-, Sixteenth. Highest price of sales of stock dur

ing the year aforesaid. ed for by the Pennsylvania statute for ap

Seventeenth. Average price of sales of stock praising, for the purposes of taxation, the during the year; and in every case any two value of the capital stock of corporations, of the following-named officers of such corporasuch as the plaintiff in error, for the year tion, limited partnership, or joint-stock associaending in November, 1899. The statute un

tion, namely: The president, chairman, secre

tary, and treasurer, and after being duly sworn der which the appraisement was made was

or affirmed to do and perform the same with passed June 8, 1891 (amendment of act of fidelity, and according to the best of their knowl. 1889), printed on page 229 et seq. of the edge and belief, shall, between the first and

the time the appraisement was made. This state of New York, though its corporate contention was overruled by the state courts. home is in Pennsylvania. It is authorized

The facts upon which the judgment rests by law to own coal lands in Pennsylvania, were found by the court, and are as follows: and to mine, buy, and sell coal and convey

“1. The Delaware, Lackawanna, & West- the same to market; and, in addition to its ern Railroad Company was organized under business of owning and operating an extenthe special act of the general assembly of sive system of railroads, is engaged in the Pennsylvania approved March 11, 1853, by business of mining, buying, and selling coal. the consolidation of the Liggetts Gap Rail. The proper officers of the company returned road Company, incorporated under the act and appraised its capital stock as of the of April 7, 1832, whose name was, by the act actual value, between the first and fifteenth of April 14, 1851, changed to Lackawanna days of November, 1899, of $48,470,000, and & Western Railroad Company, and the Dela- in making up the claim of the state for

| ware & Cobbs Gap Railroad Company, in- taxes for said year, the auditor general corporated by the act of April 7, 1849. Into made no deductions whatever, but charged the Delaware, Lackawanna, & Western Rail-tax at 5 mills upon said aggregate valuaroad Company, as formed by the merger of tion of $48,470,000, the said tax amounting the Lackawanna & Western Railroad Com- to $242,350. Amongst other property in pany and the Delaware & Cobbs Gap Rail- addition to its railroad, the company owned road Company were merged, December 27, coal located at points outside of Pennsylva1865, the Keyser Valley Railroad Company; nia, in New York, Illinois, and other states, August 12, 1870, the Nanticoke Coal & of the value of $1,702,443, and, as already Coke Company; and June 17, 1870, the stated, no deduction was made by the audiLackawanna & Bloomsburg Railroad Com- tor general in his statement of account pany. The company, as authorized by spe- against the company for or with respect to cial act of Pennsylvania legislature, has its this coal. All taxes assessed against the general office and treasury in the city and company for 1899 in other states, on coal lo

fifteenth days of November of each year, esti- under the twentieth section hereof, shall be submate and appraise the capital stock of the said ject to and pay into the treasury of the common. company at its actual value in cash, not less, wealth annually a tax at the rate of 5 mills however, than the average price which said upon each dollar of the actual value of its whole stock sold for during said year, and not less capital stock, of all kinds, including common, than the price or value indicated or measured special, and preferred, as ascertained in the by net earnings or by the amount of profit manner prescribed in said twentieth section, and made and either declared in dividends or car- it shall be the duty of the treasurer or other ried into surplus or sinking fund, and when the officers having charge of any such corporation, same shall have been so truly estimated and joint-stock association, or limited partnership, appraised they shall forthwith forward to the upon which a tax is imposed by this section, to auditor general a certificate thereof, accom- | transmit the amount of said tax to the treaspanied with a copy of their said oath or affirma- | ury of the commonwealth within thirty days tion, signed by them, and attested by a magis- from the date of the settlement of the account trate or other person duly qualified to adminis- by the auditor general and state treasurer : ter the same : Provided, That if the auditor Provided, That for the purpose of this act ingeneral and state treasurer, or either of them, terests in limited partnership or joint-stock asis not satisfied with the appraisement and valu- sociations shall be deemed to be capital stock, ation so made and returned, they are hereby au- and taxable accordingly: Provided, also, That thorized and empowered to make a valuation corporations, limited partnerships, and jointthereof based upon the facts contained in the re- stock associations liable to tax on capital stock port herein required, or upon any information under this section, shall not be required to make within their possession or that shall come into report or pay any further tax on the mortgages, their possession, and to settle an account on bonds, and other securities owned by them in the valuation so made by them for the taxes, their own right, but corporations, limited partpenalties, and interest due the commonwealth nership and joint-stock associations holding such thereon, with right to the company dissatisfied securities as trustees, executors, administrators, with any settlement so made against it to appeal guardians, or in any other manner, shall return therefrom in the manner now provided by law; and pay the tax imposed by this act upon all seand in the event of the neglect or refusal of curities so held by them as in the case of individ. the officers of any corporation, company, joint- uals: And provided further, That the provistock association, or limited partnership for a sions of this section shall not apply to the taxperiod of sixty days to make the report and ation of the capital stock of corporations, limappraisement to the auditor general as herein ited partnerships and joint-stock associations, provided, it shall be the duty of the auditor gen-organized exclusively for manufacturing pureral and state treasurer to estimate a valuation poses, and actually carrying on manufacturing of the capital stock of such defaulting corpora- within the state, excepting companies engaged tion, company, joint-stock association, or lim- in the brewing or distilling of spirits or malt ited partnership, and settle an account for liquors, and such as enjoy and exercise the taxes, penalty and interest thereon, from which right of eminent domain: Provided further, settlement there shall be no right of appeal. In case of fire and marine insurance companies

Sec. 5. That every corporation, joint-stock the tax imposed by this section shall be at the association, limited partnership, and company rate of 3 mills upon each dollar of the actual whatsoever, from which a report is required I value of the whole capital stock.

cated there, have been paid, according to the “The judgment entered upon said verdict belief, and so far as the secretary of the has been paid by defendant, leaving open company can now, May 25, 1901, recall. only the one question submitted to the

“There were other items in dispute in ad-court, as aforesaid, of the defendant's liadition to the coal, and they were covered by bility to taxation with respect to capital defendant's appeal, but the attorney general, stock invested in coal located outside of on behalf of the commonwealth, and counsel Pennsylvania. for the defendant, entered into an agree- “4. The facts agreed upon by counsel for ment in writing as follows, viz.:

the commonwealth and the company are set “‘And now, to wit, April 10, 1901 it is forth in the affidavits of W. H. Truesdale, hereby agreed that the jury shall deduct, president, and Fred. F. Chambers, the secreand not include in its verdict, any tax upon tary and treasurer of the company, and, in $1,702,444, being the value of coal held and so far as they relate to the reserved quesowned at points in states other than Penn- tion, are as follows, viz.: sylvania, according to the facts as set forth “ 'Under powers conferred by special in the depositions of Fred. F. Chambers and charter previous to the adoption of the W. H. Truesdale, defendant's treasurer and present Constitution of Pennsylvania, the president, respectively, hereto attached and Delaware, Lackawanna, & Western Railroad made part hereof. The said deduction hav- Company is largely engaged in the mining ing been made, final judgment shall be en- and purchasing of anthracite coal in Penntered upon the verdict of the jury in favor sylvania, nearly all of which coal it transof the commonwealth, and against the de- ports to points without said state, and there fendant. The question of defendant's liabil- sells. By far the greater part of this coal ity to the commonwealth of Pennsylvania is transported from the mines for immediate for taxes upon or in respect of said coal | delivery at points in other states, and is not held, owned, and stored at points in states kept or held in stock in said other states other than Pennsylvania, is hereby reserved, longer than is necessary for the purpose of and it is agreed that it shall be submitted transferring possession from this company for the determination of the court. If the to the purchaser; but at certain points in court shall be of the opinion that, upon the other states, as, for instances, at Buffalo, facts stated in the aforesaid depositions of New York, and at Chicago, Illinois, the comFred. F. Chambers and W. H. Truesdale, at pany keeps constantly on hand a stock of tached to and made part hereof, the defend-coal for purposes of sale, the same being ant is liable for tax to the commonwealth of stored in yards or upon docks maintained by Pennsylvania upon coal thus held, owned, the company for that purpose. The coal and stored at points in states other than thus on hand awaiting sale between the first Pennsylvania, then judgment shall be en- and fifteenth days of November, 1899, the tered in favor of the commonwealth, and date when the company's capital stock is reagainst the defendant, for the further sum quired by law to be appraised for taxation, of $8,512.21, being 5 mills upon the said $1,- was of the value of not less than $1,702,443, 702,443, the value of the said coal, to which and was included in the valuation of the amount there shall be added the usual at- company's capital stock upon which tax was torney general's commission of 5 per cent, charged in the auditor general's account. either of the parties to be at liberty to file The coal thus on hand at that date was apexceptions to, and appeal from, the decision proximately the amount usually kept in of the court upon the said reserved point stock at such points. The said coal when with like effect as if the case had been tried shipped from Pennsylvania was destined to by the court without a jury, under the act said points in other states, with no intention of April 22, 1874.'”

of ever returning the same to Pennsylvania. “3. The case having been submitted to the On the contrary, said coal was intended to, jury, a verdict was rendered as follows, and did, become part of the general mass viz.:

of property in said other states, and the Tax ...

$111,250 00 company is there annually taxed upon or in Less 5 mills on coal, $1,702,

respect to the same, and was so taxed for 443.00

8,512 21 1899.

When the coal thus kept in stock in

the states of New York, Illinois, and other

$102,737 79 states outside of Pennsylvania, is sold, the Less payment on account..... 100,000 00 proceeds are returned to the company's

treasury in the city and state of New York.

$2,737 79 ''In 1899 the company sold and delivered Add attorney general's commis.

coal at points outside of the state of Pennsion of 5 per cent...

136 88 sylvania of the aggregate value of not less

than $18,587,258, but this was either conVerdict for

$2.874 67' tracted for before it left the mines or deliv.

ered upon, or within a comparatively short case the court held that the coal was proptime after, its arrival at the points in other erly taxed by the state of Louisiana, though states to which it was to be delivered. it had but lately arrived from the state of What I have said above was with reference its origin (Pennsylvania), and was, at the only to coal kept in stock at points outside time of the taxation, awaiting sale in Louisof Pennsylvania for purposes of sale.' iana, and was, in fact, soon thereafter, sold

“5. The corporation defendant is author and taken out of the country to a foreign ized by law to transact business and to hold state. It was said that the coal, on arrival lands in other states for depot, wharfage, at New Orleans for the purpose of sale, at and coal-yard accommodations, and to make once became intermingled with the general such agreements and contracts with corpo-property of the state of Louisiana, and was rations and individuals of other states as taxable like any other tangible property may be necessary and expedient for the therein. In Coe v. Errol, 116 U. S. 517, 29 transporting and vending of coal mined and L. ed. 715, 6 Sup. Ct. Rep. 475, the question purchased by it, and defendant is also au- was relative to the validity of the tax on thorized to have and maintain its general the lumber imposed in the state of its .orioffice and place of business, and to hold its gin, as that state had taxed the lumber bestockholders' meeting, in the state of New fore it had actually left the state, although York, and to have as president, directors, it was intended for transportation to anand other officers nonresidents of the state other state for sale. It was held that the of Pennsylvania. The company is taxable tax was proper, so long, and so long only, upon the value of the property represented as such transportation had not yet actually by its capital stock, and not upon the commenced. After that the state had no amount of the latter."

right to tax it. In the case at bar the coal

had been transported to and was actually Messrs. M. E. Olmsted, Walter W. Ross, resting in another state for sale when the and A. C. Stamm for plaintiff in error. appraisement was made, and, under the

Messrs. Hampton L. Carson and Fred-foregoing cases, it was then intermingled eric W. Fleitz for defendant in error.

with property in the foreign state where it

rested, and was at that time liable to taxaMr. Justice Peckham, after making the tion therein. The right of the foreign state foregoing statement, delivered the opinion of to tax under such circumstances was again the court:

upheld in Pittsburg & S. Coal Co. v. Bates, The supreme court of Pennsylvania bases 156 U. S. 577, 39 L. ed. 538, 5 Inters. Com. its decision in this case on the authority of Rep. 30, 15 Sup. Ct. Rep. 415, where the coal Com. v. Pennsylvania Coal Co. 197 Pa. 551, was taxed while awaiting sale in such state. 47 Atl. 740, which it regards as controlling See Kelley v. Rhoads, 188 U. S. 1, 47 L. ed. upon the question involved. The right to 359, 23 Sup. Ct. Rep. 259; Diamond Match include the value of the coal in question in Co. v. Ontonagon, 188 U. S. 82, 47 L. ed. the valuation of the capital stock of the 394, 23 Sup. Ct. Rep. 266. We must, therecompany is based upon the construction giv- fore, take it as plain, under the foregoing en by the supreme court of Pennsylvania to decisions, that this coal, at the time of the the Pennsylvania statute of 1891, and this appraisement of the value of the capital court is concluded by that construction. stock for taxation by Pennsylvania, had bePeople v. Weaver, 100 U. S. 539, 541, 25 L. come intermingled with the mass of propered. 705, 706.

ty in the other states, to which portions of The only question for this court to deter- | it had respectively been sent, and that it mine is whether, in refusing to deduct the was a proper subject for taxation for both value of the coal mined in Pennsylvania, state and local purposes in such states. and which, at the time of the appraisement, Where the proceeds of the sale might go was situated outside the jurisdiction of the when the coal was sold, whether into the

, state, from the value of the capital stock, treasury of the company, at its offices in the state court denied any right of the New York city, or indirectly to the state of plaintiff in error which was protected by its incorporation, is not important. The the Federal Constitution.

coal had not been sold when the appraiseThe coal itself, when the appraisement of ment of the value of the capital stock was the value of the capital stock was made, made, and at that time it was outside the was concededly beyond the jurisdiction of the jurisdiction of the state of Pennsylvania. state of Pennsylvania. It was taxable (and A tax on that coal, eo nomine, or specificalin fact was taxed) in the states where it ly, could not then be laid by that state, as

) rested for the purpose of sale, at the time counsel concede. when the appraisement in question was Now, was this tax, in substance and ef. made. Brown v. Houston, 114 U. S. 622, fect, laid upon the coal which was beyond 29 L. ed. 257, 5 Sup. Ct. Rep. 1091. In that the jurisdiction of Pennsylvania? The su