with propriety be called a switching move- | I. Ry. Co. v. Moore, 243 U. S. 311, 37 Sup. ment. Ct. 278, 61 L. Ed. 741. The case falls within the scope of United States v. Erie Railroad Co., 237 U. S. 402, 35 Sup. Ct. 621, 59 L. Ed. 1019, and United States v. Chicago, Burlington & Quincy Railroad Co., 237 U. S. 410, 413, 35 Sup. Ct. 634, 636 (59 L. Ed. 1023), in the latter of which? it is said that "the controlling test of the statute's application lies in the essential nature of the work done." The movement of this train of cars, 1,100 feet in length, was for a distance of over three-quarters of a mile, and involved crossing, at grade, three city streets once, two streets twice, one street three times, and a main track movement of at least 2,600 feet, with two stops and startings on the main track. This is not only a train movement, but it would be difficult to imagine one in which the control of the cars by train brakes would be more necessary, in order to secure that safety of employés, of passengers and of the public which it is the purpose of the act to secure, by requiring that engineers shall be given control sufficient to stop any train they may be moving, promptly on the first signal or sight of danger. The mere inertia of 26 cars, which must usually be loaded, and especially when running 15 miles PERLEY et al. v. STATE OF NORTH CAROan hour, would render it impossible to control or to stop them promptly with power brakes operative only on the engine, and the (Submitted March 19, 1919. Decided April 21, ability to use such brakes on the entire train must often mean the difference between safety and serious accident when running, as here, in a crowded yard, across busy city streets and on main line tracks of railroads. For the reasons stated in this opinion, the movement as described in the certificate and the essential nature of the work done, require that the question of the Circuit Court of Appeals be answered in the affirmative. LINA. 1919.) No. 251. (249 U. S. 510) 1. WATERS AND WATER COURSES 182-PROTECTION OF WATERSHEDS-REMOVAL OF ADJACENT WASTE TIMBER-POLICE POWER. Pub. Laws N. C. 1913, c. 56, requiring one cutting timber within 400 feet of watershed, owned by a municipality for furnishing water supply, to remove waste parts so as to prevent shed, cannot be said not to have proper relaspread of fire and consequent damage to watertion to the governmental purpose of protection. 2. CONSTITUTIONAL LAW OF WATERSHEDS-EQUAL LAWS. 211-PROTECTION PROTECTION OF It is argued that coupling of the train brakes was not necessary for the reason that the street crossings used were protected by gates, that a yardmaster from an elevated tower watched over the main line movements, and that the coupling of the train-brake appliances would involve more danger to the employés than the movement of the cars without their being used and operated. These suggestions serve to emphasize the dangerous character of the movement. But the construction which the act should receive is not to be found in balancing the dangers which would result from obeying the law with those which would re-ligation on municipalities. sult from violating it, nor in considering what other precautions will equal, in the promotion of safety, those prescribed by the act. Such considerations were for Congress when enacting the law, and it has repeated-ed of violation of Pub. Laws N. C. 1913, c. Fred A. Perley and another were convictly been held by this court that other provi- 56. Judgment was affirmed by the Supreme sions of the Safety Appliance Act impose Court of North Carolina (173 N. C. 783, 92 upon the carrier the absolute duty of com The equal protection of the laws cannot be said to be denied by Pub. Laws N. C. 1913, c. 56, requiring one cutting timber within 400 feet of a watershed, owned by a municipality for furnishing water supply, to remove waste parts damage to watershed, though it imposes no obso as to prevent spread of fire and consequent In Error to the Supreme Court of the State of North Carolina. firmed. Af pliance in cases to which they apply, and S. E. 504), and defendants bring error. Messrs. Julius C. Martin, Thomas S. Rollins, and George H. Wright, all of Asheville, N. C., for plaintiffs in error. Messrs. James S. Manning, of Raleigh, N. C., and R. H. Sykes, of Durham, N. C., for State of North Carolina. Mr. Justice MCKENNA delivered the opinion of the Court. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 512 A statute of North Carolina (Pub. Laws | reservoir, and it may be presumed that other 1913, c. 56) provides that any person who cities of the state are in like situation, and owns land or standing timber on land with- the state, by the law in question, seeks to in 400 feet of any watershed held or owned protect their watersheds from damage or by any city or town for the purpose of devastating fires. The purpose is governfurnishing the city or town water supply, mental, but it is contended that the regulaupon cutting or removing the timber or per- tion of *the statute under review is too dismitting either, within 400 feet of the water- tant from the purpose and is simply an arbished, shall, within three months after cut- trary exercise of power. And this is a certing, or earlier upon written notice by the tain proposition of law, having no other city or town, remove or cause to be burned basis in the record than that the forbidunder proper supervision all tree-tops, den litter of the cut-down and removed timboughs, laps and other portions not desired ber is "absolutely harmless" and contains to be taken for commercial or other pur- "no element of injury or damage to any poses, within 400 feet of the boundary line one" and cannot "by any possibility be conof the watershed so as to leave such space strued into a nuisance." The assertion of 400 feet free and clear of the designated eludes exact estimation. "Tree-tops, boughs, parts required to be removed or burned and and laps" left upon the ground may not other inflammable material caused by or left of themselves be a nuisance; but they may from cutting the standing timber, so as to become dry, and the more quickly and cerprevent the spread of fire from such cut-over tainly so from the denudation of the land area and the consequent damage to the of its trees, and therefore become a source watershed. A violation of the act is a mis- of fires and the perils and damage of fires. demeanor. This was the conclusion of the courts below, and, we may suppose, in application to the Asheville watershed. The conclusion is fortified by the judgment of the state expressed in the statute, and, it may be, from experience in the state and certainly from experience in other states, ignorance of which we cannot feign. We are not able, therefore, to yield to the contention of defendants that the statute is not proportionate in its regulation nor that its application to defendants' property is arbitrary and unconstitutional. Plaintiffs in error (we shall refer to them as defendants) were indicted for violating the act and upon being arraigned filed a motion to quash the indictment on the ground that the act was unconstitutional and void and in violation of the Constitution of the United States, and particularly the Fifth and Fourteenth Amendments thereof in that the act abridged privileges and immunities of defendants as citizens of the United States, deprived them of their property without due process of law and denied them the equal protection of the laws. The motion was [2] Nor do we find illegal discrimination denied and defendants were put on trial in the statute. The charge is based upon before a jury which specially found that the the contention that the statute condemns city of Asheville owned about 16,000 acres acts committed by individuals "when if like of land having an outside boundary of 12 and similar acts be done by municipalities miles and held the land as a watershed; that there is no violation of the statute." Coundefendants were owners of standing and sel again insists too much upon the abstract. fallen timber adjoining the watershed on We concede the aphorism upon which counthe north about 4 miles and within 400 feet sel relies that "the equal protection of the of the watershed but did not own the land laws is a pledge of the protection of equal upon which the timber stood and that the laws." We, on March 24th last, by an alwater did not drain from the timber, or most prescience of the contention now based the land upon which it stood, on to the water- on it, defined its extent and declared that shed. And the jury found all other facts the Fourteenth Amendment, which is the which brought defendants within the pro- foundation of the aphorism, does not revisions of the act and made them violators gard the impracticable and that distinction of it. And the jury found the defendants may be made by legislation between objects, guilty or not guilty as the court should de- or persons and that the power of the state termine the law to be upon the facts found."nay be determined by degrees of evil Upon the special verdict the court ad- or exercised in cases where detriment is judged defendants guilty and fined each specially experienced. Armour & Co. v. $300 and costs. Upon appeal the Supreme North Dakota, 240 U. S. 510, 517, 36 Sup. Court of the state affirmed the judginent. Ct. 440, 60 L. Ed. 771, Ann. Cas. 1916D, 548." In considering the contention of plaintiff Moreover, we pointed out that "the deferwe may put to one side what property is or ence due to the judgment of the Legislature what its rights are, in the abstract. It and on the matter" had "been emphasized again they necessarily are subject to some exer- and again. Hebe Co. v. Shaw, 248 U. S. tions of government. 297, 303, 39 Sup. Ct. 125." Dominion Hotel, Inc., v. State of Arizona, 249 U. S. 265, 39 Sup. Ct. 273, 63 L. Ed. 597. [1] What then is the case? The city of Asheville is the owner of and conducts a *504 tax. Necessarily the Legislature of the state did and other contentions are made against the not think, and the courts below did not think, that individuals and municipalities stood in the same relation to the evil aimed at or that a public body charged with the care of the interests and welfare of the people would need the same restraint upon its action as an individual, or be induced to detrimental conduct. Judgment affirmed. (249 U. S. 503) RAND v. UNITED STATES. (Argued March 10 and 11, 1919. Decided April 21, 1919.) No. 213. 1. INTERNAL REVENUE UTES. Section 29 of the act of 1898 provided that any person or persons having in charge or trust, as administrators, etc., any legacies or distributive shares arising from persona) property, the amount of the property exceed ing $10,000 in actual value, passing, after the passage of the act, from any person possessed of the property, either by will or by the intestate laws of any state or territory, was made subject to a tax to be paid to the United States; the amount of tax being dependent upon the degree of relationship of the taker to the person who died possessed of the property. And there was an increase of the tax with an increase of the value of the property possessed in excess of $25,000. The facts found we give only in summary: 36—REFUND-STATune 6, 1900, Edmund Dwight died testate. His will was admitted to probate June 28, He qualified. The Under Act June 27, 1902, § 3, and Act Jury 1900. Elizabeth Cabot, his sister, was named 27, 1912, § 2, authorizing refund of certain tax-executrix of the will. She accepted and quales on application to the Commissioner of Inter-ified, but died January 30, 1902, and Philip nal Revenue, a refund can be made though no Cabot, her son, was appointed administrator, appeal was taken as required by Rev. St. 88 with the wi annexed. 3226, 3228 (Comp. St. §§ 5949, 5951), made applicable by War Revenue Act June 13, 1898, § 31, and though the tax was voluntarily paid. "e to the New England Trust Company, 2. INTERNAL REVENUE 38- RECOVERY OF ก .poration duly chartered by the state of TAXES PAID-NECESSITY OF APPLICATIONsachusetts, and located in the city of BosFOR REFUND. will, so as material, *provided as follows: n, the sum of one hundred and twenty-five thousand dollars ($125,000), to be invested in the general trust fund of the company and held upon the following trusts: To pay to Mrs. Jennie Lathrop Rand the annual income thereof in semi-annual payments during her life." * The beneficiary of a testamentary trust fund cannot recover the internal revenue tax erroneously paid thereon, under Act June 27, 1902, § 3, and Act July 27, 1912, § 2, without making the application for refund required by those acts, though an application had been made by the personal representative of the estate and by the trustee, and though an application by the October 1, 1900, the trust fund was depositbeneficiary would have been useless because sim-ed with the New England Trust Company, the ilar applications had been denied. Appeal from the Court of Claims. Claim by Jennie Lathrop Rand against the United States. Claim dismissed (52 Ct. Cl. 72, 285), and claimant appeals. Affirmed. Mr. H. T. Newcomb, of New York City, for appellant. Mr. Assistant Attorney General Brown, for the United States. trustee designated in the will, which accepted the trust. The fund was not invested separately but as part of the general trust fund of the company. Semi-annual payments of the accrued net income were made to Mrs. Rand to January 14, 1914. No other payments were made to her or for her benefit, nor did she become entitled to any other or additional payments on account of the trust. September 27, 1900, Elizabeth Cabot made to the United States Bureau of Interual Revenue a return of the legacies in her charge *Mr. Justice MCKENNA delivered the opin- as executrix and passing from Dwight's esion of the Court. This case involves a consideration of the inheritance tax law of June 13, 1898, generally called the War Revenue Act (30 Stat. 448, 464, 465, c. 448), and was brought in the Court of Claims to recover the amount of a tax assessed and collected under that law. The Court of Claims dismissed the case on the grounds: (1) That appellant did not file any claim with the Commissioner of Internal Revenue; (2) that the tax was voluntarily paid. The decision is resisted by appellant tate to the persons named therein, in which was included the legacy to Mrs. Rand, aged 63, stranger to the decedent, of the clear value of $125,000, the taxable amount of which, after a particular exemption, she stated to be $40,355.91, with $7.50 per hundred dollars as the rate of taxation, and the amount of tax as $3,026.69, and she reported the legacy as in trust with the New England Trust Company. It is not shown that the collector of internal revenue or other officer made a demand for the tax, but September 28, 1900, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 505 #507 *506 the Court of Claims did. The case presents, therefore, at the outset the question whether the conditions of suit required by that sec tion were satisfied as qualified or relieved by the acts of 1902 and 1912, hereafter referred to. Elizabeth Cabot paid to the proper collector | upon section 3226, R. S. (Comp. St. § 5919), as the tax out of the funds and it has since been retained by the United States. The sum was advanced by Elizabeth Cabot, at the request of Mrs. Rand and other legatees, pursuant to an agreement made September 28, 1900, by which the taxes paid by Elizabeth Cabot were to be refunded to her and were repaid to her. *The tax paid by her was determined to be the proper tax by regulations of the Commissioner of Internal Revenue on December 16, 1898. The regulations contain- | ed rules and tables for the determination of the duty or tax to be paid to the United States upon legacies or distributive shares arising from personal property, imposed by the act of June 13, 1898. The only assessment ever made under sections 29 and 31 of the act of 1898 and amendments upon the interest of Mrs. Rand in the interest created in the trust fund under Dwight's will was made in pursuance of the rules, tables and instructions of the commissioner and there was no specific investigation by that officer of her expectancy of life or as to the earning capacity of the trust fund otherwise than by application of the tables. The value of her interest was so determined to be $42,320.60, from which was deducted the inheritance tax of Massachusetts, leaving a net balance of $40,355.91, upon which the tax was assessed at the statutory rate of $7.50 per hundred dollars. The computation was from the death of Dwight, the decedent. Section 3226 provides that no suit shall be maintained for the recovery of a tax illegally or erroneously assessed or collected, "until appeal shall have been duly made to the Commissioner of Internal Revenue, according to provisions of law in that regard, and the reg. ulations of the Secretary of the Treasury es tablished in pursuance thereof, and a decision of the commissioner has been had therein." If, however, it is provided, decision be delayed more than six months from the date of the appeal, suit may be brought within another period prescribed, which it is not necessary to mention. The section is clear enough and unless modified or changed precludes the present suit as it was applicable to the tax involved (section 31 of the Act of 1898). But section 3 of the Act of 1902 and section 2 of the Act of 1912, supra, are invoked as removing the bar of section 3226. Section 3 of the Act of 1902 directs the Secretary of the Treasury to refund upon proper application being made to the Commissioner of Internal Revenue any tax that may have been collected on contingent beneficial interests which shall not have become vested prior to July 1, 1902. Section 2 of the Act of July 27, 1912, has a like diUnder authority of the act of Congress of rection to the Secretary of the Treasury to July 27, 1912 (37 Stat. 240, c. 256), a claim for pay "such claimants as have presented or the refund of the sum paid, to wit, $3,026.69, shall hereafter so present their claims, and was filed with the Commissioner of Internal shall establish such erroneous or illegal asRevenue, December 24, 1913, by H. T. New-sessment and collection, any sums paid by comb, representing himself to be the attorney them." There is no question that the cited for the New England Trust Company, trustee under the will of Dwight. And on December 30, 1913, Attorneys Lyon & Lyon, of Washington, D. C., acting for and in behalf of the administrator de bonis non of Edmund Dwight, filed with the Commissioner of Internal Revenue a claim for the refund of the tax. The grounds of both claims were that the tax was illegally and erroneously assessed and collected and contrary to the provisions of the act of 1898 and amendments and that the same should be refunded by virtue of the act of June 27, 1902 (32 *Stat. 406, c. 1160), and the act of July 27, 1912. The claims were rejected by the acting commissioner March 28, 1914. It is not shown that Mrs. Rand or any person acting for her or in her behalf filed a claim with the commissioner. [1] The court, as we have said, dismissed the claim without considering the validity of the assessment. The conclusion is contested by appellant in an elaborate brief and defended by the government, relying primarily sections remove the bar of sections 3226 and 3228 (Comp. St. §§ 5949, 5951) if appellant has met their requirements and presented to the Commissioner of Internal Revenue a claim for the refund of the tax. Nor is the fact that the tax was voluntarily paid, that is, without protest, an impediment to the application of the act of 1912. United States v. Hvoslef, 237 U. S. 1, 35 Sup. Ct. 459, 59 L. Ed. 813, Ann. Cas. 1916A, 286. [2] It will be observed that the repayment is to be made to "such claimants as have presented or shall hereafter so present their claims." Has the appellant satisfied these requirements? Two claims were presented, one by the attorney of the trust company and one by attorneys acting for and in behalf of the administrator de bonis non of the estate of Edmund Dwight. Both claims were disallowed because, to quote the commission er's letter: The "tax was paid upon the absolutely rested interest of a stranger amounting to more than $25,000 and taxed at the legal rate of $7.50 per $100 and accordingly, under the decision of the Supreme Court in the Knowlton and Fidelity Trust cases 1 all this tax was legally due." The first demand, it is said, “was presented by the testamentary trustee then holding trust funds to the use of the claimant, and authorized and required to protect her interests under and in connection with the trust fund. The other claim was filed by the personal representative of the decedent, successor to the executrix who had actually made the payment, although such payment was at the cost of" Mrs. Rand. And it is urged that within which claims could have been made and that the decisions rejecting them were several months afterwards, and she could not tion. If it be replied that she relied on the therefore have been influenced by the rejecrulings upon claims of the class to which not the trustee of the fund and the representhers belonged, the query occurs: Why did ative of the estate *rely on those rulings? Their relation to the taxes, whatever it was, was not as intimate as hers and hers would seem to have called for more solicitude and a demand by her as necessary as suit by her. It seems, therefore, that this suit is a postfact resolution and an experiment with the "The officers of the government were not mis-situation after the indulgent period of the led at any time; there was no question as to statute. The act of 1912 cannot be made so the identity of the payment sought to be recovered or that of the person to whose benefit compliant. It had its purpose and it is not recovery would accrue." satisfied by representative or negative a tion; it requires a positive and individual assertion of claim. The condition was easy of performance, its grant a concession, and there is no room for the plea to enlarge it be with. The demands, therefore, it is the further contention, satisfied the statute and should *be ascribed to Mrs. Rand, and that, the statute being remedial, its remedy is to be pro-yond its words. It is direct and clear and moted by a liberal construction, not impeded liberal enough of itself. It says to the taxby a strict and technical one; and there are payer: Make a claim for the tax you have adduced statutes that have been liberally paid, show its illegality, and it will be reconstrued. Booth's Case, 49 Ct. Cl. 699; paid to you. We cannot relax its requireNewcomber v. United States, 51 Ct. Cl. 408. | ments-certainly not on the assumption that The inutility of another demand is empha- they might have been useless if complied sized, either for information to the department or for the assertion of her claim. She knew, it is said, the precise facts of the demands that had been made and she knew, besides, that claims of the class to which hers belonged had been uniformly rejected and that another claim in her own name would have been no less a "useless ceremony" than that which was declared in one of the cited cases. And she insists that such ceremony finds exemption in the case of Weaver v. Ewers, 195 Fed. 247, 115 C. C. A. 219. The case is not similar to that at bar. The tax there involved was paid under protest and there had (Argued March 25, 1919. Decided April 21, We see no reason for granting the motion for further findings nor the motion for certiorari, and both are denied. Judgment affirmed. (249 U. S. 517) UNITED RAILROADS OF SAN FRANCIS- 1919.) No. 282. 1. STREET RAILROADS 29 COMPETING been an application in writing by the payer of it for a refund of the amount. The application was held to have satisfied section 3226 and that there was no necessity for another after the tax was paid. The case at bar does not present the same situation. Its railroads from using the same street for over Civ. Code Cal. § 499, prohibiting two street tax was paid without protest, and appellant five blocks, and a San Francisco city franchise seeks to avail herself of the act of 1912-containing similar provisions, held inapplicable not by performing its condition, but by as- to a municipal street railway system. serting an exemption from performance because of its supposed inutility. The government besides contests the sufficiency and sincerity of her excuse and points out that, not only does the record fail to show that the presented claims were made in her behalf, but that one of the claims was made eight days and the other two days before the time 1 Knowlton v. Moore, 178 U. S. 41, 20 Sup. Ct. 747, 44 L. Ed. 969; United States v. Fidelity Trust Co., 222 U. S. 158, 32 Sup. Ct. 59, 56 L. Ed. 137. 2. STREET RAILROADS 29 FRANCHISE to the risk that subsequent legislation and conA street railway took its franchise subject stitutional amendment might empower the municipality to establish its own street railway system. 3. EMINENT DOMAIN 2(1) WHAT CON- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |