motion of his (defendant's) attorney obtained an adjournment of the trial to another day; and the fact that he failed afterwards to appear at the trial, and that judgment was rendered against him in his absence, does not place him in default. It also appears that while the defendant himself did not attend at the time of the trial his attorney was there present, so that the defendant was legally present at the trial, although, being in error as to the hour set for the trial, he did not in person arrive until after judgment had been rendered against him. When a defendant appears before a justice of the peace on the return-day or other day fixed by the justice, either in person or by attorney, and answers the complaint of the plaintiff, he does not become in default if he then (the trial being had on that day) fails to offer evidence at the trial. And if the trial of the action is adjourned, after he has appeared and answered, he does not become in default if he fails to appear, either per se or by attorney, at the time and place to which the adjournment is had, or any other time and place thereafter, when and where the trial occurs, and try the issue raised by the complaint and answer. And he may appeal from the judgment rendered at such trial, and will, on appeal, be entitled to have his issue tried in the district court. It also appears that the transcript and papers which were sent up by the justice of the peace were received by the clerk of the district court 12 days after the perfecting of the appeal, and therefore within the limit of 15 days fixed for the filing of the appeal by section 96 of our Justices' Code. When the clerk of the district court received said transcript and papers in his office, the said district court obtained jurisdiction of the case on appeal, notwithstanding the fact that (his costs not having been paid) said clerk failed to indorse thereon the evidence of filing until after the expiration of said limit of 15 days. It, moreover, appears that said costs were actually paid to the said clerk, and his indorsement of filing placed upon the appeal papers, 15 days prior to the hearing of the motion to dismiss the appeal, and its dismissal. The district court erred in holding that the defendant (appellant) was in default in the justices' court, and in dismissing the appeal. The judgment of the district court is reversed, and the case remanded for trial; all the justices concurring.

NORTHERN PAC. R. Co. v. RAYMOND, Treasurer.

(Supreme Court of Dakota. October 13, 1888.)

1. RAILROAD COMPANIES-TAXATION-CONSTITUTIONAL LAW-INTERSTATE COMMERCE. The Dakota act for the levy and collection of taxes upon railroad property, approved March 9, 1883, is unconstitutional in so far as it attempts to levy a tax upon the earnings of railroad companies derived from interstate transportation, being to that extent an interference with interstate commerce.

2. SAME-APPLICATION OF PAYMENT.

A railroad company which has paid such tax is entitled to have that part of the payment based on the unconstitutional tax applied to valid taxes thereafter accruing. Appeal from district court, Cass county; WILLIAM B. MCCONNELL, Justice. Suit for injunction brought by the Northern Pacific Railroad Company against James W. Raymond, treasurer of the territory of Dakota. Plaintiff's amended complaint was as follows: "(1) That said plaintiff is now, and at all times hereinafter named was, a corporation duly organized and existing under and by virtue of that certain act of congress approved July 2, 1864, entitled 'An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget Sound, on the Pacific coast, by the northern route,' and under those certain acts and joint resolutions of congress relating to the same subject-matter. (2) That under and by virtue of the powers conferred on it by said acts and joint resolutions, said plaintiff has constructed, and owns and operates, divers railroads operated by steam-power in the territory of Dakota, to-wit, that certain railroad, known as the Northern Pacific Railroad, which has been operated for more than five years prior

to January 1, 1887; that certain railroad, known as the Northern Pacific, Fergus & Black Hills Railroad, which has been operated for a period of less than five years prior to January 1, 1887; that certain railroad, known as the Fargo & Southwestern Railroad, which has been operated for a period of less than five years prior to January 1, 1887; that certain railroad, known as Sanborn, Cooperstown & Turtle Mountain Railroad, which has been operated for a period of less than five years prior to January 1, 1887; and that certain railroad, known as the James River Valley Railroad, which has been operated for a period of less than five years prior to January 1, 1887. (3) Heretofore, towit, on the 9th day of March, A. D. 1883, the legislature of the territory of Dakota enacted a certain act entitled 'An act to provide for the levy and collection of taxes upon the property of railroad companies in this territory,' which, among other things, provided as follows, to-wit: Section 1. Percentage of Gross Earnings to be Paid in Lieu of Other Taxes. In lieu of all other taxes upon any railroads, except railroads operated by horse-power, within this territory, or upon the equipment, appurtenances, or appendages thereof, or upon any other property situated in this territory, belonging to the corporation owning or operating such railroads, or upon the capital stock or business transaction of such railroad company, there shall hereafter be paid into the treasury of this territory a percentage of all gross earnings of the corporation owning or operating such railroad arising from the operation of such railroad as shall be situated within this territory, as hereinafter stated; that is to say, every such railroad corporation or person operating a railroad in this territory shall pay to said treasurer each year, for the first five years after said railroad shall be or shall have been operated in whole or in part, two (2) per centum of such gross earnings; and for and in each and every year after the expiration of the said five years, three (3) per centum of the said gross earnings; and the payment of such per centum annually, as aforesaid, shall be and is in full of all taxation and assessments whatever upon the property aforesaid. The said payments shall be made one-half (4) on or before the 15th day of February, and one-half on or before the 15th day of August, in each year; and for the purpose of ascertaining the gross earnings aforesaid an accurate account of such earnings shall be kept by said company, an abstract whereof shall be furnished by said company to the treasurer of this territory on or before the 1st day of February in each year; the truth of which abstract shall be verified by the affidavits of the treasurer and secretary of said company. And for the purpose of ascertaining the truth of such affidavits and the correctness of such abstracts full power is hereby vested in the governor of this territory, or any other person appointed by law, to examine under oath the officers and employes of said company, or other persons, and if any person so examined by the governor, or other authorized person, shall knowingly or willfully swear falsely concerning the matters aforesaid, every such person is declared to have committed perjury. And for the purpose of securing to the territory the payment of the aforesaid per centum it is hereby declared that the territory shall have a lien upon the railroad of said company, and upon all property, estate, and effects of said company whatsoever, personal, real, or mixed. And the lien hereby secured to the territory shall have and take precedence of all demands, decrees, and judgments against said company. Sec. 2. Where Company shall Fail to Make Return. If any railroad company in this territory shall fail to make return of its gross earnings as aforesaid, or of any part thereof, at the time and manner provided by law, and such default shall continue during the period of thirty (30) days, such company shall be subject to a penalty in an amount equal to twenty-five (25) per cent. of the tax imposed upon such company by this act; and the treasurer of the territory shall forthwith ascertain the amount of such tax justly due from such company, as nearly as may be, from such evidence as may be available, and shall thereupon collect such tax as so ascertained, together with the said penalty

thereon. The amount of tax ascertained by the territorial treasurer, as in this section provided, shall, together with the said penalty thereon, be by him entered in the books of his office; and such entry, when so made, shall stand in the place of the report required by law to be made by such company, and shall in all courts within this territory be evidence of the amount of such tax and penalty, and of the other facts stated therein, in pursuance of this act. Sec. 3. Neglect to Pay Taxes. In case any railroad company shall fail or neglect to pay the taxes reported by it to be due, in pursuance of this act, for the period of thirty (30) days after the same shall have become due by the terms thereof, in such case there shall be added to the amount of such tax ten (10) per centum thereof as a penalty for such failure or neglect to pay. Sec. 4. Territorial Treasurer to Distrain. At any time after the expiration of the period of thirty (30) days after any tax has become due and payable under the provisions of this act, the territorial treasurer, or his deputy, shall distrain sufficient goods, chattels, or other movable property, if found within this territory, to pay the taxes or per centum due from such corporation, together with the penalty thereon herein provided, and shall immediately advertise the sale of the same in at least three newspapers published within this territory, stating the time when and the place where such property shall be sold. Such sales shall take place at some point on the railroad of such delinquent company, and at least four (4) weeks' notice of the time and place of such sale shall be given. Such delinquent company, its successors and assigns, may pay any such taxes and penalty at any time before the sale of property distrained, as herein provided; and thereupon further proceedings in connection with such distress shall cease, and the property distrained be surrendered to the owner thereof.' (4) The total gross earnings of the said plaintiff for the year 1886 on the business of said railroads were $2,654,756.31, distributed as follows, to-wit: On the Northern Pacific Railroad, $2,309,549.25; on the Northern Pacific, Fergus & Black Hills Railroad, $34,327.13; on the Fargo & Southwestern Railroad, $192,594.47; on the Jamestown & Northern Railroad, $69,129.97; on the Sanborn, Cooperstown & Turtle Mountain Railroad, $29,936.36; and on the James River Valley Railroad, $19,213.62. Said total gross earnings, to-wit, said sum of $2,651,756.31, were composed and made up of earnings of said plaintiff on interstate business and commerce; that is to say, on business and commerce originating or beginning without said territory, or terminating without said territory, and earnings of said plaintiff on business that was not interstate business or commerce, but was strictly local to said territory; that is to say, on business or transportation of persons and freight which originated or began at some point or points within said territory, and terminated or ended at some point or points within said territory. The part or portion of said total gross earnings, to-wit, of the sum of $2,654,756.31, which said plaintiff earned for and upon business or transportation of persons and property, or otherwise, which originated and began within said territory, and terminated and ended within said territory, did not exceed the sum of $400,000, and was approximately about as follows, to-wit: On the Northern Pacific Railroad, $346,432.38; on the Northern Pacific, Fergus & Black Hills Railroad, $5,149.07; on the Fargo & Southwestern Railroad, $28,889.17; on the Jamestown & Northern Railroad, $10,369.49; on the Sanborn, Cooperstown & Turtle Mountain Railroad, $4,490.52, and on the James River Railroad, $2,882.79. The remaining portion of said total gross earnings, to-wit, about the sum of $2,259,425.68, were earnings which were earned by plaintiff on business that was interstate commerce; that is to say, on business or transportation of persons and property between points situated wholly without said territory; or points without and points within said territory; or points within and points without said territory. Iferetofore, to-wit, on the 5th day of March, A. D. 1887, said plaintiff duly paid to the defendant, treasurer as aforesaid, the sum of $38,095.31 as and for taxes on its earnings under the terms and

provisions of the act last mentioned. (5) Heretofore, to-wit, on the 15th day of August, 1887, the said defendant, treasurer as aforesaid, demanded of said plaintiff the sum of $38,095.31, which he, the said defendant, pretended was due and payable by virtue of said act; but thereupon said plaintiff refused to pay the said sum, or any part thereof. (6) Afterwards, to-wit, on November 4, 1887, the said defendant, treasurer as aforesaid, at Fargo, Cass county, Dak., did wrongfully and unlawfully levy a pretended distress upon, and seized and took possession of, certain personal property then and there owned by and in the possession of said plaintiff, to-wit: One Mogul locomotive, No. 147; one Mogul locomotive, No. 79; one Standard locomotive, No. 347; one Standard locomotive, No. 185; one Mogul switch-engine, No. 299; one Standard engine, No. 159; one Standard engine, No. 118; one switch-engine, No. 52,-of great value, to-wit, of the value of $64,000.00,-pursuant to the provisions of said act, and to satisfy the pretended taxes aforesaid, to-wit, the sum of $38,095.31, together with a certain pretended penalty thereon of $3,809.53; and has ever since remained in the possession of the same. (7) Afterwards, to-wit, on November 4, 1887, the said defendant, treasurer as aforesaid, caused an advertisement to be, and the same was, published in three newspapers published in said territory, that he, the said defendant, would sell said personal property at the court-house in Fargo, Dak., on the 6th day of December, A. D. 1887, at 10 o'clock A. M., to satisfy said pretended tax and penalty as provided in said section 4 of said act. (8) That, unless restrained by the order of this court, said defendant will, as plaintiff is informed and believes, sell said property at the time and place mentioned in said advertisement, to-wit, on December 6, A. D. 1887, at 10 o'clock A. M., at the court-house in Fargo, Dak., to satisfy said pretended tax and penalty. (9) That said plaintiff is a common carrier of goods and passengers for hire in said territory, and the said personal property, to-wit, the said engines, are essential and necessary to enable said plaintiff to carry on its business as a common carrier, and to discharge its duties as such to the public; that, if said engines are sold as aforesaid by said defendant, said plaintiff will be deprived of the possession thereof, and will be deprived of the use thereof in its said business as a common carrier; and it will not be able to purchase or procure other engines in their place in less time than a year, for the reason that it will have to purchase such other engines from the manufacturers of railroad locomotives and engines in the United States. And all of said manufacturers now have orders for engines which will require at least a year to fill, and on account of such pressure of business none of them will be able to furnish said plaintiff with any engines in less time than a year; by reason of which the sale of said engines will inflict great and irreparable injury on the business of said plaintiff, and will cause said plaintiff great pecuniary loss, the exact amount of which cannot be computed, and will to a great extent prevent said plaintiff from engaging in its said business, and will destroy said business in part, and will cause said plaintiff great and irreparable damage, which cannot be estimated and determined in an action at law. (10) Said defendant, James W. Raymond, treasurer as aforesaid, is furthermore financially irresponsible, and is not the owner of property and effects equal in value to the value of said engines or of said pretended tax and penalty, so that, if said engines are sold as aforesaid, said plaintiff will not be able to recover the value thereof from said defendant, and will not be able to collect any judgment therefor it may obtain against said defendant, and said defendant will be wholly unable to pay any such judgment; and if said plaintiff should pay said pretended taxes and penalty to said defendant, and should afterwards bring an action against said defendant to recover back the same, and should in any such action obtain a judgment against said defendant for the amount of said pretended tax and penalty, said defendant will be unable to pay such judgment by reason of said defendant's financial irresponsibility as aforesaid, and said plaintiff would

not be able to collect the amount of such judgment, or satisfy the same by execution or otherwise; but, on the contrary, the amount of said pretended tax and penalty would be wholly and forever lost to said plaintiff. (11) That by reason of the premises said plaintiff has no adequate or complete remedy at law. Wherefore said plaintiff prays that said pretended tax and penalty, and the whole thereof, be adjudged null and void; and that said defendant, James W. Raymond, treasurer as aforesaid, his deputy and deputies, and his successor and successors in office, be perpetually restrained and enjoined from selling, or attempting to sell, said personal property, or any part thereof, to satisfy said pretended tax and penalty, or any portion thereof; that the said defendant and his deputy and deputies, and his successor and successors in office, be restrained and enjoined from selling, or attempting to sell, said property, or any part thereof, to satisfy said pretended tax and penalty, or any portion thereof, during the pendency of this suit; that said plaintiff have judginent against said defendant for the possession of said personal property, besides its costs and disbursements in this action; and that said plaintiff have such other and further relief as may be equitable and just in the premises. Defendant demurred to this complaint as not stating facts sufficient to constitute a cause of action. The court overruled the demurrer, and, defendant having elected to stand by his demurrer, judgment was rendered for plaintiff, granting a perpetual injunction as prayed for. Defendant appeals.

Charles F. Templeton, Atty. Gen., for appellant. Ball, Wallin & Smith and John C. Bullitt, Jr., (James McNaught, of counsel,) for respondent.

FRANCIS, J., (after stating the facts.) The amended complaint, the allegations of which are admitted by the demurrer, and are on this appeal to be taken as true, discloses that the gross earnings of the respondent railroad company for the year 1886 (to which the amount in controversy relates) was $2,654,756.31. That $395,330.63 of this sum represented all the gross earnings of said respondent for said year 1886, in business originating and terminating within the territory of Dakota, leaving the sum of $2,259,425.68 as the total of its gross earnings for said year, from business, namely, the transportation of persons and property between points situated wholly without this territory; or points without and points within this territory; or points within and points without this territory; and coming under the head of interstate commerce business. It is clear, at the outset, and conceded by the attorney general for the appellant, that so much of the act entitled "An act to provide for the levy and collection of taxes upon the property of railroad companies in this territory," approved March 9, 1883, (Sess. Laws Dak. 1883, p. 211,) as provides for a tax, or the payment of a per centum in lieu thereof, upon the gross earnings of a railroad company operating in this territory, received for business, the transportation of passengers and property,-not local, that is, not originating and ending wholly within this territory, but interstate, and therefore coming under the head of interstate commerce, is unconstitutional and void. It is an intermeddling with, and an effort to tax, the earnings or proceeds arising from interstate commerce, and the attempted usurpation of a power which, under the constitution, is to be solely and exclusively exercised by congress. Among other cases, see Fargo v. Michigan, 121 U. S. 230-247, 7 Sup. Ct. Rep. 857; Steam-Ship Co. v. Pennsylvania, 122 U. S. 326-347, 7 Sup. Ct. Rep. 1118, and cases cited in court opinion. Applying the principles asserted in these and other cases, and the controlling doctrine established by our country's most eminent tribunal, to the point now under review, it follows that the respondent railroad company in this case could neither be called upon nor compelled by the territory of Dakota to pay any tax, nor any sum in lieu thereof, upon its earnings or receipts in its interstate commerce business represented for said year 1886 by said admitted sum of $2,259,425.68. Such earnings are not within the taxing domain of the ter