Such

of real estate and the construction of state constitutions and statutes. established rules are always regarded by the federal courts, no less than by the state courts themselves, as authoritative decisions of what the law is. But where the law has not been thus settled, it is the right and duty of the federal courts to exercise their own judgment, as they also always do in reference to the doctrines of commercial law and general jurisprudence. So when contracts and transactions have been entered into, and rights have accrued thereon under a particular state of the decisions, or where there has been no decision, of the state tribunals, the federal courts properly claim the right to adopt their own interpretation of the law applicable to the case, although a different interpretation may be adopted by the state courts after such rights have accrued. But even in such cases, for the sake of harmony, and to avoid confusion, the federal courts will lean towards an agreement of views with the state courts if the question seemed to them balanced with doubt. Acting on these principles, founded, as they are, on comity and good sense, the courts of the United States, without sacrificing their own dignity as independent tribunals, endeavor to avoid, and in most cases do avoid, any unseemly conflict with the well-considered decisions of the state courts. As, however, the very object of giving to the national courts jurisdiction to administer the laws of the states in controversies between citizens of different states was to institute independent tribunals which it might be supposed would be unaffected by local prejudices and sectional views, it would be a dereliction of their duty not to exercise an independent judgment in cases not foreclosed by previous adjudication. As this matter has received our special consideration, we have endeavored thus briefly to state our views with distinctness, in order to obviate any misapprehensions that may arise from language and expressions used in previous decisions. The principal cases bearing upon the subject are referred to in the note, but it is not deemed necessary to discuss them in detail. In the present case, as already observed, when the transactions in question took place, and when the decision of the circuit court was rendered, not only was there no settled construction of the statute on the point under consideration, but the Missouri cases referred to arose upon the identical transactions which the circuit court was called upon, and which we are now called upon, to consider. It can hardly be contended that the federal court was to wait for the state courts to decide the merits of the controversy, and then simply register their decision, or that the judgment of the circuit court should be reversed merely because the state court has since adopted a different view. If we could see fair and reasonable ground to acquiesce in that view, we should gladly do so; but, in the exercise of that independent judgment which it is our duty to apply to the case, we are forced to a different conclusion. Pease v. Peck, 18 How. 595, and Morgan v. Curtenius, 20 How. 1, in which the opinions of the court were delivered by Mr. Justice Grier, are precisely in point."

In Pease v. Peck the court said:

"There are, it is true, many dieta to be found in our decisions averring that the courts of the United States are bound to follow the decisions of the state courts on the construction of their own laws. But although this may be a correct, yet a rather strong, expression of a general rule, it cannot be received as the enunciation of a maxim of universal application. Accordingly, our reports furnish many cases of exceptions to it. In all cases where there is a settled construction of the laws of a state, by its highest judicature, established by admitted precedent, it is the practice of the courts of the United States to receive and adopt it without criticism or further inquiry. But, when this court have first decided a question arising under state laws, we do not feel bound to surrender our convictions on account of a contrary subsequent decision of a state court, as in the case of Rowan v. Runnels, 5 How. 139. When the decisions of a state court are not consistent, we do not feel bound to follow the last, if it is contrary to our own convictions; and much more is this the case where, after a long course of consistent decisions, some new light suddenly springs up, or an excited public opinion has elicited new doctrines, subversive of a former

safe precedent. Cases may exist, also, when a cause is got up in a state court for the very purpose of anticipating our decision of a question known to be pending in this court. Nor do we feel bound in any case in which a point is first raised in the courts of the United States, and has been decided in a circuit court, to reverse that decision contrary to our own convictions, in order to conform to a state decision made in the meantime. Such decisions have not the character of established precedent declarative of the settled law of a state. Parties who, by the constitution and laws of the United States, have a right to have their controversies decided in their tribunals, have a right to demand the unbiased judgment of the court."

The decision of the state court which we are asked to follow seems to us to be in plain conflict with the weight and general current of authority on the subject. It is, too, not only not the logical result of the previous decisions of that court, which may be deemed relevant to the question, but, as we think, distinctly inconsistent with them, and therefore ought not to be accepted as a declaration of the settled law of the state. Nor can we yield to the view so enunciated on the ground that the question is "balanced with doubt." "If we could see fair and reasonable ground to acquiesce in that view, we would gladly do so; but, in the exercise of that independent judgment which it is our duty to apply to the case, we are forced to a different conclusion."

We think that, upon the facts alleged, the circuit court erred in refusing a temporary restraining order and in dismissing the bill. The order of dismissal is therefore reversed, and the cause remanded, with instruction for further proceedings not inconsistent with this opinion.

MCLEOD et al. v. RECEVEUR, Treasurer.

(Circuit Court of Appeals, Seventh Circuit. January 6, 1896.)

1. JUDGMENTS

MENT.

No. 224.

COLLATERAL ATTACK DETERMINATION BY BOARD OF ASSESS

-

The property of the K. & I. Bridge Co., which owned a bridge over the Ohio river from the Kentucky to the Indiana shore, having been placed in the hands of receivers, the treasurer of F. county, Ind., in which county the terminus of the bridge lay, intervened in the suit in which the receivers were appointed, alleging that the state board of equalization had assessed the property of the bridge company for taxation at $200,000, and asking that the receivers be ordered to pay the taxes levied upon such assessment. The receivers answered, alleging their willingness to pay the tax upon a proper assessment, but averring that the board of equalization had been led, through misrepresentation, to believe that the property of the bridge company in Indiana included all its property extending to a point in the river near the Kentucky shore, whereas the boundary of the state and the bridge company's property therein extended only to lowwater mark on the northern shore, and that, by mistake and error, said board had determined, against the statements of protest of the bridge company, that its property extended to the further limit, and had accordingly assessed its property in Indiana at $200,000, when the same was not in fact worth more than $45,000. These averments of the answer were stricken out, on motion of the intervener, and the taxes were ordered to be paid. Held, that as the board of equalization, in determining what property was to be assessed, and in fixing the amount of the assessment, acted judicially, and had jurisdiction to determine such questions, its judgment could not be questioned collaterally, and the order should be affirmed.

8. CONSTITUTIONAL LAW-DUE PROCESS OF LAW.

Held, further, that the opportunity afforded to the bridge company to be heard before the board of equalization, of which it appeared that it had availed itself, was sufficient to satisfy the constitutional requirement of due process of law.

Showalter, Circuit Judge, dissenting.

Appeal to the Circuit Court of the United States for the District of Indiana.

In a suit in the circuit court of the United States for the district of Indiana, wherein the Youngstown Bridge Company was complainant, and the Kentucky & Indiana Bridge Company and others were defendants, the appellants were appointed receivers of the property of the company defendant in that bill. The defendant corporation was the owner of a bridge spanning the Ohio river at or near Louisville, in the state of Kentucky, and New Albany, in the state of Indiana, with considerable property in both of such states adjacent to the termini of the bridge. The state board of equalization of Indiana assessed the property of the Kentucky & Indiana Bridge Company in the years 1891, 1892, and 1893 at something over $200,000. The taxes levied by the state of Indiana and by the county of Floyd for such years, respectively, upon the basis of that assessment, remaining unpaid, the treasurer of Floyd county, in which county the property in the state of Indiana belonging to the company was situated, and who, by law, is charged with the duty of collecting such taxes, on the 29th of May, 1894, filed his intervening petition, setting forth that the taxes for those years were levied by the state of Indiana and by the county of Floyd upon the property of the company situated within the state of Indiana and in the county of Floyd and north of the low-water mark of the Qhio river; that such taxes, remaining due and unpaid, constituted a first lien upon all the property of such bridge company; and asking for a decree that the receivers be adjudged to pay the same out of any funds in their hands. To that petition the receivers made answer, inter alia, as follows: "Your respondents, for further answer, state that they are, as receivers, under the order of this court, ready and willing and able to pay any taxes due the county of Floyd and state of Indiana, for either of the years named, -1891, 1892, 1893. They state that the assessments upon the property of said Kentucky and Indiana Bridge Company for the years above named were not legally, fairly, justly, and equitably assessed by the state board of equalization of the state of Indiana, and that the amount of property belonging to the said Kentucky and Indiana Bridge Company, in the state of Indiana, was unfairly and improperly represented to said state board of equalization of the state of Indiana, and that, by reason of said unfair, improper, and incorrect representations of the property of said Kentucky and Indiana Bridge Company, the valuation placed thereon was greatly in excess of the fair, just valuation of said property, due from any standpoint whatever. Respondents further say that the said board of equalization were led to believe, and did believe, against the statements and protest of said Kentucky and Indiana Bridge Company, that the property to be assessed, and that was assessed, and was considered in the valuation of said property, was to be the channel of the Ohio river on the Kentucky side; that said board of equalization claim that the property of the Kentucky and Indiana Bridge Company, for the purpose of valuation aforesaid, should be held as extending to what is known as 'Sand Island,' in the Ohio river, near the Kentucky shore; whereas the property of the Kentucky and Indiana Bridge Company, for purposes of valuation and taxation in the state of Indiana, does not extend further than the low-water mark on the Indiana side; that the members of the state board of equalization were misled by the statements and representations of a member thereof, who resided in the city of New Albany, and who assumed to know the circumstances and relations of the property, and said valuation was made through mistake and error as to the amount of property belonging to said company in the state of Indiana. Your respondents state, and charge the fact, and be

lieve, that in the said valuation of the Kentucky and Indiana Bridge Company property, for the purpose of taxation, the property of said company was considered to be and held as extending to the channel of the river on the Kentucky side, which would be about eighteen hundred feet further into the channel of the Ohio river than by law it could extend for purposes of taxation. Your respondents further state that the cost of all the property of the Kentucky and Indiana Bridge Company in the state of Indiana could not exceed $45,000, and yet, by the inducements and representations, at the time said amount was first assessed against said property, the valuation was placed at the sum of $200,000, more than four times its original cost, and far greater than could be reasonably, fairly, and justly, under all the circumstances, placed upon the property of the Kentucky and Indiana Bridge Company for the purpose of taxation. Your respondents further allege, and they stand ready to prove, that, on account of said misrepresentations and statements and mistakes as to the amount of property of the Kentucky and Indiana Bridge Company in the jurisdiction of the state of Indiana, this erroneous and unjust and unlawful assessment was placed upon the property of said company. Your respondents further state that said facts were placed before said board of equalization, and that said Kentucky and Indiana Bridge Company protested against any part of its property south of the low-water mark on the north bank of the Ohio river being considered in the valuation of its property for taxable purposes, but that in defiance of the rights of the Kentucky and Indiana Bridge Company, and owing to the persuasions and representations of said menber of said board of equalization residing in New Albany, said state board of equalization, in the beginning of said valuation, as above set forth, was induced to place such excessive, erroneous, unjust, and unlawful valuation upon the property of the Kentucky and Indiana Bridge Company for the years 1891-2-3. Respondents further state that said property, either actually or relatively, was of no greater value than $45,000; that they have offered to pay, and do hereby again offer to pay, to the county and state aforesaid, taxes for 1891, 1892, and 1893, on said valuation of $45,000; and that taxes on said amount is all that should be placed by this court upon this property for the years above named." The intervening petitioner thereupon moved to strike out the paragraphs of the answer quoted, upon the ground that each of said paragraphs states matters, and only matters, impertinent and irrelevant, and in no way material to the defense of the petition. The court sustained the motion, and struck out the paragraphs referred to; and the receivers withdrawing all other defenses stated in their answer, and electing to stand upon and abide by their exception to the order and ruling of the court sustaining the intervening petitioner's exception to, and motion to strike out, the paragraphs referred to, and refusing to answer further, the court decreed that the receivers pay to the intervening petitioner the amount of taxes shown to be due by the intervening petition, from which decree this appeal is taken. The case is reported as Youngstown Bridge Co. v. Kentucky & I. Bridge Co. (Treasurer of Floyd County, Intervener), 64 Fed. 441.

Bennett H. Young, for appellants.

W. H. H. Miller, F. Winter, J. B. Elam, and E. B. Stotsenburg, for appellee.

Before WOODS, JENKINS, and SHOWALTER, Circuit Judges.

JENKINS, Circuit Judge, after statement of the facts, delivered the opinion of the court.

The action of the state board of equalization in the assessment of the property of the Kentucky & Indiana Bridge Company is attacked upon the ground that it was illegal, unfair, unjust, and inequitable; that the amount of property belonging to the company in the state of Indiana was unfairly and improperly represented to the board, and

by reason of such unfair, improper, and incorrect representations the value placed thereon was largely in excess of its fair and just valuation; that the board was led to believe, and did believe, that the property to be assessed, and that was assessed and considered, in the valuation of the property, was to the channel of the Ohio river on the Kentucky side; that the board held that the property of the company, for the purpose of valuation, should be held to extend to Sand Island, in the Ohio river, near the Kentucky shore; whereas, as is asserted by the answer, it only extended, for the purposes of valuation and taxation in the state of Indiana, to low-water mark on the Indiana side; that the members of the state board were misled by misrepresentation, and that such valuation was made through mistake and error as to the amount of property belonging to the company in the state of Indiana, and, by reason of such misrepresentation, property of only $45,000 in value was assessed of the value of $200,000.

It is, no doubt, true, as urged by the counsel for the appellants, that a judgment pronounced by a tribunal having no authority to determine a matter in issue is necessarily and incurably void, and that such want of jurisdiction may be shown in any collateral or other proceeding in which it is drawn in question. That principle, however, has no proper relation to the case in hand, because it is undenied and undeniable that the board of equalization had the power to assess, and the state of Indiana and the county of Floyd had lawful right to tax, the property of the bridge company lying within the county of Floyd. The officers of the board of equalization, in estimating the value of property for taxation, act judicially. Their judg ments in cases within their jurisdiction, in the absence of fraud, are not open to collateral attack. They can only be impeached in a direct proceeding. Stanley v. Supervisors, 121 U. S. 535, 550, 7 Sup. Ct. 1234. This immunity from collateral attack is applied not merely to courts of inferior jurisdiction, but to the numerous special tribunals through which the authority of the state is exercised. City of Ft. Wayne v. Cody, 43 Ind. 197; Ricketts v. Spraker, 77 Ind. 371; O'Boyle v. Shannon, 80 Ind. 159; Garvin v. Daussman, 114 Ind. 436, 16 N. E. 826; Jackson v. Smith, 120 Ind. 520, 22 N. E. 431; Railroad Co. v. Soice, 128 Ind. 105, 27 N. E. 429; Railroad Co. v. Sutton, 130 Ind. 405, 30 N. E. 291; Patoka Tp. v. Hopkins, 131 Ind. 142, 30 N. E. 896; Cole v. State, 131 Ind. 591, 31 N. E. 458. Here there is no suggestion of fraudulent conduct upon the part of the board of equalization. Its officers were charged with the duty of assessing the value of the property of the bridge company lying within the state of Indiana. They did not seek or attempt to make any assessment upon property without the boundaries of the state. It was their duty to ascertain the extent of the property of the bridge company lying within the 'state, and to declare its fair value. It is, in effect, charged that they committed an error of judgment, being misled to believe that the boundary line of the state was below low-water mark in the Ohio river, and so placed upon the property lying within the state a greater valuation than they otherwise would have done; in other words, that, through a mistake of fact and error of judgment, the property