Syllabus.

that more or less stone or rock would be found in the progress of the work, and the price was evidently fixed upon its supposed average character.

In the second place, the act of Congress of February 21, 1871, "to provide a government for the District of Columbia," in force at the time,' required that all contracts by the Board should be in writing, be signed by the parties making the same, and a copy thereof filed in the office of the secretary of the District; and it forbade the allowance of any extra compensation for work done under a contract. 16 Stat. 419, 423, c. 62, §§ 15, 37.

The entry in the journal of the Board was no part of the contract with the claimant, nor could it in any respect control the construction or limit the effect of such contract. The Board could not in that way either make a new contract or alter the one previously made, so as to bind the District. Barnes v. District of Columbia, 22 C. Cl. 366.

Judgment affirmed.

RATTERMAN v. WESTERN UNION TELEGRAPH COMPANY.

WESTERN UNION TELEGRAPH COMPANY v. RATTERMAN.

APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO, WESTERN DIVISION.

Nos. 1360, 1361. Argued March 21, 1888. — Decided May 14, 1888.

A single tax, assessed under the laws of a State upon receipts of a telegraph company which were partly derived from interstate commerce and partly from commerce within the State, and which were capable of separation but were returned and assessed in gross and without separation or apportionment, is invalid in proportion to the extent that such receipts were derived from interstate commerce, but is otherwise valid; and while a Circuit Court of the United States should enjoin the collection of the tax upon the portion of the receipts derived from interstate com

Statement of the Case.

merce, it should not interfere with those derived from commerce entirely within the State.

The decisions of this court respecting the taxation of telegraph companies reviewed.

THE case, as stated by the court, was as follows:

These are cross appeals from a decree of the Circuit Court for the Southern District of Ohio, Western Division.

The suit was begun by a bill of complaint, filed by the Western Union Telegraph Company against Frank Ratterman, treasurer of Hamilton County, in the State of Ohio. As the bill is not very long, it is here presented in full :

"To the judges of the Circuit Court of the United States for the Southern District of Ohio, Western Division :

"The Western Union Telegraph Company, a corporation duly organized and existing under the laws of the State of New York and a citizen of said State, brings this its bill against Frank Ratterman, treasurer of Hamilton County, Ohio, and a citizen of the State of Ohio.

"And thereupon your orator complains and says:

"That its principal office is, and during the times hereinafter mentioned was, in the city of New York; that during said time it had been and now is engaged in the business of receiving and transmitting for hire telegraph messages between different points in the United States, and in the carrying on of said business has offices in the city of Cincinnati and at other points in the county of Hamilton and in the State of Ohio, and has been engaged in the transmission of messages between said offices and other points both within and without the State of Ohio.

"That prior to 1869 your orator accepted in writing the provisions of the act of Congress of July 4, 1866, 14 Stat. 221; that your orator's wires, poles, batteries, office furniture, and other property in the State of Ohio have been and are taxed like other property in said State; that your orator's telegraph lines cross nearly all of the States of the Union and occupy portions of British America, and that a large amount of the

Statement of the Case.

commercial transactions, business, and intercourse of the people is carried on by means of their wires.

"That in the month of May, 1887, your orator, under protest, delivered to the auditor of said county a statement, as required by Revised Statutes Ohio, § 2778, showing the entire receipts of your orator in said county for the year next preceding, which said gross receipts amounted to the sum of $175,210.88, and were principally for business between points. in the State of Ohio and points outside the State of Ohio -that is to say, the receipts of your orator for messages and business pertaining to commerce between the States, and not for messages between different points within the State of Ohio; that thereupon said auditor assessed a tax thereon amounting to five thousand two hundred and six and dollars.

"Your orator says that said tax is illegal and void and in violation of the Constitution of the United States.

"Your orator has offered to the defendant and is ready and willing to pay to him the taxes chargeable against its personal property within said county, but the defendant refuses to accept payment thereof unless your orator also at the same time pays said total assessment for all of said gross receipts; and, unless restrained, the defendant will impose and enforce the penalties for non-payment of said tax provided for by Revised Statutes of Ohio, § 2843, to the interference, stoppage, and destruction of your orator's business.

"Wherefore your orator prays that the defendant may be required to accept payment of so much of said tax assessment as covers the property of your orator in the said county, and that he may be enjoined by preliminary injunction and by final decree from levying or collecting the balance of said

assessment.

"Your orator prays that a writ of subpoena may issue against the defendant, and that your orator may have such other and further relief as it is in equity and good conscience entitled to."

To this bill a general demurrer was filed, which was overruled by the court. The record then proceeds as follows:

Statement of the Case.

"And thereupon it was agreed by and between the complainant and the defendant that the cause be submitted to the court on the bill without further pleading to the same by the defendant, upon the following facts:

"That of the entire receipts mentioned in the bill $142,154.18 were for business done by the plaintiff between its offices in said county and points outside of the State of Ohio

- that is, for messages and business pertaining to commerce between the States and not for messages between different points within the State of Ohio, and that the balance of said receipts, to wit, $33,056.70 was for business between the offices of the plaintiff in said county and other points within the State of Ohio; and that if said receipts had been so separated and apportioned and said tax had been separately assessed on the basis of such separation and apportionment the amount of said total tax of $5206.90 apportionable to said receipts for interstate commerce would be $3931.51, and the amount apportionable to said receipts for business between the offices of the complainant in said county and other points within the State of Ohio would have been $910.40, and that the remainder of said sum of $5206.90, viz., $364.99, was for tax assessed upon the personal property of the said complainant within the said county of Hamilton aforesaid, namely, upon its instruments, wires, poles, and other chattel property which were returned by said complainant to the auditor of said county at a valuation of $18,059.

"That Exhibit 'A,' hereto annexed and made a part of this stipulation, is a copy of the return made by complainant to the auditor of said county in pursuance of the law of the State of Ohio, and that said complainant made no other return and furnished no other information to said auditor at the time of said return, save what is contained in said return.

"That Exhibit 'B,' hereto annexed and made a part hereof, is a copy of the return of the chattel property of said complainant made at the same time to said auditor.

"It is further agreed that the auditor of said county placed on the tax duplicate of said county said sums of $175,210.88, and $18,059 as the personal property of said complainant, to

Statement of the Case.

be assessed for taxation in said county of Hamilton, and that the rate of taxation assessed thereupon was the same as was assessed against the personal property listed for taxation by the citizens of said county.

"It is further agreed that complainant, prior to December 20, 1887, offered to pay the tax properly assessable against said return of $18,059 for personal property, but the defendant refused to accept payment of said assessment of $5206.90 unless the whole were paid. The plaintiff did not disclose to said auditor at the time it made said return what portion, if any, of the gross receipts of its said offices in said county was for interstate commerce.

"It is further agreed that neither said auditor nor said treasurer had any actual knowledge that any portion of the returns of said gross receipts was for interstate commerce business, but said officers knew that plaintiff's said business included interstate commerce.

"And the only knowledge said auditor and said treasurer had of the business of said company and what said receipts were derived from was from the returns hereto annexed, marked Exhibit A,' and from their knowledge as aforesaid of the plaintiff's business.

"The cause being thus submitted to the court on the foregoing stipulation of facts and the argument of counsel, the court is of the opinion that said receipts and tax may be separated and apportioned, and that said tax so far as so separated and apportioned to said receipts derived from the interstate commerce is unconstitutional and void, but valid apportionable to said receipts derived from state business.

"It is thereupon ordered by the court, adjudged, and decreed that the defendant is hereby forever enjoined from collecting on said assessment of $5206.90 more than the sum of $1275.39, and an injunction is refused as to the balance of said tax. It is further ordered that the defendant pay the costs of

this suit."

The judges of the Circuit Court, upon this state of facts, made the following certificate of a difference of opinion:

"This is to certify that at the hearing of the above entitled