Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1883-07-23
RAILROAD Tax CASES.
Interesting Argument on Demurrer Before
the United States District Count.

terestirg argument upon the demurrer took
place:
| Mr. Demas-I understand that IN this case the
matters which were stricken out the other day re-
| main out Of the amended answer except in so lar
| as they relate TO the legislation OF Cons ress
Justice Fied-That is to say, those tnat are pre-
linlinary, from the fifth to thethrteenth section.
Mr. Delmas-The answer as amended presents
, what may be denominated in general two lines of
defense, snd great deal OF difficulty has been ex-
perienced by the counsel for plaintiff IN framing
demurrer to the answer so drawn, from the fact
thai the two lines OF defense are intermingled
throughout whereas, according to the better rules
: of pleading, understand them, they should
have been stated as separate defenses. general
demurrer TO the answer will not the pur-
pose because there things stated 10 the answer,
under what may be termed State defenses, that are
confessedly perfect del nse to the case, il true.
Bat they are intermingled with allegations
which may be termed Federal exhibit Of the case.
and we deem, not State defense to tbs action. 1t
is very difficult for the plaintiffs to demur to an
answer Of that kin il this is put in as one defense
If they demur generally it is answered that there is
in the pleading perfec. defense that is State de-
fense III they demur specifically then there is no
Ii is not stated separate defense. In this EN-
barrassnent, ii your HoDors please, we feel quite
reluctant TO enter into the discussion of the Federal
defense under demurrer which may be oVerruled
on Z technicahty. To srgue the demurrer upon
these matters IS to argue the whole case, as we
J understand it. We are quite willing to do so and
:
the Court, but would like q matter of order in
the pleadiugs that there may be technical OBJ
lection to demurrer, that this defense be segre-
gated and separate.
| You can demur SO much as lies in the Federal de-
fense and much lies on other matters. II there
is anything inartistc in the drawing of the answer
we would not allow that to prejudice your case AZ
| all in any way whatever As understand It, the
| answer sets up three defenseS.
First-Thst the whole system of taxation the
system of taxation against raj road companies IS diff
| ferent from what it is IN the assessment againSy
other property.
Second-That matters were included in the as
| sessment that under no circumstances should have
| been included. That would be a defense under the
State law, suppose, ii it is defense at all. And
then
ThirI-That the corporation has received certain
privileges and righ ts from the Federal Government
| in consideration of which it is the agent OF the
Government for certain pos. al and military services,
and they SO received with the sanction of the
State
Now. YOU may dernur to one OF all. It will not
act to your prejudice If there be anything nartiss
| in this mods Of defense. Our desire is thst the
whole merits shal be presented here
| Mr. Delmas-Then ] understand that this de-
| murTer will be treated as if these defenses were
stated concise they ought TO have been in the
ordina way OF pleading, sepsr4te defenses.
Justice Fell--Yes, eir. We 90 not desire to in
terpose anything technical in this case On the coz
trsry we want decide it absolutely on its merits
Mr.. Delmas- Supposing that your Honors should
| decide TO sustain the demurrer. There IS but one
defense-there is but one matter OF defense con-
tanned in this answer.
Justice Field-If we hold certain matter set up
there should not be considered defense, we would
exclude evidence on those matters. You would thus
| get really all you want.
Mr. Delmaa-We conceive, then, yo1r Honors
upon that understanding, that in reality all the i'm
! pOrtant branches of this case do arise demurrer
and the argument upon that matter, if it is to be
argued with the funess that the matter of that i'm
portance requires is argument OF the whole case
Justice Field have always thought so, and that
counsel might agree upon certain facts. But
ould not suggest anything Of that kind in face of
what has transpsed in reference to the other case
Never was a case in Court argued more faithfully
and more earnestly in all points, and with eminent
counsel on both sides. And all allegations that
there was anything wrong are utterly untrue but
in face of the allegations that have been made do
| not mean to make suggestion to counsel in this
case, except that they shall have the fullest oppor
tuaitv in every instance TO hear the case.
hr. pslmas-Expression is made by the Attorney
General that it is feared that ii this case is again
submitted upon demurrer to the answer, the same
objections may be raised that have been raised III
the previous case, and it is suggested that it might
be more satisfactory, instead OF admitting these
| facts by way of demurrer, that they be proved as
facts incontroyer,ibie and existing after the nature
OF things. | cannot imagine why the Court cannot
get tho merits of the controversy il the defend.
ant in the action instead OF putting his adversary
to the necessity OF proving facts he chooses in his
wisdom to admit ireontroyertible fact, and dis
pute simply the legal proposition arising theretrom
But 1t Is feared IS some oDJSctlog E Deen maze on
the former case, to going up It were upona stip-
ulated statement Of facts which may my not be
fictitious, and charged 10 some quarters TO be hcti
tous tha. the same objections might be urged here
were this case argued on demurrer.
Justice Field Whatever you do want you t. put
Attornoy-cene.al-I understand that we are ed.
dressing ourselves to this because the Supreme
Court thought that demurrer wss not the proper
way to present the to them. Your Honors
listened TO that argument in the other case nine
~. l. II.
could be- AID feel embarrassed as to what we are
doing here. There is gone up that was as
full as we make il now.
Justice Field thought so but you IRE aware Of
the fact that imputations may be made by even hon
oreble members of the bar; and there were imputa-
tions in that case, and even the position OF ex.
Supreme Justice OF the State did not save counsel
from charges OF impropriety.
Attorney -GsneEa al-Your Honors see what posi-
ton J. as Attorney General OF the State would be
in il | was to agree to the former stipulation and
argue the case on the line before, and per-
haps not argue it so well, for the Attorney
Generals Office is fl led With different class Of
officers now. What position would be in, sup.
posing should review that stipulation ard send a
case TO the Supreme Court on precisely the same
facts as before.
Justice Field-No, you leave your mortgage. The
mortgage is on record now, which it not before.
The mortgage is attached to the record e11-
hib t. A great deal was I'D before that the mort
gage was not there, and there was some impression
that the mortgage contained some $4,000 mile
and the answer showed only $1,000 And there
were some who insisted that the mortgage might
affect the rights You have the mortgage now. l
think the Supreme Court wants to know the rev.
system Of this State, and see it has regarded
the fundamental principles OF law in the assessment
of property | certainly have no feeling about the
ca c at all. want to do justice. Surely il have
any deslre it is that my decisions shall be right for
ii thev are not they will be ultimately oyerthr0wn,
and if they are right they will stand. So have no
feeling about it. ii you convince me am wrong /
will be the first person to set aside my Judgment.
ey-General-Speaklng frankly, Judge, it
would be the idlest thing in the world to undertake
to over.urn that decision in three or four hours
argument from what little know about it. Your
HonoIs want written opinion.
Justice Field-I have a written opinion re-
yersed myself in the Supreme Court.
Attorney. .General-There q hundred author
tiles at least, cited in this argument Your HOn0rs
have examined them carefully.
Justice Field-What viii you do with the case?
Attorney -General-What think We on hit to do,
what think came here TO do-th1t Is, TO try
this case and have al the facts questioned and
brought ont
justice Field-I think, Mr. Attorney General
though would not advse-I think the man who
stands at the head Of the law department OF the
State can take upon himself the respoI sibihty OF
admittiug what caunot be denied and not put the
Court or the counsel to the trouble of proving what
is matter of record do not suggest it. | would
not make any suggestion in the whatever. But
. the State Inust he in poor condition that viii
question the privilege of its chief law officer.
. Attorney-G -General-The State is in poor condi-
ton. IL lS IN 10 question tne privilege
anything and anybody, and l. of all men, can afford
to make no experiments / saw notice the other
day that everybody who was at a certain meeting
was lawyer, with the exception Of the Attorney
GenersL And in that spirit do not propose
exercise any discretion, venture anything upon
the Attorney. Generals knowledge of snything in
the practice Of law propose to do what thought
we came here to do, to improve the record by show
ing all the facts in the want to try and show
what debt exists from this corporation TO the State
under the revenue laws Of the State and under the
action Of the officers Of the State. That is what
came here TO do.
Mr. Rhodss-H the Court and counsel viii allow
me suggestion II, without arguing this demurrer
fled order can be made in relation to il that
will reserve any questions that may arise the de-
murrer, that on the Introduction of evidence we
can argue the objections that made before your
] Honor a Jury, the propositions Of law we reIy
r on then be argued. think that will answer all
. purposes.
Justice Field-You are all able to decide your
course without suggestions from me- Decide your
, course and we will pass upon the law.
e Mr. Pomeroy-on behalf Of the railroad com.
pany certainly willing to abide by the result
Of the demurrer. entirely agree with counsel on
the other side that all questions will be raised on
demurrer. At the same time it seems to me a use
less consuming Of time to argue the demurrer with
the understanding that the result shall not be aal
and then have trial and have the same arguments
| over again. We are not at all indisposed to have
| trial Co 3, il