Wheeling Sunday register. [volume] (Wheeling, W. Va.) 1882-1934, 1885-09-06
THE SECOND DAY,
OF the Argument In the Chesapeake
& Ohio Tax Case.
The Time Taken up BV AttOrney-Gensral
Caldwell and Governor Wilson, in
Behalf Of the State.

When the United States District Court re-
assembled yesterday morning the arguments
Of counsel in the Chesapeake and Onio tax
case were proceeded with. Before Mr..
Caldwell recommended his argument, how
ever, Judge Ferguson arose and said ne de-
desired 10 cal the attention OF the Court to
one or two inaccuracies contained IN the
newspaper report of bis speech: This mat
ter was disposed Of to the satisfaction OF
Judge Ferguson, and then the Attorney
General resumed his argument, BY saying
that the question he was considering last
evening was as to the constitutionahty OF
the 10 per cent additio- required to be add
ed to the taxes before they were sent to the
Sherifs. He had asc, r:ained that counsel
for the opposition relied uponS
TWO REASONS
for their objection, and not one, a. he had
supposed yes srday. One was that the 10
per cent is in violation oil Section Article
10 of The Constitution of the State, and the
, other is that it is contraVention OF Section
IA of the Constitution Of the United States,
which provides that property snail not be
taken without due process Of law. The At
torney General then proceeded TO argue
upon the question Of. the conshtutionality
Of the 10 per cent. addition, citing from
Michigan, A Michigan, % California, IL Iowa
and numerous other authorities in support
of his claim that the penalty was 3 just one,
and warranted by the action of individuals
or corporations in Withholding taxes which
should be paid. he also claimed that the
/ per cent. did not destroy uniformity, a.
it was merely =.
AN INCIDENT OF COLLECTION.
Proceeding after al interval he said:
II Your Honor please, the Rext clause IL
The bill, is that fit was proper to send the
taxes to the SheriffJ with any part ofthe 10
per cent. added, it vas improper to add tht
same to the State and State school taxes
That portion Of the bin relates to the so
called offer to pay. said to have been made
~ Mr.. Wickham to Auditor Duffy. Tht
manner in which that otf'r was made !
have, in discussing other branches of my
/ argument, reverted TO. Your Honor yes
tsrdsy called for the reading of that portion
of the Statute. law of West Virginia which
puts it beyond the power OF the Auditor to
receive money unless all Is rendered. /
rAs useless thing for these men to CONT
tfore the Auditor, for he was entirely
,oxtrless to do that which the statute pro
lbits. They could have gone TO any Stat
efository, placed therein any money due
a.d then
BRoUCHt TO THE AUDITOR
. certificate. This way was open to them
70 ii was the only way in which they coul'
make tender of money to the State.
Ee Ssid the gentlemen knew what the,
eGe doing VIXEN they rendered a part of tbs
tax to the Auditor, and they knew they
ehould have taken all the tax. They also
knew that the proper date had passed. Sup
pose, he said, that the railroad claim tina;
their proposition was tender Is 80. This bill
doet not offer to carry it ont. II II
vas tender it has never been kept good
these people still have the money. Ia 3
Court of law no tender is ever received IN
les the money is brought in to make Ii
coed. A tender cannot be made and the
money be lockedup The Court must have
perfect control over the subject of the ten
der. Ii won't do to say, Il offered this last
August, and now you can getit the best way
sou can" They have not in sight line Of
-yllabe of the offer to hand over the money
hey come here and say that
BECAUSE THEY MADE TENDER
they stand as men who had really paid. Blu
hey are wrong in that position. What do
he plesdiugs show Coupled with TIT
, fer to surrender the taxes, and pay the
State and State school tax to the Auditor
and the others to the Sheriff. they say they
are not to be charged with the 10 per cent
Further on the Attorney General said:
ut may be said that they are the trus-
tees who come into this Court, but to al
inrents and purposes it is the Chesapeake
and Ohio Railway Company They have
no rights which the. Chesapeake and Ohio
Company cannot avail itself These trus
tees are merely made for the purpose of at
tempting to obtain ground in a United
States Court, and behind their skirts turks
the Chesapeake and Ohio Railroad Com
psDy'
Again be said
. The interest question is to all intents
and purposes out of the case. The Sheriff.
we're never instructed to cole I interest; il
they did so it is their own affair. But, il
Iour Honor please, whatever may be YOU
view of the Law in reference to the 10 pc
c-lt We claim that is
THE SOLE QUESTION
which can be made out Of the matter
Nothing else is LETT open under the statutes
and authority that we have quoted snc
which we shall proceed to quote.
AUCther point:
In any case in relation TO taxes, where
part is legal and part illegal, before Court
If equity can interfere, that Court must be
careful, as a condition precedent to compe'
the doing Of equity BY the party coming be
fore the Court asking for equity. Before
the Court can decide that any certain
smount OF heir taxes are legal these take,
as a whole must be rendered and paid No;
TILL then can the Court stay the hand of the
State
In speaking Of the broad tread" of tn,
Injunction sought to be obtained, he said
1T is almost the A B c of law that
court cannot epj9in the whole amount of
tax because some part of that tax is illegal
The court can have jurisdi ZION only ove
that which is wrong. aud all the railway
company can do is to epjoin that part which
is Illegal; it cannot reach out for that which
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