The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1897-08-13

| cannoD that you as successors. We're in fact
| parties and therefore bound by the injunc-
| ton, the action taken would. in my opinion
| be coram non JUDGE. II the Injunction IS
| for that reason to be held binding upon it.
| il must necessarily be on the theory that
| the state Board of Tax Commissioners was
! in law party defendant and as such en-
! Joined by the decree from proceeding with
! the assessment in the manner required by
! the laws of this State"
| Taking up another line, the attorney gem
| eral brings out his well-known views of in
! reference with the State, declaring that
when the board is in session, whether in the
making of original assessments in re-
| EleWIHS on appeal assessments Inat nave
| DGen made by the local authorities, 1t in the
| Strctest sense represents the State of In
! diana, and while so acting, although an adj
ministratiOn board, it is not engaged in the
| performance of mere ministerial duties, but
| in the discharge of quasi-judiciaI functions
| the ascertainment of values-and any ac-
| ton against 1t 10 enjoin or restrain it from
| the performance of the duties imposed upon
| it by law would be, within the meaning Of
the efeEenth amendment to the CONSTITUTION
or the united states, an acton against the
State jurisdiction, of which is by said
amendment denied to the United States
courts. He then quotes from the AyT'es and
Reagan decisions and says that having no
pecuniary interest the court would not hold
that the State was the real party in inter-
est, and as ii was not named on the record
as a party and as by searching the record,
it found that it had no peeuniary interest,
it was held that it was not the real party
in interest and the jurisdiction was upheld.
The whole process of reasoning indicates
that if it had appeared that the State had
an actual pecuniary interest jurisdiction
would have been denied. In this matter the
State has a direct pecuniary interest.
On the question OF injunctions, the attor-
within the past five years there have
been important litigations in the courts of
the State and of the United States, in which
the cofstitutionality of the tax laws of 1891
and 1898 with respect to the
sessment of railroad, telegraph and
a. uled Eminent counsel from this
and other States were employed, who
denied the constltutionality of the laws I'M
der which your board was required to as
sess. 1t was known that in 1892 and sue
ceeding years the board would proceed to
assess railroads as it had done in 1891. 1t
was known in 1893 and succeeding years
that the board would assess telegraph and
express companies as required by the act,
put IN no instance was an endeaVor made
by either or any of the distinguished and
able lawyers engaged in those cases to re-
strain the action by the board, but in every
of the action of the board the assessment
and levies had reached the stage where
they were in the hands of ministerial officers
engaged in the performance of purely min
isterial duties, and this for the plain and
OBVIOUS reason tnat jurisdiction would not
attach in the United States courts until it
had reached stage where it could be
maintained that 1t was not an action
against the state and the eleventh amend
ment to the Constitution would not offer
an obstacle. 1t is not to be conceived that
that course would have been pursued by the
the certainty that they would fail on the
question of jurisdiction. Highly as l esteem
States ana much as regard the he decrees s'e of
any court especially of that, and
unwilling as I am to. place myself in APP.
parent opposition to the processes of
any court, 1 am constrained to say with
respect to the threat of the Indiana Manu-
featuring Company in that behalf (a) that
the decree exhibited does not by it's terms
prevent an assessment in the manner adj
yised; 90 that the United States Circuit
Court had and could entertain no jurisdic-
ton in suit to which you We're a party
to enjoin an assessment in such manner"
The attorney general next takes up the
question of whether or not the method of
assessment provided for manufacturing and
mining companies is forbidden by the Con-
stitution or any law of the United States
He quotes the Constitution of the United
States where it grants to Congress the
power to promote, the progress of science
times to authors and inventors the exclu-
sive right TO their respective writings and
discoveries" and says that as he under
stands the claim of the Indiana Manufac-
turing Company it is that when Congress,
under this provision, has authorized the
issue of patents they are not the subject of
taxation by the States in any manner
whether in tho hands of individuals or
represented among the assets of a corpora
ton. His view is that whether the Con-
stitution of the United States prohibits the
taxation of values represented in the pat
ents issued is not presented by the question
here which is whether State may provide
for the assessment against a corporation
of the value of its capital stock notwith-
standing the whole or part of that value
may represent the value or patents which
it may hold.
WHAT STATES SHALL NOT TAX.
ut is undoubtedly true" said he, that
States are forbidden to tax property which
is the result purely of the governmental
action of the United States, government
bonds, United States currency-in the
absence of a statute permitting it-powers
or franchises. granted by the United States
for governmental purposes, and interstate
and foreign commerce are denied to the
States as subjects of taxation, and in the
very nature of things must be so. When
the government issues a bond or any evil
dence of Indebtedness if it was subject to
taxation, its value might be seriously de-
preciated and the power of the government
to borrow money impaired if not destroyed
If a governmental appliance or franchise
can be taxed the government may be ham,
pered in the enforcement of it's laws and
its sovereignty and existence. However,
the value represented in a patent under
which the holder has an exclusive right to
the invention or discovery for period of
years stands upon q very different foot
ing. Primarily the value in such invention
lies in it's novelty and usefulness.
If it is neither novel nor useful it has no
value, no matter how many patents may
have been issued upon it. All the value Civ
en- to it by the letters patent is in the
monopoly or right to the exclusive use for a
term of years in that which was his be-
fore, and this monopoly while afforded by
the general government IN the exercise OF
a grant conferred upon it by the Constitu-
ton is in no sense government appliance.
Without it, while the people might not live
so comfortably, the government might Elk
list as powerfully. It's value represents not
only the inherent worth of the invention,
but the value of money expended in adYer-
Using and making known to the world the
value and necessity of It, An invention rep
resented by a patent might be of great
worth and yet If it's worth were unknown
it would have no value compare lively. 1t is,
however, put into the hands of those, corr
pOrate or incorporate, that have money
which they expend in making 1t known. It's
value then consists: (a) in the inherent
usefulness of the invention or discovery; (b)
the monopoly afforded 1t by the patent (c)
the knowledge of its usefulness obtained
in the expenditure of such moneys. It can
never successfully be maintained that the
whole value in a patent lies in the monop-
oily afforded blythe government.
However, the question is not at all one
of the taxation of letters patent, but is
simply whether the State has a right to
indicate by appropriate legislation what
shall be the terms and conditions upon
which the creatures Of its own creation
shall exist and operate. No State is COM
PEELED to create or authorize the existence
of any corpora ton. If it chooses to author
ize it it may do so upon such terms as 1T
may desire, provided that such terms are
not in hostility to or in violation of some
power of the general government. What
shall be the system of taXtion of the State
is matter for the determination of the
General Assembly, provided only it does
not infringe upon some provision 0f the
Constitution Of the State or of the United
States. If persons desire the benefit of in
corporation they must accept the burdens
hot hn ip1n a NJ nm