The Birmingham age-herald., 1912-04-11

And how are tax values estimatedH DO the officers take the value when land Is first entered and cteared, or when 1t has been improved and become a
 town site? The law Is perfectly eettled, with the obvious view of the matter. that increments and losses alike attach to ownership as to duties and rights pertaining to property. Wilcox vs. Con. Gas Co., PIP q U. S.. 52; .Stanislaus vs. Irrigation Co, 192 U. s. 215: San Diego Land Co vs National City, 174 [. s. Iof- And this just rule has its balances and adjustments making 1t not oppres- sive to the public in any case. It is to be noticed, too that the rates in fact usually diminish with the increase in property values, because the increase of business dominates values and justifies lower rates. But, be that as it may, the rule of giving to the owner the incre- ments of value and subjecting him to the losses in values, has the unequivocal sanction of the law.
 The respondents except to the value of the franchise, in the Louisville and Nashville case, on the ground that there is no evidence of the vriue in the rec ord. Exception 10. L. and N. case. And in the South and North case, on the ground that ''the valuations are errone- ous and excessive Exception 1, South and North case.
 As to the amount of valuation the rndisputed proof is tnG, it is the tax valuation at SO per cent of real value brought up to par or 100 per cent. This could not be excessive if the tax value was GO per cent of the real value, and the uncontradicted proof is to that eff feet, and the proof Is that it Is not excessive. AS to the factum of evil dence being in the record of the value, it is shown that the law charged the state tax commission with the duty of assessing the franchise for taxation. and they did so and fixed the value at so per cent of the real value, and 1t is shown what these assessments were. Record l.. and N. case, 1927-S-so: Record s. and N. case, 1889, 400, 159s, 1899, 2622. 2627 262S, 2629, 2644. 264S.
 The assessments relied on were state valuations by officers specially dele gated to make them and not merely to receive the returns of the taxpayer. They are therefore competent evidence of probative worth. Wigmore on Evid., Sec. 1640: Elliot on Evidence, Sec. 1872; Rokendorf vs. Taylor, Pet. 349. As to the proprety of valung the fran chfse on rate question. the authorities clearly settle the point in the affirma- tive I refer to the masters report ln the South and North .ase. 'pp. 41-4G, where he considers Us question in an able manner and I concur thoroughly in his conclusions. I merely cite here the authorities. Wilcox vs. Con. Gas Co.,, PIP [. s. 19-54; Monongahela vs. United States, 14S '. g. 321; People vs. O'Brien, III N. Y. 1; Topham vs. Marine W. O., 99 Me. 371. 59 Atl. 5S7 State Railroad Tax Cases. 92 U. s. 606 GOT; Water Works co. vs. Kansas City, 62 Fed. S63, 2 l.. R. A. S27; Metropolitan T. Go. vs. H and T. Go, etc, 90 Fed. 6S3- g; Adams Express Company vs. Ken lucky, 166 U. s. III; Fargo vs. Hart, 193 U. s. 490; Adams Express Company vs. Ohio. 166 T. S. 1s5-221: Beale and Wyman on R. R. Rate Regulation, Secs. s69. 36S, 370.
 Having ascertained the value of the entire property devoted to the public use as a common carrier, the next ques- ton Is division of this property be- tween the intrastate and the interstate commerce. for, rates can have relation only to the share or proportion of the servient property devoted respectively to intrastate and interstate business. Smyth vs. Ames, 169 L. s. 466 The counsel for respondent contend that though a public service railroad corpor- ation is entitled to a fair return upon the value of it's property devoted to a public use, it is only true when applied to all the earnings of a corporation in It's combined interstate and intrastate commerce, and that the rule has no ap- rlication to a separation of property values between intrastate commerce and interstate commerce. because such q Iseparation is inpossibfe. They thus state their position: But when, in the case of business of a railroad company. we seek to determine the value of that portion of the entire property which is devoted to intrastate traffc separa e from the value of that portion devoted to interstate traffic, when precisely the same property is devoted to both classes of traffic jointly, and to determine the expense of doing the intrastate busi- ness, separate from the expense of doing the interstate business, when the ex- penses incurred and charged are in- cured in doing both classes of busi- ness Jointly. we are dealing in pure ontecture-conjecture such as would not he received and made the basis of an injunction restraining the opera ton of a statute In any kind of an is sue other than a railroad rate issue Not only is any known method of as- certaining these facts uncertain and conjectual. but they are facts which from their very nature are incapable of ascertainment, even approximately No two railroad accountants agree as to the proper method of ascertaining these facts, and all agree tsat they cannot be ascertained accurately. We insist Aiidt AHtN CdlHpl Dt dSCeTldlneu Wlln even an approximate accuracy.
 Tt has been said that notwithstand ing the difficulty of ascertainng the value of property devoted to intra state business and the amount of the ex- pense incurred in doing the intrastaro business, we must do the best We can to that end, and then, however un- certain and speculative the result. state statute establishing intrastato ratpS of that result. A proposition or principle of law. the justice of the application of which is made to cepend upon the proof of facts which are not suseepti- ble of proof. or at least. can only be guessed at or ascertained by arbitrary and conjectual methods. must be fallaci- GUS : How it is possible for q convinced clearly and beyond all doubt that particular schedule of rates necessarily denies just compensation Cor the use of the railroad company's prop erty. when the essential facts upon which the conviction must be based are from their very nature speculative and conjectual?'
 This exposition by counsel. if ac- cepted, would result in one or two prop ositions: One that the state could fix rates for inter and intrastate commerce. as a unit: the other, that it could fix an arbitrary rate for the state business not subject to judicial review.
 Neither position can be- true. If the valuation of the common property is in- divisible between inter and intrastate commerce, it is plain that as Congress must regulate the interstate commerce it would have to regulate at the same time the intermingled intra state com merce. and thus that state could have nothing to do with it. It appears to be preposterons to suppose that the state