The Weather 1 o-Day: FAIR. The News and Observer. VOL. XLVII. NO. 68. LEADS MJL KHTTK CIROUM DAILIES IH NEWS AID OIMMT'/N. WILL ASK SIMOITOI TO REHEAR THE TAX CASE As a Result of the Supreme Court's Decision in the Abbott Case. RAILROAD COMMISSION HAD POWER TO TAX And Since the Supreme Court Has Held Thai the Law Abolishing it Was Unconstitutional and That the Name Was Merely Changed, the Power Remains—Petition to be Heard at Charleston on Satur day December 2. The decision 1 of the Supreme court in the Abbott case has produced one un locked for result —a petition on behalf the State for a rehearing of the Corpo ration Commission tax ease by Judge Simonton. 'lt is a well known principle of prac tice that jii construction! of the State statutes by the Supreme court of the State is always accepted in the Federal courts. The State Supreme Court, therefore, having held that tie act of 1809 abolishing the Railroad Commis sion was unconstitutional, that it mere ly changed the name to the Corporation Commission, it follows that the latter has the powers of the old Railroad Commission. The railroads have never claimed that the Railroad Commission did not have the power to tax railroads; their claim in the hearing at Asheville was that the last Legislature in the act establishing the Corporation Com mission failed to confer the power to assess taxes. Judge Simonton so held in his opinion in the ease. T!ie Supreme court, however, having held the Act of 1899 unconstitutional, the Act which it sought to repeal, the old Railroad Commission act which gave full taxing lowers, is still in force. This gives an entirely new aspect to the case and the attorneys* for the State are confident that Judge Simonton will now hear the ease on its merits. The petition for the rehearing will lie presented to Judge Simonton at Char leston, S. C., on Saturday of this week. December 2nd. While it is not yet de cided who will act it is probable that ! Col. John W. Hinsdale and James H. i Pou. Esq., wil go to Charleston to pre- i sent the ease for the State. The petition for a rehearing is, in full, as follows: THE PETITION. In* the Circuit Court of the United States for the Eastern District of North Carolina. Sitting in Equity at Ral eigh, N. C. To the Honorable, the Circuit Court of the Eastern District of North Caro lina : i Your petitioners, the defendants above named, respectfully request, that iris Honorable court will grant to them a re argument or rehearing of the above enti tled cases on the following grounds; 3. That on the KWh day of July, 1899. the complainants above named, respect ively, tik'd their bills of complaint here in, asking for a .perpetual injunction restraining the defendants from further proceeding in the assessment and levy ing and collection of certain taxes, and also for a preliminary injunction until ' the hea ring. 2. That on the 17th day of July. 18!*9, this honorable court, granted in each ease a restraining order and an order to show cause yviiiy an injunct; ion as prayed for in said bills should not be granted until the tinsel hearing of the said causes respectively. •‘5. That on the 13th day of September, 1899, the return day of the said orders to show cause, the defendants appeared before this honorable court, at cham bers in Asheville, N. C., ami made a return to said orders to show cause, and tiled affidavits to support it, the com plainants filing counter-as lidavits; and by consent all of said causes were heard together, and after argument of counsel for 'both sides, the court reserved its decision. ; 4. That on November 4th, 181)9, tue court filed in the office of tiie clerk of fhi,s court, the opinion in an of said suits, a copy of which ‘is hereto annexed and made a part thereof. 5. That said opinion sustained the jur isdiction of this court, and held that the Corporation Commission had no uower under the statutes of North Carolina to •assess railroad pnrperty for taxation, and «&reeted injunctions to issue as prayed for, but did not indicate whether they should bo perpetual or simply until the bearing. Your petitioners are advised, that the opinion contemplated that in terlocutory orders, granting the injunc tions till the hearing, should be drawn by the complainants and presented to the court and Ije signed and entered in each case. Wf'' »». That no orders of any character have been drawn by the counsel or sign- 1 cd by the court and entered iu the said suits or any of them. And that as your | petitioners -are advised and aver, the ques ion of the awarding of an injunction till i the heading or a modification of its opin-, ion in the premise* 5s within the absolute control "Gif this honorable court. 7. That this honorable court in said opinion construed and interpreted certain acts of the general assembly of North Carolina to-wit, the “act to provide for : the general arapemeion of railroads,! steamboat or canal companies, express' ■ and telegraph companies, doing business to the State of North Carolina,” ratified . March sth, 1891; the revenue ami ma chinery acts of 1899; tin* "act to repeal the railroad commission,” ratified Mardh <>th, 1899; the act to establish tlx* North Carolina Corporation Commission, rati fied Mardh Orb, 3899; and the "act to authorize the Railroad ComnuLssiion, the North Carotltoa Guiqioration Commission or -such board as shall succeed to their duties, to assess ftroperty which lias es caped taxation,” ratified March 6th. 1899, anil held in effect that the North Carolina Railroad Commission had been ■abolished, and that the North Carolina Corporation Commission, a distinct body, was not clothed with the ]Mover of ap praising and assessing railroad property, and that its attempted action in tne premises was without authority of law. j 8. That since the said opinion was filed herein, the Supreme court of North Caro lina, in the case of the State on the re lation of D. H. Abbott, vs. E. C. Bed j ’dingfield has construed and interpreted the same state statutes, and has held that the railroad commission, having the power to assess railroad property for taxation, has not been abolished, butt that its name has been changed, to that of the North Carolina. Corporation Com mission!: and tfeia the said Corporation Commissaoft is vested with till the powers J of the railroad! commission, including ! the power to assess railroad property for > taxation. The court accordingly ad i judged that I>. H. Abbott, the plaintiff’s j relator is a member of the Corporation Commission and must be res tend to such office. 9. That if the opinion of this honor able court should he adhered to, it would appear that the 'hills of complaint cannot be entertained by this honorable court. This court has jurisdiction of such of said bills as have lieen tiled by domestic corporations only on it he ground that the threatened action of the corporation is in violation of the fourteenth am nd ment of the Constitution. But the auuindinent forbids only State action, and ■not the action of individuals or officers of the State who act officiously and without any warrant of law. That ae ednling to the said hills of complaint and the opinion of this honorable court, these officers are not enn|M>wered even by color of law to assess railroad property fbr taxation, and are not the agents or in strumentalities of the State in this Ih*- half and therefore it. cannot be said filial the State is about to deny the complain ants the equal protection of the laws so as to raise a Federal question. 10. That the several bills of complaint herein are without any equity for that Iwilli at. common law and under section 78, chapter 15 of the laws of North Car olina, entitled "An act to provide for the assessment, of property tiaml the collec tion of .taxes,” ratified March Bth, 3899, the complainants have an adequate rem edy at law. That the said section pro vides as follows: “No .injunction shall be granted !►:, .art thereof was levied or assessed for an illegal or unauthor ized purpose or was for any reason in» valid or excessive, judgment shall be rendered therefor, with interest, and thv sam<* shall be collected as ini other cases, ami the amount of State taxes overpaid or declared invalid certified by the clerk and refunded by 'the State Treasurer.” That in the absence of any allegation in the bills of complaint of inability on RALEIGH, NORTH CAROLINA, THURSDAY MORNING, NOVEMBER 30, 1890. tlie part of the complainants to pay the said taxes and sue for their recovery, they had' an adequate remedy' both at coimiwit law and by statute enforceable in thus court, and mo ease of irreparable injury is presented. 11. That the several dills of complaint do not disclose the facts upon which the- court can perceive that there will re sult fromi the collection of the taxes in question such a multiplicity of suits as will authorize a removal to a court; of equity. Thait in several of the ca&os, the suits to recover the taxes will be few in number, and the decision of one will lie virtually the determination of them all. That in the small towns along their lines the taxes to Ik* raised will be so small, as for the purposes of this ques tion to come under the maxim "de nßini mis lex non curat.” 12. That these suits do not present such a ease of threatened! cloud upon title as will justify a court in interfering in the collection of the revenues of a State, as it nowhere appears that, the railroad com panics cannot. without. inooniven'iehce, pay the excess of taves involved and re cover the same in actions at law. 19. That. these views were not pre sented to the court at the former hear ing. Wherefore, upon the foregoing grounds, your petitioners respectfully pray fids honorable court to grant to them a re argumemt and a re-hearing of said causes. IT. G. CONNOR, SIMMON'S, TOU & WARD, JOHN W. HINSDALE, J. C. I/. HARRIS. 0. A. 15001 v, Solicitors for the defendants. We, James 11. Pou, John W. Hinsdale of dounssel for the defendants herein, do hereby certify that in our judgment the foregoing petition for a re-argumentt and n re-hearing is well founded ami that the same is mot interposed for delay. JAMES H. POU, JOHN W. HINSDALE. Increase of Wages Promised. Centreville. I*. 1., Nov. 20. —The hands employed in the cloth room at the e ‘in hiding in Abra Province. When Aguinaldo passed through Nam apacan all his talk wis in. favor of con tinuing the war. BELL'S BATTLE AND VICTORY. Manila. Nov. 29—30:95 A. M.—(By courier from Mountains to Dayamban, Province of Pangasimm.)—The fight In. which Colonel Bell defeated and scat-' tered the rebel brigades of Generals Alejandrino and San Miguel, took place on the summit of the mountains, west of Maugalaren, forming the divide be tween the Dagupau Valley and the ocean. Colonel J. Franklin Bell’s regi ment, flic Thirty-sixth infantry, and Fowler’s company of the Thirty-third, left Maugalaren Monday morning and marched twenty-four hours, with four hours’ rest, over bare and waterless ridges, along narrow trails and through canons. At daylight November 28th, the troops emerged from a timbered canon upon the divide, running into the rebels’ advance guard, who retreated to the main body before shooting. Colo nel Bell, who was in advance with the scouts and one company, had tin* rebels in full rout before the main body of his troops arrived,fleeing down the mountain to the swamps betweu Maagalaren and Aguimm, leaving ten dead and many wounded and abandoning two Nordeu fcldts. one two-inch Krup, one Maxim and one Hot eh kiss. They Avore chased through the swamps and thoroughly dis persed. Colonel Bell captured all their artiiery, supplies and clothing, many Mausers and Remingtons, some Ameri can W inchesters and a thousand rounds of ammunition. The rifles, etc., were abandoned in the rebels’ retreat and Avert* scattered along their trail for two miles, the enemy escaping empty handed, with the exception of a few rifles. The women and children in. shacks in the camp, had no time to escape. Colonel Ruscnr. chief of the arsenal, and a few other prisoners were taken. The rebels had artillery trained to com mand the regular trail from Magalaren, hilt Colncl Bell aproaehed from the op posi;te direction. The rebels are estimated to have num bered tAA’o thousand men with some English, Japanese and four Spanish offi cers. LIEUT. GILMORE S PARTY. Reason to Hope Their Release Has Been Effected. iWashington, Nov. 29.—The following cablegram* was received at the Navy De partment from Admiral Watson; “Cavite, Nov. 29. —"Wilde reporta the capture of Viigau oin November 26 by the Oregon's landing -force undev Lieutenant Ooanmiander MoGraekito with Lieutenant McCormick. Bostwiek, Johnston and Captain William* and Lieutenant Ber meleye, marine oorps. The landing was covered by the Callao, Tappan comma,nri ing and the Samar, Mustiu, command- ing. Slight resistance. No casualties. 'lnhabitants welcomed the flag. Me** - ing full. Action commenced with artil lery, mounted infantry and cavalry at 5:30; guard on right, Ninth brigade on left, attacked poaition in widely ex tended formation at 0:90, and support ed .by the artillery, found itself in front of the whole Boer force, 8,000 strong, with two large guns, four Krupp’s, etci " 'The naval brigade rendered great assistance from the railway. " ‘After desperate, hard fighting which lasted ten hours, our men, with out water or food and in the burning sun, made the enemy quit his position. “ ‘General Pole-Curew was successful in getting a small party across the river, gallantly assisted by 900 sappers. " T speak in terms of high praise of the conduct of all who were engaged in one of the hardest and most trying tights in the annals of the British army, if I can mention one arm particularly, it is two batteries of artillery.” A special dispatch from Windsor says that General Methuen's dispatch to the Queen after the battle of Modder River says: "The battle was the bloodiest of the century. The British shelled the enemy out of the trenches and then charged. The result was terrible. A revised list of the British casualties at Belmont shows: Os heel's killed. 4; wounded. 22; non commissioned officers and privates kill ed. 1(1; wounded. 225, of which num ber the Guards had 95 killed and 359 wounded. A revised list of the casualties sus tained by General Hildyard’s forces at the battle of Beacon Hill shows: Killed. 33; wounded, (14; missing, 1; prisoners, 8. CONFIDENT AT LADYSMITH. Ladysmith, Monday, Nov. 29, by Messenger to Moori River. —All here are well and cheerful. The Boers are not shelling today, and we have no fear that they will attack the (town. Our position was made very strong with redoubt* and breastworks, and we look forward confidently to the ultimate result. THEIR FUSION ASSURED. Silver Republicans’ Union With Dem ocrats and Populists Certain. Chicago, Nov. 29. —The special meet ing of the National Committee of tin* Silver Republican party adjourned today to meet at the call of the chairman, af ter taking action that practically assures the fusion of the party with the Demo cratic and Populist parties, the endorse ment of the Democratic platform ami the Presidential candidate of that party. The subcommittee appointed to decide iin the most practical date and place for holding the National Convention and also to report on matters of practical organization for the campaign, including the apportionment of delegates from the various States to the National Con vention, submitted its report to the com mittee today ami after a lengthy dis cussion, its recommendation with one or two minor amendments was Adopted. The sub-committee recommended that all of the matters in question be re ferred for action to the executive com mittee of which former Senator Fred IV. Dubois, of Idaho, is chairman. [Another Finance Bill. Washington, Nov. 29. —A call lias be n issued for a meeting of the Republican members of the Senate Committee on Finance in this city next Saturday at 10 o’clock to consider a general finan cial bil to be introduced in Congres. If is understood that Senator Aldrich has prepared this bill on the lines agreed upon during the conferences of the Republican members last summer. If is stated that it differs in, some impor tant respects from the hill prepared by the House caucus committee. There will be no joint tneeing for the consideration of this subject with the House caucus committee. The Finance eommitt«*e members do not consider the committee of the House caucus an official body. The Allen Line steamer Sardinian, Captain Johnston, front Montreal, Oc tolier 28th, and Quebec, October 30th, having on board the Canadian contin gent for South Africa, 1,000 strong, has arrived at Cape Town.