The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 29
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SI ENCER V. BABYLON R. CO.
validity of the taxes on the private right of way for 1912, and the pen-
alties and interest charges. As to the objection to the regularity of the
private right of way taxes for 1912, we find upon the assessment rolls
for that year the apportionment of the assessments between the sev-
eral school districts (page 33). The apportionment of the special fran-
chise tax was made by an independent certificate. This apportionment
of the private right of way assessment upon the roll itself seems to us
to have been sufficient under the amendment to section 40 of the Tax
Law passed in 1912 (Laws 1912, c. 271). It is true that no certificate
as required to section 40 appears in the record, but we assume that
the assessment rolls were signed as a whole and when the prescribed
apportionment was made upon the roll itself the general certificate was
 There remains only the question of penalties and interest. The
order of July 12, 1916, allowed only interest upon the taxes as reas-
sessed, but the modified order of May 8, 1917, changed this by allowing
the statutory penalties and the interest. We see no reason why the
penalties and interest should not have been allowed upon the taxes on
both private rights of way and special franchises. The court had ju-
risdiction to reassess neither, and the amounts remained as fixed on
the rolls. The defendant litigated their validity at its peril. The pow-
er of the District Court was limited to declaring void such taxes as
were levied without jurisdiction, and perhaps such as were illegal upon
the face of the rolls. It was therefore inevitable that penalties and
interest should have been allowed. As to the 5 per cent. penalty, this,
it is true, depended, under section 73 of the Tax Law, upon a notice
from the county treasurer to the collector of taxes; but we are to
presume that the authorities did those things rightly which should have
been done, and that after the taxes had been levied and remained un-
paid for 30 days the notice was given.
In disposing of the cause we must dismiss the receiver's appeal in
respect of those assignments of error which raise matters over which
the District Court had no jurisdiction. We can neither affirm nor re-
verse the orders in these respects, and yet the case is not one under
section 5 of the Act of March 3, 1875 (18 Stat. 472, c. 137 [Comp. St.
1916, 1019]), where we must dismiss the whole proceedings, since
the court had jurisdiction to consider the validity of the taxes in some
respects. We might, it is true, vacate the injunction and restore the
taxes to the original sums upon the assessment rolls; but that we could
do only upon the county treasurer's appeal, which is not before us.
In such respects as the District Court had jurisdiction, we affirm the
Therefore we dismiss the receiver's appeal upon his fourth and fifth
assignments of error, and we affirm the orders upon the first, second,
third, and sixth assignments of errors. We dismiss the county treas-
urer's appeal. The orders of May 8, 1917, will therefore stand, but
their effect upon the rights of the parties, in any collateral proceedings
in other courts, we do not assume to consider.
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The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918., legislative document, 1918; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38821/m1/44/: accessed June 29, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.