nently out of the State. Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194, 201, 211; Delaware, Lackawanna & Western R. R. v. Pennsylvania, 198 U. S. 341; Louisville & Jeffersonville Ferry Co. v. Kentucky, 188 U. S. 385. But it has not been decided, and it could not be decided, that a State may not tax its own corporations for all their property within the State during the tax year, even if every item of that property should be taken successively into another State for a day, a week, or six months, and then brought back. Using the language of domicil, which now so frequently is applied to inanimate things, the state of origin remains the permanent situs of the property, notwithstanding its occasional excursions to foreign parts. Ayer & Lord Tie Co. v. Kentucky, May 21, 1906, ante p. 409. See also Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194, 208, 209.

It was suggested that this case is but the complement of Pullman's Palace Car Co. v. Pennsylvania, 141 U. S. 18, and that as there a tax upon a foreign corporation was sustained, levied on such proportion of its capital stock as the miles of track over which its cars were run within the State bore to the whole number of miles over which its cars were run, so here in the domicil of such a corporation there should be an exemption corresponding to the tax held to be lawfully levied elsewhere. But in that case it was found that the "cars used in this State have, during all the time for which tax is charged, been running into, through and out of the State." The same cars were continuously receiving the protection of the State and, therefore, it was just that the State should tax a proportion of them. Whether if the same amount of protection had been received in respect of constantly changing cars the same principle would have applied was not decided, and it is not necessary to decide In the present case, however, it does not appear that any specific cars or any average of cars was so continuously in any other State as to be taxable there. The absences relied on were not in the course of travel upon fixed routes but random excursions of casually chosen cars, determined by the

varying orders of particular shippers and the arbitrary convenience of other roads. Therefore we need not consider either whether there is any necessary parallelism between liability elsewhere and immunity at home.

Judgments affirmed.

MISSOURI v. ILLINOIS AND THE SANITARY DISTRICT OF CHICAGO.

No. 4, Original. Submitted May 14, 1906.-Decided May 28, 1906.

This court has power to allow costs in original actions and in any action between States, the successful State may ask for costs or not as it sees fit, and there is no absolute rule that in boundary cases the costs are divided. Costs, therefore, are allowed to the defendant in this suit in which the plaintiff alleged serious pecuniary damage, and framed its bill like the ordinary bill of a private person to restrain a nuisance. The solicitor's fee of $2.50 for each witness examined before the examiner and admitted in evidence was properly allowed as fees for depositions under 824, Rev. Stat.

THE question involved in the motion is stated in the opinion.

Mr. Erasmus C. Lindley for defendant, Sanitary District of Chicago.

Mr. Herbert S. Hadley, Attorney General of the State of Missouri, Mr. Charles W. Bates and Mr. Sam B. Jefferies for complainant.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is a motion for the allowance and taxation of costs in the case reported in 200 U. S. 496. The costs asked are as follows:

$5,650

paid to the special commissioner.

$3,776.37 for taking down and transcribing the testimony of defendant's witnesses, etc.

202 U.S.

$720

Opinion of the Court.

Solicitors' fees, viz., $20 for attendance at final hearing and $2.50 for each deposition taken and

admitted in evidence, in accordance with Rev. Stat. § 824.

$10,146.37, total. The plaintiff objected to the allowance and the Clerk referred the matter to this court.

The only question of detail concerns the last item. The main objection is to the allowance of any costs at all. The power of the court to allow costs is not disputed. Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 460. The former decree in this case allowed them, and in the stipulation for the appointment of a special commissioner the parties agreed that the costs should be "taxed by the court on the final disposal of the case, to be paid in such manner as the court may at that time determine." But it is said that it is inconsistent with the dignity of a sovereign State to ask for costs; that in boundary cases costs have been divided, and that the suit was not for a pecuniary interest, but only the performance of the duty of a sovereign to its citizens, for which no costs should be imposed.

But in many cases

So far as the dignity of the State is concerned, that is its own affair. The United States has not been above taking costs. United States v. Sanborn, 135 U. S. 271. As to the supposed rule in boundary cases, it is not absolute. of that kind both parties are equally interested to have the boundary settled, and whichever State begins the suit both equally are actors. Thus counter-relief was asked by the defendants in Nebraska v. Iowa, 143 U. S. 359 and Missouri v. Iowa, 160 U. S. 688. As to the nature of this suit, the plaintiff alleged serious pecuniary damage to itself by the deposit of great quantities of filth upon the portion of the bed of the Mississippi alleged to belong to it, and, in short, framed its bill like any ordinary bill by a private person to restrain a nuisance. The chief difference was in the size of the nuisance alleged. There is no indication that the defendants desired or needed the determination of this court, as States well might when

their jurisdiction was in doubt. So far as this point is concerned, there is no reason why the plaintiff should not suffer the usual consequence of failure to establish its case.

The only item specially discussed is the charge of $2.50 for each witness examined before the examiner, on the footing of "depositions" mentioned in Rev. Stat. § 824. There seems to have been some difference of opinion in the lower courts as to whether testimony given before an examiner could be treated as a deposition. See Strauss v. Meyer, 22 Fed. Rep. 467; 1 Foster's Fed. Prac., 3d ed., 727, § 330. In favor of so treating it are Ferguson v. Dent, 46 Fed. Rep. 88; Hake v. Brown, 44 Fed. Rep. 734; Ingham v. Pierce, 37 Fed. Rep. 647; The Sallie P. Linderman, 22 Fed. Rep. 557; Stimpson v. Brooks, 3 Blatchf. 456. See also St. Matthew's Sav. Bank v. Fidelity Casualty Co., 105 Fed. Rep. 161-163. The words of the statute are broad enough to embrace the testimony, unless they are taken very strictly, and the trouble to the parties in having to visit different places was similar to that caused by the taking of depositions adverted to by Judge Treat in Strauss v. Meyer. The case is quite distinct from that of testimony taken in court and reduced to writing by a reporter. We are of opinion that the item may be allowed.

Motion for costs allowed.

MCDERMOTT v. SEVERE.

ERROR TO THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA,

No. 244. Argued April 20, 23, 1906.-Decided May 28, 1906.

The motorman of a trolley car, which was rapidly approaching a place where a small boy was trying to assist his smaller brother to extricate his foot from the track, made no effort to stop the car when he first saw the boys, supposing, as he testified, that they were playing on the track, as many boys did, until the last moment and that they would, as usual, get off the track in time; when the car was within a few yards of the boys he

saw and realized their situation, and did what he could to stop the car, but did not succeed in doing so and one of the boys was so injured that one of his legs had to be amputated. In the trial court the jury found the defendant company guilty, on a special verdict, of negligence in the improper construction of the crossing and also in the management of the car, and it was consented that the jury find that the motorman did all in his power to stop the car when he saw that the boy's foot was caught. In affirming the judgment entered on the verdict and passing on questions of sufficiency of evidence to submit questions to jury, Held, that:

Negligence only becomes a question of law to be taken from the jury when the facts are such that fair-minded men can only draw from them the inference that there was no negligence; and if, from the facts admitted or conflicting testimony, such men may honestly draw different conclusions as to the negligence charged, the question is not one of law but of fact, to be settled by the jury under proper instructions; and in this case it was properly left to the jury to determine whether the motorman was guilty of negligence in not getting his car under control so that in event of probable injury he could quickly and promptly stop it. The court properly left it to the jury to determine whether the motorman exercised reasonable care to avoid injury to the boys which the circumstances required, taking into consideration that they were children and that older people are chargeable with the duty of care and caution towards them.

An exception of general character to a charge covering a number of elements of damages will not cover specific objections which in fairness to the court should be called to its attention in order that it may if necessary correct or modify its instructions.

It was not error for the trial court in the case of a boy who has lost a leg to charge that the jury can consider mental suffering past and future found to be the necessary consequence of the loss of his leg. The action being one for injury to the person of an intelligent being if the injury produced mental as well as bodily anguish it is impossible to exclude the former in estimating the extent of the injury.

Where the court instructs that the sum claimed should not be taken as a criterion but that it is a limit beyond which the jury cannot go there is no error.

THE facts are stated in the opinion.

Mr. George P. Hoover and Mr. Charles A. Douglas for plaintiff in error.

Mr. A. S. Worthington, Mr. William Meyer Lewin and Mr. Charles L. Frailey for defendant in error.