case off with a merely technical answer, and we proceed. The most salient points of the relator's argument are as follows: This tax is not a tax on the franchise to be a corporation, but a tax on the use and exercise of the franchise of transportation. The use of this or any other franchise outside the State cannot be taxed by New York. The car mileage within the State and that upon other lines without the State affords a basis of apportionment of the average total of cars continuously employed by other corporations without the State, and the relator's road mileage within and without the State affords a basis of apportionment of its average total equipment continuously employed by it respectively within and without the State. To tax on the total value within and without is beyond the jurisdiction of the State, a taking of property without due process of law, and an unconstitutional interference with commerce among the States.

A part of this argument we have answered already. But we must go further. We are not curious to inquire exactly what kind of a tax this is to be called. If it can be sustained by the name given to it by the local courts it must be sustained by us. It is called a franchise tax in the act, but it is a franchise tax measured by property. A tax very like the present was treated as a tax on the property of the corporation in Delaware, Lackawanna & Western R. R. v. Pennsylvania, 198 U. S. 341, 353. This seems to be regarded as such a tax by the Court of Appeals in this case. See People v. Morgan, 178 N. Y. 433, 439. If it is a tax on any franchise which the State of New York gave, and the same State could take away, it stands at least no worse. The relator's argument assumes that it must be regarded as a tax of a particular kind, in order to invalidate it, although it might be valid if regarded as the state court regards it.

Suppose, then, that the State of New York had taxed the property directly, there was nothing to hinder its taxing the whole of it. It is true that it has been decided that property, even of a domestic corporation, cannot be taxed if it is perma

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 now. 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.

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. But in many cases 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