thorize. The question is what it has authorized. It has authorized, not a reassessment, not a nunc pro tunc assessment, but "an additional assessment," to embrace property which "escaped taxation by reason of not being assessed." Only property not assessed may be proceeded against. If it was assessed, however improperly, it does not come within the law. Our policy commits to local authorities the matter of taxation. Lists of taxables are provided for, details are regulated, and revisory power is lodged with the boards of supervisors, both as to the subjects of taxation and their valuation. Assessors are to report undervaluation, and the boards are to correct. This correction is final, and this is admitted, as to certain kinds of property, but denied as to "credits" of various sorts. There is no just distinction. The printed lists are subdivided so as to call attention to the various subjects. But "money on deposit, or loaned, and amount of indebtedness," etc., embrace all forms of indebtedness other than corporate or quasi corporate indebtedness. All individual indebtedness must consist of deposits, or loans otherwise than as deposits, or claims of dues. Code, § 3767, uses the phrase "credits or choses in action," which shows the legislative understanding that these terms cover the various subdivisions of rights in action of whatever sort, and this section provides for a proper assessment of these things at the proper time before approval of the roll. How may we distinguish between the effect of assessment of any sort of property and the "amount" of credits of any sort? If there be greater liability to evasion or fraud whereby values may escape taxation, that is for the legislature to guard against. Doubtless millions have escaped, so far as values go, in lands, mules, horses, jewelry, etc., by deliberate undervaluation, but that cannot be what is meant in the statute of 1894 (Acts 1894, c. 31, 3) by the words "escaped taxation by reason of not being assessed." It was surely not intended that assessments should be overhauled and proper valuation made. That would perhaps involve nearly every assessment made. Amount of value is what is meant. Of course the amount of money on hand and its value are the same. But it is not so of money loaned, whose value fluctuates, and yet it, as other indebtedness, is assessed according to value. The amount of the value of the entire indebtedness, of whatever it may consist, is listed and taxed, and there is nothing but ingenuity in the attempted distinction between different kinds of taxables. If part of the just valuation of a farm cannot be said to have "escaped taxation by reason of not being assessed," it is impossible to see how part of the sum making the "amount" of indebtedness can be said to have not been assessed. One can no more be said to have escaped taxation than the other. The fact that there was

not exact conformity to the different items of the list, since several amount to the same thing, that is, indebtedness, and the fact that oath was not administered, can make no difference. Oath might be required at any time. No objection was made. Power must be lodged somewhere. It has been lodged with the assessors and board of supervisors. The citizen is absolutely bound by their action, and must, necessarily, be protected by it, at least until the legislature provides for a general overhauling, if it can and will do so, whereby all the sinners are to be brought to judgment. It will not do to stretch the law to meet supposed or real cases of the escape of large sums of proper valuation for taxation. There must be a finality. There must be one rule for the individual and for the state and counties in reference to assessments, so far as the end of controversy about values is concerned. If not, there is no safety for any citizen, however honest. Property being giv en in, whether under or over valued, must be conclusive. The state cannot concern herself, except where property is not given in. She must be controlled, as the citizen must be, by the final action of her own tribunals. Is there any other tribunal on earth whose decision does not bind both sides? Is there anywhere it is allowed to set up fraud unless such as was discovered, after the investigation, and was not discovered sooner, or might not have been, with reasonable diligence? I cannot conceive a case between the state and a citizen where the citizen only, and not the state, will be bound by the adjudication.

SHAW v. POSTAL TEL. CABLE CO. (Supreme Court of Mississippi. Jan. 20, 1902.) TELEGRAPHS-MESSAGES-LIABILITY FOR MISTAKE-EXEMPTION FROM LIABILITYCONTRACT-WHAT LAW GOVERNS.

Gen. St. Mass. 1860, p. 373, § 10, required telegraph companies to faithfully and impartially transmit messages according to their regulations, and the Massachusetts courts, in construing the statute, have held that a regulation requiring the payment of an additional rate to insure accuracy in transmission is reasonable. A Massachusetts contract for the transmission of a cipher message provided that the company should not be liable for a mistake in transmission unless extra compensation should be paid. The additional rate was not paid, and a mistake in transmission was made in Mississippi. Held, in an action for damages that, the contract being a Massachusetts contract, its validity was to be determined by the statutes of the latter state as construed by its courts, even though such construction was in conflict with the principles of the common law; and as the provision in the contract exempting the company from liability had been held to be a reasonable regulation by the Massachusetts courts, it would be upheld, though such contract would have been invalid in Mississippi, as exempting the company from liability for its negligence. Whitfield, C. J., dissenting.

Appeal from circuit court, Marshall county; Z. M. Stevens, Judge.

courts of the state of the statute. This cannot be. Courts may construe and interpret the scope and extent of their local statutes, and say what they embrace, or do not embrace, and their conclusion must be authoritative in every other state. It is not possible to interpret a statute without interpreting its scope. What a statute embraces or does not embrace is necessarily in every construction of it. At least, the writer cannot now recall or imagine a case where there could be any need of construction or interpretation except only to determine what it includes or excludes, what it comprehends or does not comprehend,-in other words, its scope and effect. Now it is conceded that the Massachusetts court holds that the statute of their state does include the matter in controversy, and this ends the case. The position that, because section 195 of our constitution makes telegraph companies common carriers, and our courts have held that they cannot contract against their own negligence, enables us to invalidate a valid or make valid an invalid Massachusetts contract, is unsupported by any decision in the whole world. If so Massachusetts could validate and invalidate Mississippi contracts. There is no penalty in either state.

One sim

ply makes the contract valid, the other invalid, and the whole question is, in which state was it entered into? There is no statute in either declaring that its courts shall not enforce, or shall enforce, valid or invalid contracts under the statutes of the other, as was the case in Lemonius v. Mayer, 71 Miss. 514, 14 South. 33. One state cannot be made the dumping ground for lawsuits between citizens of another when they cannot recover from each other in their own state, where they made the contract, because of their own statute as construed by their own court. It is idle to attempt to assimilate this case to the case of general transitory actions allowable in the home courts. Our own court has repeatedly held that actions in tort, as well as in contract, are governed by the law of the place of the injury. Railroad Co. v. Wallace, 50 Miss. 244; Car Co. v. Lawrence, 74 Miss. 782, 22 South. 53; Martin v. Railroad Co. (Miss.) 27 South. 646; Railroad Co. v. Crudup, 63 Miss. 291; Railroad Co. v. Doyle, 60 Miss. 977. And in some of these cases there were no statutes, and the decisions are looked to in order to ascertain the law of the state of the injury. But it is unnecessary to decide upon the question of the controlling law where there is no statute. The real complaint here is the nonexecution of a Massachusetts contract, and the fact that the defendant's damaging mistake was made by its operative in Georgia in repeating the message can make no difference. The contract of transmission was entire; and solemn contract rights cannot be destroyed by a mere trick of pleading in denominating them torts, even if this changed the case. It is clear that we must

look to the judicial decisions in a state to ascertain the law in all cases where they construe their own statutes. All statutes, without a solitary exception, existent or conceivable, must be interpreted by the rules of the common law. But the decisions of the courts of the state of the statute, right or wrong, must be final. It is for them to say what is the true construction and scope of their own statute by their view of the common law, or by their own reasoning, sound or unsound. In Block v. McMurry, 56 Miss. 217, 31 Am. Rep. 357, our own court held a Sunday contract made here void because of our laws. But in McKee v. Jones, 67 Miss. 405, 7 South. 348, it held that a defendant, sued in this state on a Louisiana Sunday contract, was bound because that state had no law against a Sunday contract. Even public policy must yield to the law of the state of the contract, unless where the statutes of the forum forbid enforcement in its courts, or the matter is malum in se. An action in tort for damages for breach of a contract made in one state, by citizens of that state, which cannot be maintained, either in that state or in the state of performance, because of the ruling of the courts of those states, cannot be maintained anywhere. It seems right to charge the whole world with notice of the statute law of the place of the contract, but to charge citizens only with notice of the rulings of their court on the binding force of such a contract in commercial dealings. The powers given appellee, by the Massachusetts statute, to impose "reasonable regulations," as construed by her court of last resort, surely must gov ern all courts of all other states and nations. There has not been, and, it is probable, never can be, produced a case where two citi zens of the same state contract in that state, and the courts of that state deny the right of action because of their construction of the powers allowable in the scope of their own state statute, that one of the parties, without relief in that state, may step across the border and find relief. That is the effort here, and it ought to fail. It is a misconception of a great and universal principle to hold that, because the Massachusetts court may have erred in its view of the common law in holding what was a "reasonable regulation" in the scope of the Massachusetts statute, therefore it did not bind all other courts. It is the conclusion arrived at, not the reasoning, which binds. The former judgment is vacated and the decision below is affirmed.

WHITFIELD, C. J. (dissenting). The sole question on this reargument relied on by appellee is that this is an action ex contractu, and that the contract was made in Massachusetts, and that the doctrine that a contract valid by the statute law of the state where made is valid everywhere governs. It is obvious, therefore, that if it be the case

that the statute of Massachusetts does not determine the case, then the argument wholly fails. The question for decision is whether a regulation by a telegraph company that there shall be no liability, beyond the amount paid, in the case of an unrepeated message, is not an attempt to stipulate against the consequences of the company's own negligence. What is the Massachusetts statute? It is a general act entitled "Of Telegraph Companies," and is chapter 64 of the General Statutes of Massachusetts passed in 1860. The telegraph as an agency of communication had just come into vogue. The supreme court of Massachusetts, in Ellis v. Telegraph Co., 13 Allen, 230, decided in October, 1866, call it "this novel branch of human skill." And the act of 1860 was passed to define in a merely general way what telegraph companies might do. For example, it provides (section 2) that they might construct lines along public highways, over water ways, etc., by erection of posts, piers, etc.; in section 3 that the mayor and aldermen of any places through which it might pass should specify where the posts should be erected, the kind and height of posts, etc.; in section 4 that damages may be awarded in the exercise of the right of eminent domain, etc., and how in detail; and other provisions fix the capital to be subscribed, the limit of debt such companies might contract, not exceeding one-half of its capital stock actually paid in (a limitation that would startle these companies in this day); the liability of its officers, etc.,-all provisions of the most general character, obviously due to the fact that the legislature of that state was then dealing with these companies for the first time. By section 10 it was provided: "Every company shall receive despatches from and for other telegraph lines, companies, and associations, and from and for any person; and on payment of the usual charges for transmitting despatches according to the regulations of the company, shall transmit the same faithfully and impartially." It is perfectly plain that this section does nothing at all except merely to authorize the telegraph company to "make rules and regulations." Nor does it declare, in any way whatever, how it shall be determined whether such a rule of the company is reasonable or unreasonable. It is a mere naked power granted to the company to make rules. It is too plain for argument that those rules must be reasonable. The particular question involved here is simply and only this: How did the supreme court of Massachusetts determine that the rule was reasonable? Did it find any guide or standard of reasonableness in the statute? Manifestly not. By what standard or test, then, did it decide the question whether it was a reasonable rule? Most manifestly by a resort to the general principles of the common law. That these rules must be reasonable, see what the court itself said at page 31 So.-15

235: "But we need not have recourse to these familiar and well-settled principles of the common law in order to establish the right of the owners and conductors of telegraphs to make rules and regulations by which to define and limit their duties and obligations in the transaction of the business which they assume to carry on. This right is clearly recognized and affirmed by the statute already cited. By that corporations, associations, and individual owners of lines of telegraph doing business within this commonwealth are only required to transmit dispatches 'according to the regulations' which they may establish. It is hardly necessary to say that this provision does not confer the right to impose such conditions or restrictions in the mode of conducting the business as the self-interest or caprice of owners and conductors of telegraphs may dictate, but only those which are reasonable and proper in view of the nature of the business, and the risks and responsibilities which it involves, and the necessity of securing to the public due opportunities for a fair and rea> sonable use of the telegraph, as well as of affording due protection to the rights of those on whom are imposed the duty and burden of conducting the business for public accommodation. This is the true interpretation of the statute. Any other construction would lead to the result that the legislature conferred a power to establish unreasonable regulations for the conduct of a business of a quasi public nature,-a conclusion which is manifestly absurd." This quotation plainly shows that the court held that the company, and not the statute, made the rule, and that it was for the court to determine as a judicial question whether that rule was reasonable. Another observation is proper here, and that is this: That the language of the court we quote as to the right of owners of telegraph companies to make rules shows, and only shows, that the thing for which there was no need to resort to the common law was merely the right of the owners of telegraph companies "to make rules." The court had been reasoning at page 230 as to the right of "this novel branch of industry" to make rules for the regulation of its business in the abstract, and it had reached the conclusion that under the common law such company had the right to make rules and regulations. It then shows, in the passage quoted, that, if the common law had been silent, the statute specially conferred such mere general right to make rules and regulations. That is absolutely all that the court said the statute had done, and a mere inspection of the face of the statute shows that this is precisely all that the statute did, to wit, confer upon telegraph companies the mere general power to make rules and regulations. Nowhere in the opinion of the court is it either expressly said, or in the most remote way intimated, that the statute itself had either made any regulation or furnished

any test by which to determine the reasonableness of the regulations made by each company. Whether this regulation is reasonable, and by what standard it was to be determined whether it was reasonable, was the exact proposition involved in Ellis v. Telegraph Co. And now the crucial point in the reasoning is reached: What standard did the supreme court test the reasonableness of the rule by? By the statute? Plainly not, for the statute furnishes none. It is most manifestly by the general principle of the common law, and it is only necessary to read carefully the opinion of the court, pages 231 to 238, inclusive, to see that they did decide the rule to be reasonable by a resort to the principles of the common law, and to them alone. They refer, for example, to the peculiar nature of the business of transmitting messages by electricity; to the fact that there can be no manual possession of the message, as in the case of property ordinarily shipped by common carriers; that the message is wholly under the control and supervision of its owner while in its custody; to atmospheric disturbances and disarrangement of electrical apparatus, and the imperfections incident to the transmitting of sounds by electricity. From these and from like considerations they determined that the rule was reasonable that a telegraph company was not a common carrier according to the principles of the common law, and could not be held as an absolute insurer, and that this sort of stipulation, though a stipulation against negligence, was a reasonable stipulation, because of the differences existing between a telegraph company and a usual common carrier from the nature of their business. These are the reasons and principles by which the Massachusetts supreme court decided the reasonableness of this rule, -the principles of the general common law, -and by them alone. So, in Grinnell v. Telegraph Co., 113 Mass. 299, 18 Am. Rep. 485, the court again resorted not to the statute, but to the general principles of the common law, to determine whether this rule was reasonable. Now, the question recurs, is the supreme court of this state bound by this decision of the Massachusetts supreme court holding this rule to be reasonable, when the statute did not prescribe the rule, did not furnish any test as to the reasonableness of the rule; when the only construction of the statute indulged in by the court was simply that it had conferred upon the company the mere general right to make rules; when it expressly held that the reasonableness of that rule was a question of judicial determination; and when it did determine that the rule was reasonable, by a resort to the principles of the common law, as the only test it could apply? Or, to state the question simply and sharply, is the supreme court of Mississippi bound, as to what the principles of the common law are, by the view of the supreme court of Massachusetts as to

And

what those principles are? Is it not for the supreme court of each state to determine for itself what the common law is? when some rule adopted by a telegraph company is to be held reasonable or unreasonable, according to the principles of the general common law, does not the supreme court of each state declare that rule reasonable or unreasonable, according to its own view of the principles of the common law applied to that rule? It would seem that to state the question is to answer it. That exactly, that precisely, neither more nor less than that, is the question involved in this case, treating the action as ex contractu. It would put this state in a most extraordinary attitude if it had to follow the interpretations of the principles of common law as announced by the courts of 44 other states. On the very same state of facts as to whether a rule of the telegraph company was reasonable we would have to hold one way in cases arising in those states holding it unreasonable and another way in cases arising in states holding it was held reasonable. Endless confusion would be the inevitable result of any such abdication of judicial power on the part of this court. Of course, if a contract made in another state is made by virtue of a statute of that state, the statute making such a contract valid, and the supreme court of that state construing it as valid under that statute, the courts of every other state whose positive law or public policy is not violated by that statute will treat such contract as valid. That is an elementary principle thoroughly recognized everywhere. But that is not this case. This statute did not prescribe this rule. It did not say that a telegraph company might provide against liability in case of unrepeated messages; it did not furnish any test by which to decide upon the reasonableness of such rule; it simply said the company might make rules, leaving the court to determineas it did determine the reasonableness of the rules by the well-settled principles of the common law. It is also to be carefully borne in mind that this court has decided by necessary implication in two cases, to wit, Allen's Case, 66 Miss. 549, 6 South. 461; Alexander's Case, 66 Miss. 161, 5 South. 397, 8 L. R. A. 71, 14 Am. St. Rep. 556, and directly in this case in the former opinion, that it is not competent for the telegraph company to adopt this rule, since it is nothing else than an effort to contract against the consequences of its own negligence. And since these decisions the constitution of this state bas expressly declared (section 195) telegraph companies are common carriers, and hence liable as such; and further that the decided weight of authority, and undoubtedly the better-reasoned cases, hold such a rule void, as unreasonable. Reference is made to this to show this, simply: That this stipulation, being one clearly violative of our public policy on this subject, as manifested both by