c39:No. 224

SHOWALTER, Circuit Judge
(dissenting). Appellee stated in his petition:
“That there is duo from said Kentucky and Indiana Bridge Company, * * lor state and county taxes to said Floyd county and state of Indiana, $5,093.12. That said taxes were assessed against the following property of the Kentucky and Indiana Bridge Conrpany within said Floyd county, to wit: For the years 1891. 1892, and 1893 on S5/ioo miles of first main track, $175,-000; on 12/ioo miles of second main track, $30,000; on ss/noo miles of rolling stock, $1.050; and on improvements on right of way, $180.00, — the same being the property of said company, situated within the slate of Indiana, said county, and north of low-water mark of the Ohio river. Said taxes are as follows ('alleging $1,717.55 to be the amount for 1891, $2,140.12 for 1892, and $1,835.45 for 1893].”
Appellants filed an answer, consisting of 16 paragraphs. Of these, (he first 8 were stricken out on appellants’ motion; the remainder, by the court. At law, a defective declaration may be aided by adverse pleadings. In chancery, as I understand, the decree must be supported hv the bill or petition. The order appealed from here must, in any event, therefore, be supported by the petition. If, in debt on a judgment, plaintiff should aver in his declaration that at a-certain time he obtained a judgment against the defendant for a certain sum, without stating what court, or that any court or judicial officer, rendered such judgment, such declaration would be ill. Here it is averred that appellee is treasurer of Floyd county, but not that the board of tax commissioners (called in the statement of facts the “State Board of.Equalization”) or any authority known to the law .made the assessment on the property described. I do not well see how, upon the document filed by appellee, as shown in this record, any decree against appellants can be supported.
In the averments of the answer stricken out by the court, appellants stated, in substance, that the property in question lay across the state line, very much the larger portion being in Kentucky. Their proposition is that a valuation or assessment by the Indiana board of tax commissioners upon a piece of real estate which crosses the territorial limit of Indiana is void. Assuming that part of the tract here in question is in fact in Kentucky, then there was no valuation or assessment on the other portion, and the alleged tax is void. On the other hand, while the taxing authority mu~o oftentimes, in order to identify a tract of land for purposes of assesrm-'nt, determine for itself where the state line is, yet such determination is not, and from ,the nature of the case cannot be, conclusive. It is out of the question to say that a taxing agent deriving authority from Indiana can fix a tax lien on land in Kentucky, or that the status of a piece of land, as being in one state or the other, is conclusively determined by the finding of any taxing agent in either state. The ruling of the board of tax commissioners upon its own jurisdiction is not conclusive. I think appellants were entitled to a hearing upon their averment that land on the southern side of the state line was considered in the assessment. Railroad Co. v. Backus, 154 U. S. 435, 14 Sup. Ct. 1114, seems to sustain this view of the case.

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