City National Bank v. District Court of Plymouth County
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pany the cattle, and receive and distribute the proceeds as sales were made by Dawson. Certain amounts were received and distributed accordingly. Shortly after, and on May 31st, Hunter & Co. filed a petition in Montague county, Tex., against O'Neal and Dawson, to foreclose a mortgage given by O'Neal to them on the cattle then in possession of the latter, and sequestrated the cattle. Thereupon, Dawson replevied the cattle, and gave a bill of sale of them to the bank, which furnished the security upon the replevin bond, and agreed to hold the parties harmless from any liability thereon. The bank notified McCulloch that his agency had ceased, and took possession of the herd through its agent, one Ellis, who had a power of attorney from the bank to make title to the cattle as sold off by Dawson, and receive the proceeds. The suit of Hunter & Co. in Montague county was removed to the circuit court, and they there filed an amended bill, September 30, 1881, to which they made the bank a party defendant, and prayed in the alternative, that, if they were mistaken in seeking a foreclosure, a decree be rendered against Dawson and the bank for the amount of money coming to them from the proceeds of the cattle. The cause was heard in the circuit court and a decree rendered, which, upon appeal to this court by the bank, was reversed, and the cause remanded, with a direction to enter a decree in conformity with the opinion. The opinion found the amount due from O'Neal to Hunter & Co. February 20, 1880, to which certain interest was to be added, as pointed out, down to the date at which Dawson paid the balance due on his note into the bank,-a matter not made clear on that record,-and also directed the amount of the bank's debt to be ascertained by adding certain interest to O'Neal's note held by it down to the same date. From these two indebtednesses the pro rata to which complainants and the bank were entitled out of the fund to be distributed was to be computed, and, from the amount to come to complainants according to this computation, certain deductions were directed to be made, and the balance to be paid out of the money deposited by Dawson, as of the date of such deposit, the bank retaining the remainder. After the

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cause was remanded the parties entered into the following stipulation:  'It is agreed between Hunter, Evans & Co., on the one part, and the City National Bank of Fort Worth, Texas, on the other part, that the proceeds of the cattle in controversy in this case were paid over to James F. Ellis, one of the securities on the replevin bond, who, for himself, and as agent for the other securities on said bond, accompanied said cattle to the Indian Territory, and collected the balance due on the note from Dawson to Hunter, Evans & Co. and said City National Bank, and that said Ellis, on behalf of himself and said other securities on said bond, deposited said amount collected by him in said City National Bank as a general deposit, with the understanding that said money should remain on deposit in said bank, to abide the determination of this suit, for the purpose of indemnifying them (said securities) against any loss by reason of their signing said bond.  'Said deposit was made in the name of the 'Dawson bond account,' and the amount has remained, and still remains, on general deposit, as aforesaid, in said bank.  'It is further agreed that said deposit was made at the following dates, and in the following amounts, respectively:  '1. June 26th, 1880, three thousand one hundred and twenty-eight dollars.  '2. August 3rd, 1880, five thousand dollars.  '3. August 6th, 1880, five thousand six hundred and forty-four dollars.  'Total amount deposited, thirteen thousand seven hundred and seventy-two dollars, which, as other general deposits, has been used by the bank as other of its funds.  'It is further agreed that this agreement shall stand in lieu of answer to plaintiffs' bill of discovery, and answer to same is hereby waived.'  The circuit court thereupon rendered a decree, providing, among other things, that Hunter & Co. recover of the bank the sum of $12,084.85, together with interest thereon from date of decree at the rate of 8 per cent. per annum, and the costs after September 30, 1881,-the date of the filing of

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complainants' amended bill,-all prior costs being adjudged against Hunter & Co. The bank then prosecuted an appeal to this court, assigning as error that the circuit court included in the recovery against the bank interest on complainants' portion of the money, and awarded costs. The contention was that the allowance of the interest was inconsistent with the mandate of this court, and the amount thus questioned was 'nearly or quite $4,000. When the appeal came to be considered, we found ourselves compelled to dismiss it because the sum in dispute was not sufficient to give us jurisdiction, and no appeal lies from a mere decree for costs. Bank v. Hunter, 152 U.S. --, 14 Sup. Ct. 675.  A. H. Garland, for the motion.   [Argument of Counsel from pages 249-251 intentionally omitted]

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djQ  Mr. Chief Justice FULLER delivered the opinion of the court.  Application is now made for mandamus, and this is the proper remedy, if the mandate of this court has been disregarded; but, if not, the application for leave to file should be denied.  We are of opinion that whether or not the proceeds of the cattle were received and retained by the bank under such circumstances as to render it liable to Hunter & Co. for interest on their pro rata share was a matter which was necessarily so far left at large by our former decree that we cannot hold that the mandate was disregarded by the decree rendered thereunder by the circuit court.  The Dawson note was held in trust for Hunter & Co. and the bank, payment to be worked out from the cattle through the agency of McCulloch; and when the bank terminated McCulloch's agency, took possession of the herd, and received the proceeds of the cattle from Ellis, it received the pro rata share of Hunter & Co. in trust for them, as the litigation

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turned out. And nothing in the directions we gave prevented the circuit court from holding the bank to a liability to pay interest thereon, if, in its judgment, it was justified in so doing by the facts disclosed on the hearing. Ellis was the agent of the bank, and the money was kept and used by the bank, being carried on the books to the credit of the 'Dawson bond account,' subject to the determination of this suit. The language of the stipulation-that the amount collected was deposited by Ellis as a 'general deposit,' and used 'as other general deposits,' 'as other of its funds'-does not change the legal effect of the transaction, so far as Hunter & Co. were concerned, who had nothing to do with the agreement of the bank to indemnify Dawson's sureties on the replevin bond. The use of their part of the money, under the circumstances, may have induced the circuit court to arrive at the result complained of. We are not, however, called on to say whether the allowance of the interest was or was not correct, as the only question is whether that court disobeyed the mandate, which we do not think it did.  As to the costs, we are also clear that the action of the circuit court was not precluded by the former decision.  Leave to file the petition must therefore be denied.    Northern Pac R Co v. Clark  [14SCt809,153US252,38LEd706]  14 S.Ct. 809  153 U.S. 252  38 L.Ed. 706  NORTHERN PAC. R. CO. v. CLARK et al., County Auditors.

No. 1,045.

April 30, 1894.

This was a suit by the Northern Pacific Railroad Company against the county auditors of 12 counties in the state of North Dakota, to enjoin the collection of certain taxes, alleged to be illegal, assessed against its lands. The circuit court sustained a demurrer to the bill, and dismissed it for want of equity. Railroad Co. v. Walker, 47 Fed. 681. Complainant appealed to the circuit court of appeals for the eighth circuit, and that court certified the cause to this court for instructions on certain propositions of law. 3 C. C. A. 684. It was, however, remanded, because the jurisdiction of the circuit court did not appear upon the face of the record. Proper amendments were made, and the cause has again been certified up.

This case, under the style of Railroad Co. v. Walker, 148 U.S. 391, 13 Sup. Ct. 650, was before this court at October term, 1892, and, the jurisdiction of the circuit court not appearing upon the face of the record, it was remanded with leave to amend. The appellant accordingly, on June 6, 1893, filed in the circuit court of the United States for the district of North Dakota its amended bill of complaint, in which, after setting forth its creation and organization under and by virtue of an act of congress approved July 2, 1864, entitled 'An act granting lands to aid in the construction of a railroad and telegraph line from Lake Superior to Puget's Sound, on the Pacific coast, by the northern route,' and certain acts and joint resolutions of congress supplementary thereto and amendatory thereof, it was alleged that for the purposes of laying out, locating, constructing, furnishing, and maintaining a railroad and the telegraph line between the points indicated there was granted to it by congress every alternate section of public land, not mineral, designated by odd numbers, to the amount of 20 alternate sections per mile on each side of the railroad line as the company might adopt, through the territories of the United States, and 10 alternate sections of land per mile on each side of the railroad line whenever it passed through any state, to which the United States had full title, not reserved, sold, granted, or otherwise appropriated, free from pre-emption or all other claims at the time the line of the railroad should be definitely fixed, and the plat thereof be filed with the commissioner of the general land office; that the railroad company duly accepted the terms, conditions, and impositions of said act of congress, and that on the respective dates of May 26, 1873, and July 20, 1880, it definitely fixed the line of its railroad through certain counties in the territory of Dakota (now the state of North Dakota), and filed plats thereof in the office of the commissioner of the general land office; that the line of railroad so fixed extends opposite to and past the lands set forth and described in the schedules made a part of the bill; that prior to December 20, 1880, it had completed that portion of the railroad and telegraph line extending on, over, and along the line of definite location of the railroad; and that the president of the United States, from time to time, after the same had been examined by commissioners, had accepted the railroad and telegraph line as having been constructed and completed in all respects as required by the act of July 2, 1864, and the acts and joint resolutions supplementary and amendatory thereof.

The bill further alleged that the lands on each side of the railroad, and every portion thereof, were within 40 miles of the company's line of road so definitely fixed; that they were public lands, to which the United States had full title, not reserved, sold, granted, or otherwise appropriated, and no entry or application to make entry for the lands was made or was pending when the lists of definite location were filed in the office of the commissioner of the general land office on May 26, 1873, and July 20, 1880; that the described lands had been surveyed by United States surveyors, and had been reported to be agricultural in their character, and nonmineral; and that the lands were not, on July 2, 1864, or May 26, 1873, and July 20, 1880, known as mineral lands, etc.; that the company had, prior to the year 1889, in accordance with the direction of the secretary of the interior, duly prepared and filed lists in the United States land offices in the land districts in which the lands were situated, respectively, describing the lands, and claiming them as a portion inuring to it under and by virtue of the act of congress approved July 2, 1864, which lists were duly allowed and approved by the United States district land officers, to whom the fees prescribed by law were paid by the company, and which were retained by the United States; that the lists of lands so filed were duly transmitted by the district land officers to the commissioner of the general land office for his approval; that since the lists were filed and transmitted to the commissioner of the general land office, the commissioner, under the direction of the secretary of the interior, had required the company to file in the office of the commissioner, or in the office of the land-office districts in which the lands were respectively situated, an affidavit made by some person acquainted with the character of the lands, setting forth and showing that the same were nonmineral, and that, until such affidavits had been filed, the commissioner refused to approve the lists; that the company had not, nor had any one in its behalf, filed affidavits of persons having knowledge of the mineral or nonmineral character of the lands set out in the lists.

The bill then proceeds to state that none of the lands described had ever been certified or patented to the railroad company, and that neither the United States nor any of its officers or agents had ever ascertained and determined what specific lands in the state of North Dakota passed to the railroad company by virtue on the act of July 2, 1864, although the railroad company had repeatedly petitioned to have this done; that the United States and its officers had refused to certify to the company the lands described in the schedules of the bill, but held the lists suspended and unapproved upon the claim that the lands may be mineral in character, and as such excepted from the grant to the company, or that the lands may not have been free from claims or rights reserved in the grant, or that the question as to whether title to the lands had passed to the railroad company under and by virtue of the granting act, and acts amendatory thereof; that said matters were still in controversy, and pending before the commissioner of the general land office and the secretary of the interior.

It is further alleged that the railroad company had no other right, title, claim, interest, property, or possession in or to any of the lands or premises described in the bill, except such right, title, claim, interest, property, or possession as it may have obtained under and by virtue of the acts and resolutions of congress, and its compliance with the conditions thereof.

It is then averred that on March 7, 1889, the legislature of the territory of Dakota passed an act, which was duly approved by the governor of the territory, entitled 'An act providing for the levy and collection of taxes upon the property of railroad companies in this territory,' in and by which it was, among other things, enacted and provided: 'In lieu of any and all other taxes upon any railroads, except railroads operated by horse power, within this territory, or upon the equipment, appurtenances, or appendages thereof, or upon any other property situated within this territory belonging to the corporation owning or operating such railroads, upon the capital stock, or business transactions of said railroad company, there shall hereafter be paid into the treasury of this territory an amount equal to a percentage of all the gross earnings of the corporation owning or operating such railroad arising from the operation of such railroad as shall be situated within this territory, both upon territorial and interstate traffic, in case the railroad company owning or operating such line shall accept and become subject to this act as hereinafter provided.' That the railroad company did, within 30 days after the passage of this act, by resolution of its board of directors, attested by its secretary, filed with the secretary of the territory of Dakota, accept and become subject to the provisions of the act of March 7, 1889. That within 30 days of its passage the railroad company, as required by the act, prepared and filed with the treasurer of the territory, in the manner required by the provisions of chapter 99 of the Session Laws of the territory for the year 1883, an account of the gross earnings of the company, both territorial and interstate, for the years 1886 and 1887, and paid into the treasury the entire amount of taxes claimed by the territory on local and interstate earnings remaining unpaid at the time of filing such account for said years, such payment being as follows, to wit, for the last half of the year 1886, $38,095.31; for the year 1887, $65,585.46. Such sums so paid, as provided for in the territorial act of March 7, 1889, were percentages computed entirely upon gross earnings of the company derived from domestic business, the percentage for the same years computed upon the gross earnings derived from interstate business having been previously paid by the company, as required by the provisions of the territorial act of 1883.

It was also alleged that at the same time the company paid into the treasury of the territory one-half of the entire amount due for the year 1888, amounting to $46,937.09, and that before August 15, 1889, it had paid the remainder of the amount due for the year 1888; that the sums so paid into the treasury for the year 1888 were percentages computed upon the gross earnings of the company for that year, derived from both domestic and interstate business, the former amounting to $11,446.78, and the latter to $82,427.40; and it was alleged that all the percentages derived from interstate business so paid into the treasury were not due from the company, except by virtue of the act of March 7, 1889, and the company's acceptance thereof, and that they were paid as a consideration for the exemption from taxation provided for by that act, and for no other reason.

It is then charged that, notwithstanding the premises, in the year 1889 the county auditors for the counties of Kidder, Stutsman, Richland, and McLean, under the authority of the laws of the territory of Dakota, had assessed the company's lands situate in their respective counties for purposes of county taxation, and that they had advertised the lands as described in the schedules to the bill for sale, and were about to wrongfully sell the same for the nonpayment of taxes so levied, together with penalties and costs, and to issue certificates of sale for the same in the form prescribed by the laws of North Dakota, and, unless restrained by the order of the court, they would sell the lands, and issue certificates of sale thereafter, whereby the rights of the railroad company in and to the lands would be irreparably injured, and lead to a multiplicity of suits concerning the title thereto.

It was further claimed on the part of the railroad company that the taxes so assessed and levied upon the lands were a cloud upon the title of the railroad company thereto; that, if sold, and certificates were issued to the purchaser, such certificates would constitute a cloud upon the title of the company in and to the lands so sold; that the counties were bankrupt; and that, if the railroad company should pay the taxes, and then bring an action against them to recover the amount thereof, it would require a multiplicity of suits, and such judgments as might be recovered would be worthless.

The bill further averred that the amount of the taxes levied upon the lands, together with the costs and penalties claimed by the county auditors to have accrued thereon, and for which the lands had been advertised for sale and were about to be sold, were as follows: Upon the lands in Kidder county, $12,820.67; upon the lands in Stutsman county, $8,863.39; upon the lands in Richland county, $4,094.37; and upon the lands in McLean county, $4,048.17, the amount of such tax, penalty, and cost upon each tract of land being particularly shown in the schedules attached to the bill.

The prayer of the bill was to the effect that the county assessments and taxes so levied upon the lands of the railroad company might be declared illegal and void, and a cloud upon the title of the company, and that the defendants, and each of them, their deputies and successors in office, be restrained from selling or attempting to sell the lands or any portion thereof, or from issuing tax certificates therefor.

The defendants appeared, and demurred to the amended bill on the ground that, according to the showing made therein, the plaintiff was not entitled to the relief sought. The circuit court sustained the demurrer and dismissed the bill on the ground that the act of 1889 was void, because it violated the organic act, which provided that the legislative assembly of the territory shall not make any discrimination in taxing different kinds of property, but all property subject to taxation shall be taxed in proportion to its value; secondly, that the bill was without equity in failing to allege payment or tender of the gross-earnings tax for the year 1889. 47 Fed. 681.

From this judgment the railroad company appealed to the United States circuit court of appeals for the eighth circuit, and that court, desiring instructions upon certain questions presented by the assignments of error filed in the cause, certified to this court various propositions of law as to whether the railroad company acquired such title to the odd-numbered sections of land within the place limits of the grant of July 2, 1864, which were not mineral, and which, at the dates of the grant and of the filing of the map of definite location in the office of the commissioner of the general land office, were not reserved, sold, granted, or otherwise appropriated, as to render them taxable before being patented and certified to the railroad company; whether the company was taxable on such lands by the territories after the filing of the map of definite location of its railroad, and full compliance with the terms and conditions of the granting act, while the United States refused to patent and certify such lands to the company; whether chapter 107 of the Laws of Dakota for 1889, being an act entitled 'An act providing for the levy and collection of taxes upon the properties of railroad companies in this territory,' approved March 7, 1889, was void as a regulation of interstate commerce; whether the act of March 7, 1889, was in conflict with the fifth and fourteenth amendments of the constitution of the United States, and with the organic law of the territory, as an attempt to exempt from taxation the lands granted by the act of July 2, 1864; whether the act of March 7, 1889, should be construed as granting an exemption for the year 1889, or to be in force and effect only after the year 1890. The eighth and remaining question certified is as follows: 'Is said bill without equity because of the failure to aver that the complainant has tendered or paid the 'gross-earnings tax' for the year 1889, and is said complainant entitled to the equitable relief prayed without first tendering or paying such tax?'

F. M. Dudley, for appellant.

[Argument of Counsel from pages 259-263 intentionally omitted]

Edgar W. Camp and W. H. Standish, for appellees.

Mr. Justice JACKSON delivered the opinion of the court. 

Notes
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