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which, if the boundary was established according to his claim, would be to set over to him lands which, as he alleged, were erroneously included in the first survey and patent, but which had been all these years occupied and cultivated by Bach, the patentee, and his grantees. A decree in his favor in the circuit court was reversed, and the case remanded with instructions to dismiss the bill, Mr. Justice Lamar saying in the opinion (page 700):

"The appellee, Powell, is a surveyor, who, in the year 1877, while employed by appellant to make a survey of his plantation, thought he discovered an error in the public lands, whereby it would appear that his lands were not, in fact, situated on Bayou Four Points. From his own evidence it is shown that he induced Wolf to obtain the patent from the state of Louisiana for the land which he, the said appellee, purchased from him. When he purchased this land from Wolf, he knew that the tracts to which he was laying claim had been possessed and cultivated by the appellant for a long period of years.

"An advantage thus obtained a court of equity will not readily enforce. As was said in Taylor v. Brown, 5 Cranch, 234, 256: "The terms of the subsequent location prove that the locator considered himself as comprehending Taylor's previous entry within his location. He either did not mean to acquire the land within Taylor's entry, or he is to be considered as a man watching for the accidental mistakes of others, and preparing to take advantage of them. What is gained at law by a person of this description, equity will not take from him; but it does not follow that equity will aid his views.'"

Without, therefore, determining whether the selection and certification of these lands was absolutely void, or simply voidable at the election of the government, or valid, and beyond any right of challenge on the part of the government or any one else, we are of the opinion that equity will not help the plaintiff in his suit; and the decree of the court of appeals is affirmed.

(165 U. S. 359)

ROBINSON v. CALDWELL.

(February 1, 1897.)
No. 162.

JURISDICTION OF SUPREME COURT AND CIRCUIT COURTS OF APPEALS-DOUBLE

APPEALS-WAIVER.

A case in the circuit court involving the validity of an act of congress and the construction of a treaty was decided on the merits against defendant, who took appeals on the whole case both to the supreme court direct and to the circuit court of appeals. The latter court affirmed the decree on the merits, deciding all the questions raised. Held that, by invoking the jurisdiction of the circuit court of appeals on the whole case, defendant waived his right to a decision by the supreme court on the direct appeal, and the same must be dismissed.

Appeal from the Circuit Court of the United States for the District of Idaho.

This suit was brought on the 20th day of October, 1893, by Caldwell against Robinson, in the district court of the Second judicial district of the state of Idaho.

It appears from the complaint that the plaintiff claimed to be the owner of a certain tract of land in Idaho, containing 640 acres, and that the validity of his title depended partly, if not altogether, upon the construction of a treaty made between the government of the United States and the Nez Percés Indians on the 11th day of June, 1855 (12 Stat. 957). It also appears that there was drawn in question in the circuit court the constitutionality of the act of congress of March 3, 1873 (17 Stat. 627, c. 324).

A temporary injunction was issued in the cause, enjoining the defendant and his servants, counsel, and agents, and all others acting in his behalf, from interfering or intermeddling with the plaintiff in the control and peaceable possession of the lands and premises described in the complaint.

Upon a petition subsequently filed in the state court by the defendant, the cause was removed into the circuit court of the United States for the district of Idaho, Northern division. By stipulation of the parties the case was transferred to the Central division of that court.

The case was heard in the circuit court of the United States upon a motion to dissolve the injunction, and also, pursuant to a stipulation of the parties, upon the merits. A final decree was rendered adjudging the plaintiff to be the true and lawful owner of an undivided one-half interest in the land described in the complaint, and that his title be quieted against the claims, demands, and pretensions of the defendant, whom the decree perpetually estopped from setting up any claim to said land, or to any part thereof, as described in the decree. 59 Fed. 653. From this decree the defendant asked and was allowed an appeal to this court. The citation on this appeal was served July 21, 1894.

It is conceded that the appellant also prosecuted an appeal to the circuit court of appeals, which determined the case February 4, 1895, in favor of the plaintiff,-the opinion of that court being delivered by Judge Gilbert. 29 U. S. App. 468, 14 C. C. A. 448, 67 Fed. 391.

Asst. Atty. Gen. Dickinson, for appellant. Chas. A. Maxwell and George S. Chase, for appellee.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.

The opinion of Judge Beatty in the circuit court and of Judge Gilbert in the circuit court of appeals both show that the respective courts considered all the questions in

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the case requiring a construction of the treaty of 1855, and involving the validity of the act of March 3, 1873.

The case was not brought to this court from the circuit court of appeals upon certiorari, but is here upon appeal directly from the final decree in the circuit court of the United States.

Upon the present appeal a question is raised by the appellant as to the jurisdiction of the circuit court of the United States; the contention being that the plaintiff could not have brought an original suit in the circuit court of the United States, and, therefore, that the case was not removable from the state court. Tennessee v. Bank, 152 U. S. 454, 14 Sup. Ct. 654; Chappell v. Waterworth, 155 U. S. 102. But no such question has been certified to this court, nor does it appear to have been raised either in the circuit court or in the circuit court of appeals. *In McLish v. Roff, 141 U. S. 661, 66S, 12 Sup. Ct. 118, 120, the court said that, after a final judgment in the circuit court, "the party against whom it is rendered must elect whether he will take his writ of error or appeal to the supreme court, upon the question of jurisdiction alone, or to the circuit court of appeals, upon the whole case. If the latter, then the circuit court of appeals may, if it deem proper, certify the question of jurisdiction to this court."

In U. S. v. Jahn, 155 U. S. 109, 114, 15 Sup. Ct. 39, 41, it was said: "(1) If the jurisdiction of the circuit court is in issue, and decided in favor of the defendant, as that disposes of the case, the plaintiff should have the question certified, and take his appeal or writ of error directly to this court. (2) If the question of jurisdiction is in issue, and the jurisdiction sustained, and then judgment or decree is rendered in favor of the defendant on the merits, the plaintiff, who has maintained the jurisdiction, must appeal to the circuit court of appeals, where, if the question of jurisdiction arises, the circuit court of appeals may certify it. (3) If the question of jurisdiction is in issue, and the jurisdiction sustained, and judgment on the merits is rendered in favor of the plaintiff, then the defendant can elect either to have the question certified, and come directly to this court, or to carry the whole case to the circuit court of appeals, and the question of jurisdiction can be certified by that court. (4) If, in the case last supposed, the plaintiff has ground of complaint in respect of the judgment he has recovered, he may also carry the case to the circuit court of appeals on the merits; and this he may do by way of cross appeal or writ of error, if the defendant has taken the case there, or independently, if the defendant has carried the case to this court

on the question of jurisdiction alone, and in this instance the circuit court of appeals will suspend a decision upon the merits until the question of jurisdiction has been determined. (5) The same observations are applicable where a plaintiff objects to the jurisdiction, and is, or both parties are, dissatisfied with the judgment on the merits." In Chappell v. U. S., 160 U. S. 499, 509, 16 Sup. Ct. 397, 400, in which the constitutionality of an act of congress was drawn in question, the court said: "No question of Jurisdiction having been separately certified or specified, and the writ of error having been allowed without restriction, this court, under the other clause of the statute above cited (26 Stat. 826, & 5), has appellate jurisdiction of this case, as one in which the constitutionality of a law of the United States was drawn in question, and, having acquired jurisdiction under this clause, has power to dispose, not merely of the constitutional question, but of the entire case, including all questions, whether of the jurisdiction or of merits."

As the construction of a treaty made under the authority of the United States, and the constitutionality of an act of congress, were drawn in question in the circuit court, this court could have taken cognizance of the case upon the appeal from the circuit court, and determined those questions; and, having thus acquired jurisdiction of the cause, it could have determined any question of the jurisdiction of the circuit court appearing upon the record, whether certified or not. 26 Stat. 826, c. 517, § 5. But the defendant elected to prosecute also an appeal to the circuit court of appeals, and that court considered and determined the whole case upon its merits.

It was not the purpose of the judiciary act of 1891 to give a party who was defeated in a circuit court of the United States the right to have the case finally determined upon its merits both in this court and in the circuit court of appeals. As no question of jurisdiction was certified by the circuit court, and as the defendant chose not to await the action of this court upon the appeal to it from the circuit court, but invoked the jurisdiction of the circuit court of appeals upon the whole case, he must be held to have waived his right to any decision here upon his direct appeal from the circuit court.

We are of opinion that the present appeal must be dismissed. After the final decree upon the merits in the circuit court of appeals, this court, under the circumstances stated, could properly take cognizance of the case, in respect of any question involv ed in it, only upon certiorari. Appeal dismissed.

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(165 U. S. 363)

OAKES et al. v. MASE

(February 15, 1897.)
No. 182.

FEDERAL COURTS-STATE DECISIONS-STATE STATCTES-MASTER AND SERVANT

FELLOW SERVANTS.

1. When the circuit court of appeals bases its judgment on a state statute, and, pending an appeal to the supreme court, the court of last resort of the state declares the statute void, as in conflict with the state constitution, this latter ruling is binding on the federal supreme -court, in the consideration of the appeal.

2. One operating a locomotive on one train, and the conductor on another train of the same road, are fellow servants. Mr. Justice Harlan, dissenting.

In Error to the Circuit Court of Appeals for the Eighth Circuit.

C. W. Bunn, for plaintiffs in error.

Mr. Justice WHITE delivered the opinion of the court.

The defendant in error, who was plaintiff in the trial court, sued to recover damages caused by an injury, resulting in the death of her intestate, while serving as an engineer on an engine of the defendant company in the state of Montana. After the cause was put at issue a jury was waived by a written stipulation, and it was submitted to the court for judgment on an agreed statement of facts. The facts stated established that the accident was caused by a switch negligently left open by the conductor of another train on the same road. The trial court, considering that the engineer on one train was not a fellow servant of the conductor on another train of the same road, gave judgment for the sum of the damage, which was fixed in the statement of facts. On error to the trial court the circuit court of appeals for the Eighth circuit, although holding that the relation between the engineer on one train and the conductor on another was that of a fellow servant, yet affirmed the judgment, on the ground that, by the statute law of Montana, the common-law rule as to the relation of master and servant was modified, hence the liability existed. C. C. A. 63, 63 Fed. 114. The statute referred to is found in the Compiled Statutes of the State of Montana of 1887, and reads as follows:

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"Sec. 697. That in every case the liability of the corporation to a servant or employé, acting under the orders of his superior, shall be the same in case of injury sustained by default or wrongful act of his superior, or to an employé not appointed or controlled by him, as if such servant or employé were a passenger."

fore operated a discrimination against such corporations. Criswell v. Railway Co., 44 Pac. 525. As this ruling of the court of last resort of the state of Montana interpreting the constitution and laws of that state is binding here, the sole ground upon which the circuit court of appeals rested its judgment is destroyed, and the only question remaining is, did the relation of fellow servant exist be tween an engineer operating a locomotive on one train and the conductor on another train of the same road? That such relation did exist is no longer an open question in this court. Railroad v. Hambly, 154 U. S. 349, 14 Sup. Ct. 983; Railroad v. Charless, 162 U. S. 359, 16 Sup. Ct. 848; Railroad v. Peterson, 162 U. S. 346, 16 Sup. Ct. 843; Railroad Co. v. Keegan, 160 U. S. 259, 16 Sup. Ct. 269.

It follows necessarily that the judgment must be reversed, and that judgment be entered in favor of defendants, and it is so ordered.

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1. The provision of Act Ind. March 6, 1893, 11, that judgment against a telegraph company in an action in the name of the state, on relation of the county auditor, for unpaid taxes, shall include a penalty of 50 per cent. of the amount of the tax, is not unconstitutional. 44 N. E. 793, affirmed.

2. It is within the discretion of the legislature to determine the amount of a penalty to be imposed by statute for the nonpayment of taxes. Mr. Justice Harlan and Mr. Justice White dissenting.

In Error to the Supreme Court of the State of Indiana.

Under an act of the general assembly of Indiana of March 6, 1891, in respect of the assessment and collection of taxes upon all property within the jurisdiction of the state, it was provided that payment of the taxes in the year succeeding their assessment might be made in two installments, and a penalty of 10 per cent. was denounced for the first six months of delinquency and of an additional 6 per cent. for the second six months.

On March 6, 1893, an amendatory act was passed, providing for the taxation of telegraph, telephone, palace-car, sleeping-car, drawing-room car, dining-car, express, fastfreight, and joint-stock associations, companies, co-partnerships, and corporations transacting business in the state, of which section 11 was as follows:

Pending this writ of error prosecuted to the Judgment of affirmance rendered by the circuit court of appeals, the validity of the statute of Montana upon which that court based its decree was drawn in question before the supreme court of the state of Montana, where "In case any such association, copartner It was held that the statute was void, under ship or corporation as named in this supthe constitution of the state, because it ap- plemental and amendatory act, shall fail or plied only to domestic corporations, and there- | refuse to pay any taxes assessed against it

908.

in any county or township in the state, in addition to other remedies provided by law for the collection of taxes, an action may be prosecuted in the name of the state of Indiana by the prosecuting attorneys of the different judicial circuits of the state on the relation of the auditors of the different counties of this state, and the judgment in said action shall include a penalty of fifty per cent. of the amount of taxes so assessed and unpaid, together with reasonable attorney's fees for the prosecution of such action, which action may be prosecuted in any county into, through, over or across which the line or route of any such association, copartnership, company or corporation shall extend, or in any county where such association, company, copartnership or corporation shall have an office or agent for the transaction of business. In case such association, company, copartnership or corporation shall have refused to pay the whole of the taxes assessed against the same by said state board of tax commissioners, or in case such association, company, copartnership or corporation shall have refused to pay the taxes or any portion thereof assessed to it in any particular county or counties, township or townships, such action may include the whole or any portion of the taxes so unpaid in any county or counties, township or townships, but the attorney-general may, at his option, unite in one action the entire amount of the tax due, or may bring separate actions in each separate county or township, or join counties and townships, as he may prefer. All collection of taxes for or on account of any particular county made in any such suit or suits shall be by said auditor of state, accounted for as a credit to the respective counties for or on account of which such collections were made by said auditor of state at the next ensuing settlement with such county, but the penalty so collected shall be credited to the general fund of the state; and upon such settlement being made the treasurers of the several counties shall, at their next settlements, enter credits upon the proper duplicates in their offices, and at the next settlement with such county report the amount so received by him in his settlement with the state, and proper entries shall be made with reference thereto: provided, however, that in any such action the amount of the assessment fixed by said state board of tax commissioners and apportioned to such county, or apportioned by the county auditor to any particular township, shall not be controverted."

In December, 1893, the Western Union Telegraph Company brought suit against the auditors and treasurers of the various counties in the state of Indiana through or in which its lines extended to enjoin the collection of the taxes assessed for the year 1893, on the ground that the act of 1893 was unconstitutional. This cause was decided

in favor of the validity of the law in the circuit court of Marion county, from which an appeal was taken to the supreme court of Indiana, where the judgment was affirmed. 141 Ind. 281, 40 N. E. 1051. A writ of error was sued out from this court to the supreme court of Indiana to review that decision, and the judgment of that court was affirmed. 163 U. S. 1, 16 Sup. Ct. 1054.

In August, 1894, the telegraph company filed a bill in the circuit court of the United States for the district of Indiana against the auditor of the state of Indiana to enjoin him from certifying to the auditors of the various counties the assessments on its property made by the state board of tax commissioners for the year 1894, on the ground of the unconstitutionality of the act of 1893. A demurrer was sustained to the bill, and it was thereupon dismissed. 68 Fed. 588. From this decree of the circuit court an appeal was taken to this court, and the cause docketed February 17, 1896, which appeal was dismissed by appellant December 7, 1896.

On May 7, 1894, the state of Indiana brought suit against the company in the circuit court of Marion county to recover the taxes for 1893, and subsequently, on June 11, 1895, filed a supplemental complaint therein, seeking judgment for the delinquent taxes for the year 1894. The state recovered judgment for the amount of the taxes and penalties thereon for the years named, including the penalty of 50 per cent., and the telegraph company appealed to the supreme court of the state, where the judgment was affirmed. 44 N. E. 793. The cause was then brought to this court on writ of

error.

Samuel O. Pickens, Willard Brown, and Charles W. Wells, for plaintiff in error. Wm. A. Ketcham, Alonzo Greene Smith, and Merrill Moores, for defendant in error.

Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

Whether the 50 per cent. penalty clause of the act of 1893 contravenes the constitution of the United States is the question presented on this writ. If it does not, the question whether that penalty was properly included in the judgment rendered against the telegraph company was for the determination of the state courts.

The necessity of classifying the subjects of taxation in order to reach uniform and just results, as far as possible, is not denied; nor that the infliction of penalties on delinquency is a usual and legitimate mode of compelling the prompt payment of taxes. But the contention is that this provision for a 50 per cent. penalty is an arbitrary discrimination, not falling within the principle of classification, and therefore open to constitutional objection, as amounting to a de

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nial of the equal protection of the laws, and a deprivation of property without due process of law.

The supreme court of Indiana was of opinion that by reason of the differences in the nature of these companies, and the uses to which their property was devoted in the prosecution of their business, from other taxpayers and their property and business, the legislature was justified in placing them in a class by themselves, and subjecting them to the particular method of effecting collection by means of penalties and suit for recovery of judgment for the delinquent taxes, with penalties added.

Under the act of March 6, 1891, taxpayers and their property were variously classified in respect of the nature of their business and property; as, for instance, associations for banking purposes, not incorporated, were placed in one class, while the shares of capital stock of banks located within the state, whether organized under the laws of the state or the United States, were placed in another, and assessed to the owners thereof, special provision being made for the bank to retain dividends belonging to the stockholders until the taxes should be paid. Acts Ind. 1891, c. 99, §§ 59-66. Insurance companies, not organized under the laws of the state, were placed in another class, and it was provided that any insurance company failing or refusing for more than 30 days to render an account for its premium receipts, and pay taxes thereon, should forfeit $100 per day for each day the report was withheld or payment delayed, to be recovered in an action; authority being also conferred on the auditor of state to revoke the authority of the defaulting company to do business. Section 67. Express companies were placed in another class, and provision made for the forfeiture of $100 per day for failing to render the particular account provided for and pay the required taxes thereon, to be recovered in an action; the companies being prohibited from carrying on business until the payment was made. Section 68. Similar provisions were made as to telegraph companies (section 69), telephone companies (section 70), and sleeping-car companies (section 71); and the same, in substance, as to bridge and ferry companies (section 72). Street railroads, waterworks, gas, manufacturing, and mining companies, insurance companies, and other associations incorporated under the laws of the state, etc., were subjected to still a different provision. Section 73. Railroad companies (sections 76-88) and building, loan, and savings institutions (section 89) were also placed in different classes.

The act of March 6, 1893, repealed the sections of the prior act relating to express, telegraph, telephone, and sleeping-car companies, and, with other provisions, prescribed this 50 per cent. penalty, and provided

for an action for the delinquent taxes and penalties, by way of securing collection. The ordinary remedies, by levy, distraint, and sale, were manifestly believed by the general assembly to be open-as to these companies and their properties-to objection, as interfering with the exercise of their public functions, and directly impeding the transaction of interstate commerce; and the impracticability of pursuing the ordinary methods of collection, in view of that objection, furnished a sufficient ground for the adoption of another mode, as better suited to the exigency, because not involving the suspension of the discharge of public duty in that regard.

It has been repeatedly laid down, as stated by Mr. Justice Lamar in Express Co. v. Seibert, 142 U. S. 339, 351, 12 Sup. Ct. 250, 253, "that a system which imposes the same tax upon every species of property, irrespective of its nature or condition or class, will be destructive of the principle of uniformity and equality in taxation, and of a just adaptation of property to its burdens"; and it is equally true as to the particular means taken to enforce the collection of taxes, one rule may be adopted in respect of the admitted use of one kind of property, and another rule in respect of the admitted use of another, in order that all may be compelled to contribute their proper share to the burdens of government.

As to railroad companies, it had been decided in Indiana that, under existing statutes, neither the franchise and privileges of such companies, nor any lands, easements, or things essential to their existence, or necessary to the enjoyment of their franchise, could be sold on execution to satisfy judgments at law against them, while their rolling stock, when not in actual use, was liable to seizure and sale, and that the legislature had deemed it the wiser course to leave the method of coercing payment in each case to the flexible jurisdiction of a court of chancery, rather than to prescribe a method which might be suited to one case and not to another. Railway Co. v. Boney, 117 Ind. 501, 20 N. E. 432.

In respect of the companies under consideration, the infliction of a severe penalty and the recovery of judgment, in a suit for taxes and penalties, which judgment would bear interest,-as it had been held delinquent taxes did not (Railroad Co. v. West, 139 Ind. 254, 37 N. E. 1009),-and could be collected through the appointment of a receiver, by sequestration or otherwise, if in such manner as enabled the discharge of public duties to be maintained, was assumed, on grounds of public policy, to be the least objectionable and most efficient course to be pursued.

Judgments having been rendered at law, whatever course might be adopted thereupon for their collection would be neces

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