FJmERAL REPORTER,· vol.
45.
iil!lionsof section 650 of the Revised Statutes of the United States, the bills, aato, all the lands involved in the several cases before us, must be dismissed, and it is so ordered.
WHITNEY
v.
TAYLOR.
(OItrcuit Oourt, N. D. Oalifornia., January 12, 1891.) PUBLIO LANDe-RAILROAD GRANTS-RESERVATIONS-PRE-EMPTION CLAIMS.
Act Congo July 1, 1862, (12 U. S. St. 489,) granted in aid of a railroad company all the odd-numbered sections of land within certain limits "to which a pre-emption or homestead claim may not have attached." In 1857 one J. had filed a pre-emption declaratory statement on land within the terms of the subsequent grant, which statement remained intact until after the final location of. the railroad, and. until 1885, when it was canceled because J. had never lived on the land. Held that, notwithstanding the subsequent cancellation of the statement, the pre-emption claim had attached to the land within the meaning of the statute, and hence such land is excluded from the grant, arid is open to settlement after such cancellation.
At Law. A. P. Catlin and B. E. Valentine, for plaintiff. Robert T. Devlin, for defendant. HAWLEY, J. This is an action of ejectment. The cause 'was tried before thl:: cQurt without a jury. The plaintiff claims title under a deed from the Central Pacific Railroad Company. The land in question is situate in the odd-numbered sections which were granted to the railroad company by the act of congress of July 1, 1862. 12 U. S.' St. 489. This land, under and by virtue ohaid act of congress, became vested in the railroad company on the 26th day 'of March, 1864, when the map of the definite location of said railroad was filed in the proper department at Washington, unless it had been "sold, reserved, or otherwise disposed ofby the United States, and to ,vhich 'a pre-emption or homestead claim may not have attached." The testimony shows that one Jones filed a pre-emption declaratory statement on the land in question on 'the 28th day of May, 1857, in the proper land-office, alleging settlement thereon in January, 1854; and this.declariltory statement remained intact and unacted upon until long after the date of the filing of the map of the definite location of the railroad, to-wit, until 1885, when it appearing, in proceedings had before the commissioner, that Jones never lived on the land, his filing was canceled. The commissioner of the land-office, after Jones' declaratory statement had been canceled, decided that, "at the date when the route of the C. P. R. R. Co. was definitely fixed, a pre-emption claim had attached thereto, [that of Jonesj] and, Rsthe grant to said company expressly provided that lands to which a pre-emption claim had not attached were granted, it follows that lands to which such a claim had then attached were not granted." This decision wa.s nffirmed by the secretary of the interior. The defendant, I
WHITNEY". TAYLOR.
617
Taylor, subsequent to the decisions in the land-office holding the land in question "to be open for settlement by the first qualified person applying therefor," applied for said lands under a homestead entry, and, after a contest in the land-office with the Central Pacific Railroad Company, it was decided that he was entitled thereto. The legal question presented in this case is whether, under the facts stated, a pre-emption claim had attached to the land within the meaning of the act of congress. Plaintiff's counsel contends that a pre-emption claim, within the meaning of the statute, is a recogriized claim in favor of a qualified pre-emptor who has filetHed on the land, and who, by compliance with the prerequisites of the act of congress, is entitled to have his claim ripen into a perfect title. The application of Jones might have been canceled prior to the time when the grant took effect, if proper action had been taken to produce that result in the land department; but, as his declaratory statement remained on file, valid upon its face, a pre-emption claim had attached, within the meaning of the act of congress and the land did not pass to the railroad company. The failure of to comply with the pre-emption laws did not cause the land to revertt<> the railroad company, and it did not, by reason of any failure of his to comply with the law, become a part of the grant; but, upon the cancellation of his statement, the land was open for settlement. This conclusion is sustained by the land department and upheld by the decisions'of the supreme court of the United States in Railroad Co. v. U. S., 92 U. S. 734; Newhall v. Sanger, 92 U. S. 761; Railway Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ct. Rep. 566; Railroad Co. v. Whitney, 132 U. S,. 357, 10 Sup. Ct. Rep. 112; and by the supreme court of Nebraska, Railroad Oo.v.'Abink, 14 Neb. 95, 15 N. W. Rep. 317. It is true that in several of these cases there was either a valid homestead claim initiated by settlement followed by an entry, or a pre-emption claim initiated by a settlement followed by a declaration of intention to purchaseibut the decisions are based upon the fact of the filing of the declaratory statements in the proper land-office. The cases all proceed upon the theory that when this claim is filed the, right of the applicant becomes "attached to the land." The word "claim," as used in the act, was not intended to be restricted to such homestead and pre-emption claims as should afterwards ripen into perfect title, but was intended to include all claiin-s that were made in such form as to be recognized and allowed by the land-office, without any regard to the question whether they were valid at the time of filing, or whether they were afterwards perfected, abandoned, canceled, or forfeited. In Railway Co. v. Dunmeyer, supra,the court, in distinguishing the case from Mining 00. v. Bugbey, 96 U. S. 165, said: l ,
"In the case before us, a claim was made and 6lOO in the land-oftlce, and there recognized, before the line of the company's road was located. That claim was an existing one, of Pllblic record, in favor of Miller, when the map of plaintiff in .error was filed. In the language of the act of congress, this homesteaq claim had attached to the land. and it therefore did notp;:tss by the grant. Of all the words in the English language this word · attached' was
have ',It did not mean mp,rA settle" or culU,:ation the land.. but it meant a: in the .by whIch the Inchoate rlght to the land was. lllltJated. Jt meant tb",t bys9ch a pl'oc'eedinga right of homestead had fastened to that land,' whiehcould ripen into It peHect,title by future residence and cultivation. With the performance of these conditions the company !lad nothing to .do; rigbtofthe:llOlpestead baving attached tO,the land.it was excepted ,oQ.t,ofth., grant as much, as if in a deed it had been exoluded from the conveyan<:e b;r lI1et,es ' , In' Railroad Co. v. Whitney, 8Upra, the Gourt, in answer to the contention oficounsel for plaintiff that the Dunmeyer Case had no application, ,because:in thfl,t case, existing at the time of the location of the road was an entry valid; in,all respects t while the entry in the case then under consideration" was invalid on its face and in its, inception," said: ,,"We donottbirik this contention can be maintained. Under the -ateadJl\w.:tb....ee thingsarj')' needed to be'dolle in order,to constitute ,an entry ,on ..., ... .. When these,three requisites are complied with. and delfYereclto bim. the entry is made. i,s enter,ed; of theaeinteg-ralparts of an entry is defect'ive.-that is.if.'tlle affidavit be inslJltident. or if the appliesin Itself is infornial;'or if the payment is not ma(le in actual casb.-the register'and 1'6¢eiver are'.jultified in rejecting the application .. But if. notis ,alloweQ i by the land.office.and .withstanding thelle defects, a, of is delivered to. applicant. and t!J,e. entry is.. nJade of l'lfcord. such be afterwards (l8nceled on account ,of these defects by oron appeal bythll secretary of the interior; .... * * but ,these defects,. ,whether tbey be of' fo'i'll'l or substance. by no means render the entryabsolutel1 a 'nullity. So long as' it remains a subsisting entry of and their record. whose legality has ,been passed upon by the action ,remains it is such an appropriation ,of the. tract as segregil-tea it. from 'thE1 public' domain. and therefore precludes it from subsequent , ;:Afterquoting from NewhaU v. SIJ/YLger. where the general principle. applicable to ,all thesecaseswasclea:rlY announced, and referring.to the rulings of the ,land department in harmony, therewitb, the court said: i''''F()t the foregoIng reaSons. we concur with the court below that Turner's hQm6fltead entfY6;l:Ceptedthe laud from tbe operation' of the railroad grant; 'Wcl; tbat, upon a (l8ncelJatiqn of that entry, the tract in question did not inthe benefit of thecop:lpany. to the government. and becatn(l a part of the pUblic domain. sUbject to appropriation by the first legal lipplicant;..· : ' ,' , ' I ,have are conclusive of the case, and render it to'discns,s, at any length, other quest,ions raised at the trial t<:>Jonesl{ailureto filehil;! claim within three months after 'the filing of the township plats of survey, as required by the act of congress of March 3, 1853, (10 U. S. St. 246,) or his failure to make 'final :proof,and,payment forthe'land 'prior to' the 14th day of February, 1858, ;the by the, cominencement of the public sille, said)lll1ds.. These questions that could ohly be 'raised )Vhen pf . ,came up regularly for a hearjng iJl; II was \laid :biJhl;l, ,in l:lailway, v. Dun, The
meyer, 113 U. S.. ·641, 5 Sup. au Rep. 566, and repeated in Rail?"oad Co. v. Whitney, 132 U. S. 364,10 Sup. Ct., Rep. 112: "It is not coneei vable that congress to place these parties [homestead and pre-emption claimants, on the 0ne hand, and the railway company, on the other] as contestants for the land, with the right in each to reqUire proof from the other of complete performance of its obligations. I.east of all is it to be supposed that it was intended to raise up, in antagonism to 1111 the actual settlers on the soil whom it had invited to its occupation, .this great corporation, with an interest ,to defeat their claim, and to come between them and the government as to the performance of their obligations."
Lot judgment be entered in favor of defendant for his costs.
FIRST .NAT. BANK 'D. LINDSAY et
al., Assessor. Term, 18111.)
, (P1rcuit Court, w. D. Louisiana. L TAXATION-CONSTITUTIONAL LAW-DISCRIMINATIONS.
2.
The article 'of' the state constitution which provides that all property shall be assessed at a uniform rate is violated when it is shown that assessing officers assess in any coDsiderable amount property at one-third or one-half, and other property at two-thirds, ofits cash value. National banks, like any other tall;-payer against whoIll are lIlade, are entitJ.ed to the protection of article cited. '
SAME-NATIONAL BANK SHARES.
National bl'lnk shares are tuable,under sectiOn 5219, Rev. at. U. S., as other personal property, against theshareholdershprovided "that the tuation shall nC?t b.e at a greater rate than is assessed upon ot er moneyed capital in the hands of' mdlvidual cititens."
8.
Tbat statute the state to tall; such shares under named conditions. Without such permission, a bank could not be taxed; but the state constitution, aside from such conditions, fUlly protects plaintiff from unequal taxation. SAME-EXEMPTIONS. . When section 5219 is substantially observed, such bankshares are not exempt from ta:s:ation, though the bulk 01 the bank's moneyed capital may be held in federal or state bonds ; that is, the shares ;may be valued for taxation as they are rated or related to the whole of the bank's moneyed capital. SAME-DISCRIMINATION--AsSEBBMEMT.
SAME.
5.
When jt,illshown that the assessing officers fail, refuse, or omit substantially to subjl at the. ml;lDeyed capital of individual citizens not exempted by state lliws as far as practi'Cable'to uniform taxation, or when it is shown that, as a matter of fact, such officera assess only", few tax-payers on such capital, and those only for comparatively. trifling amountslleaving several hundred thousands of such values not SUbjected to taxation. then t' follows that the enforcement of the litate tax-law. operate practically 80 as to impose'lIoequal and oppressively on such banks as have their moneyed capital subjected to taxation, and said federal' statute and article of the constitution are violated. Held that, under such factS as show a discrimiQation against such banks, t.he shares sbould not be a1itheir com1/lt'l'cial value, but their value for taxation should be fixed, after taxing or deducting 'from the banks' moneyed capit.al all federal securities wbich IIlay be inoludedin ,tbe mass of the !:lanks' moneyed In Jixingthis Value, the, B1;Iares, after sucb reduction, should be rated or related to the remaining amount of capital. . ,. ' , , . ' ' .
6.
In applying section 2i, under whicll. national bank shares are taxed, (lnd section 2& of 'the revenpEl act of 1&;8, under 'moneyed 'capital in the hands of Individual" , citizelis 'is taxed; it appears, that an inequality and· discrimination is particularly" wrought and plaintiff to ade,Ql1ate relief. Held, it' It be shown that the, assessing omcers wronl'(fully. or throUgh, graM neg,iigence,'fllJIedl refused, oromit.ted to subject moneyed capital, lmown by SQch Q1Iicara ,
S..i.ME-ANNULLINGAsBESSMENT.