of the military academy was a part of the army of the United States, and a person serving as a cadet was serving in the army; and that the time during which the plaintiff in the present case was serving as a cadet was, therefore, actual time of service by him in the army. The practical construction of the requirement of the act of 1838, that the cadet should engage to serve for eight years, shown by the fact that the form of the engagement in this case was to "serve in the army of the United States for eight years," is a circumstance of weight to show that the government, from the beginning, treated the plaintiff as serving in the army. The service for which he engaged began on the first of July, 1865, and the eight years ran from that time. That being his status, the acts of 1881 and 1882, in speaking of “actual time of service in the army," cover the time of his service as a cadet.

In U. S. v. Tyler, 105 U. S. 244, it was held that an officer retired from active service who was declared by statute to be a part of the army, who could wear its uniform, whose name was required to be borne on its register, who might be detailed by his superior officers to perform specified duties, and who was subject to the rules and articles of war, was in the military service; and that the increase of pay given for each term of five years of service, by section 1262 of the Revised Statutes, and by section 24 of the act of July 15, 1870, (16 St. 320,) from which that section was taken, applied to the years so passed in the service after as well as before retirement. Under the statutes involved in the present case, a cadet at West Point is serving in the army as fully as an officer retired from active service is serving in the army, under the statutes which apply to him, so far as the question of longevity pay is concerned.

The judgment of the court of claims is affirmed.

(112 U. S. 36)

DAVIES, Collector, etc., v. CORBIN and others.
(October 27, 1884.)

1. PRACTICE-ERROR TO THE SUPREME COURT-MANDAMUS-ORDER AWARDING WRIT TO FINAL JUDGMENT.

An order awarding a peremptory writ of mandamus is a final judgment in a civil action within the meaning of that term as used in the statute regulating writs of error to the United States supreme court.

2. SAME-COLLECTION OF TAXES-AMOUNT IN DISPUTE.

One of the expectant beneficiaries of a proposed tax has a right to a writ of error to the supreme court to enforce the collection of the tax, although the sum to which he would be entitled out of the whole amount collected should not reach $5,000. The value of the matter in dispute is measured by the whole amount of the tax, and not by the separate parts into which it is to be divided when collected.

In Error to the Circuit Court of the United States for the Eastern District of Arkansas. On motion to dismiss.

B. C. Brown, E. W. Kimball, and C. P. Redmond, in support of motion. A. H. Garland, in opposition.

WAITE, C. J. The facts on which this motion rests are these: Each of the defendants in error recovered a separate and distinct judgment in the circuit court of the United States for the Eastern district of Arkansas against the county of Chicot. The aggregate of all the judgments was much more than $5,000; but the amount due upon each is not stated. After the judgments were recovered, the several plaintiffs commenced proceedings in the circuit court to compel the county court of the county to levy a tax for the payment of the amounts due them respectively. The result of these proceedings was that after several writs of mandamus were issued, "by the consent of the relators, and by and with the approval and consent of the circuit court, it was agreed that if the county court * * * would levy a tax of ten mills upon the property of said county, and collect the same, said tax to be distrib

uted pro rata among the judgments so recovered by the relators and others against said county" in the circuit court, "that such levy, collection, and distribution would be accepted by the relators, and the other judgment creditors, as a sufficient compliance by said county court with the commands of the said writs of mandamus." The county court carried out this agreement and levied the tax, which was in due form of law extended on the tax-books, and placed in the hands of Davies, the collector of the taxes of the county, for collection with the other taxes for that year. After the tax-book was deliv ered to the collector, he undertook the collection thereof, as he was bound in law to do, and proceeded until, "on the twenty-ninth day of January, 1884, being the last day of the January term of the Chicot county court, there was filed in open court a complaint in equity, by one Alice R. Hamlet, against" him, "setting up, among other facts, that she was the owner of certain lands in Chicot county, assessed for the year 1883 at $400; that no valid assessment had been made of said lands for various reasons therein set forth; that the board of equalization for said county, which met on the nineteenth day of June, 1883, was illegally organized, and proceeded, in violation of law, to alter and change the assessments of real and personal property turned over to it by the clerk of said county, and avowing that assessments were not legally equalized, and that there is no valid assessment of property in said county for the year 1883, and that the taxes levied on said assessments cannot be legally enforced, by sale or otherwise, against the objection of the tax-payers of said county." The complaint further set forth "the various assessments or rates** of taxes levied by the county court for different purposes for the year 1883, including ten mills to pay the judgments against said county" in the circuit court. Under this complaint "a temporary restraining order was made by the Hon. JOHN M. BRADLEY, judge of said court, forbidding" the collector "from collecting any portion of said ten-mill tax." In obedience to this injunction, the collector stopped the collection of the "ten-mill tax," though he went on with all the rest.

Thereupon all the relators united in an application to the circuit court for a rule on the collector to show cause why a peremptory writ of mandamus should not issue commanding him to proceed with the collection of the 10-mill tax. The collector appeared in obedience to the rule, and for cause showed that he had been enjoined by the state court from making the collection. The parties went to a hearing on the application of the relators and the return of the collector to the rule. The circuit court, after hearing, awarded the writ, and for the reversal of an order to that effect this writ of error was brought by the collector. The relators now move to dismiss the writ, because (1) an order awarding a peremptory writ of mandamus is not a “final judgment;" and (2) the value of the matter in dispute does not exceed $5,000, inasmuch as no one of the relators will be "entitled to receive of the tax collected so much as five thousand dollars, and no single tax-payer will be required to pay that amount of tax." A motion to affirm, as allowed by section 5, rule 6, has not been united, as it very properly might have been, with this motion to dismiss.

As to the first objection, it is sufficient to say that the practice of the court has always been the other way. Our reports are full of cases in which jurisdiction of this kind has been entertained, and from 1867, when Riggs v. Johnson Co.*6 Wall. 166, was decided, until now, our power to review such orders as final judgments has passed substantially unchallenged. While the writ of mandamus, in cases like this, partakes of the nature of an execution to enforce the collection of a judgment, it can only be got by instituting an independent suit for that purpose. There must be-First, a showing by the relator in support of his right to the writ; and, second, process to bring in the adverse party, whose action is to be coerced, to show cause, if he can, against it. If he appears and presents a defense, the showings of the parties make up

the pleadings in the case, and any issue of law or fact that may be raised must be judicially determined by the court before the writ can go out. Such a determination is, under the circumstances, a judgment in a civil action brought to secure a right; that is to say, process to enforce a judgment. The proceeding may be likened to a creditors' bill in equity, which is resorted to in aid of execution. The writ which is wanted cannot be had on application to a ministerial officer. It can only issue after a judgment of the court to that effect in an independent adversary proceeding instituted for that special purpose. Such a judgment is, in our opinion, a final judgment in a civil action, within the meaning of that term as used in the statutes regulating writs of error to this court.

The second objection is, to our minds, equally untenable. The writ which has been ordered in this case is not like that in Hawley v. Fairbanks, 108 U. S. 543, S. C. 2 Sup. CT. REP. 846, to compel the levy of taxes to pay separate and distinct judgments in favor of several relators, who, for convenience and to save expense, united in one suit to enforce their respective Lights, but to compel a tax collector to collect a single tax which has been levied for the joint benefit of all the relators, and in which they have a common and undivided interest. As in the cases of Shields v. Thomas, 17 How. 5, and The Connemara, 103 U. S. 754, all the relators claim under one and the same title, to-wit, the levy of a tax which has been made for their benefit. They have a common interest in the tax, and it is perfectly immaterial to the tax collector how it is divided among them. He has no controversy with them on that point; and if there is any difficulty as to the proportions in which they are to share the proceeds of his collections, the dispute will be among themselves, and not with him. He cannot act upon separate instructions from the several creditors. His duty is to collect the tax for the benefit of all alike. A payment of the judgment of one creditor would not relieve him from his obligation to collect the whole tax. The object of the proceeding is not to raise the sums due the relators, but to raise the whole tax of 10 mills on the dollar. As the matter stands each relator has the right to have the whole tax collected for the purpose of distribution among all the creditors. It is apparent, therefore, that the dispute is between the tax collector on one side and all the creditors on the other, as to his duty to collect the tax as a whole for division among them, after the collection is made, according to their several shares. The value of the matter in dispute is measured by the whole amount of the tax, and not by the separate parts into which it is to be divided when collected. It is conceded that the amount of the tax is more than $5,000.

The motion to dismiss is overruled.

(112 U. S. 8)

WOODWORTH v. BLAIR and others.
(October 27, 1884.)

RAILROAD MORTGAGE-FORECLOSURE-RECEIVER-PRIOR MORTGAGE-PAYMENT. In a suit in equity to foreclose a mortgage from a railroad corporation of its whole railroad, franchise, lands, and property, which have since been put in the possession of a receiver, an intervening prior mortgagee of part of the lands is not entitled to have the amount of his mortgage paid out of the funds in the hands of the receiver, or out of the proceeds of a sale made, pursuant to the decree of foreclosure, subject to his mortgage.

Appeal from the Circuit Court of the United States for the Northern District of Illinois.

Henry Crawford, for appellant. E. Walker, for appellee.

GRAY, J. This is an appeal by a prior mortgagee of a tract of land occupied by the Chicago & Pacific Railroad Company, from decrees in a suit in

equity to foreclose two mortgages of its whole railroad. The material facts appearing by the record are as follows:

On October 1. 1872, and on November 6, 1874, the corporation made to a trustee, to secure the payment of its bonds, two mortgages of all its railroad, right of way, franchise, road-bed, stations and station-houses, depot grounds, and other property, already or thereafter owned, possessed, or acquired through or by reason of the construction of its railroad. After breach of the conditions of those mortgages, the bondholders filed bills in equity for the appointment of a receiver and for the foreclosure of the mortgages, which were by order of court consolidated as one suit. Pending that suit, and after a receiver had been appointed and had taken possession, the appellant filed an intervening petition, alleging that on February 1, 1872, at the request of the corporation and for its benefit, she sold and conveyed to Thomas S. Dobbins, its president, a tract of land in Chicago, in consideration of a certain sum in money, and of 10 promissory notes made by Dobbins, payable in 10 successive years, and secured by a mortgage from him of the land, which was duly recorded on September 5, 1872; that the corporation entered upon the land and laid tracks upon it, and continued to use and occupy it until the appointment of the receiver, and the receiver since continued to use it for the benefit of the railroad, and neglected to pay the notes and interest, and praying that the amount thereof might be paid out of any funds in the hands of the receiver, or out of the proceeds of sale under any decree to be rendered in the cause. This petition was referred to a master, who reported that the amount due to the appellant was $59,910.10. The court declined to order the payment of the appellant's claim, and dismissed her petition without prejudice; and in the principal suit entered a decree for the foreclosure by sale of the whole railroad, including the road-bed, stations and station-houses, depot grounds, and other property, without prejudice to her mortgage. From that decree the appellant prayed an appeal to this court, and offered a bond in order to make the appeal a supersedeas. The court allowed the appeal and approved the bond, and ordered that the appeal should not operate as a supersedeas or delay of the sale, but only delay the distribution of so much of the proceeds of the sale as was necessary to fully secure the amount due on her mortgage. The master afterwards reported that a sale had been made, in accordance with the decree of foreclosure, for the sum of $916,100, and the court overruled exceptions taken by the appellant to the master's report and confirmed the sale. The corporation afterwards paid into court the amount of the bid, interest, and commissions, as required by the decree and by the statute of Illinois; and the court found that the corporation had done what was needful to effect a redemption, and reserved for further consideration the time and terms on which a delivery of the property to the corporation should be directed.

Assuming, as the appellant contends, that her conveyance to Dobbins, and the mortgage back by him, should be considered in equity as if made to and by the railroad corporation, no ground is shown for reversing the decree below. The appellant's mortgage covered only the tract of land specifically described therein, and did not affect the title of the corporation in other lands and in so much of its road as was not laid over the land mortgaged to her. The case differs in this respect from the cases cited by her counsel, in which a mechanic's lien given by statute for work done on part of a railroad was held to extend to the whole road. Brooks v. Railway Co. 101 U. S. 443; Meyer v. Hornby, 101 U. S. 728. As a general rule, a prior mortgagee is not a necessary party to a bill to foreclose a junior mortgage, where the decree sought is only for a foreclosure of the equity of redemption from the prior mortgage, and not of the entire property or estate. Jerome v. McCarter, 94 U. S. 734. In a suit to foreclose a mortgage of the whole railroad, franchise, and property of a railroad corporation, it would often produce great delay and

*204

*203

embarrassment to undertake to determine the validity and extent of all prior liens and incumbrances on specific parts of the corporate property before entering a final decree. The course pursued by the circuit court in the present case, dismissing the intervening petition of the appellant, without prejudice, and ordering a foreclosure by sale, subject to her mortgage, of the entire railroad and other property included in the railroad mortgages, to foreclose which the principal suit had been brought, judiciously and effectively secured the rights of all parties. The price obtained by the sale of the railroad and other property, subject to her mortgage, must have been less than if they had been sold free of that mortgage; and to order the amount of that mortgage to be paid out of the proceeds of the sale would pro tanto benefit the purchaser if the sale was carried out, or the railroad corporation in case of redemption, to the corresponding detriment of the holders of bonds secured by the railroad mortgages.

The railroad corporation, after having redeemed its property from the railroad mortgages, will hold it subject to any valid lien of the appellant, just as it did before the proceedings for foreclosure were instituted. Decree affirmed.

(112 U. S. 201)

FOSTER, CO. Atty., etc., v. STATE ex rel JOHNSTON, Atty. Gen.

(October 27, 1884.)

PRACTICE-WRIT OF ERROR AS SUPERSEDEAS-REMOVAL of Officer-Contempt.

A writ of error from the judgment of a state court removing a county attorney from office, does not operate as a supersedeas, so as to prevent a legal appointment of another person to the place, until it is properly lodged in the clerk's office of the state court; hence the new appointee is not in contenipt while acting as county attorney.

Rule on Joseph Moore to show cause why he should not be Attached for Contempt in violating the supersedeas herein.

W. Hallett Phillips, for motion. A. L. Williams, against motion. *WAITE, C. J. The showing under this rule presents the following facts: The supreme court of Kansas rendered a judgment on the first of April, 1884, removing Foster, the plaintiff in error, from the office of county attorney of Saline county. A statute of the state makes it the duty of the judge of the district court of a county to fill the office of county attorney when a vacancy exists. A writ of error from this court for the reversal of the judgment of the supreme court was duly allowed in Washington on the fifth of April, and a supersedeas bond approved, and a citation signed. Notice of these facts was telegraphed on the same day, by the counsel of Foster in Washington, to his counsel in Kansas. On the 7th, the counsel in Kansas called on the judge of the district court of the county and exhibited to him the telegram, and notified him of what had been done in Washington. After this, and a little before 12 o'clock of the night of the 7th, the judge appointed Joseph Moore to the office in place of Foster. The bond of Moore, which had been executed on the 7th, and then approved by the clerk of the county, was accepted by the county commissioners on the eighth of April, and Moore thereupon assumed to discharge the duties of his office. Before this appointment was made, an authenticated copy of the record of the supreme court removing Foster from the office was presented to the judge. On the same day, the 8th, the writ of error and supersedeas bond arrived from Washington and were duly lodged in the office of the clerk of the supreme court of the state. At the next term of the district court, which began on the twelfth of May, Moore appeared and acted as county attorney, the judge ruling that he, and not Foster, was properly in office. On the twenty-sixth of May a rule was granted by one of the justices of this court requiring Moore to appear here on the second day of the present term, and show cause why he should not be