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the United States from a decree of a district | a final decree was entered therein on Novemcourt dismissing the petition in a suit to en- ber 30, 1859, slightly amending its former force a final decree of confirmation of a Call-decree in substantial compliance with such fornia private land claim, entered on Novem- mandate. This decree is still in force. ber 30, 1859, since, even if the provision of the court of appeals act of March 3, 1891, § 5. restricting direct appeals to certain excepted cases, of which this is not one, does not apply, the appellate jurisdiction of the Supreme Court over decrees of approval or correction in proceedings to confirm such

claims was, by the express language of the act of July 1, 1864, § 3, taken away except as to cases where an appeal had already been

taken.

[No. 172.]

Afterwards, and on August 10, 1860, the surveyor general returned into court a corrected plat of a survey, purporting to be in conformity with the decree of November 30, 1859. Thereupon, and on October 8, 1860, intervention, in which they claimed adverseone Carpentier and others filed a petition of ly so much land as lay under the waters of the estuary of San Antonio, up to the highest tide lands, through mesne conveyances from the state of California, and afterwards filed in court their exceptions to the survey.

Argued February 26, 28, 1902. Decided The United States also filed exceptions

March 24, 1902.

N APPEAL from the District Court of

thereto. The litigation thus inaugurated continued for more than ten years, and fi nally resulted in a decree of the district

O 4, 1871, approving

029.

trict of California to review an order dismissing the petition in a suit to enforce a decree of confirmation of a California private land claim. Dismissed.

See same case below, 102 Fed. 1006.

Statement by Mr. Justice Brown: This is an appeal from an order of the district court of the United States for the northern district of California sustaining a demurrer to and dismissing the petition of the appellants, interveners, who prayed that a certain decree of the above-named district court, made on November 30, 1859, be ordered to be executed.

survey of the tract, a certified plat of which
had been filed in the clerk's office.
An ap-
peal was taken from this decree by the
United States to the circuit court for the
ninth judicial circuit, by which court the ap-
peal was dismissed July 31, 1874, and a de-
cree entered that the claimants have leave
to proceed under the decree confirming the
survey as a final decree. The Commissioner
of the General Land Office thereupon caused
to be prepared and recorded a patent of the
United States for that portion of the lands
included in the survey.

Thirty-seven years after the entry of the decree of November 30, 1859, and twentyIt appears that on January 31, 1852, cer- two years after the dismissal of the above tain persons by the name of Peralta pre-appeal in the circuit court, the successors in sented to and filed with the board of land commissioners, under the act of Congress "to ascertain and settle the private land claims in the state of California," passed March 3, 1851 (9 Stat. at L. 631, chap. 41), a petition for the confirmation of the rancho of San Antonio. Subsequently the four claimants divided the lands among themselves in severalty, and the board, proceeding to examine the claim upon the evidence, decided in favor of its validity, but restricted the area of the grant by fixing the northern boundary line at San Antonio creek, which included about one half of the claim. Both parties appealed from this decision, and the claim was certified to the district court for the northern district of California, in which court a transcript of the proceeding was filed September 23, 1854. The district court upon the trial reversed the decree of the land commissioners, and declared the claim as set forth in the petition to be valid, by decree entered January 26, 1855.

From this decree the United States appealed to this court, which affirmed the decree of the district court (1857). United States v. Peralta, 19 How. 343, 15 L. ed. 678. Two controversies were decided: First, that the officers issuing the grant had power to make grants of land; and, second, that the northern boundary of the land extended beyond San Antonio creek, according to the claim of the petitioners. Upon the mandate of this court being filed in the district court,

title of one of the Peraltas presented to the Commissioner of the General Land Office, September 2, 1896, a plat of a survey of the rancho San Antonio made by the surveyor general of California, November 25, 1895, under the act of Congress of July 23, 1866 (14 Stat. at L. 218, chap. 219), with certified copies of the decree of November 30, 1859, with a request that he issue to the petitioners a patent in accordance with such plat of survey, which the Commissioner declined to do, September 22, 1896, and the Secretary of the Interior affirmed his decision. The appellants thereupon, and on July 27, 1899, filed in the district court for the northern district of California a petition of intervention in the original case of the United States v. Peralta. praying that the decree of November 30, 1859, might be ordered to be executed; that the government be required to issue to the appellants its patent for so much of the lands of the rancho as had not theretofore been patented to them, or any of them. The United States demurred to the petition, which on January 29, 1900, was dismissed. [99 Fed. 618.]

This was followed by another similar petition, filed March 29, 1900, based upon the survey of 1895, which was also demurred to, and resulted in a decree, rendered May 28, 1900, sustaining the demurrer and dismiss ing the petition. Whereupon petitioners appealed to this court.

*672

Messrs. James T. Boyd, George A. shall proceed to fully determine the mat King, Boyd & Fifield, and Thayer & Rankin ter." for appellants.

Messrs. Matthew G. Reynolds and Solicitor General Richards for appellee.

Mr. Justice Brown delivered the opinion of the court:

The appeal in this case is taken from the decree of May 28, 1900, sustaining the demurrer to, and dismissing the petition of, the appellants, which was filed March 29,

1900.

Our jurisdiction of this appeal depends upon certain statutes, which it becomes necessary to consider. By the original act of March 3, 1851 (9 Stat. at L. 631, chap. 41), to ascertain and settle the private land claims in the state of California, a commission of three persons was constituted (§ 1) to settle such claims, whose duty it was (8 8) to decide upon their validity and to certify the same, with their reasons, to the district attorney of the United States. By § 9 an appeal was given to the district court, which was empowered to review the decision of the commissioners, and to decide upon the validity of such claim. By § 10 the district court was required, on application of the party against whom judgment was rendered, to grant an appeal to the Supreme Court of the United States. It was held in United States v. Fossatt, 21 How. 445, 16 L. ed. 186, that the jurisdiction of the board of commissioners extended, not only to the adjudication of questions relating to the genuineness and authenticity of the grant, but also to all questions relating to its location and boundaries; and that it did not terminate until the issue of a patent conformable to the decree.

The law remained in this condition until 1864, when on July 1 an act was passed (13 Stat. at L. 332, chap. 194) "to expedite the settlement of titles to lands in the state of California," the 2d section of which provided "that where proceedings for the correction or confirmation of a survey are pending it shall be lawful for such district court to proceed and complete its examination and determination of the matter, and its decree thereon shall be subject to appeal to the circuit court of the United States for the district, in like manner, and with like effect, as hereafter provided for appeals in other cases to the circuit court." By § 3 it was enacted "that where a plat and survey have already been approved or corrected by one of the district courts,

It appears perfectly clear from § 3 that the appellate jurisdiction of the Supreme Court was taken away, except as to cases where an appeal had already been taken. With this exception appeals must be taken under that act to the circuit court. The law remained in that condition until the passage of the court of appeals act of March 3, 1891 (26 Stat. at L. 826, chap. 517), by the 5th section of which appeals can only be taken directly from the district court to this court in cases where the jurisdiction of the district court is in issue, in prize cases, criminal cases, constitutional cases, or cases involving the validity or construction of a treaty. As to all other cases, by 8 6 appeal must be taken to the circuit court of appeals. As we said in McLish v. Roff, 141 U. S. 661, 35 L. ed. 893, 12 Sup. Ct. Rep. 118, this act provides for the distribution of the entire appellate jurisdiction of our national judicial system between the Supreme Court and the circuit court of appeals. As this case does not fall within any of the classes excepted by § 5, it is clear. that if any appeal will lie at all, it should! have been taken to the circuit court of appeals, and that we have no jurisdiction to enforce the execution of this decree by appeal from the district court. If the decree of November 30, 1859, rendered by the district court in pursuance of the mandate of this court, were not a final decree, it be came final either August 4, 1871, when the modified survey was approved, and an ap peal was taken to the circuit court and the appeal dismissed by Mr. Justice Field, July 31, 1874, or upon May 28, 1900, from which the appeal was taken in this case.

It is clear that, so far as concerns appeals from final decrees, they must be taken under laws then in existence, and to the court provided by such laws. To say that a decree rendered in 1900 may be appealed to a court whose jurisdiction to review it was taken away in 1864 is beyond belief. Even if the court of appeals act do not apply to this case, the jurisdiction of this court was clearly taken away by the act of 1864, and transferred to the circuit court of the United States for California, except as to appeals which had already been taken. If there had been no reservation of pending cases, even such cases would have fallen within the law. Baltimore & P. R. Co. v. Grant, 98 U. S. 398, 401, 25 L. ed. 231, 232.

In that case a writ of error had been sued and an appeal from the decree of approval ment of $2,250 by the supreme court of the out on December 6, 1875, to reverse a judg or correction has already been taken to the District of Columbia. At that time the apSupreme Court of the United States, the said Supreme Court shall have jurisdiction peal was properly taken to this court, but on to hear and determine the appeal. But limiting writs of error from this court to February 25, 1879, Congress passed an act where from such decree of approval or cor- judgments exceeding the value of $2,500, and rection no appeal has been taken to the Su- it was held that the writ of error must be preme Court, no appeal to that court shall dismissed. Said the Chief Justice: “The be allowed, but an appeal may be taken within twelve months after this act shall take effect, to the circuit court of the United States for California, and said circuit court

act of 1879 is undoubtedly prospective in its operation. It does not vacate or annul what has been done under the old law. It destroys no vested rights. It does not set

*675

aside any judgment already rendered by this court under the jurisdiction conferred by the Revised Statutes when in force. But a party to a suit has no vested right to an appeal or a writ of error from one court to another. Such a privilege once granted may be taken away, and if taken away, pending proceedings in the appellate court stop just where the rescinding act finds them, unless special provision is made to the contrary. The Revised Statutes gave parties the right to remove their causes to this court by writ of error and appeal, and gave us the authority to re-examine, reverse, or affirm judgments or decrees thus brought up. The repeal of that law does not vacate or annul an appeal or a writ [of error] already taken or sued out, but it takes away our right to hear and determine the cause, if the matter in dispute is less than the present jurisdictional amount. The appeal or the writ remains in full force, but we dismiss the suit because our jurisdiction is gone."

2.

Jurisdiction cannot prevent an abatement by reason of defendant's death, because facts are averred in the declaration from which a contract to pay a sum below the jurisdiction of the court might be implied.

A judgment of a circuit court of the United States sustaining a demurrer to a declaration in an action which must be treated as one of tort, and not in assumpsit, in order to involve a sufficient amount to give that court jurisdiction, will, on the death of defendant after the cause has reached the appellate court, be reversed and the cause remanded to the circuit court, with instructions to set aside its judgment and enter one abating the action by reason of defendant's death.

[No. 175.]

Argued February 28 and March 3, 1902.
Decided March 24, 1902.

IN ERROR to the Circuit Court of the United States for the Eastern District of Virginia to review a judgment sustaining a demurrer to a declaration in an action against a collector of internal revenue. Reversed and remanded, with instructions to set aside the judgment and enter a judg ment abating the action.

Similar cases are by no means infrequent in this court. Thus in Yeaton v. United States, 5 Cranch, 281, 3 L. ed. 101, it was held that if the law under which a sentence of forfeiture was inflicted expired or were absolutely repealed after an appeal and before sentence by the appellate court, the sentence must be reversed. See also The Rachel v. United States, 6 Cranch, 329, 3 L. ed. 239; United States v. Preston, 3 Pet. 57, 7 L. ed. 601; Norris v. Crocker, 13 How. 429, 14 L. ed. 210. In Merchants' Ins. Co. v. Ritchie, 5 Wall. 541, 18 L. ed. 540, it was held that the jurisdiction of the circuit courts between citizens of the same state in internal revenue cases, conferred by the act of 1864, was taken away by the act of 1866, and that cases pending at the passage of the act fell with its repeal. Ex parte Mc-ber, 1899, and August, 1900, the plaintiff Cardle, 7 Wall. 506, 19 L. ed. 264. These cases fully establish the proposition that a repealing statute which contains no saving clause operates as well upon pending cases as upon those thereafter commenced.

In the case under consideration there was a saving of suits already begun, but there was an express proviso that, where no appeal had been taken to the Supreme Court, no appeal to that court should be allowed. That law remained unchanged until the court of appeals act of 1891, to which all appeals from circuit or district court must now be taken, with a few specified exceptions.

The appeal must be dismissed. (184 TJ. S. 665)

BANK OF IRON GATE, Plff. in Err.,

บ.

MAGGIE A. BRADY, Executrix of James
D. Brady, Deceased.

Statement by Mr. Justice Brewer: On September 11, 1900, the plaintiff in error as plaintiff commenced this action in the circuit court of the United States for the eastern district of Virginia. The declaration, after stating that both parties were citizens of Virginia, alleged that the plaintiff was a state bank, chartered under the laws of that state, and the defendant a collector of internal revenue of the United States for the second district of Virginia, and that "beteween the months of Novem

made, issued, and paid out $700 of its circulating notes payable to the bearer and intended to be used for circulation in ordinary business as currency. The Commissioner of the Revenue of the United States assessed upon these notes a tax of 10 per cent on their face value, equal to $70, which said tax is imposed upon them by the 19th section of the act of Congress of February 8, 1875 [18 Stat. at L. 307, chap. 36], and by § 3412 of the Revised Statutes of the United States; and said defendant, James D. Brady, acting as said collector of internal revenue of the United States, required of plaintiff and demanded of it that it pay said tax; but because said section of said act of February 8, 1875, and said § 3412 of the Revised Statutes of the United States, imposing said tax upon said notes, are repugnant to the Constitution of the United States, the plaintiff refused to pay said unlawful tax; therefore on the day of September, 1900, the defendant forcibly en

Abatement of action-tort or assumpsit-tered upon the premises of the plaintiff by

1.

estoppel by election.

virtue of a distress warrant held by him, authorizing and commanding him to collect said unlawful tax, and levied on and seized

A plaintiff whose cause of action must be treated as an action of tort in order to in-a volve an amount sufficient to give the court 22 S. C.-34.

large quantity of plaintiff's personal property, and was in the act of removing

and carrying away said property to sell the jury to the plaintiff and damaging its same when the plaintiff, protesting against credit, but no wrongful act is charged the illegality of defendant's act, paid him against him except it be in the mere collecsaid tax to procure a release of its said tion of this alleged illegal tax. If the tax property; that defendant well knew said is legal, then nothing is disclosed which acts of Congress imposing said tax were would give any right of recovery to the repugnant to the Constitution of the United plaintiff; nothing was done by the collector States, and he entered upon plaintiff's prem- in making the collection other than was ises and levied on and seized its property, strictly his duty. So, on the other hand, if well knowing that he was doing unlawful the tax be adjudged illegal, no act of wrong acts, and he did the same maliciously and is shown except in the fact of compelling with the purpose and intention of doing a payment. In other words, he is charged wanton injury to plaintiff and damaging its with doing nothing that an officer ought not credit, so as to do it all the harm possible, to have done in attempting to make a coland said unlawful act has damaged its credit lection. An averment that a party has and done it an irreparable injury; that the acted maliciously and with the intention of act of Congress authorizing the issue of said doing a wanton injury does not add to the distress warrant to collect said unlawful measure of relief obtainable in an action of tax is repugnant to the Constitution of the implied assumpsit. If it does in any acUnited States, and because all of said acts tion, it is only in one sounding wholly in of Congress are repugnant to the Constitu- tort, in which malice and wantonness may tion of United States the plaintiff's case sometimes justify exemplary damages. arises under the Constitution of the United The case stands thus: If this is to be States; that said unlawful acts of said de-treated as an action of assumpsit, then the fendant have damaged the plaintiff $6,000, and therefore it sues."

amount in controversy is not sufficient to give the circuit court jurisdiction; if as an A demurrer to this declaration was filed, action of tort, then it did not survive. But sustained, and judgment entered for the dea party cannot unite the two; avail* himself fendant. Thereupon this writ of error was sued out. After the case had reached this court the defendant, James D. Brady, died, and an application was made to revive in the name of his personal representative.

Mr. William L. Royall for plaintiff in

error.

Solicitor General Richards for defendant in error.

Mr. Justice Brewer delivered the opinion of the court:

of the large amount claimed on account of a tort in order to vest jurisdiction in the circuit court, and then on the death of the alleged wrongdoer prevent an abatement of the action, which would necessarily take place if the action was only for a tort, by reason of an averment of facts from which a contract to pay a small sum, one below the jurisdiction of the court, might be implied. In other words, he cannot call it tort to acquire jurisdiction, and contract to prevent abatement. The plaintiff elected to go into court on an action sounding in tort. It could not get in in any other way. It must abide by its election and cannot be permitted to transform its action thereafter into one of contract. Abatement must therefore follow.

& O. R. Co. 151 U. S. 673, sub nom. Gerling v. Baltimore & O. R. Co. 38 L. ed. 311, 14 Sup. Ct. Rep. 533, where the action sounded wholly in tort, it was said (p. 703, L. ed.

We have recently had before us a similar action against the same party, in which also was presented the question of survivorship, Patton v. Brady, 184 U. S. 608, ante, p. 493, 22 Sup. Ct. Rep. 493, and to the opinion filed in that case we refer for a dis- No judgment was entered in favor of the cussion of the question. There the amount plaintiff. There has been no adjudication of property taken by the defendant as col-in its favor, either on the contract or the lector was over $3.000; here it is only $70. tort. What disposition ought now to be So far as a recovery of the tax charged to made of the case? In Martin v. Baltimore have been illegally levied and collected is sought, it is practically an action in assumpsit for money had and received. Be yond that nothing is suggested but a tort, and a tort by which the estate of the defend-322, Sup. Ct. Rep. 545): ant was not increased and the estate of the plaintiff damaged only as an indirect consequence of the alleged wrongful act of the defendant. Such a tort does not, either at common law or by the statutes of Virginia, survive the death of the wrongdoer. See authorities referred to in the opinion cited. It may be added that it is not easy to see how upon the acts charged against the defendant there could be, even if the tax were declared illegal, any further recovery than the amount of such tax, with interest. It is true there is an averment that the defendant knew he was doing unlawful acts, that he did them maliciously and with the purpose and intention of doing a wanton in

"The result is that by the law of Virginia the administrator has no right to maintain this action, and that by the statutes of the United States regulating the proceedings in this court he is not authorized to come in to prosecute this writ of error. The only verdict and judgment below were in favor of the defendant, who is not moving to have that judgment affirmed or set aside. The original plaintiff never recovered a verdict, judgment upon which might be entered or affirmed nunc pro tunc in his favor. If the judgment below against him should now, upon the application of his administrator, be reversed and the verdict set aside for er ror in the instructions to the jury, or, ac

cording to the old phrase, a venire de novo be awarded, no new trial could be had, because the action has abated by his death. Hemming v. Batchelor, L. R. 10 Exch. 54, 44 L. J. Exch. N. S. 54; Bowker v. Evans, L. R. 15 Q. B. Div. 565; Spalding v. Congdon, 18 Wend. 543; Corbett v. Twenty-third Street R. Co. 114 N. Y. 579, 21 N. E. 1033; Harris v. Crenshaw, 3 Rand. (Va.) 14, 24; Cummings v. Bird, 115 Mass. 346.

[blocks in formation]

"The necessary conclusion is that, the action having abated by the plaintiff's death, Submitted the entry must be writ of error dismissed." We are inclined to think that such is not

[No. 508.]

January 13, 1902. Decided
March 24, 1902.

United States for the Southern District

IN ERROR to the Circuit Court of the

of California to review a judgment for plaintiff in an action to recover the interest due on bonds issued by an irrigation district. Affirmed.

See same case below, 94 Fed. 1.

exactly the proper disposition to be made of this case, because in the plaintiff's cause of action is stated a claim for the recovery of a tax, which, as alleged, it has been wrongfully compelled to pay. While the circuit court may not have jurisdiction of an action for that claim on account of the small amount thereof, it would not be right to leave the present judgment as a bar to Statement by Mr. Justice Peckham: an action in a court that could take juris- This is a writ of error to the circuit court diction. The proper judgment is, and it is of the United States for the southern disso ordered, that the case be remanded to the trict of California, sued out for the purpose circuit court, with instructions to set aside of reviewing a judgment of that court in its judgment and enter one abating the ac- favor of the defendant in error in an action tion by reason of the death of the defend-brought by him against the irrigation district only, to recover interest due on certain Case No. 194, between the same parties, coupons attached to bonds issued by the dis-' involves the same question, and will be district for the purpose of raising money to posed of in the same way. build its irrigation works. It appeared from the complaint that the plaintiff was

ant.

Mr. Justice Gray took no part in the de-a resident of Michigan, and that the Tulare cision of this case.

(185 U. S. 1)

TULARE IRRIGATION DISTRICT, George G. Kelly, and G. Garibaldi, as Executor of the Last Will of B. W. Jauchius, De ceased, Plffs. in Err.,

v.

ALFRED SHEPARD.

Bonds of irrigation district-defective or ganization estoppel of landowners-de facto corporation.

1. A de facto corporation was constituted by a bona fide attempt to organize an Irrigation district under the California Irrigation act of March 7, 1887 (providing for the creation of such districts as publle municipal corporations), accompanied by an actual user of the corporate franchise.

2.

Defective organization of an irrigation district, under the California Irrigation act of March 7, 1887, because of the insufficiency of the notice of the intended presentation to the board of supervisors of the petition for the formation of such district, cannot be raised, as against bona fide holders for full value and without notice of bonds issued by

irrigation district had at all times since September 2, 1889, been a corporation duly incorporated under the laws of the state of California, and since that time had been acting as such corporation; that under the laws of such state the irrigation district duly issued its bonds for the amount of $500,000, with coupons attached; that the plaintiff was a bona fide purchaser and holder of certain of those coupons, and that he had paid full value for the same, in the usual course of business, and before any of them were due or dishonored, and in good faith and without any notice of any defect or invalidity of the same or any of them. Judgment for $13,185 and interest was de manded. The defendant demurred to the complaint, the demurrer was overruled (94 Fed. 1), and the defendant then answered.

The answer, among other things, set up various alleged irregularities and omissions which occurred in the attempted formation of the irrigation district, on account of which, as contended, the corporation never was legally formed and never had power to issue bonds, and whatever bonds may have been issued were for those reasons void. The individual defendants at this such district, by the owners of land within stage applied to the court for an order perthe district, who acquiesced in the issue of mitting them to intervene in the action as the bonds and received the full benefit of parties therein, and to unite with the dethe proceeds, where the board of supervisors, fendant corporation in resisting the claims In the exercise of their statutory authority, of the plaintiff in this action. The court had decided that the district was duly or ganized, and filed a copy of such determina. thereupon ordered that the petitioners' comtion with the county recorder as required by plaint in intervention should be filed withsuch statute, and the bonds contained a re-out prejudice to the plaintiff's motion to cital, in compliance with 15 of that act, strike out the same. They then filed what

699.

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