LAJtE SUPERIOR SHIP-CANAl.., RY. &:

rnbN· CO. tJ.

CUNNINGHAM.

fiS7 "

by the plaintiff, taking a contrary view, are cases where the'suhjebtmatter is within the exclusive jurisdiction of the federal courts, like patents, and they are not applicable to cases where the jurisdiction iscon-: current. The position taken by the plaintiff that this is, in substance, . an action brought by the government, and thilt therefore the statute does not run, is not tenable. The fact that the receiver in this suit is proceeding under certain provisions of an act of congress establishing a national' banking system does not make this in any proper sense a government case. The government has no pecuniary interest in this suit. Itisin fact a contest between creditors and a stockholder of the bank. It is further urged by the plaintiff that section 955 of the Revised Statutes provides 8cire facia8 as the process to be issued, without any lim-' itation as to the time when the writ may issue. But it has been decided that section 955 is governed by the statute of limitations of the state.' Barker v. Ladd, 3 Sawy. 44; Price v. Yates, 19 Alb. Law J. 295·. That the Massachusetts statute provides one mode of bringing the parties' before the court, and the federal statute another, is not material in this connection. Congress might adopt a totally different system of ing from that of the l:!tates, and yet the state statute of limitations would apply. M.otion granted. ·

LAKE

SUPERIOR SHIP.CANAL, RAILWAY SA1l1E

& IRON Co.

11. CuNNINGJ,IAM.

v.

DONAHOE.

SAME 11. FINAN.

(Circuit Court, W. D. M1.cMgan, N. D. July 27, 1890.)

L

EmCTMRNT- WHEN MAINTAINABLE-GRANTs oir PUBLIC LAND-VOID SELECrI01'l'CONFIRMATION, '.

Wbere, under a grant of pUblic lands to aid In the cODstruction of a canal; a selection Is made of lands wblcb had been appropriated under a prior g-rant. and so were.not subject to selection u.nder tbe later one,:a subsequent act of congress confirming tbe lands to the canal company does not relate bal"k to tbe date of selection so as to enable tbat company to maintain ejectment for the lands brought before thepas&age of the confirming act.
GRANTEE: RAILROAD

S.

AID -

OVERLAPPISG

GRANTS -

SURRENDER BY ,ONB ·

a.

Where the limits of lands· granted in aid of the construction of two branche\l of a railroad by tbe act of congress of ISM overlap, a .release and surrender of the lands in the common limits by descriptions, by a railroad company wbich bas acquired the rights of both the original companies on tbose brancbes and by the governor of tbe state, in its behalf, to tbe United States, is a valid surrender of all the laDlts witbin the common or overlapping limits. " ". "
PUBLIO" LANDs-GRANTs-FoRFEITURE-COSFIR)fATION TO INTERVESING CLAIMANTS.

Act Cong. March 2, 1889. declaring a forfeitul'e of certain lands theretofore' granted to the state of Michigan, in aid of cert;ain railroads, provides, in' section 2,. that "this act sball not be construed to prejudice' any right of the Portage Lake 'Canal. 00, * * * to apPlY hert-after to tbe CCilUl'ts. or to .congress for any relief, ' , legal \>1' eqUitable, to whlCb tbey may now be entitled. " . .f:le,la, tbat tbis special pro- I 'Vision /for the claims of the canal company eXCludes it from' tbe benefit of the general . !Is.;of section,S. which confirms the titles of to Whom. anY'·of'tinch. IBnd's have been dispo/led of under color of the pubhc land govern: : consideratioD. . . "

I'EDEnAL REPORTER,

vol. 44.

At Law. Action of ejectment. 'l'be'Mt of congress of June 3, 1856, granted certain lands in the upper peninsula to aid in the construction of certain railroads, one of them having two branches, running from the Wisconsin line to Marquette and Ontonagon, respectively. The later act of July 5, 1862, authorized the relocation of the route of said railroad on a line from Marquette to the south much further east, and made another grant in aid of its construction, upon condition that the lands originally granted along the route t,hU8 changed should be surrendered by the railroad company, upon whom they had been conferred, and by the state of Michigan to the United States. The Peninsula Railroad Company, to which the lands on the Marquette branch had been assigned, executed such a surrender. 4.-ftet this, the Chicago & Northwestern Railroad Company, 'having acquired the rights of the companies upon both said branches to the lands a,long their lines, executed a surrender and release of all the lands, by descriptionll, on the Marquette branch from the Wisconsin line, and the gove.rnor, in oehnlf of the state, executed to the United States 'a surrender of the $ame lands. This being regarded by the interior department not filling. the requiremen ts of the act of 1862, the last-napled railroad cOll1panyand the governor, upon the demand of the interior department, executed a further release and surrender of the lands on the Ontonagon branch. The present suits invoh'ed the validity and effect of the first release by the Chicago & Northwestern Railroad Company and the governor upon the lands in the common limits of the branches, and also of the later releases of the lands in t,he clear limits of the OntonagoD:branch. 2; 1889, relating to the forfeiture to the United States Act of lands theretofore granted to the state of Michigan, including those granted by the act Of congress of June 3, 1856, in aid of certain railroads, which lands plaintiff herein claims by virtue of selection under a subsequent gmnt in aid of its predecessor, (the Portage Lake Canal Company,) provides in section 2 that "this act shall not be construed to prejudide right of the Portage Lake Canal Co. * * * to apply hereafter to the courts or to congress for any legal or equitable relief to which they may now be entitled." Section 3, in general terms, confirms the titles of all, those to whom any of such lands had been disposed of by the proper <>fficers of the United States, or by i'clections of the state of Michigan, under color of the public land laws, in all cases where the government retains the consideration for such disposal. D.,H. BuU and John F. Dillon, for plaintiff. B/VoCW.er and D. M Dickinson, for defendants·
.i

j

J. In the Cunningham case it would be unprofitable to restate our own views upon the principal questions. The court is constrained by the obligations of judicial decorum to hold that the release of. the title to the clear lands on the Ontonagon & State Line Road, in lvhich this tract was situated, executed by the Chicago & North-Western RajlwltY, COmpany, and by the governor of the state of Michigan to the United,,stateSi"wasunauthorized by lawi ang, the selection ofsuch lands
c

LAKE SUPERIOR SHIP-CANAL, RY.&

CO. '11. CUNNINGHAM.

589

for the canal company, and the certification thereof by the secretary of canal the interior, were void. If this land was confirmed to the company by the act of 1889, while it might relate back to the date of selection for some purposes, it would not do so for the purpose of maintaining an action brought in, the mean time. To sustain the action of ejectment, the plaintiff must have had title at the commencement of the suit, and if it had not then a title it cannot succeed upon a right subsequently perfected. The verdict in that case must therefore be for the defendant. . In the Donahoe case the Jand lies in the common limits of the :Marquette & State Line and the Ontonagon & State Line branches. It may be that the release by the Peninsula' Railroad Company did not operate to release these lands, or a moiety thereof. But the first release of the Chicago & North-Western Railway Company and the first release by the governor surrendered all tl!e lands in those common limits. This ac.tion was never repudiated by the state, nor, so-far as appears, ever questioned. The land department has, since acted upon the yalidi iy of that surrender, and we think its validity cannot be questioned by the defendant in this suit. This land was selected jor the canal company. The tJelection was approved by the secretary of the interior, alJ.d the land certified by hinl to the canal company., I.n' that case the rp.ust be for tqe. plaintiff" In the Finan case theland, as in the Cunninghl1,I)l pase, is. in the. clear limits of the. Ontonagon & State Line The title in the same plight as in tpe Cunningham case.. But. the suit was oon1luenced since the act of :March 2, 1889, was passed, and it becomes necessary to decide whether the third section of that act operated to confirm ,the. title of the canal company to the land in que!3tion. If it were not for the ex. press mention of the. claims of the canal company in section 2, We snould: be prepared to hold, upon the liberal con8tru(1tion which 8houldbe given to statutes of this character, that the title of the plaintiff WliS confirmed by the provisions of section 3. It is hard to understand wbycongresa should have excluded one party from the scope of the justice which it was endeavoring to secure to those who had purchllsed the forfeited lands, for value, under color ot lawful authority, supposing they were acquiring a valid title, and have laid the scourge upon that one. But it isa question of construction, and my Brother SAGE is of, opinion that the specific mention of the canal company's claims in section 2 brings the. subject under the rule which excludes the particular matter from the.operation of the general provision; and while I have serious doubt whether the claim of the canal company in respect to these lands is so dealt with and disposed of by the second section as to exclude .it froIn the equity generally accorded by section 3 to all persons coming within: the conditions there mentioned, I shall, with considerable besitation, however, concur in his construction. This, .conclusion exposed to the opinion of the circuit judge ,in the Cunningham: elise, there must be a verdict for the defendanUn:this case also. . . .... S"\<1:E, .J·.. .

"'.'.,'

, :..:!, ,

UNITED STATES

'fel.

SIEGEL V. CITY OF NEW ORLEANS.

(Oircuit Oourt, E. D. LouiB'1.ana. December 25, 1890.)
MUNJCIl'AL CORPORATIONS-LUBILITY:fOR DEBTS.

'Act La. 1877,CE.xtra Sess.) No. 80, p. 47, provided that no municipal corporation shoul(i appropriate or expend any money in any year in excess of the actual revenue fOJ;theyear;that the revenue for year should.he devoted to the expenditures fdr1.hat'year; and that any surplUS mil2'ht be used topsy the indebtedness of former years. Act La. 1886, No. 109, p. 205, provided that the council of the city of New Or, leans.should each year reserve 20 per (lent. of the revenue for that year forthe purpose:Of pUblio improvement. lleld,that a creditor of said city could not compel the council to pay him out of said reserve fund for debts contracted after 1877, since suc.h re.serve fund did not constitute a surplus, nor did the former act apply to debts contracted after its passage. ,

.

At Law· .ft. R.

and H. L. wza1"UB, for plaintiff. F.· B.hea, fordelimdant. Before PARDEE, Circuit Judge, and BILUNGS, District Judge.

PER CuRIAM. The following the court finds as the facts in this case: The judgments of the relator against amount in the aggregat8to$ , , and are founded on indebtedness arising in the years 1879,1880, 1881, and 1882. The evidtmce establishes that for the year 1 888. as well as the year 1889, the common council of the city of New Orleans appropriated, out 01 the 20 per cent. reserved for pUblic improvements by Act No. 20, p.35,§ 66, of the Acts of 1882 and 1886, No. 109,1";:205, § 1; for the payment of debts not in the budget of those years, and not contrncted in those years, an amount greater than the aggregate ofrelator's judgments; and that of the said 20 per cent. reserved by the statute for public improvements there is now, for those years, more in the treasUl'Y of the respondent than would be sufficient to pay theentire'.aItlOunt of relator's judgments.· The statutes necessary to be considered are the first three sections of Act No. 30, p. 47, Acts 1877, (Extra Sees.;) section 1, Act No. 38, p. 58, Acts 1879, and Act No. 109, p. 205, Acts 1886. No. 30, Act 1877: "Spction'l.That no police jury of any parish, nor any municipalCoi-P0l'ation in this state. shall make any apprOI't'iation of mone)' for any year which appropriation separately, or togetlwr with any other appropriatIOn or,appl'opl'iation,; ot' the sallle year, ue illex;cess of the actual of.saidparlsh UI' municipal corporation for that year. :Spc.2. That no;'(?,oHcejury ot any parish, nor lDullicipalcorporalion in this state, shall approve any .claim or make allY expenditure which shall separately, or together with othpr claims approve,) or expend,turps made, be In excess of the actiuilrev6uues of that year. Spc. 3. That the of the sevt'fal parishelt lind muniCipal corpQrlJ.!ipns of thisSh;tttl ol'each.yeat' shall be devoted to t!16t;xrenditu,.r,esj ot'thatyear; I,rovided, thatl\IIY surplullof revenues may APplied to, tl,l,El p,\\yuwnt oUhe of formerypars.". ' , No; 38.'At t 181\:): . "Section 1. That it shall 1.\ethe duty of the board of administrators or'Cl>mmon ctiuh'ciI of the cityof.'Npw Or]pans, on 01' aboilt the second Tuesday of Decemher, li:l79, and upon the sec'ond Tuesday of December of each and every year tlltlreafter. or thereabout, to ,propose, a detailed
i