390

FEDERAL

vol. 45.

is little room far dift'eI:ences as t().itsimportallt requirements; for on,e ipirig there written case to whichtpe United SH'1es is nota party transferred ,1;0 court, or else it must l;>:C, proceeded with in a state court. :, It may1;Je assumed. that the peti. ti,onin this case the transfer to this sufficient as a written reas to form or substance, is specifically The proper court in to file the in my opinion, would be whatevercou.rt might, through its own oflicers, give effect to the by causing the papers:and record of the proceedings in the ,to be placed in the custody of .the officerfl of the proper circuit or 4fstrictcourt. In my opinion a request might have been properly filed in the territorial court during its existence; and, if so the clerk of suoh territorial court would have been in. duty bound to see that the papers and record, of the cause were in due time placed in the custody of the proper national court. On the other band, I have heretofore decided, ina case Carr v.Fife, 44 Fed. Rep. 713, that the request was properly filed in a state court which had never assumed or exercisedjuris<,liction of the cause, but,whose clerk had,hefore the organization of the national courts for the rlistrict.receivedactual possession of therecorqand papers pf the cause. 1 still hold to that opinion, and it is in harU\ony with the decision. made by Judge KNOWLES in the case of Strasburger. Beecher, 44 Fed. Rep..209. But, obviously, in whatever court the request may be, properly filed, to be effective it must be filed in time to guide the officers of the respective courts in the actual transfer of the case, and it is too lnte atter the fact of succession by a state court shall have actually occurred, by reason of such court having, with the knowledge and acquiescence of all the partie§,by ,a positive act assumed jurisdiction. For this reason, the request in this case was too late, and flot effectual to oust the state court of the jurisdiction which it had undoubtedly acquired. . This decision is not predicated upon the idea that by laches or any act there has been a waiver of any right by !lither party, but upon the principle that where a state court has lawfully acquired jurisdiction of a cause nQ transfer of that jurisdiction to a national court can be made otherwise thl,ln according to the provisions of a law authorizing it.

DUNTON

et aZ. v.

MUTH

et al.

(Oircuit' Court. D;Montana. February IS. 1891.) 1 RBMOVAL OJ!' CAUSES-CITIZE·NSHIP"':"'AOTIO.NIN TERRITORIAL COURT. In an action brought in a Montana territorial court, Where both defendants are oitizens the territory, and the two plaintiffs are respeotively citizens of a state and another territory, the admission of both territories as states will not make the suit a "controversy between oitizens of different states, " and removable under seo, tion 28 :M:ohtaJ,la enabling aot, providing that on written request aU cases pending in territorial courts shall be transferred to the federal circuit anddistriot courts atter admission, provided they would have had jurisdiction when the action had such CQurts existed.

DUN'.l'ON V. MOTH. II.
SAME-FEDERAL QUESTION.

891

In an action in ejectment, Where it appears th"t both ,parties claim under deeds from the trustee holding the legal title of a town-site on public lands, under the provisions of Rev. St. U. S. S2881, and both claim to be cestuis que tlr'U8tent under the statute, thl;lcase ill removable, as involving a federal question.
'

8.

SAME-DELAY IN ApPLICATION.

The provision of act March 8,1875, that the application for removal must be made at the term at which the cause could be first tried, must be construed to mean at the first term at which the' pleadings were in a condition for trial; and, where it appears that the pleadings were lost, and had to be substituted, an application four days after that was done makes a sufl1cient showing of dUlgeuce.

'At Law. Petition for a writ of certiorari. Comly &; Foote, for petitioner. Toole &; Wallace, for respondent.
KNOWLES, J. This action,above named, was commenced in the district court of the first judicial district for Montana territo,ry on the 7th day of June, 1887. It have been an actioJ;l in ejectment to determine the right to a town lot. On the 22d day of December, 1890, the defendant Albertos filed his petition to remove .said .cause from the state court of Montana, in and for its first judicial district, whpre the Bame was pending, to this court. The said state has refllsed to comply with the request in this petition, and the .i\.lbertos now applies to this court for a writ of certiorari, requiring the said court to send the papers in said court in said cause to this. The questions presented arise, in the main, as to the sufficiency of the petition of said Albertos. Did it state. facts sufficient to show that it was a case within the jurisdiction of the federal courts? It has been frequently held that the record of a cause must affirmatively !\how the jurisdiction of a fede:al.court. . The amount in controvers,Y exceed $2,000. ThIS IS sufficIent as to amount to show JurIsdIctIon. states, and The controversy, it is alleged, is between citizens of was when the suit was commenced. That Frederick Dunton, one of the plaintiffs, is now, and was at the time the action was instituted,a citizen and resident of the state of New York. Martha E. Bullock, the other plaintiff, is now, and was at that time, a oitizen and resident of the state of South Dakota, and that both of defendants were then, and are now,citizens and. residents of the state of Montana. At the time this action was commenced the court will take judicial notice of the fact that there was no state of South Dakota orstate of Montana. The defendants then were not citizens of the state of Montana, and this action at the date it was instituted was not an action between citizens of differ';' ent states. It is contended, however, that if Montana had been a state in the Union at the time of the commencement of this action" and if this court had then been established, thEm it would have had jurisdiction, because then the action would be between citizens states. This would undoubtedly be true, the answer to it is., there is this "if"lu the way. Thejurisdiction of court doesnot rest upon supposed. facts, but actual facts. It is urged that the above is the true interpretation· of section 23 of our enabling act. Th$t· the jurisdiction

392

FEDERAL REPORTER,

vol. 45.

there conferred upon this court, as far as it concerns cases pending in the' territorial courts, was based upon this supposition. In support of this the case of Dome v. Mining Co., 43 Fed. Rep. 690, is cited. This case I think supports the contention of the applicitnt, but I cannot agree with the rule expressed in that case upon this point. In that case the learned court says: , "'fhe law provides that upon a written request aU cases shall be transferred to the federal circuit and district courts after admission, provided such courts would have had jurisdiction of the same under the laws of the United States when the action was commenced, had such courts existed,and tlmt as to such cases the federal courts shall be successors to the terrH.orial court. Now no circuit court of the United States can exist except in a state admitted into the Union. Then, to state the proposition differently, the enabling act gives jurisdiction at the commencement of the action provided South Dakota had at thM time been a state in the Union,and the circuit court organized therein. " Thekev to the doctrine here asserted is that "no circuit court of the UnIted States can exist except ina state admitted into the Union." I have been unable to find any authority for this.. The' grant of judicial power to the national government is as follows: "The judicial power of the United States shall be vested in, one supreme court and in such inferior courts as the congress may from time to time establish." The risdiction of these courts is. defined to be as follows: "The judicial power shall extepd to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under this authority ; to all cases affecting ambassadors, other public ministers and consuls ; to all cases in admiralty and maritime ju.;. risdiction; to controversies between two or more states, between a state and a citizen of another state, between citizens of different states, between citizens of the same state claiming lands under grants of different stl'tes, and betweep. a state, or the citizens thereof, and foreign states, citizens, or subjects." This section was somewhat modified by the eleventh amendment to the constitution, but not so as to affect this question. Nowhere in the constitution of the United States is the judicial power limited to state lines. In the case of National Bank v. County of Yankton, 101 U. S.129, the Unites States supreme court h<ilds this language: "The territories are but political subdivisions of the outlying dominion of the·UnitedStates. Their relation to the general government is much the 33me as that which counties bear to the respective states, and congress may legislate for them as a state does for its municipal organizations. The or. ganic law of a territory takes the place of a constitution, as the fundamental law of the local government. It is obligatory on and binds the territorial authorities, but congress is supreme, and for the purposes of this department of its governmental authority has all the powers of the people of the United States, except such as have been expressly or by implication reserved in the prohibitiOns of the constitution."

. Again:

"congress may not only abrogate laws of the territorial legislature, but it may itself .legislate directly for t.he local government. It may make a void act of thetetritorial legislature valid,anda valid act void. In other words, it has full ardcornpletll legislative l\uthorityo.ver' the people!)!, tbe terrIto.ries

DU:NTON

v.

MUTH.

393

ltndall the departments of tbe territorial governments. It may do for the territories wbat the people under the constitution of the United States may do for tbe states. " I do not know of a more complete declaration of the power of the national government over the territories. That the extent of the legislative and judicial power of the general government within the provisions of its constitution is limited only by the domain of the United States, is set forth in Tennessee v. Davis, 100 U. S. 257. The judicial power oftha" United. States ought to be as extensive as its legislative power. constitution and laws of the United States not locally inapplicable were extended to the territories. See Rev. St. U. S. § 1891. Some of the territorial courts were given jurisdiction over all cases arising under the laws and constitution of the United States, such as is vested inthecii'; cuit and district courts of the United States. See Id. § 1910. If conl.: gress had .power to ve territorial courts the same jurisdiction asis vested in the circuit and district courts of the United States, it could have Cr6l.: ated in the tenitories. It is true that, as now constituted, the circuits:of the United. States circuit court. embrace states only, but J cannot see why a circuit could not be enlarged by embracing the tenia, tory of Dakota as well as the state of South Dakota. Both are within the domain of the United States, and covered by its legislative and judicial power. The proposition that no United States circuit court coul<i be established in a territory failing, the argument founded upon it fails: It was claimed in this case that the case of FDtpress 00. v. Kountze,S Wall. 342, sustained the proposition that a citiZen of a territory might be considered a citizen of a state. The statute under consideration iIi that case was a very different one from section 23 of our enabling It was section 569 of the Revised Statutes of the United States, which provides: "When any territory is admitted as a state,'and a district court is estab:lished therein, the said district court shall take cognizance of all cases which were pending and undetermined in the superior court of sucb territory fro!D the judgments or decrees to be tendered in which writs of error could bave been sued out or appt>als taken to the supreme court, and shall proceed to beat' and determine the same." In this statute no provision is made for any request to transfer a cause of a federal. character to the United States district court. The statute itself makes the transfer. There is no provision therein that the suits should be of B federal character when commenced, as in section 23 of said enabling act. When Nebraska was admitted into the Union, the plaintiffs in that case became citizens of Nebraska, and the defendant was a citizen of New York. Here was a case within the federal juri&diction,-a case between citizens of different states. The court in that case says: "It is true there is no direct averment to this effect, [that is, that the suit was between citizens of different states,] but it is the necessary coDsequt>nce of the facts stated in the pleadings that the parties to the suit were citizen8 of different states."

894
a1 c1t!2l:lo'Mta territory

BE,PqUTER,

vol. 45.

:Jfhe: sUPteme' court of the United,States does say in several oases that is not one' ofa state. Tn the/case of NctCOrlean8 v. U¥nter, 1 Wheat. 91, Chief Justice MARSHALL, in speaking for the , ,;, futs beell'llttempted,'to distinguish a territory 'from'the Dlstriet of Cohunwa.,but' the court is ;Ofioplnion that.this distinction cannot be. maintained. 'l,'lley.:l1ll,lydiffer in but neither of them is a state in the sense u,Sed in the constitution. Every, reason assigned for of the, court that a citizen of Columbia WllS not capable of suing in the'c0lJ'l1is of the United under the act is eq ually applicable to a citizen' of a territory."':' ," ,
\; Hi '.

In-tbe'C8seofHepbturrl. v. Ellzey, 2Cranch, 445, that court had held that,tlrercitizens.ofithe District of'Co1umbia were notcitizens of a state, and, cduldnot aliein the courts of the United States as citizeosof a state. In·thecase,of Barneyv. Baltimor8' Oity, 6 Wall. 287, the/lame court ""rheseru'lings [speaking of those in lleZJburn v. Ellzey, and NWJOrleansv. Winter!, have never been disturbed, but the principle by the courts When the point has been assel'tedhas been acted. upon ...", maintained that. t.he'qou'rtinExpre88C'o. v. Konntze pr assert that the citizens ,of territory might be 'as Citizens of a state? ',' ' " ,' ", OO.,,'supra, it .\Vould base an arthe fapt neither the, court nor attoriieys in the, case of Gillette, 4 DilC264"allQcle to the fact the federal court 1i84r,l;l!o:jurisdiction, bec"use one v4rty was a citize.n bf.a territory when t.he actIOn was commenced. It is not a very satIsfactory ground upon whicbtobase a ruling tqat a court did not decide a point. which might lla\Te he,en raised ina c a s e . , , ' " , , 00.,4 Dill. 26,0, a case which precedes Gaffney v.flillette, ,8Upra, in said report the circuit court of the UBitedbStates for Colorado does decide that a territorial court cannot be <lonsidered a state court. For theserea:;;ons I have arrived ,at the conclusion t.hat defendants cl.nnot considered' as' citizens of Montana when this 'suit was comthe light of the jtldidal decisions, Ih,old it is lIot proper the 23d sectiOIl.of our enabling act as to confer on this court of ,actions between citizens of Ii territory and state. The,attempt tointerpplate into that- section 23 the ,:'had Montana 1:}een a state," is not warranted, and, should such in the statute, it ",ould be an attempt t<;> found thejurisdic'tion of this court upon a supposition, and not upon a fact. The n.ext point is, does the petition show that this is a case arising 'tinHef,\lie']aws and COt;lstituqqn :b(the United States? ' The oply facts setf'orth, jn the ,petition which deserves conside.ration upon this point are as follows:

to ovEWule, tpose

he

"

DUNTON

v.

MUm.

895"

"That said suit is one arising under the laws of the United States, in this, to-wit: :aoth parties plaintiff and defendant claim to be aestuisque trustent under the provisions of' section 2387 of the Statutes ofthe United States, and created by said section' 2387 has, it is alleged, issued plailltil1s, alleged deeds for the same named premises,or town lot. to predecf'ssors in interest, and to the defendants, and the cQustruetion of section 2391 of the U. S. Revised Statutes will during the trial of said suit be called in question to determine which of said alleged deeds, if either. !lave been issued contrary to the provisions of section 23tH."

Previous to this allegation in the petition it had been stated that the action was one of ejectinent, wherein the plaintiff seeks to eject defendants from certain lallds and premises, and that the cause of action arose within Montana. The pleadings in the case are not exhibited in this and hence this court is left to consider the application for the writ of certiorari upon the petition alone. It is easy to see where this application could have been improved, and to suggest facts which it would have been better to have alleged. I have had some difficulty in determining whether, under the allegations in the petition, it does sufficientlyappear that this is a case arising under the law80fthe United States. It was decided in Water 0>. v. Keyes, 96 U. S. 199, that facts showing. the case is one arising under the constitution or laws of the United States shouldpe stated, and no legal condusions; or, in other words, it is not sufficient for a party in his petition for removal to allege that the case is one that arises under the constitution and laws of the United St!J.tes or under any specific law. the applicatiouin this case, however, sets forth that both parties claim under deeds from 'the trustee created by saillsection2387 of Revised Statutes of United States, and that both claim to be cestuis que trustent under said statute. In this case the predecessors of one of the parties to this action or the other party must have been the one for whom the trustee, provided for iIi said flection, received title to saill premises; which one will depend upon a proper construction oCsaid statute. Inthecase of VanAllen v. Railroad Co., 3 Fed. Rep. 545, jt appearsthat tre plaintiff claimed a town lot, and in the answer the defendant alleged the town lots of plaintiff were held by him ullder the provisions of the town-site act of congress, and tha.t he never had session, and his claim under said act of congress. was and void, Bl1ditwas held the case involveda federal questipn. In of Cohensv. Virginia,6 Wheat. 264, it was held: '. . . ' :', A ca,ein law or eqUity consists of the rigbt of one party as well as oUhe
II

othE'r, and may truly IJe said, to arise undl'r the constitution or a law of 'the United 8tates,when.ever 1Ls correct decision depends on the construction6f eithel'. "

I feel that the correct' determination Of this case depends upon construction of said section 2387, and that the petition states factssuffi ·. ,. , cient t<)'showthis. . As to the question of diligence, I think that sufficiently appears. In the caseof'Bwc!cwcll v. Braun, t Fed. Rep.B5t, it was held "thl:lt ,the words ·at the term at which said cause could be first tried, "boiltained

896
i·'.

FEDERAL REPORTER,

vol. 45.

in. the act of March 3, 1875, relating to the removal of causes,meant the
first term at which the pleadings were in condition for trial." In the case of Whitehouse v. Insurance 00., 2 Fed. Rep. 498, it was held th:1t, utlQ.er the said act of 'March 3, 1875, a cause could be removed at the term following the completion of the pleadings. While the removal in tbiscasewas not asked until some time after Montana became a state in Union, it does appear that the pleadings in the case had been lost before that time" and had to be substituted. and that the application for removal to this court was made within four days after this was done.' No more stringent rule should be required in a case for removal arising under the 23d section of our enabling act than under the provi&ions of the act of March 3, 1875, providing forremovals from state courts. ' I hold that the writ shquld issue as prayed, from what appears in the ' .

In re

SECRETARY OF TREASURY OF UNITED STATES.

(Oircuit Oourt, S. D. New York. March 14,1891.)
EMINENT, DOMAIN-CONDEMNATION BY UNITED STATES-PRACTICE. . ,

Act Congo Aug. I, 1888, (25 St. at Large,357,l provides that condemnation suits iI!- bebalf of tbe United States':to acquire lands for public use are to be conducted, as to matters of practice, in the federal court havinK jurisdiction, in conformity, "as near as may be, to the practice, pleadings, forms, and proceedings existing at the time in like causes in the courts of record of tbe state" in which such federal court is held.. HeZd, that the practice to be followed is that provided for condemnation suits in general, and, in land in New York the excep, pl'O(leeding provided for the board of educatlonof New York ,city by Laws 1888, o. 191, cannot be adopted.

Proceeding to Condemn Lands. Edward Mitchell, U. S. Atty., for petitioner. Shiproon, Larocque Ohoate, Geo. G. De WiU, Jr., John H. Bird, N. B. SanboTn" J. Frederic Kernochan, Hand Bonney, Platt Bowers, AnderVanderyoel, Ouming Goodwin, and Strong Oadwalader, for defendants. '
, WA;LLACE, J. This is a proceeding by the secretary ofthe treasury toacquire'real'estate in New York city for the Upited States for the site, of a ,new custom-house, under the authority conferred on him by the act of congressof September 14, 1888. By section 2 of that act, the secre-, ofthetreasury is authorized, in his discretion, "in Heuand stead of a purchase of a site for an appraisers' warehouse only to purchase'orae-' quire by. condemnation a site embracing an area sufficient for the erection new custom-hollse building in addition to said appraisers' warehousfI,' or to purchase two sites in the vicinity of each other.in said city, of New ,York suitable for both of said purposes." The section appropriatea a sPecified sum of money, "to be available only in case the single, ,bopi and appraisers' warehouse, or two siteain the,

ora

IN RE SECRETARY OF

OFUl'tITED STATES.

397

of each other, shall be purchased or acquired as herein set forth." Section 3 of. the act provides that no part of the sum appro"until the state of New York priated shall be expended for any shall cede to the United States exclusive jurisdiction over the same during the time the United States shall be or remain the owner thereof, for all purposes except the administration of the criminal laws of said state and the service of civil process therein." Since the secretary of the treasury instituted the present proceeding, and after he had caused a map to be filed for that purpose of the real estate now sought to be acquired in the office of the register of the city and county' of New York, congress has enacted that a new custom-house shall be erected in the eity of New York on the site "which has been selected and designated therefor by the secretary of the treasury." This act authorizes him to sell the present custom-house property inthe city of New York, and appoint five commissioners, who shall be charged with the erection and construction of the new building. Owners of the real estate have appeared to interpose objections to the proceeding. They object that the secretary of the treasury is not authorized to acquire title by condemnation, unless in the event of the selection of a single site for both an appraisers' warehouse and a custom-house; that he is not authorized to proceed until after ad,vertising for proposals; that a cession of jurisdiction over the property by the state of New, York isa condition precedent to his right to proceed jand that the present proceeding does not conform, as by law it must, to the proceedings in like causes in the courts of record of this state. These objections have the consideration which they deserve, in view of the importance of the interests affected by the proceeding. None ·of them, except the last, seems to have suffieient merit to require discussion. The last is a serious one, and in my is insuperable. Condemnation suits in behalf of the United States to acquire lands for pubic use are, by the act of congress of August 1, 1888, to be conducted, as to matters of practice in the federal court having jurisdiction, inconformity, "as near as may be, to the practice, pleadings, forms, and proeeedings existing at the time in like causes in the courts of record of the /::ltate" within which such federal court is held. 25 St. at Large, 357. It has been decided by the supreme court that a proceeding to condemn Jand for public use is a suit at common law. Kohl v. U. S., 91 U. S. Consequently, irrespective of the terms of the federalcondemnation act, conformity of procedure is required, as in lillsuits at common law, by section 914 of the &vised Statutes of the United States. Were ;t not that the procedure to be pursued is thus defined by congress, it 'Would be competent for the federal courts to adopt any appropriate <Jednre which would afford the parties interested in the mndEl an opportunity to present evidence and be heard respecting the value of their property; and this court would therefore be at liberty to adopt or reject, at its option, any procedure prescribed by the laws of the state. The right of eminent domain may be exercised by the.general government within without their permli!sion, and.canriotbe trammeled by

398

UDJilRAJ;.:MI>QRTER"

voh,45.

any obnoxious restrictions by stl1lte'laws; and,in the absence of regulation by congress, iroay be asserted' by any method. to obtain lands for' public use which was recognized as' llPpropriate when the federal constitution was adopted, But congress ,has seen fit to declare that when a suit is brought it shallbe.ctmducted modally as to matters of form and practice, in conformity to the practice existing in like ,suits in the state court; and the question now is whether .the procedure yvhich has been adopted in .the present case does sooonform. . The legislature of this state in 1890 revised the laws for the condemnation of real property for public use, and embodied their revision underthe titre of the "Oondernnation Law" in the:Oodeof Civil Procedure. Sections 3357-3384. These Oode provisions regulate the practice, pleadings, form, and mode of proceeding in the courts of this state in all .Qauses for the condemnation of· real propertyfor pu blic use. Section 3383 repeals and parts of acts l saving, however, and exempting from the repeal all proceedings iIi behalfof the city of New York, and any of its, boards or .This exemption .includes the board of .educationof the city of New York, and saves to it a to acqaire lands·for school-sites, authorized by chapter 191, Laws 1888. ,In instituting the presentapplication, the law officers of the government have adopted the proceeding' thus spE:cially saved to the board of education of New.Yovk, city ·by the law of1888. The present proceeding, therelore, conforms to the, 'practice in the state court in an anomalous .case, ora class of excepted cases, and, does notconfoml to that in similar causes generally, in the s·tate courts. It niay be conceded that a suit or proceeding- tocolldenmland for a school..site is a "like cause" to the .present;bnt so are all the;proceedingsor suits to which the Oodepravisions apply., The. cause: of action in all is the assertion of a right to condemn property for a public use. But the precise question is whether .,the existing practice in the'dourts Of this state I to which this court is to be, is that which outains in like suits generally, ·orthut which obtains in saIne specialand excepted class. ,What is meant .by!thewords "col'lform ,as p.ear as may be" has been judiciallydeclal'ed by the supreme ,court in Railroad Co. Horst; 93 U. S. '291. The .guage js intended to' upon the the power to reject jooysubordinate provisions in state statutes regulating practice which in .their judgment would .unwisely incumber the administration of the law, ·or ,tend todeJeattbe oorls!of justice in the federal tribunal. Subject to ,this reservation of discretionary power,. the federal courts, in condemnatio·nsu;.tsand commontlawBuits, are'to COliform bylldopting the prac:tiqe.and procedure'whichithe statecol,l.rtswould follow in a similal' suit. cannot do unless the rule of conf'ormity is . in the pradiceandprocedure in.sitl'Jilitr causesgellerally, and not 'i1::dhat which may obtainabnormally\ orin sirnilarcauses exceptiolliilly. lllu8tratedbythe'presemtlcase,if the state itself, or any' of its CQr:porations, except, NewdY Ol,'k citY,or ·any ·other corporation or natural person, authorized bylawltoacquirareal property for a public use, ih1)titutes.condewnation in courts dfthisstate, the prae-

IN RE

OV.TREASURYOF UNlTED STATES.

399

tice and procedure in the suit are uniform, while each of the excepted ,8. ,L;tw; and pJ'llGtice peQu!ia:r; apd, unless the general law supplies the rule Qf C9nformity, this court would be wholly at a loss to determine which one of the several excepted and special laws and. pr<;lceedings. should control its. There are important and radical differences between such a proceeding as the board of education is authorized to adopt and the suit for condemnation which the Code prescribes for suitors generally. These are found in the provisions giyingpersonal noticeofthe proceeding to property owners, for protecting the rights of ahsentor unknown owners, aud for securing 'the payment of to the owners before they are compelled iii) surrender possession oitheir. property.. .The provisions of the general law are carefully ftamedto protect the righta"of the propertyownera.. · If they 'are stringent in that behalf those of the specialacl.in favor oithe boa,rdofeducation are sarily lax'; ; . By the board notice.pfthe proceeding is given by advertisement only.. If the owners are nat known, or are not flill'y knbWn"a ge?el'1l1a,wllrd iSI)]ade with?ut specif)·iqgwpat enbtledto respectlVely.. The owners are dispossessed before thelfcomit'may pensation is paid or deposited with that they, clonot have. .an, opportunity to be heaid', as to 'the v,alue 'of their property. .They are left to. a litigation themselves as to the partthat each Isto ;receive;anil,ii1l,l.ny event, a,re left' :t() cOllect their compensation from the comptroller of the city. If this court were at liberty to exercise any discretion in s,alec,ting"\8, -proceeding ;tp'\ be Case ,like the certainly,would,,;not approve ODEl in which cnn be before' their awards are paiJi, be their Qompensation.of,the United by such. remedies as ·tlleigo.vernm()nt affords. -'I1bere are. prQvisions ,in the generll1QOndemnatiQn law which would doubtleasemban;ass. :the jn a, oondemnation,suit, ifastrwteotllplhmce with them welle .,And ill the present' :the law officers pC the government have :probably cons.idered,thM, the United States ought not to be .c.olllpelled to a suit in which tbe,ipetition.muststatfl the facts showing the necessity of the acquisition of the propertylfot' publiepse,and that there .has been an effotno acquire it by purchase. Undoubtedly the Code pm.\'isions are designed to permit the. pro.perty owners tQ eqntest t:he necessity of the acquisition of the property sOlllght to. be. c.opdemlled, Itncl. a prior to institut-< ing suit th,ere:hns 1)een.a,reasouableattemptto acquire it by puren9-se., Buttbese. matters wbichgo to thesllbstiln,ce oUhe right to acquire property by 9Ondemnation., They are not matters ofdorm or practice or pleading; Jhey are of. the .essence of ;the cause of action. Coni'lequently if th,ese averments should. be. omitted .in a petition in. behalf of the United Sta,tes, it wQuld that the,petitiol.lwouldnevetthela$s conform ,as: 1+001' as. rnll-ybe t9' the. requiremen;ts., oi .the Code. '. The iap" plicatio!lis ,

400
UNITED SUTES

I'EDERAL REPORTER,

vol. 45.

et

ex rel.HUIDEKOPER

ft. MACON COUNTY COURT

(two cases.)

UNITED STATES

aZ.,

ex

rel.STRATTON '11. SAME.

(Circuit Court, N. D. MiBsowrt, E. D. March 8, 189L) L
IssUE Oll' COUNTY W ARRANTS-MANDAHUS.

. . Mandamu8 having been granted requiring the county court. to draw warrants in favorof relators, payable out of "the general funds of the county," the warrants

were drawn accordingly, but, at relators' request, other warrants were drawn on .another fund in lieu of the warrants already drawn, and were issued to relators. HeZel, that the latter warrants werejssued pursuant to the writ of mandamus. Under Gen. St. Mo. 1865, c. 88, § 46, providing that county warrants are receivablein disoharge of "any county or oity revenue, license, tax, assessment, fine, pen" alty, or forfeiture," such warrants are.l'!lceivable in payment of a speoial tax levied for payment of county bonels, though the priority in which such warrants are quired by law to be pliid is thereby defeated.
WARRANTS.

9.

a.

COUNTr WARRANTB-'-CONSTITUTIONAL LAW.

A!lt Mo.. Feb. 28,1873, PrOviding that several warrants may I:!e issued for 0118 claim against a oounty, instead of issuing a single warrant, as was provided by the eXisting law, does not so· change the administration of county finances 'as to impair the remedy. for the ooJleotlon of warrants.
Oll' oll'TAXBs.

Where warrants have been received from an assignee thereof in payment of . taxes, and suoh payment has been apProved by the county court lin the settlement of the accounts of the county treasurer, such payment will be considered sufllcient, thougb the assignment was not in the form required by law.

Application for Ma""damUB. These cases are 'I7l.andam:u8 suits,originally brought in the United States circuit court for the western,. district of Missouri, when Macon county was attached to that district. They were recently transferred to this court, and since the transfer certain motions have been filed therein by the relators, to which motions the.respondents have filed a return. The cases have been submitted on a motion to quash the return, and also on a plea to the jurisdiction. With a few exceptions, the material allegations of the motions are not controverted by the return; but, as the case is somewhat complicated, a statement of the material facts alleged seems to be necessary. In the years 1875 and 1877 the relators severally recovered judgments against Macon county on coupons of county bonds issued in May, 1870, to aid in the construction of the Missouri & Mississippi Railroad. Thereafter, in September, 1879, the county court caused warrants to be drawn on the·· county treasurer for the amount then due on said judgments. The .warrants were drawn after the issuance of peremptory writs of mandamua commanding the county court to draw warrants in payment of relators' judgments. It seems that the warrants as at first ordered to be drawn were made payable out of "the general funds of the county, Dot otherwise appropriated," that might at any time be in the treasury; but sqch warrants, if tney were in fact issued, were soon canceled, and, in lieu thereof, other warrants were issued, at relators' request, payable ont of the "Missouri & Mississippi Railroad fund," which was a special fund