dismiss it, that this court is without lawful jurisdiction thereof. The seventh section of the./acte8tablishingthis court!, If we assume thaton a bill to restrain infringements the usual for a perpetual iftjU'netionand anl 8.coountmg is within the purview of this section, yet it seems demonstrable that this appeal could have been taken. To hold was not seasonable, and, indeed, otherwise ill fact, that,pll-rties m!1f, 30 da>,s expressly limited, by such seventh ,section, within, which appeals may 'be fAken;"tO'gQ,oy, by i(),nlyto be'dismis.sedj and;:itdt>es not affect the reasoning that in caEle,ther8; WAA :otappeal at the, tii;rie tlie injunction Was Without, embarr8!lsing ourselves 'with, discussing ques8\lggested. theeffe,ct'of refusals «1:' parle, or, in 'non, this order; injunction passed atler hearing the merits of the cause and needing no further ao,lion effl,qiency" ·WlNl an order, o,r cree of continuance within the th,estatJ,lte
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In Equity.i ,BHl,by,theoityot': Boston againstThom8S P. Beal,lis ta:l[8S. on " I" , , ,bill
:llQl, fpllllW,I,:, ,",'!'hat upon a ,Ity in ',t 00, ' l' in a,II exI,8t lni clrcUlt, Cllurt" an injunctt6n 8hall be granted. or continualI 1>1 !interlocutory order or decree, in a calise' fl1wbichan ',aapppeal"froma:ftnal be',tak,eh; Ul1de,r,llbe, Prdvl,810,naoft,hia,&Ct, to,t,h"e"clr oW<ti\" ur,' of order or i/;&utlwr ,lWurt. 9t, provided,that. the appeal mU8t betaken' thin tl'l1r\;y day. from the entry of suoh' order or decree and,' It. i AA1te, en,Qll I,D e appellat!), a\J,d, t.heprooeedings in other r6.peets'in' tlie colU:t. belQW ,1I0t, be otliei'wls8 ordered by that llOuri : iul'hig We penaeliC1oUl1ilh l'llpeaL'" , {: : ' , "
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pF BOSTONtI. BEAL.

307;

'l'. M. Bab8Q'fl"

for complainant. . . . and Frank D. Allen, U. S. Atty., for defendant.

COLT, Circuit Judge. This is a hill in'equity, brought by the city of Boston against Thomas P. Beal, receiver of the. "Maverick National Bank, to recover the sum of $12,096 for tllxes due October 1, 1891. The assessment was made under chapter 13, Pub. St. Mass. §§ 8-10, which are as follows: 8. All the shalia!'! of stock in banks, whether of issue or not, I'xisting by authority of the United States or of the common wealth, and located within the commonwealth, shall be assessed to the owners thereof in the cities or towns where lIuch banks are located,andnot elsewhere, in the assessment of all st&te, coullty. and town taxes imposed and levied in such place, whether such owner is,8 resident of said city or town or not. All such shares shall be,assessed at their fair cash value on the first day of May, first de,lucting therefrom the proportionate part of the valne of the rt'al estate belonging to the bank, at the same rate. and no greater, than that at which other moneyed capital in the hands of citizens, and subject to taxation" is by law ass...ssed. And the persons or corpol'ations who appear from the recllrds of the banks to be owners of lJhares at the close of the business day next pl;eceding the first day of May in each year shall taken and deemed to be the owners thereof for the purposes of this section. "Sec. 9. Every such bank 01' other corporation shall pay to the collectOl' or other person authorized to collect th... taxes of the city or town in which the same is located; at the time in each veal' when othel' taxes assessed in the said city or towni become due, the amoUlit of the in such year upon the sharel:! in such bank OJ' other corpor.ltbns. If such tax is not 80 paid, the l:lllid bank or other corporatiou shall loe liable. for the same; and the said tax. with interest thereon at the rate of tWt'lv'e per ct'nt. per annum from the day when the tax became due. may he recovered in an action of contmct brought by the treasurer of such city or town. "Sec. 10. The shares of such banks or other corporations shall be suhject to the, tax paid thereon by the corporation or by the officers thereof. IIndLhe corpol'ation and the thereof shall have a Ijpn on all the shares in such bank or other corporation. and on all the rigllts and property of the Shareholders in the corporate property for the payment of s:dd taxes." heard upon bill and answer. The bill alleges, in subThe case st/lnce, that on or about September 22, 1891, ,a demand for the payment of the :tax was mailed by the of the city of Roston to the bank, and that on October 19th the tax was committed to him by the assessors for. collection; that the tax bills bear date October 1st, and, if not paid by November lat, bear interest from the latter date; that on November 2d the defendant, Beal, was appointed receiver of the bank, and that all its assets and property have eversinee been in his hands; thllt, by. virtue of the statute the bank beca me liable for the tax iHt had l1J?t become insolvent, and said Beal had not been appointed and .the city treasurer could have recovered the tax, with inter,est at the rateo£12 per cent. per annum. in an action of contmct; amI the bank for the .amount of said tax and interest. The bill prays that the court will order the receiver to pay over to the collector its proportionate share of dividends as they may be ordered to be paid to creditors by the comptroller.

308

FEj}:ERALREPORTER,

vol. 51.

111e alleges, other things, that were not· assessed: at their fair· cash value, and that on the 1St day of May, the. market value ,of the shares, after deducting the., real estate owned by the bank, . by actual sales, was $240 per share, but that the value of said !!har.es, based upon the actual vGtlue of the assets as would have appeared had the bank of the bank .on May·!, been wound up on that d'ay, was much less than $240 per share, the difference being due to the ignorance of the public of the true state of the assets.· qf the bank; that on N ovember 1st, the' comptroller being l;latis&e.d that the bank \YaS insolvent, ordered its doors to be closed, and a bank examiner to take possession of its property,and that subsequently the defendant was appointed receiver, and took possession of the assets of. the bank, and is now engaged in convertingthein into money, among the creditors of the bal* i.thatsuch funds for !1x:e not lillble for taxes assessed upon .thesharehQlders, and that the plaintiff' has nQ pxoyeable against such fund!;!. This suitwus brought. February 6, 1892, several months after the bank became insolvent.! It was' decided in McOulloch Maryland, 4 Whettt. 316,thata8tate law taxing a national bank was' unconstitupOwer to tax implied the power to deatroy. . It has been held, .however, by: the supreme court, that .11- statfor the ute similar to thJ;tt of :Massachusetts was not reason thatsllch a tax is not a tax upon the capital of the bank, but a tax upori the shareholders. on account of their' shares; National Bank v. 9'Wall. 353 iNew Orlean8 v. Houston, 119 U. S. 265,7 Sup. Ct. ltep.,198 i Railrbac( Oo.v. Penn8ylvania, 134 U. 8.232, 10 Sup. Ct. Rep. 533. . The onlyquE'stion which arises .in this case is whether, under the state of facts here presented, the receiver is liable. It appears that at the time this suit was brought the assets of the bank Were in the hands of a receiver, and that the property representing the capital stock harl been swept away. This tax, therefore, if held to be valid, is not a tax upon the shareholders, but a tax upon the assets of the bank which belong to the creditors. If the tax is paid by the bank, it can havano lien upon the shares of'stock for repayment, as provided by section 10 . of the stat'ute, above cited,' because the property tepreseliting such shares has ceased,toexist. Under these circun1stances, I do not think that the receiver can be held' Hable for this tax, or that it is a provable claim against the assets inhi8 hands. This case cannot he said to come rule laid down in National Bank v. ,Com., within the supra. If the action ag'ainstthe bank under the statute t11akes the bank the agent of the state to: collect the tax, orif the action i8to be cOnsidered in efl'ecta farm of trtlstee process for attaching the fUhds of the shareholders inthe 'hands of the bank, it is too Inteto bring suit after the funds are no longer in existence from which the bank can reimburse itself. Bill dismissed, with costs.

v.

UNION PAC.RY.

co. 11. CHICAGO, R. I.

CHICAGO,

& P. RY. CO.

809

CO.

UNION PAC.

Ry. Co. et al. v. Ry.

R. 1. &

ST. P.

P.

Ry.

UNION PAC.

CO. 11. CHICAGO,

M. &

Ry.

CO.

(Circuit Court of .Appeals, Eighth Circuit. July 19,189a.}

No. 16.

L

RAILROAD COMPANIES-CONTRACT-ULTRA VIREs-J"OINT USE OF BRrDOI!l AND l'ERMINALS.

The general rule that a railroad company must itself exercise its powers and perform its public duties does not render ultra vires a contract by the Union Pacific Company, whereby, for 999 years, it let another company into the joint use and occupancy of its bridge across the Missouri river,and of its terminal at Omaha,together with about seven miles of its track, when such joint ,use does not interfere with the present or prospective use thereof by the lessor. or with the discharge of the duties it owes to the governmen,t under the provisions of its charter. 47 Fed. Rep. 15, affirmed. 2. SAME-REGULATIONS FOR JOINT USE-UNION PAOIFIC COl\tPANy-DUTIES TO GovERNMENT.

A prOVision in the contract that schedules of rules for the movement of engines and trains shall be made, which will accord equal rights and privileges to the trains of the same class belonging to each party, and, if not agreed upon, shall be fixed by referees, does not disable the Union Pacific Company from exercising any powers necessary to the discharge of its public duties, especially as it expressly reserves to itself the absolute control, through its own superintendent, of the operation of every train that enters upon these tracks.

&.

SAME-GHARTER POWERS-PUBLIOPOLIOY.

Act Feb. 24, 1871, (16 St. at Large, p. 430,) "for the more perfect connection of any railroads that are or shall be constructed to the Jl4:issouri river," authorizes the . Union Pacific Company, in constructing its bridge at Omaha, to issue bonds thereon, and declares that "for the use and protection of said bridge and property" the company "shall be empowered, governed, and limited" by the act of July 25,1866, (14 St. at Large, p. 244.) The latter act authorizes the building of a bridge across the Mississippi at Quincy, Ill., and declares that "all trains of all roads terminating at said river, at or opposite said point, shall be allowed to cross said bridge" for a reasonable compensation to its owners. Various other acts of congress the construction of bridges contain similar prOVisions for joint use. FIeld that, in view of the general policy thus evinced to promote continuous lines of transportation a",4 to,foster competition, the Union Pacific Company was fairly empowered to make the contract in question, especially as one main purpose thereof was to furnish a connecting link between the parts of a road owned by the other company. which would thus form a continuous line from Chicago to Denver. The charter of the Union Pacific Railroad Company (12 St. at Large, p.4119) declares (section 1) that "the stockholders shall constitute the body politic and corporate, " an,d provides that at. ,an,y, regUlar meet,in,'g called for that purpose they shall have power to make by-laws touching "all matters whatsoever which may appertain tO,the concerns of said company." In pursuance of this authority, the stockholders passed a by-law giving the board of directors the "whole charge and m.anagement of the property, " and, authorized it to delegate to the executive committee power to do any acts which the 'board itself might do. The board thereafter authorized the executive committee to exercise all the powers of the board when the board was not in session. Beld, that the executive committee had full authority to execute a contract letting another railroad into' the joint use of the company's bridge aoross the Missouri, e.nll its, terminals at Omaha; and such contract, having been approveq by the stockholders at aregular meeting, was binding on the com· pany, even though never ratifled by a formal resolution of the board of direotors; and it is immaterial that 5 ,of the 20 directors, are appointed by the government, and not by the stockholders. 47 Fed. Rep. 15, affirmed· The fact that this contract was Within the corporate powers of the Union Pacific Company, '\lnd was executed all proper formalities and delivered to the other complj,ny, together with a formal resolution of approval by the stockholders, con· stituted pr4.ma .facie evidence that it was executed,with laWful authority; a,nd after it out for seven mont!¥l. and tb..e, stipulated monthly rent'

·4.

SAME"':"EXEOl:l:rION OF CONTRACT-RATIFICATION BY DIRECTORS AND STOCKHOLDERS.

.5.

SAME-ESTOPPEL-PARTlAL PERFORMANCE.