ST. JOSEPH &: G. I. R. CO: V. STEELE.

867

is vacant and unoccupifi!d, haveuo application to.this case, and need
IJ,ot Vide Lambv. l<'arrell, 21 Fed. 5. Whether, under the Nebraska statute and the decisions of the supreme court of that state; a bill like this could be maintained in the courts of that state, we need not inquire; for neither a state statute nor the decisions of a state court can do away with the act of congress (section 723, Rev. St.) which declares that "suits in equity shall. not be sustained in either of the courts of the United States in any case where a plain, adequate and complete remedy may be had at law," or deprive a suitor in those courts of his right of trial by jury, secured to hiIPby the seventh amendment to the constitution of the United State$. The decree of the circuit court is reversed, and the cause remanded, with directions to dismiss the bill at the complainants' cost, without prejudice to their right to sue at law.

ST. JOSEPH & C'. I. R. CO. 'V. STEELE. (Circuit Court of Appeals, Eighth Circuit. October 8,1894.)
No. 428.

REB ADJUDICATA-EsTOPPEL.

The laws of Kansas provide that all railroad companies in the state shall annually report to the state auditor all their property, which shall be thereupon assessed for taxation by t4e state board of assessment, and do not authorize assessment of such property by local taxing officers. Complainant, the S. R. Co., in 1889, brought suit against D., as sheriff, to enjoin the sale of part of a bridge owned by it for a tax of 1888, assessed by the township of W.; alleging that said bridge formed part of its railroad property, and all such property bad been reported by it to the auditol', and a tax assessed thereon by the state board; which had been paid,and that the local assessment was illegal. D's answer averred that the bridge in question was a toll bridge, and not railroad property; and the COUl)t so adjudged, and also adjudged that the right of assessment was in the local assessor, and dismissed the bill. Held, in a suit brought against defendaqt, the successor in office of D., to enjoin the sale of the bridge fqr a similar local tax of 1892, upon the same grounds, that this adjUdication was conclusive upon complainant, which was thereby estopped to conteflt the liability of the bridge to local taxation, though in the former suit a question as to the location of the state boundary, which the bridge crossed, was involved and determined, and though it did not appear in the form(l'l' suit, as it did in the latter, that the return to the auditor disclosed tbe fact that a part of the property of complainant consisted of the bridge.

Appeal from the Circuit Court of the United States for the Diill· trict of Kpnsas.
This was a bill which was filed by the appellant, the St. Joseph & Grand Island Railroad Company, against R. M. Steele, in his official capacity, 8,s sheriff of Doniphan county, Kan., to him from seIling a portion of a bridge across the Missouri river under a warrant that had boon issued by the tre.asurer of Doniphan county, Kan., to enforce the collection of certaip. .taxes theretofore assessed against the bridge by the local authorities qf Doniphan· county. The eastern terminus of the bridge is in the city of St Joseph, MOo The western terminus and the western 926 feet of the structure are situated in Washington township, Doniphan county, Kan. The residue or eastern portion of the structure lies within the boundaries of the ·of MisBOuri. In May, 1892, the local authorities of Doniphan county, Kan" assessed that portion of the bridge which is situated in Kansas, for taxatioh

868

nDERAL

vol. 63.

tRtrt,;t:'e&,J;1. at a valp,a.tlon ot$20Q,QOP. v.ppn the theqrythat It WlU! a toll that as such It Wp;L'1 v.aluation arid asst'!ssment by the assessor. A. tax of $8,100 on such valuation was subsequently iinpdsed, "lUUl duly extended on the ,tax1;)ooks of the county. This tax not paid, a warrant lVl,UI. issul'ld, f<l!r its collection: and the appellee, sheri1,'f of the I:ounty otJ;loniphan, to enforce R. ¥. the collecJ;ion of the tax by it saleQf tha.t Portion of the bridge lying within the when the' present suit was instituted by the appellant to restrain' the sale,and to pre:vent the- 'collection of the aforesaid tax. 'I'he laws dQllot township or City assessors to as8SS ;their for the purJ;lose of taxation. They requ1te,llJ,lrailr?adpr<>perty to val1).ac;1 as an entirety, by a board of railroad aSsessors, and the amount of thEHl.ggregate valuation to be apportioned for ta.xatll>il among the' varioU$' mWll$liips through which the road runs. In thisbeha,lf the ofijlat, st1atqprovide, in substance, as follows: Thatthl'l;Ueutenantg?VlilrnOr, state, state treasurer, state auditor, and attorney general shaUconstlhite.'a bQard for the valuation andlU!sessment of all railroad property iIi 'that" state. It is made the duty of said board to ascertain all the raiiroad property owned and operated within the state by every railroad companY,andto appraise and assess such property, as an entirety, at its actual value in money. To ald the board in thus ascertaining and assqssing raproa4 prqperty, each ra,llroo.d company owning or operating a road' within the' state is' reqUired to niake a return of all its propertyi1Xl the state ,auditor on or before March 20th es,ch year. The laws of i<anSllB further provide that, when the board of railroad assessors have valued anti assessed the property,of a railroad, it shall Cause the state auditor to make a return to the county clerk of every coUnty in the state in Which'ltnypart of the road lslocated, which return shan show, among other things, the number of of track located in each township of the county, the average valuation;per mile, atldtheamount of the aggregate valuation for the purpose of taxation that shall, be placed to the credit of each city and townl;lhip in the county through which the road runs; Gen.St. Kan. 1889, §§ 6875, 6879-6881. 6884: 'With reference to the allegations of the bill of complaint which was' flIed by the appellant, it il;l sufficient to say that it averred, ' inl;lubstance, that the aforesaid bddgehad been owned by the appellant company since June, 1885, and that in the meantime it hall formed, ,an integral part of its r8JlrolLd, which extended, from St. Joseph, Mo., to the city of Grand Il;Iland, said period it had been used c()J1tinuously for the passage of its trains over the Missouri river: that in the month of May, 1892, the appellant had dUly made a return to the l;ltate auditor, as reqUired by laW, of all its property located in Kansas, inclUding that part M said bridge which WlUl situated Within the state: that the state board of railroad assesS()rs had subsequently valued all of its property so returned for the purpose of taxation; and that the board had likewise certified to the county clerk of Doniphan county, as required by law,theilmount of the aggregate valuation that had been apportioned to Doniphan 'county for the purpose of taxation therein. 'The bill further averred that the board of county commissioners of Donipban county had subsequently caused taxes for the year 1892 to be levied and extended upon the valuation of the appellant's property Within Doniphan county that had been fixed and certified by the state board of railroad asSel;lSOrs, and that the taJt s9,levied ano,extended had ,b,een duly pald t? the prope)' officerl;l of the county ,on December 19, 1892. , In vil!W of the prexnises, the bill charged that the,' tQ.xes levied upon said bridge, as a toll bridge, under the assessment May, :1-892, by the local assessor, was an illegal tax, and that W:;trrant under whiclltpe appellee was proceeding to sell said bridge was' utterly, void and of no In his answE!<r to, the blll of com· plaint, theaPJIellee in .that the said 1)rldge referred to in the bill WlU! a.n. structure,' '1:«( wit, a toll bridge: that it was not constructed as a part of any rallroad, a:nd ha4 never been used ,exclusively as a railroad bridge: that, being a toll bridge, the power to assess the same for ijlepurpose oftaxaW>)l, or to assess SQmuch thereof lU! was located in Kansas, 'was vested exclusivelY in the local township assessor; and that it had been

ST. JOSEPH &; G. I. R. CO. V. STEELE.

869

erroneously returned as railroad property to the state auditor, and had boon. unlawfully assessed by the state board of railroad assessors. The defendant also pleaded specially that the right of the local township assessor to assess the bride as a toll bridge had been previously litigated, in a suit brought by the appellant against John Devereux. a former sheriff of Doniphan county, Kan., In which suit it had been finally adjudged and determined that the right to assess said bridge for the purpose of taxation was vested by the laws of Kansas in the local township assessor, and not In the board of rallroad assessors. Rallroad Co. v. Devereux, 41 Fed. 14. The circuit court, on final hearing, dismissed the bill of complaint, whereupon the complainant appealed.

J. H. Gillpatrick (P. L. Soper, on the brief), for appellee. Before BREWER, Oircuit Justice, and SANBORN and THAYER, Oircuit Judges. THAYER, Oircuit Judge, after stating the case as above, delivered the opinion of the court. . The first question that merits our attention on this appeal is whether the relief sought by the appellant is barred by the decree dismissing the appellant's bill of complaint in the suit formerly brought by this appellant against John Devereux, the then sheriff of Doniphan county, Kim., in the oircuit court of the United States for the district of Kansas. In the present action, as will be seen by the foregoing statement, the appellant bases its right to relief on the sole ground that the local authorities of Doniphan county had no right to assess any portion of its bridge. which spans the Missouri river at St. Joseph, Mo., for the reason that an exclusive power to assess said bridge for the purposes of taxation had been vested by the laws of Kansas in the state board of railroad assessors, inasmuch as-the bridge formed an integral part of the appellant's railroad, and was not a toll bridge. It will be important, therefore, to inquire at the outset as to the nature of the former suit against John Devereux, and as to the precise issues that were tried and determined in that proceeding. The record discloses that that suit was begun in the month of February, 1889, and that it involved the validity of a tax for the year 1888 which had been assessed against the aforesaid bridge, on the theory that it was a toll bridge, by the township assessor of Washington township, Doniphan oounty, Kan. That suit, like the one at bar, was a bill for an injunction to restrain the collection of the aforesaid tax, on the ground that it had been illegally imposed by the local authorities of the township and county. The bill in the former case (Railroad 00. v. Devereux, 41 Fed. 14), as in the case at bar, alleged, in substance, that the St. Joseph & Grand Island Railroad Company was the absolute owner of the bridge now in controversy; that it formed a part of its railroad property; that the complainant company had duly made a return of all its railroad property, including that portion of said bridge which was located in Kansas, to the state auditor; that the state board of railroad assessors had duly valued and assessed the property so returned, for taxation for the year 1888; that the board had thereupon caused the state

M. A. Reed (John M. Thurston, on the brief), for appellant.

870

FE:QERAL REPORTll<R,

vol. 63.

to make a due return of said assessment to the county det;lrqr:poniphan county, and that the board of county commission(ers o( that connty had subliequently extended a tax for .the year 1888, basing the same on the assessment so made and furnished by the board of railrdadassessors; and that such tax had been by the complainant company prior to filing its bill to reduly strain the collection of the tax which had been assessed by the local authQrities, The bill in the case against Devereux also contained the following specific allegation and prayers for relief, to wit:
"Your orator further alleges that neither the county nor township authorities or assessors of said Doniphan county have 01' had any authority or jurisdiction to levy, assess, extend, or charge up any taxes whatever against any part of the said raih'oad bridge of your Ol·ator in said Doniphan county: that the state board of railroad assessors of said statc· of Kansas had exclusive jurisdiction for assessing the said property to your orator in said Doniphan county for the year 1888. Wherefore, your orator prays · · · that on a final hearing of this case * * * your hOilors will find and decree · * .. that the said bridge of your orator over the said Missouri river is a part of its railroad, and is and was .assessable in the state of Kansas for the year 1888 by .said board of railroad assessors of said state only; that the said assessment of the said bridge. of your orator made by the said Thomas B. IDckman [the. township assessor] for the Year 1888, the taxes levied and extended on SUch assessment. are illegal and void, and not chargeable to your orator or its property."

"Further answering, the defendant avers * · · that said brldge is, and from the completion thereof has been, used for the purpose of crossing persons and property, for which tolls have been demanded and received by the corporations, the predecessors of complainant, and the prior owners thereof, and is now,and constantly has been since the construction thereof, the common thorougl;lfare· for teams, carriages,and the ordinary vehicles used In travel and the transportation .of men and merchandise in transit between the states of Kansas and Missouri at the points aforesaid, and by the plaintiff llJnd complainant for its coaches, cars, and engines, as well as by other railroad companies; the latter, and all railroad corporations, paying to complainant full compensation for such use and carriage. '" · '" And the said defendant alleges that the said board of railroad assessors of the state of Kansas, did not, as averred, assess the said bridge, and have DO power so to do, and that that would be beyond the scope of their functions acrId duties as such assessors,"

The defendant's answer to the former bill of complaint likewise contained the following allegations:

Morrover, the opinion of the circuit court, on the renditioll of its final decree in th(! former case, contains the following statement of the questions illvolved in that action, which it was called upon to decide. The court said:
"Two questions are presented: First. Is it [the bridge] wholly within the county of Doniphan? And that depends upon where the boundary line between the states of Kansas and Missouri IS,-whether in the center of the main channel, or on the east bank of the river. Second. Did the return of this as apart of the railroad track exempt it from subjection to taxation, as an independent structure, in Doniphan county? 'Vitb respect to tbe latter question there can be little doubt. The bridge was not constructed as a part of the i'ailroad. It is a costly structure, used for general purposes of travel: and the fact that the railroad company has its rails upon and runs its cars across it does not destroy its original character as an independent structure. It is clearly subject to local taxation,"

ST. JOSEPH

&;

G. 1. R. 00.

fl.

STEl!:LE.

871

From what has been said with reference to the nature of the former suit, and the allegations contained in the pleadings therein, it is obvious, we think, that one of the issues that was tried and determined in that action was whether the bridge which figures! in the present controversy was an independent structure, to wit, a toll bridge, and as such was subject to valuation and assessment by the local township assessor, or whether it was an integral part of the St. Joseph & Grand Island Railroad,and as such was exclusively subject to assessment by the state board of railroad .alil· l sessors. It is hardly necessary to remark, in view of what we: have already said concerning the character of the present action, that this is the identical issue with which we are confronted in the· case at bar. No attempt is made in the present bill of complaint to state any ground for equitable relief, against the assessment of 1892, other than the fact that the aforesaid bridge was not a toll bridge when said tax was imposed and that it was not then subject to valuation and assessment by the local assessor. It is true that in the ,former suit against Devereux a question as to the boundary line between the states of Missouri and Kansas was tried and determined. The validity of the tax assessment by the local authorities for the year 1888 was challenged in the former suit, because the local authorities had valued the entire bridge on the assumption that it was wholly within the state of Kansas; but it is equally true that the other and more fundamental question was involved, and was duly tried and determined, as to whether the bridge was or was not an integral part of the appellant's railroad, and as to whether any part of it was subject to assessment by the local authorities of Doniphan county. We do not understand that any of the propositions heretofore advanced are seriously controverted. It seems to be conceded by counsel for the appellant that at least one of the issues involved in the suit against Devereux is the same issue that is presented by the case at bar. It is also conceded-or, if not conceded, it is manifest-that the parties to the two suits were the same, for in each instance the defendant was sued, not as an individual, but in his representative character, as sheriff of Doniphan county. In view of these concessions, and the facts disclosed by the recol'd in the former suit, counsel for the appellant has realized the obvious necessity of avoiding the effect of the final decree of the circuit court of the United States in the suit against Devereux. An attempt is made to avoid the operation of that decree upon the ground that the facts on which the circuit court predicated its ruling in the formel' suit, that the bridge was subject to assessment by the local township assessor, are materially different from the facts disclosed in the case at bar. In support of this contention it is said, in substance, that in the former case it was not disclosed by the return made by the appellant to the state auditor in the year 1888 that a portion of the property then returned consisted of a bridge, whereas the return made by the appellant in 1892 did show that 926 feet of the mileage therein returned for taxation

872

Jl'EDlilRAL iREPORTER,

vol. 63.

consisted of ;anbriilgestl'llcture, on which the appellant's track was laid. It is,iil'ged, thattl'l:is latter circumstance destroys the elusive effect lof the former decree, and enables the appellant to relitigateaq,uestioh which has Once been tried and determined in a suit between'tbe samepacties. We think it clear that the circumstance Jasti, stated is quite .immaterIal, and that it does not impair the: effect ·of the fot1ner decree,for the following reasons: The ultimate point to be decided in the former case was whether the bridge was subject to assessment by. the local township assessor, and the decisioDOf that question turoed upon the further inquiry, whether it wllSjl,in, fact atoll within the meaning of the Kansas statute which ,pe1"mitted toll bridges to be assessed by -the localwessors. It iSlIlanifelilt the finding. upon the latter issue depended; not upon tlle form of the return made to the state auditor, but upon the circumstances under which the bridge had been built;} and the manner in which it had thereafter. been used, and the evidence as to those points was quite as full and specific on the former trial as at the last hearing. In other words, the fact that the appellant did trot distinctly specify in its report to the state auditor:that apO'rtioIl of the mil-eage by it returned consisted of. ,8. bridge had no bearing, so ,far as we can \:lee, upon any question, either:,of law or of fact; which the circuit court had to determine ,in the former' 'snit. It results from this view of the case that its failure to specify the fact aforesaid in its return to the state auditol1 :does .not alter the conclusive, effect of the former decree. In conclusion, it is only necessary to add that in our judgment the decree in the suit against Devereux. operates as an estoppel, and precludes the appellant in this action from contending to the contrary of what was therein found and determined, namely, that the bridge. now. in question' is a toll· bridge, and as such is subject 'to assessment by the local authorities of Doniphan county. This conclusion, we think, is the necessary result of a long line of federal adjudicatiQD.s;!to wit: Cromwell v. County of Sac, 94 U. S. 351; Campbell v.>Rankin, 99 U. S. 261, 263; Wilson's Ex'r v. Deen, 121 U. S. 525, 7 Sup. C1. 1004; Nesbitt v. Riverside Independent Dist., 144 U. S. 61'0,' 12 Sup. Ct. 746; Southern Minnesota Railway Extension Co. v;St. Paul & S. C. R. Co., 5 C. C. A. 249,55 Fed. 690, and cases there cited. The decree of the circuit court being for the right party, on thf' ground and for the reasons last stated, we have not deemed it necesor profitable to consider any of the other questions that have been discussed by The decree of the circuit court is hereby aillrmeci
j

HASKELL

v.

BAILEY.

873

HASKELL v. BAILEY. (Circuit Court of Appeals, Fourth Circuit. October 15, 1894.)

No.66. 1.

FEDERAL COURTS-CITIZENSHIP.

It is citizenship, and not the residence, of the party, that confers jurisdiction, and gives the right to sue in the federal courts.
2897-PI,EADING.

2. LIBEL UNDER CODE VA. 1887,

An allegation that the words used are, "from their usual construction and common acceptance, construed as insults, and tend to violence an,d breach of the peace," in the language of the statute (Code Va. 1887. § 2897), makes the declaration one under the statute, though the words used are objectionable at common law. In an action under the statute for procuring the publication of a libel (Code Va. 1887, § 2897), articles printed in a newspaper published ill another state, detailing an alleged interview with defendant, are sible In evidence on testimony of defendant that he used substantially the words set out In the declaration in his conversation with one of the editors of the paper prior to their publication, where he never disavowed their authorship, and was careful to correct some criticisms therein. A finding that defendant caused the publication of libelous articles (Code Va. 1887, § 2897) will be sustained where it appears from his testimony as a witness for plaintiff that he uttered the words set out in the declaration in a conversatiou with one of the editors of the paper prior to their publication.

8.

SAME-EVIDENCE.

4. SAME.

5. SAME-PLACE OF PUBLICATION.

It is not the place where the libelous article is printed, but the place where it is published and circulated. that makes the words actionable under Code Va. 1881, § 2891, making one who procured their publlcation liable therefor.

8.

SAME-EVIDENCE-NEWSPAPER ARTICI,ES.

In an action for procuring the publication of libelous words (Code Va. 1881, § 2897) in newspaper articles, such articles are admissible In evidence after the use of the actionable words has been established, not only on the question of damages. but in connection with the· use of the words alleged as tending to show that the language was emplo)'ed by defendant prior to the publication.

In Error to the Circuit Court of the United States for the Western District of Virginia. This was an action by John C. Haskell against John M.Bailey for a libel under Code Va. 1887, § 2897, in procuring the publication of alleged libelous words in certain newspaper articles published in the Bristol Courier, a newspaper printed in the state of Tennessee, September 9, 1890, and June 5, 1891. Defendant demurred to the complaint on the ground that the cause of action did not accrue until after the institution of the action, and also on the ground that it did not allege that plaintiff was a resident of the western district of Virginia. A plea to the jurisdiction was also filed, alleging that at the time of issuing the writing plaintiff was· not a citizen of the state of Virginia, but was at the date thereof a citizen of the state of New York, and that defendant was at said date a citizen of the state of South Carolina. The court overruled the demurrer and plea in abatement, and the case proceeded to trial, and a verdict for plaintiff for $1,000 damages was rendered.