Statement of the Case.

CAROTHERS v. MAYER.

ERROR TO THE SUPREME COURT OF THE STATE OF MONTANA.

No. 144. Submitted November 4, 1896.

Decided November 30, 1896.

In an action of ejectment in a state court by a plaintiff claiming real estate under a patent from the United States for a mining claim, a ruling by the state court that the statute of limitations did not begin to run against the claim until the patent had been issued presents no Federal question. So, too, a ruling that matters alleged as an estoppel having taken place before the time when plaintiffs made their application for a patent, and notice of such application having been given, all adverse claimants were given an opportunity to contest the applicant's right to a patent, and that, the patent having been issued, it was too late to base a defence upon facts existing prior thereto, presents no Federal question.

THIS was an action of ejectment originally brought by the defendants in error, Isaac Mayer and Andrew J. Wilson, in the District Court of the Sixth Judicial District of Montana, in and for the county of Meagher, to recover possession of five lots in the townsite of Neihart. The complaint alleged a seisin in fee on July 22, 1887, and upon the trial plaintiffs introduced in support thereof a patent of the United States for the Keegan lode mining claim, bearing date July 27, 1887, and running to the plaintiffs.

Defendants averred no privity of title under such mining claim or patent, but set up, first, an adverse and exclusive possession of the premises since June 1, 1882; and, second, an equitable defence of estoppel arising from the following state of facts, namely: That in April, 1882, when about fifteen or twenty people were living in that vicinity, a meeting of citizens was held for the purpose of laying out a townsite, the Keegan being then a located mining claim; that at such meeting it was agreed that the surface ground should be devoted to townsite uses; that each citizen should be entitled to enter with the recorder not to exceed two of the lots as laid off, and that each citizen entering lots should fence them; that thereupon at such meeting the said mining claim owners,

Opinion of the Court.

among others the predecessor in interest of plaintiffs, he being at that time the claimant of the Keegan lode, agreed that the surface ground should belong to the town, and gave the same to the citizens for townsite purposes; that such premises were so laid off for town purposes, and the lots were entered in the manner agreed at the meeting with the knowledge and consent of plaintiffs' predecessor in interest.

A general demurrer to this answer having been overruled, plaintiffs replied by a denial of the defences therein set up.

Upon the trial defendants offered to prove an exclusive continuous possession of the premises from 1882 down to the commencement of the action, which offer was rejected by the court, under objection from the plaintiffs that the statute of limitations could not begin to run until the patent for the Keegan mining claim was issued, July 27, 1887, to which ruling the defendants excepted. After making proof in support of the equitable defences so pleaded, the trial court refused all instructions asked by the defendants thereunder, and directed the jury to return a verdict for the plaintiffs.

On appeal the judgment upon such verdict was affirmed by the Supreme Court of Montana, 14 Montana, 274, whereupon defendant sued out this writ, and assigned as error, first, the ruling of the court in excluding evidence of the adverse possession of the defendants and their predecessors in interest prior to the issuance of the patent; and, second, to the action of the court in directing the jury to return a verdict for the plaintiffs.

Mr. E. W. Toole and Mr. William Wallace, Jr., for plaintiff

in error.

Mr. A. T. Britton and Mr. A. B. Browne for defendants in error.

MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.

Upon the facts above stated, the Supreme Court held, first, that the statute of limitations did not begin to run against the

Syllabus.

mining claim until the patent had been issued, following in this particular King v. Thomas, 6 Montana, 409; and, second, that the matters alleged as an estoppel having taken place before the time the plaintiffs made their application for a patent, and notice of such application having been given, that all adverse claimants were given an opportunity of contesting the applicant's right to a patent, and that the patent having been issued, it was too late to base a defence upon facts existing prior thereto, citing in support of its position a prior ruling of the court in Talbott v. King, 6 Montana, 76.

Neither of these defences presents a Federal question. Defendants asserted no right under a Federal statute; made no claim under any Federal patent; claimed solely under a statute of limitations, which the highest court of the State declared did not protect them, and certain matters of alleged estoppel in pais, which the court held to constitute no defence. The writ of error must, therefore, be

Dismissed.

CENTRAL RAILROAD AND BANKING COMPANY v. WRIGHT.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF GEORGIA.

No. 300. Argued October 22, 1896. - Decided November 30, 1896.

Section eighteen of the act of the legislature of Georgia of December 14, 1835, providing that no municipal or other corporation shall have power to tax the stock of the Central Railroad and Banking Company of Georgia, but may tax any property, real or personal, of said company within the jurisdiction of said corporation in the ratio of taxation of like property, when construed in connection with other legislation on that subject, permits municipal corporations to tax such property within their respective jurisdictions in the ratio of taxation of like property. While, in the absence of any words showing a different intent, an exemption of the stock or capital stock of a corporation may imply, and carry with it, an exemption of the property in which such stock is invested, yet, if the legislature uses language at variance with such intention, the courts,

Opinion of the Court.

which will never presume a purpose to exempt any property from its just share of the public burdens, will construe any doubts which may arise as to the proper interpretation of the charter against the exemption.

THIS was an intervening petition filed by William A. Wright, Comptroller General of the State of Georgia, praying that the receivers of the Central Railroad and Banking Company, appointed in a suit for the foreclosure of a mortgage to the Farmers' Loan and Trust Company, be required to pay him certain taxes said to be due by the corporation for the year 1891, upon its property in different counties and cities upon the line of its road in the State of Georgia, which taxes were claimed to be a lien upon the property of the road.

The taxes were assessed in pursuance of certain acts of the General Assembly, passed in 1889 and 1890, authorizing counties and cities to tax railroad property. The taxes were levied upon the railroad and appurtenances of that portion of the Central Railroad between Savannah and Macon, and included no other property of the company. The defendants claim the taxes to be invalid, upon the ground that the railroad and its appurtenances over that part of the line from Savannah to Macon were subject only to a taxation of one half of one per cent upon the net annual income of the road, and that the acts of 1889 and 1890, in so far as they authorized the taxation of its property by counties and other municipalities, impaired the obligation of the original contract of the State contained in its charter, and were, therefore, void.

The Circuit Court was of opinion that the taxes were properly levied, and made a decree for their payment by the receivers, and from that decree the corporation and its receivers appealed to this court.

Mr. A. R. Lawton for appellants. Mr. Henry C. Cunningham and Mr. Samuel B. Adams were on his brief.

Mr. J. M. Terrell for appellee.

MR. JUSTICE BROWN, after stating the case as above, delivered the opinion of the court.

Opinion of the Court.

This case raises the question, frequently presented to this court, of the power of a State to impose upon a corporation a tax not provided for or contemplated, nor yet expressly forbidden, in its original charter.

The defendant corporation was chartered in 1833, Laws of Georgia of 1833, 246, under the name of the Central Railroad and Canal Company, "for the purpose of opening a canal or railroad communication from the city of Savannah to the interior of the State." The seventh section declared that "the said canal or railway, and the appurtenances of the same, shall not be subjected to be taxed higher than an half per cent upon its annual net income." On December 14, 1835, the General Assembly passed an amendatory act, Laws of 1835, 217, under which the road was constructed, changing the name to the Central Railroad and Banking Company, and giving it certain banking powers and privileges. The eighteenth section of this act provided that "the said railroad, and the appurtenances of the same shall not be subjected to be taxed higher than one half of one per centum upon its annual net income, and no municipal or other corporation shall have power to tax the stock of said company, but may tax any property, real or personal, of the said company, within the jurisdiction of said corporation in the ratio of taxation of like property."

No other act affecting the question at issue was passed until 1889, when the General Assembly provided a general system of taxation of railroad property in each of the counties of the State through which the railroads ran, and required the various companies to make annual returns to the Comptroller General, under the oath of the president or chief executive officer, and enacted that they should be subjected to taxation in every county through which their roads might pass. Other sections of the act provided how the amounts should be assessed and paid, and the manner of issuing execution in the event they were not paid.

By another act, approved December 24, 1890, railroad companies were subjected to taxation upon their property located in the different towns and cities of the State.

By reason of the fact that all of the property and effects of