JU.NN ,t'. TACOMA. LAND OO.l
belongs solely to congress. Robbin8 v. Taxing-District, 120 U.S. 489, 7 Sup. Ct. Rep',: 592; A$her v. Te-JXl,8, 128U. S. 129, 9 Sup. Ct. Rep. 1. The statute ought not to be interpreted as taxing a privilege of that description. But a foreign corporation, which establishes a business domicile here, and brings its property within this jurisdiction, and mingles it with the general mass of commercial capital, is taxable here; and the power of the state is ample to tax its property directly or to lay a tltX upon its privilege of doing bU3iness, whether the property consists Qf funds deposited in bank or of goods sent here from other states, not in transit merely, but to remain here till used or sold. The principle of the present statute is that such corporations shall contribute according to the value of their capital" employed within the state." It lays the tax upon the privilege, and measures the amount by the amount of erty which is protected here. Reasonably interpreted, the statute means by "doing business within this state" using this state as a business domicile for transacting any substantial part, even though a comparatively small P81t, of the business which the company is organized to carryon, and in which its capital is embarked. It would seem that a manufacturing company which maintains an established location here, and an agent, for the purpose. of selling its products or facilitating their sale, carries on a part of its ordinary business. here, and has a business domicile here; and if it keeps funds here for maintaining its place of business, and to enable it to carry on the operations of its agent, such a foreign company would seem to be taxable under the statute. Certainly it cannot matter that the volume of business done is small, or that the 10eation, instead of being a warehouse or a shop, is an office or a sampleroom. The c,ase made by the complainant is not free from doubt, but, after as forcible and persuasive a presentation in its behalf as the facts can warrant, the conclusion is reached that it is subject to the tax authorized by the statute. The question whether a court of equity has jurisdiction to restrain the collection of a tax, under the circumstances of this case, does not require decision in view of the conclusion reached. The injunction is denied.
MANN 'V. TACOMA LAND
(otrcutt Court, D. Washington, W. D. October 22, 1890.)
SURVEYS OF PUBLIC LANDS.
Under the land laws of the United States, tbe line of ordinary bigh tide on the sbore of an arm of tbe sea. is the-bounda.ry between the land and the water at which tbe surveys of tbe public lands of the United States terminate.
The act of congress, providIng for the issuance of Valentine scrip, and for its location upon unoccupied Sind unappropriated public land, cannot be so construed as to entry with said scrip of mud flats bare at low tide, but subject to daily overflow, situated in one of the barbors of a territory, and which has been omitted from the surveys made of public lands sUl'1'OuDding lluch barbor. 'BuUabm b'II the. Court.)
PUBLIO LANDS-LOCATION OF SCRIP.
FEDERAL REPORTER ,vol.
In Equity· . Judwn, Sharpstein Sulliwn and P. H. Winston, for plaintiff. Louis D. Campbell, for defendant.
J.. This case has been submitted upon a demurrer to the plaintiff's amended bill. The plaintiff, claiming to own three separate 40-acre tracts of the mud flats in Tacoma harbor, brings this suit for an injunction to prevent the defendant from proceeding further with certain harbor improvements it is making, in front of land it owns abut: ting upon the shore, whieh the bill alleges will interfere with plaintiff in the' possession and Use of the premises which he claims to own. The bill shows that said premises are what is COIlllllOnly known as "tide-lands," or mudflats, and are situated below the line of ordinary high tide; that they are bare ,at ordinary low tide, but subject to overflow daily, and are not within the surveys oftbe public lands of the United States. The plaintiff'solaim of title is based upon the location thereon of certain landscrip called "Valentine Scrip." The plaintiff and his vendors were ownersof the scrip, and they located the same, and filed the proper certificates and declarations in the United States land-office at Seattle, on October 30, 1889, which time was prior to the president's proclamation making complete the into the Union of this state, but subsequent to all the acts of legislation and proceedings leading up to that event. In deciding this case, I shall leave untouched the interesting question as to the power of congress to dispose of tide-lands in a territory, and most of the many other important questions which have been discussed in the very able arguments made before me, my opinion being such that it is unnecessary for me to do more than pass upon the single question as to validity ofthe plaintiff's elaimof title, and a single reaS011 for, my opinIon l1pon that question is all that need be given. The Valentine scrip was issued pursuant to the act of congress of April 5, 1872, (17 St.. U. S. 649,) for the relief of Thomas B. Valentine, authorizing'scrip to be issued to him,and authorizing him, or his legal. 'representatives, to ·locate such scrip upon such "unoccupied and unappropriated public lands of the United States, "whether surveyed or unsurveyed, as he or his legal representatives, might select. The act provided further that such selection should be made, if on unsurveYE'd land, so as to conform to the government surveys, when the land should be surveyed, and in tracts' of not less than 40 acres. This statute authorizes the. location and entry of land, which, at. the time of entry, either has been, or remains to be, surveyed and included in the public surveys of the township, according to established a11d known rules eri1ing the land surveys of the United Stqtes. And obviously it was not intended by congress to give Mr. Valentine, his representatives or vendees, any r.ight to acquire title by use of such scrip to any part of anavigable river, channel, or harbor, or the bed or shore thereof, situated outside the limits subjoct to survey according to established rules. As part ora general, plan and system for the sale and disposition of the lands of laws provide for surveys to be made, and officers the United States,
UNITED STATES f1. OSBORN.
specially qualified to do that work and charged with official responsibility assigned to the duty of subdividing the land and locating and establishing boundaries.. The lands surrounding this harbor have been by such officers surveyed, and the boundary line between the land and the water of the bay has been by this official survey located and established. The lineia approximately the line of ordinary high tide, which, according to all the laws and usages of this country, is the boundary line dividing the land and the water, and the limit to which the surveys may lawfully extend. The space which the plaintiff seeks to protect is not surveyed as land, and remains unsurveyed because situated outside of this boundary, and it was regarded by the official surveyor as being not land at all, but as water. The work of the surveyors in the field with their plats and field-notes has been approved by the commissioner of the generallandcoffice, and it is, as to all matters relating to the sale and disposition of the lands of the United States, conclusive and binding upon all persons having to deal with the United States, as well as upon the government itself. Bates v. Railroad Co., 1 Black, 204. Therefore, in my 9pinion, the plaintiffcould acquire no title or right to the premises he claims by the proceedings in the land-office, and he cannot lawfully maintain this suit. The demurrer will be sustained, and a decree dismissing the bill, with costs, will be entered.
UNITED STATES V. OSBORN.
(01ffcuit 001Jll't, D. Washington, S.D. November 11,1890.)
·P1mLIC LANDS-UNLAWFUL OCCUPANCy-GRANT TO RAILROAD.
The inclosure and occupancy of lands in an odd-numbered section, and. within the'limits of a grant to a railroad company, where the entry was made after the same had been withdrawn from sale or entry, and before completion of the railroad, or any declaration of forfeiture of the grant, by a person who, in good faith, intended to acquire til'le to it by purchase from the railroad company, iii not made Unlawful by the act of congress entitled" An act to prevent unlawful occupancy of the public lands, " approved February 25, 1885, (23 U. S. St. 321.)
(Syllabus. by the Court.)
In Equity. P. H. Winston, U. S. Atty. D. J. Orowley, for defendant.
HANFORD, J. This suit is founded upon the act of congress entitled "An act to prevent unlawful occupancy of the public lands," approved February 25, 1885, (23 U. S. St. 321,ythe first section of which defines unlawful occupancy as follows: "All inclosures of any public lands in any state or territory of United States heretofore or to be hereafter ml1de, erected, or constructed by any person, party, association, or corporation, to any of which land included within the inclosure the person, party, association, or corporation making or controlling