851
FEDERAL "REPORTER. .,
tended to embrace. But giving the provision its broadest signification, it only to claims upon and rejected by the department, that is to say, before the passage of the act; and that does not include the(contract'setwut in the complaint, in this action. The complaint does not say that the claim has been passed upon by the de'l'he surveyor general was, aeto. an9- certify to ,field-notes, and certify to tboeamount due, ' W .then his approval and certificate were to be senttoWashington,where'Jt 'Was tl> be considered 'QY' the commisof tlie .land--om,ce fpr: apd,then referred to the audite?l"fof,final so that the ,auditor was the mUI;l ..-; the surapproved and, certified to the field-notes lD the proper certifiedthattbework was perthe is to hIS mone:y;, but.· that,before.heforwl!J.'d,ed hIS repoJ;1i, ,tpWashmgton, he received orders' from tlle;:eoInttJissioriel'.of the generalland-office not tQ &*; 'it, That in consequeDce'0fthesepositiveanq distinct orders, it had never been forwarded to Washington, consequently the"department at Washington whose duty it was to pass upon the claim never did consider and pass upon it, and it never was determined' or rejected. On the contrary, by the action of the commissioner, consideration 'was prevented, .and it was not determined or rejected by the proper department herore the passage of the act or at any time. I do not think it comes within the proviso, thate:x.cluded:from jurisdiction ,claims 'e heretofore" determined or rejected bythedepartmenll j giving the· $tatute the broadest signification.. I do not tbink jt: comes within ·the;pl1rview of that prohibitory clause, and the complaint states a good cause of action over which the court has jurisdiction; i:, " .The detDurl'8r ,must therefore- be overruled, and it is 80 ordered. "/',1 1;1,;
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STA1$S. (Oircuit · ': · " ;' I. II;.' ",
March 1I,1888.l !-'I" I
At Law. 'On demurrer to complaint. "
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;'SAWY'ER.'J:, (bt'all.y;) The plaintiff inthis case is on&of the parties, also. embraced in 'the 'indictments. Her {Jut ·two contracts similar to that set out in Ba1U1"s,Case, ante. 353., andtbeyrdo not appear, to hav:ebeen passed: upon by One of tlWpl is approved b1.'. Surveyor Gene:r1M BrqWII.and the. other by $urv.eyorGeneraIHammond, it does n,btBIipe,.aJ:, dep!'riibe'ntever deterInl,n:edot pas,sed uponeitlie,r' ' or reported $ganist them. The 8Jlegatlon is such as to make out a good cause of action,and the same order will 'be made in this case as in the other. ':'rhe demurrer will b,e overruled, with leave to answer in 30 days.
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; tOhuit (Juurt,;1IJ.' D. Pen1Ul1ll-oania. 'TAX,!-hON-TAXABLlII
8, 1888.J
,oUhree mills "upon allpropetty,,' real or personal, (not, taxed under existing owned, u,se,d; Of in,yested,bY any P,eraon,co,mpany, or c,ol'pOrl't,ion. mtl'Q.st for the use, or advantage of any other Person, company, 01 corporaiion, "was not repealed by the act of 18'19 and supplements, passed inl88bmdJ885, in so far-as it relates to property in Pennsylvania, held by a corporation in trust for non-residents of the state. ,The a88.6ssmentof ,l\uch a tax upon property so held ill within, the literal scope of the act 'OOd'April, 1846. " ,, ,' 9. SlllE-NON-REfllDKNTBENIllwcIARIES.
The 'Pennsylvania stathte
" '. of Aptil 22,1846, (P.t; 486,) which imposes a'tax
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st/lte has the power tl] ta;x trustee for a Ilo,n-resident
within, ita bcmndari8s held by .. real-
",. , . ' ,',,' " , · Ru;hard L. AaMurat, Angelo T. Fredey, Rowland Evana,Willwm Henry anaR., McMurtrie, fQrcomplainants.,' :., , ",,' " 'RuJU81f,. Shap1R:Jl and Wm. KirkpatriJJk, Atty; Gen., forrespondenta·
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J. The prayer of this bill is foran injunction to restrain the payment or collection, by John Hunter, reqeiyer of taxes, and ths other defendants, of a tax ostensibly imposed by the laws of Pennsylvania; upon mortgages for about $200,000, held by the Philadelphia Trust:&:Safe Deposit & Insurance Company, a Pennsylvania corporation, for the benefit· Of Mrs. Price, one of the. complainants, and a non-resident of the state ofPenIlsylvania. Two questions are involved irithe case, upon the decision of which its result depends: Firat. Is the tax cOq!plained,ofauthorized by the laws of ,the state? If it is, has the state the power to impose it? . 1. It is conceded by the counsel of the defendants that the taxis im· posed by the 1846, (P. L. 486,)and un· less that act is in force and covers it, it has no warrant ,.That act subjects to a tax ofthree mills "all property, or personal, (not taxed under existing laws,) held, owned, used, or ,by any person,'company, or corporation," in trust for the use, benefit, or advantage of any other person, company,or corporation." Argument comment cannot rnaketheimport of this act any clearer than is expressed in its own unambiguous and comprehensive phraseology. It incontestably enacts that all properW held by a trustee in the state, for the benefit of another, shall be stibje¢t the tax imposed,irrespective of the domicile ofthe beneficiarY',Btit it is urged that this act is repealed by the act of1879 and its supplements, passed in 1881 and This, however, is not so. Those acts repeal former acts in SO fat oIlly provisions are incon.sistent with those of previous acts. .While some of the provisions of the, act of 1846 are changed by these subseq'uent acts; the tax here' involved ;tt
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·Reported by C. Berkeley Taylor. Esq., of the Philadelphia bar.