60 F. 37 -

BOARD OF ASSESSORS V. PULLMAN'S PALACE-CAR CO.

37

that the rights of dower can be predicated thereon, by virtue of. any statelegislation, as against the United States. In the case of Belk v. :Ueagher, 104 U. S. 279, 283, the supreme court held that congress had seen fit, in its legislation in regard to lands valuable for minerals, to make a possession thereof by virtue of a location sepa.rable from the fee, while the paramount title remained in the United States. Could the plaintiff, with this possessory mining right, maintain an action against the United States to quiet its title to this possessory right, even if it could sue the United States in such an action? The answer must he could not. How, then, can such an action be maintained against its grantor, who has only the title the United States possessed in the land,-that is, the paramount title in fee? A part of the prayer to this bill is "that the conveyance to defendant, and under which it held, may be annulled and canceled and set aside, and the "cloud upon plaintiff's title thereby removed." A private person cannot maintain an action to set aside and annul a patent from the United Stares for fraud committed on the United States. It was so held in the case of :Mowry v. Whitney, 14 Wall. 434. This doctrine was approved in U. S. v. San Jacinto Tin Co., 125 U. S. 274, 281, 8 Sup. Ct. 850, when the question of the title to land was involved. The matters of fraud here charged are committed, if at all, against the United States. For these reasons, I think the demUlTer should be sustained. In 80 deciding, I do not hold that plaintiff has no rights to his mining possessions. That may depend upon whether he has lost any rights by not contesting the application of Patterson to enter the ground and receive a patent therefor. Neither do I hold that upon a proper statement of facts, making it appear that he has a right to purchase the land in controversy, the defendants could not be compelled, in a proper suit,to convey to him the legal title to the same. But, under the allegations in this bill, he has no standing in this court, and Ido not see how he can amend it so as to give him such a standing. It is therefore ordered that the demurrer be sustained and the bill dismissed.
BOARD OF ASSESSORS OF PARISH OF ORLEANS et at. v. PULLMAN'S PALACE-CAR CO. (Circuit Court of Appeals, Fifth Circuit. No. 160.
1.

TAXATION-RAILROAD ROLLING STocx-INTERSTATE COMMERCE.

February 6, 1894.)

It is within the power of a state to tax sleeping cars and other rolling stock of a foreign corporation, employed in Interstate commerce, in the ratio which the number of miles of line within tbe state bears to the total number of miles of the whole line, as is done by the Louisiana statute, (Acts 1890, No. 106, § 29.) 55 Fed. 206, affirmed. Pullman's PalaceCar Co. v. Pennsylvania, 11 Sup. Ct. 876, 141 U. S. 18, followed.

2.

BAME-REMEDIES-ILLEGAL TAXATION-INJUNCTION.

The provision of the Louisiana statute (Acts 1890, No. 106, § 26) requiring taxpayers who fall to make a return of their property to apply,

38

FEDERAL REPORTER,

vol. 60.

only to errors of descriptIon and valuation, and does nota1?ply ill the case of a company whose sleeping cars, employed Oil interstate lilles, are illeat their (UU valuation of at the ratio prescribed by the, $tatute, and such illegal assessment .may be enjoined. 55 Fed. 206, affirmed. . .

,.. timll.,.:to. the ?f. assessments for correction of 8Jlt .errors in the assessment, on pain of losing all right of redress, relates

Appeal from the Circuit Court of the United States for the East· ern District olLouisiana. This was a suit brought by the Pullman's Palace-Car Company against the board of assessors of the parish of Orleans, in Louisiana, the city of 'New Orleans, and C. H. Parker, state collector of taxes for the first district of New Orleans, to enjoin the collection of cer· tain taxes assessed upon complainant'!:! sleeping cars, and alleged to be in exceSS of the amount that could be imposed. A pre· liminary injunction was allowed, the court rendering an. opinion in which the facts are fully stated. See 55 Fed. 206. Thereafter the cause was submitted for final hearing, and the injunction was made perpetual. From this decree, the respondents appeal. Horace L. Dufour, for appellants. Percy RobE1rts, for appellee. Before PARDEE and McCORMICK, Circuit Judges. McCORMICK, Circuit Judge. We affirm the judgment of the circuit' court 'in this case; The appellee is a corporation created under the laws of Illinois, having its domicile in that state, having no domicile in LOuisiana, if capable of acquiring one there except by her grant. In 1892, and during the whole of that year, the appellee owned 16 cars, of the market value of $100,000, which were engaged in interstate passenger traffic from distant states, through interIllediate states, ibto Louisiana, or from New Orleans, in Louisiana;' through intermediate states, to distant states) con· stantly engaged in making round trips on such lines, and not stopping longer or oftener at any point or points in Louisiana than in other states. It is not useful for us to inquire whether such property can be made subject to the same rate of tax on its full actual or market value that real estate or other personal property perma· nently located in Lop.isiana is charged with by the state law.. Louisiana has not undertaken to impose such a tax on this character of . personal property. She has provided that the rolling stock or movable property of any transportation company whose line lies partly within Louisiana and partly within another state or states, or whose sleep· ing cars run over any line lying partly within Louisiana and partly within another state or states, shall be assessed in Louisiana in the ratio which the number of miles of the .line within Louisiana has to the total number of miles of the entire line. This tax provision is substantially shuilar in kind, though not in detail, to that imposed on the property of the appellee in the state of Pennsylvania, which stood the test of the scrutiny of the supreme court. Pullman's Palace-Car Co. v. Pennsylvania, 141 U. So 18, 11 Sup. Ct. 876.
1

SAVANNAH FIRE &, MARINE INS. CO· .v. PEUER MANUF'G CO.

39

The circuit court rightly judged that the cars in question were subject to the tax imposed by the statute of Louisiana, where that tax had been assessed on it, because such a tax the state could impose. The court also rightly judged that the cars in question were not subject to the tax attempted to be assessed on them, because the law of Louisiana did not charge such property so engaged with the tax attempted to be assessed on it. It was the duty of the appellee, or of the railroad companies having these cars under contract, to make the due return thereof under the state law to the assessors. There seems to have been, and to still be, some question between the appellee and the railroad companies to which its cars are let as to whether the appellee or the railroad companies should make the return of this property, and pay the taxes due thereon, in the state of Louisiana. But that is a question in which the state of Louisiana, the parish of Orleans, and the city of New Orleans have no vital interest. The property is liable without regard to who makes, or fails to make, the return. It possibly explains why the return was not made. The assessors cannot impose, as a penalty for such failure, the assessment of such property as other personal property pemanently located in the state, because 'no such penalty is denounced by the statute. The statute provides that such failure shall deprive the party whose duty it is to make the return of any standing in court to correct a wrong description, whether in name, measurement, or otherwise, unless written complaint is made within certain specified time. It puts a limitation of time on the right of parties to be heard concerning the description of the property listed, and the valuation of the same as assessed, and on the right of testing the correctness of their assessments before the proper courts of justice. The circuit court held correctly that these provisions for applying to the committee of assessments, and of testing assessments by suit, have rela,tion to matters of description and valuation. Here these are not questioned. Both are correct. The liability to the tax sought to be imposed by the appellants without warrant of law is what the appellee seeks to avoid. It is entitled to the protection it asks. The judgment of the circuit court is therefore affirmed.
SAVANNAH FIRE & MARINE INS. CO. v. PELZER MANUF'G CO. et aL (Circuit Court, D. South Carolina. February 26, 1894.) 1. SUBROGATION-COVENANT IN LEASE. A warehouse was built on leased ground belonging to a railroad company, and the warehouseman covenanted in the lease that; for any damage to house or contents by fire caused by the railroad company, the company should Dot be liable unless .meh fire was due to its negligence. 'Hela, that, though Gen. St. S.C. § 1511, makes railroad companies liable for fires set by them, without regard to the question of negligence, this covenant is binding on the insurer, who is subrogated to the rights of the warehouseman. 2. RAILROAD COMPANIES-FIRES-'-NEGLIGENCE-EvIDENCE. The fact that the fire occurred immediately after the passage of a lOcomotive to and fro alongside the warehouse is not sufficient to show